June 23, 2021 – In another pandemic-related decision, the Wisconsin Supreme Court (4-3) recently ruled that the Dane County Health Department exceeded its authority when it ordered all schools, including private schools, to cease in-person instruction.

Public Health of Madison and Dane County (PHMDC), through local health officer Janel Heinrich, issued a series of emergency orders relating to school closures in 2020.

Before the start of the 2020-21 school year, Heinrich issued an emergency order that closed all private and public schools for in-person instruction for students in grades 3-12. The order was intended to reduce the spread of COVID-19 in Dane County.

A day after the order was issued, a parent of two private school students filed an original action petition, challenging lawfulness of the emergency order.

Other similar petitions followed, including one filed by the Wisconsin Council of Religious and Independent Schools. Petitioners argued that local officials did not have statutory authority to close schools, and that their sincerely held religious beliefs protected in-person education as vital to their children’s religious learning.

The cases were consolidated for review, and the court enjoined the health order, allowing schools to reopen for in-person instruction while the case was pending.

In James v. Heinrich, 2021 WI 58 (June 11, 2021), a 4-3 majority held that local health officials do not have statutory power to close schools and the Dane County order “infringes the Petitioners’ fundamental right to the free exercise of religion.”

“Those portions of the Order restricting or prohibiting in-person instruction are unlawful, unenforceable, and are hereby vacated,” wrote Justice Rebecca Bradley, joined by Chief Justice Annette Ziegler, and Justices Patience Roggensack, and Brian Hagedorn.

Statutory Authority

Heinrich issued the emergency school closing order, citing authority under Wis. Stat. section 252.03. That provision allows the local health officer to “take all measures necessary to prevent, suppress, and control communicable diseases,” including forbidding public gatherings when deemed necessary to control outbreaks.

Another provision within section 252.03 says local health officials “may inspect schools and other public buildings within his or her jurisdiction as needed to determine whether the buildings are kept in a sanitary condition.” But the majority ruled that this statute did not give local health officials the authority to close schools.

“Because the legislature expressly granted local health officers discrete powers under Wis. Stat. § 252.03 but omitted the power to close schools, local health officers do not possess that power,” wrote Justice R. Bradley.

The majority noted that a related provision, section 252.02(3), specifically grants the state’s Department of Health Services the power to “close schools and forbid public gatherings in schools.”

“Heinrich's contrary interpretation of Wis. Stat. § 252.03 makes little sense when read in conjunction with Wis. Stat. § 252.02, a closely-related statute governing the powers of DHS regarding communicable diseases,” Justice R. Bradley wrote.

“The presence of this specific text in § 252.02 in the face of its conspicuous absence from § 252.03 shows that the legislature withheld that authority from local health officers,” she continued. “Given that § 252.02 and § 252.03 mirror each other in other substantive respects, this stark difference supports our textual analysis.”

Justice R. Bradley also dove into the legislative history to conclude that local health officials do not have the power to close schools.

She said the legislature revisited the state’s public health laws after the Spanish Flu and contemplated giving local health officials the power to close schools. But after consulting with the attorney general, that power was never conferred in final draft form.

“In all this time, the legislature never gave local health officers the power to ‘close schools – only the statewide health agency (now DHS),” R. Bradley wrote.

Free Exercise of Religion

The majority also concluded that “those portions of the Order restricting or prohibiting in-person instruction are unconstitutional because they violate a citizen's right to the free exercise of religion guaranteed in Article I, Section 18 of the Wisconsin Constitution.”

The majority examined Jacobsen v. Massachusetts, a decision issued in 1905 by the U.S. Supreme Court in the midst of the smallpox pandemic. The High Court upheld compulsory vaccinations as a “reasonable exercise” of the state’s police power.

But the majority said the Jacobsen decision does not apply here, in part because “Jacobson's case did not involve a violation of the free exercise of religion under the First Amendment or any state constitution.”

“In this case, we examine Article I, Section 18 of the Wisconsin Constitution to stand guard against abuses of executive power – however well-intentioned – that infringe on the free exercise of religion,” Justice R. Bradley wrote.

Article I, Section 18, in relevant part, states: ”The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; . . . nor shall any control of, or interference with, the rights of conscience be permitted.”

The majority noted that “strict scrutiny” applies when examining whether a law violates an individual’s or organization’s freedom of religious exercise.

That is, the government must show a compelling state interest in infringing sincerely held religious beliefs that cannot be achieved through a less restrictive alternative.

“For public health purposes, the State certainly has a compelling interest in slowing the spread of COVID-19,” R. Bradley wrote. “The Petitioners do not dispute this point. However, the Order does not impose the ‘least restrictive’ means of doing so.”

The majority noted that Heinrich, like other health orders, could have restricted classroom sizes, required the use of masks and/or social distancing.

“[T]he application of the Order burdens the Petitioners' sincerely-held religious beliefs, and Heinrich fails to demonstrate why the Order, although based upon a compelling interest, cannot be met by less restrictive alternatives,” Justice R. Bradley wrote.

Concurrence and Dissent

Justice Hagedorn wrote a concurring opinion. He joined the majority opinion, except for one footnote that criticizes the dissenting justices’ points on the doctrine of constitutional avoidance, as well as Hagedorn’s “conception of the judicial role.”

“The general rule, the dissent points out, is to decide cases on the narrowest grounds, especially avoiding needless engagement with constitutional questions unless required to decide the case,” Justice Hagedorn wrote.

“The dissent is correct; this is the general rule, and it is a good rule. It recognizes that the primary role of the judiciary is to decide disputes between parties.

“And it is grounded in a sense of epistemic and judicial humility – we often don't know what we don't know, and we're quite capable of unwitting error.”

Justice Rebecca Dallet wrote a 17-page dissent, joined by Justice Ann Walsh Bradley and Justice Jill Karofsky.

“The only statutory question before the court is whether Wis. Stat. § 252.03 prohibits local health officers from closing schools,” Justice Dallet wrote.

“It takes no special ‘canons’ or abstract linguistic principles – only a common sense understanding of the English language – to see that it does not.”

Justice Dallet also said the majority needlessly applied a constitutional analysis. “The majority's statutory analysis, flawed as it is, fully resolves the case,” she said.

“Simply put, the Order cannot possibly violate anyone's constitutional rights because the majority strikes down the Order. But the majority abandons both judicial restraint and our precedent to needlessly opine on the petitioners' constitutional challenge.”

The dissenters noted that section 252.03 allows local health officials to take all measures necessary to prevent and control communicable diseases," and "do what is reasonable and necessary" for the prevention and suppression of disease.

“Nothing about those words necessarily prevents Dane County's Public Health Director from closing schools to suppress and control COVID-19,” Justice Dallet wrote.

“The statute's plain language, its history, and numerous related statutes all confirm that local health officers may close schools, so long as doing so is at least reasonable and necessary to suppress disease.”

The dissent engages in its own statutory analysis and concludes there is no need to wade into the constitutional question concerning the freedom of religion.

“Even though the majority resolves the case on statutory grounds, it bulldozes its way through an unnecessary constitutional analysis,” Justice Dallet wrote.

“It is well settled that we should avoid constitutional questions when we can resolve the case on statutory grounds. The majority offers no legal basis for deviating from that practice here.”