960 N.W.2d 350
Wis.2021Background
- In August 2020 Dane County Public Health Officer Janel Heinrich issued Emergency Order #9 closing all public and private schools in Dane County to in‑person instruction for grades 3–12 (K–2 excepted and some carve‑outs for disabilities and child‑care uses), citing Wis. Stat. § 252.03.
- Petitioners (parents and religious/private schools, including Our Redeemer Lutheran, WCRIS, and St. Ambrose Academy) sued in original action alleging the Order exceeded Heinrich’s statutory authority and violated the Wisconsin Constitution’s free‑exercise clause (Art. I, § 18); the court granted a temporary injunction allowing re‑opening pending decision.
- The key statutory question was whether Wis. Stat. § 252.03 authorizes local health officers to close schools; related statutory text (Wis. Stat. § 252.02) explicitly gives the Department of Health Services (DHS) the power to close schools statewide.
- On the constitutional claim petitioners argued the Order substantially burdened sincerely‑held religious practices integral to in‑person religious schooling; respondent argued public‑health police‑power authority (invoking Jacobson) justified the Order.
- The Wisconsin Supreme Court (majority) held: (1) § 252.03 does not authorize local health officers to close schools; and (2) the Order, as applied to the religious petitioners, violated Article I, § 18 of the Wisconsin Constitution because it failed strict scrutiny and Jacobson did not displace the state constitutional free‑exercise review. The challenged portions of the Order were vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wis. Stat. § 252.03 authorizes local health officers to close schools | Heinrich lacks statutory authority under § 252.03 to order school closures | § 252.03(1)–(2) gives local health officers power to take "reasonable and necessary" measures, including closures | Court: § 252.03 contains no express grant to close schools; related § 252.02 expressly grants DHS that power, so local officers lack authority under § 252.03 (expressio unius; canon analysis) |
| Whether Emergency Order #9 violated the free exercise clause of the Wisconsin Constitution (Art. I, § 18) | Order substantially burdens sincerely‑held religious beliefs tied to in‑person religious education and practices; government must satisfy strict scrutiny | Order is a valid public‑health exercise (Jacobson) and necessary to combat COVID‑19 | Court: Article I, § 18 controls; strict scrutiny applies; government has compelling interest but failed least‑restrictive‑means; Order infringes free exercise rights and is unconstitutional as applied; Jacobson does not override state constitutional protection |
Key Cases Cited
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (federal public‑health police‑power precedent; Court explains Jacobson does not control state free‑exercise analysis here)
- Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (judicial duty to decide constitutional questions when presented)
- Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633 (2004) (text, context, and structure govern statutory interpretation)
- Coulee Catholic Sch. v. LIRC, 320 Wis. 2d 275 (2009) (Wisconsin Constitution provides heightened protection for free exercise; strict scrutiny framework)
- State v. Hamdan, 264 Wis. 2d 433 (2003) (constitutional rights limit state police power)
- Jefferson v. Dane Cnty., 394 Wis. 2d 602 (2020) (cited for statutory‑authority principles in same chapter of statutes)