Sara Lindsey James, Petitioner, v. Janel Heinrich, in her capacity as Public Health Officer of Madison and Dane County, Respondent. [and consolidated cases]
CASE NO.: 2020AP1419-OA, 2020AP1420-OA, 2020AP1446-OA
SUPREME COURT OF WISCONSIN
June 11, 2021
2021 WI 58
REBECCA GRASSL BRADLEY, J.
ORIGINAL ACTION. Rights declared; order vacated.
COMPLETE TITLE:
Sara Lindsey James,
Petitioner,
v.
Janel Heinrich, in her capacity as Public Health Officer of Madison and Dane County,
Respondent.
Wisconsin Council of Religious and Independent Schools, School Choice Wisconsin Action, Abundant Life Christian School, High Point Christian School, Lighthouse Christian School, Peace Lutheran School, Westside Christian School, Craig Barrett, Sarah Barrett, Erin Haroldson, Kent Haroldson, Kimberly Harrison, Sheri Holzman, Andrew Holzman, Myriah Medina, Laura Steinhauer, Alan Steinhauer, Jennifer Stempski, Bryant Stempski, Christopher Truitt and Holly Truitt,
Petitioners,
v.
Janel Heinrich in her official capacity as Public Health Officer and Director of Public Health of Madison and Dane County and Public Health of Madison and Dane County,
Respondents.
St. Ambrose Academy, Inc., Angela Hineline, Jeffery Heller, Elizabeth Idzi, James Carrano, Laura McBain, Sarah Gonnering, St. Maria Goretti Congregation, Nora Statsick, St. Peter‘s Congregation, Anne Kruchten, Blessed Sacrament Congregation, Amy Childs, Blessed Trinity Congregation, Columbia/Dane County, WI Inc., Loretta Hellenbrand, Immaculate Heart of Mary Congregation, Lorianne Aubut, St. Francis Xavier‘s Congregation, Mary Scott, Saint Dennis Congregation and Ruth Weigel-Sterr,
Petitioners,
v.
Joseph T. Parisi, In his Official Capacity as County Executive of Dane County and Janel Heinrich, In her Official Capacity as Director, Public Health, Madison & Dane County,
Respondents.
ORIGINAL ACTION
OPINION FILED: June 11, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 8, 2020
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., and ROGGENSACK, J., joined; and in which HAGEDORN joined except for footnote 18. HAGEDORN, J., filed a concurring opinion. DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent, there was a brief filed by Remzy D. Bitar, Sadie R. Zurfluh, and Municipal and Litigation Group, Waukesha. There was an oral argument by Remzy D. Bitar.
For the petitioners Wisconsin Council of Religious and Independent Schools, et al., there was a reply brief filed by Richard M. Esenberg, Anthony LoCoco, Luke N. Berg, Elisabeth Sobic, and Wisconsin Institute for Law & Liberty, Milwaukee.
For the petitioners St. Ambrose Academy, Inc. et al., there was a reply brief filed by Misha Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders LLP, Chicago, Illinois; with whom on the brief was Andrew M. Bath and Thomas More Society, Chicago, Illinois; with whom on the brief was Erick Kaardal and Mohrman, Kaaradal & Erickson, P.A., Minneapolis, Minnesota.
An amicus curiae brief was filed on behalf of Attorney General Josh Kaul by Colin A. Hector, assistant attorney general, and Colin T. Roth, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general.
An amicus curiae brief was filed on behalf of Freedom from Religion Foundation by Brendan Johnson, Patrick C. Elliott, and Freedom From Religion Foundation, Inc., Madison.
An amicus curiae brief was filed on behalf of State Superintendent of Public Instruction Carolyn Stanford Taylor and Wisconsin Department of Public Instruction by Heather Curnutt, Madison.
An amicus curiae brief was filed on behalf of City of Milwaukee by Tearman Spencer, city attorney, and Gregory P. Kruse, city attorney.
An amicus curiae brief was filed on behalf of Madison Metropolitan School District and Monona Grove School District by Sheila M. Sullivan, Melita M. Mullen, and Bell, Moore & Richter, S.C., Madison.
An amicus curiae brief was filed on behalf of Madison Teachers Inc., Wisconsin Association of Local Health Departments and Boards, Wisconsin Education Association Council, Milwaukee Teachers’ Education Association, Racine Educators United, Kenosha Education Association, and Green Bay Education Association by Diane M. Welsh, Aаron G. Dumas, and Pines Bach LLP, Madison.
An amicus curiae brief was filed on behalf of Governor Tony Evers and Secretary-Designee of Department of Health Services Andrea Palm by Sopen B. Shah and Perkins Coie LLP, Madison.
An amicus curiae brief was filed on behalf of Wisconsin Faith Voices for Justice by Barry J. Blonien, Tanner Jean-Louis, and Boardman & Clark LLP, Madison.
An amicus curiae brief was filed on behalf of Liberty Justice Center, Alaska Policy Forum, Pelican Institute For Public Policy, Roughrider Policy Center, Nevada Policy Research Institute, and Rio Grande Foundation by Daneil R. Suhr, Reilly Stephens, and Liberty Justice Center, Chicago, Illinois.
An amicus curiae brief was filed on behalf of League of Wisconsin Municipalities by Claire Silverman and Maria Davis, Madison.
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA
STATE OF WISCONSIN : IN SUPREME COURT
OPINION
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., and ROGGENSACK, J., joined; and in which HAGEDORN joined except for footnote 18. HAGEDORN, J., filed a concurring opinion. DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
ORIGINAL ACTION. Rights declared; order vacated.
¶1 REBECCA GRASSL BRADLEY, J. Exercising our original jurisdiction under
¶2 In response, Heinrich asserts that local health officers have the statutory authority under
¶3 We agree with the Petitioners and hold: (1) local health officers do not have the stаtutory power to close schools under
I. BACKGROUND
¶4 In February 2020, Dane County authorities confirmed the first diagnosis of an individual with COVID-19 in Wisconsin.4 The number of cases throughout the state soon began to rise. On March 12, 2020, Governor Tony Evers declared a public health emergency in Wisconsin. The next day, then Secretary-Designee of the Department of Health Services (DHS), Andrea Palm, issued an order mandating “the closure of all public and private Wisconsin schools for purposes of [in-person] instruction and extracurricular activities.”
¶5 On March 24, 2020, Palm issued a statewide “Safer at Home Order.” Among other dictates, this order required all people in the state to remain in their homes, prohibited non-essential travel, closed all “non-essential” businesses, and——as relevant to this case——closed “[p]ublic and private K-12 schools . . . for [in-person] instruction and extracurricular activities.” On April 16, 2020, Palm extended the “Safer at Home Order” for another month. Palm‘s new order mandated that schools remain closed for in-person instruction “for the remainder of the 2019-20 school year.”
¶6 In Wisconsin Legislature v. Palm, we invalidated many of the mandates in Palm‘s extension of the “Safer at Home Order,” declaring that the “Safer at Home Order” was unenforceable because it “was subject to statutory emergency rulemaking procedures established by the Legislature.” 2020 WI 42, ¶3, 391 Wis. 2d 497, 942 N.W.2d 900. However, this court did not address Palm‘s mandate closing schools for in-person instruction. Id., ¶3 n.6. Accordingly, schools throughout Wisconsin finished their instruction for the 2019-20
¶7 Following this court‘s decision in Palm, PHMDC and its local health officer, Janel Heinrich, began issuing a series of emergency orders governing Dane County. Many of these orders regulated COVID-19 safety protocols in public and private schools throughout the county. As they relate to schools, Hеinrich‘s emergency orders were as follows:
- On May 13, 2020, Heinrich issued Emergency Order #1, which “adopted the provisions” contained in the “Safer at Home Order,” including the mandate closing schools.
- On May 18, 2020, Heinrich issued Emergency Order #2, which expressly reiterated that public and private K-12 schools must stay closed for in-person instruction, but allowed them to provide “[d]istance learning or virtual learning.” The order also stated that higher education institutions may remain open only “for purposes of facilitating distance learning, performing critical research, or performing essential functions.”
- On May 22, 2020 and June 5, 2020, Heinrich issued Emergency Orders #3 and #4, respectively. These orders, among other edicts, maintained the closure of K-12 schools, but allowed higher education institutions to “determine policies and practices for safe operations” and to open dormitories with “strict policies that ensure safe living conditions.”
- On June 15, 2020, Heinrich issued Emergency Order #5, which re-opened K-12 schools for “pupil instruction and extracurricular activities” effective July 1, 2020. The order also stated that, in order to re-open, schools must, inter alia, “[d]evelop and implement a written hygiene policy and procedure . . . [and] a written action plan for a COVID-19 outbreak at the school.”
- On July 7, 2020, Heinrich issued Emergency Order #8. This order, in anticipation of schools starting the school year with in-person instruction, outlined a series of safety protocols. The order stated, among other things, that “[i]ndividual groups or classrooms cannot contain more than fifteen (15) students if the students are age 12 or under . . . [or] more than twenty-five (25) students if age 13 or older.” The order also stated that schools must “[d]evelop and implement a written protective measure policy and procedure that includes . . . [e]nsuring students are at least six (6) feet from other students[,] [e]nsuring employees are provided with and wear face coverings[,] [and] [e]nsuring that student and staff groupings are as static as possible[.]”
In reliance on Emergency Orders #5 and #8, some schools in Dane County opened for in-person instruction (or werе preparing to open for in-person instruction), including the petitioner schools.
¶8 However, on August 21, 2020, three days before the start of the 2020-21 school year for many schools, Heinrich released Emergency Order #9, which closed all public and private schools for in-person instruction for students in grades 3-12.5 The Order exempted students in grades K-2, so long as the schools provided an alternative
¶9 Although in-person instruction was forbidden for grades 3-12, the Order allowed all higher education institutions to remain open for in-person instruction, allowing them “to determine policies and practices for safe operation” and to keep open their student dormitories so long as they continue to enact “strict policies that ensure safe living conditions.” The Order further allowed many businesses to conduct in-person operations, including bars, salons, barber shops, gyms, fitness centers, water parks, pools, bowling alleys, and movie theatres, subject to various capacity limitations and social-distancing guidelines.
¶10 One day after Heinrich issued the Order, Sara Lindsey James, a parent of two students enrolled in Our Redeemer Lutheran School in the City of Madison, filed a petition for original action in this court challenging the lawfulness of the Order. James enrolled her children in Our Redeemer Lutheran School because of her sincerely-held religious belief that it is essential fоr her children to receive a faith-based education. Our Redeemer Lutheran was one of the schools the Order required to cease in-person instruction. James believes that it is critical for her children‘s education to take place “in-person” and “together with others as part of the body of Christ.”
¶11 Other petitions for original action soon followed. Wisconsin Council of Religious and Independent Schools (WCRIS), a membership-based association of religious and independent schools,7 filed a petition for original action with this court challenging the lawfulness of the Order. WCRIS represents over 600 schools throughout Wisconsin, including 23 schools in Dane County serving approximately 4,600 students in grades K-12. Like James, parents associated with WCRIS hold sincerely-held beliefs that in-person religious education is vital to their children‘s religious formation.
¶12 Additionally, St. Ambrose Academy, a classical Catholic school located in the City of Madison, together with parents of children attending St. Ambrose,8 brought a petition for original action to this court challenging the lawfulness of the Order. According to St. Ambrose, its “religious mission depends on in-person attendance to be fully realized.” St. Ambrose offers its students the opportunity to receive Holy Communion at weekly Masses, frequent confessions before a Catholic priest, Adoration
¶13 All three petitions for original action raised the same two claims: (1) the Order exceeded Heinrich‘s statutory authority under
¶14 On September 10, 2020, this court granted the three petitions for original action and consolidated them for purposes of briefing and oral argument. At the same time, this court enjoined those provisions of the Order “which purport to prohibit schools throughout Dane County from providing in-person instruction to students,” thereby allowing schools to re-open for in-person instruction. In issuing the injunction, this court determined that Petitioners: (1) had a reasonable probability of success on the merits, (2) lacked an adequate remedy at law, and (3) would suffer irreparable harm in the absence of an injunction. Recognizing that “[o]verriding the choices of parents and schools, who also undoubtedly care about the health and safety of their teachers and families, intrudes upon the freedoms ordinarily retained by the people under our constitutional design,” we concluded that a balancing of equities favored issuing the injunction. On December 8, 2020, we heard oral argument.10
¶15 We review this case under our original jurisdiction conferred in
III. DISCUSSION
A. Statutory Powers Under Wis. Stat. § 252.03
¶16 The Petitioners argue that Heinrich lacks authority under
¶17
(1) Every local health officer, upon the appearance of any communicable disease in his or her territory, shall immediately investigate all the circumstances and make a full report to the appropriate governing body and also to the department. The local health officer shall promptly take all measures necessary to prevent, suppress and control communicable diseases, and shall report to the appropriate governing body the progress of the communiсable diseases and the measures used against them, as needed to keep the appropriate governing body fully informed, or at such intervals as the secretary may direct. The local health officer 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.
(2) Local health officers may do what is reasonable and necessary for the prevention and suppression of disease; may forbid public gatherings when deemed necessary to control outbreaks or epidemics and shall advise the department of measures taken.
¶18 Nowhere in this statute did the legislature give local health officers the power to “close schools.” The statute lists a series of discrete powers afforded local health officers in order to address communicable diseases. Local health officers may, for example, “forbid gatherings when deemed necessary to control outbreaks or epidemics,” and “inspect schools and other public buildings . . . as needed to determine whether the buildings are kept in a sanity condition.”
¶19 Heinrich‘s contrary interpretation of
¶20 Comparing the construction of these two statutes, located in the same chapter and covering the same subject matter, confirms that the legislature withheld this authority from local health officers. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (“[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes.“). As we explained when we granted temporary injunctive relief, this conclusion is bolstered by the fact that “[b]oth
¶21 Despite the absence of any express grant of authority allowing local health officers to close schools, Heinrich argues that her general authority to take measures “reasonable and necessary” for the prevention and suppression of disease allows her to close schools. See
¶22 Furthermore, Heinrich‘s interpretation of local health officers’ “reasonable and necessary” powers violates the fundamental principle that specific statutory language controls over more general language. See In re Paternity of Palmersheim, 2004 WI App 126, ¶27, 275 Wis. 2d 311, 685 N.W.2d 546; Apple Valley Gardens Ass‘n, Inc. v. MacHutta, 2007 WI App 270, ¶16, 306 Wis. 2d 780, 743 N.W.2d 48. If Heinrich‘s argument were correct, then the general provision would essentially afford local health officers any powers necessary to limit the spread of communicable diseases. This cannot be. What is reasonable and necessary cannot be reasonably read to encompass anything and everything. Nothing in the text of the statute confers upon local health officers the power to close schools. To conclude otherwise would be tantamount to striking language from the statute so that it says only “[l]ocal health officers may do what is reasonable and necessary for the prevention and suppression of disease.” Because we are a court and not the legislature, it would exceed the constitutional boundaries of our authority to rewrite the law in this manner.
¶23 As recognized since the founding of our nation, “it is no more the court‘s function to revise by subtraction than by addition[.] As Chief Justice John Marshall explained: ‘It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation.’ Or in the words of Thomas M. Cooley: ‘[T]he courts must . . . lean in favor of a cоnstruction which will render every word operative, rather than one which may make some idle and nugatory.‘” Scalia & Garner, supra, at 174 (quoting Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202 (1819) (per Marshall, C.J.) and Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 58 (1868)). Adopting Heinrich‘s statutory analysis (as the dissent does) would render the rest of
Justice Antonin Scalia and Bryan Garner, co-authors of the “first modern
Justice Dallet distorts the words of textualists to support her rejection of the fair reading method of statutory interpretation; neither Justice Samuel Alito nor Justice Brett Kavanaugh condemned the entire corpus of canons as Justice Dallet insinuates. Justice Alito did not deride the use of canons of statutory construction, only the Court‘s abuse of them to defeat “the sense of the matter.” Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1174 (2021) (Alito, J., concurring). Nor did Justice Kavanaugh characterize “Scalia and Garner‘s brand of textualism” as being “just as subjective as any other” approach. Dissent, ¶79. Justice Kavanaugh never said “fancy-sounding canons . . . warrant little weight in modern statutory interpretation,” id.; rather, he targeted his criticisms toward particular canons: “I would consider tossing the ejusdem generis canon into the pile of fancy-sounding canons that warrant little weight in modern statutory interpretation.” Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2161 (2016) (book review). He also never said the canons “often lead to ‘wrongheaded’ judicial ‘policymaking,‘” dissent, ¶79; rather, Justice Kavanaugh characterized only “[t]he anti-redundancy canon” which “tells us to bend the statute to avoid redundancies” as “little more than policymaking and, in my view, often quite wrongheaded.” Kavanaugh, supra, at 2162.
Citing Justice Scalia extensively (and only favorably), Justice Kavanaugh heartily endorsed the widely accepted canons of construction:
To assist the interpretive process, judges over time have devised many semantic and substantive canons of construction — what we might refer to collectively аs the interpretive rules of the road. To make judges more neutral and impartial in statutory
interpretation cases, we should carefully examine the interpretive rules of the road and try to settle as many of them in advance as we can.
Id. at 2121. Acknowledging that “statutory interpretation has improved dramatically over the last generation, thanks to the extraordinary influence of Justice Scalia,” Justice Kavanaugh proposed that “courts should seek the best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and applying the agreed-upon semantic canons.” Id. at 2118, 2121. Justice Dallet ignores not only the canons but the text, context, and structure of
¶24 Perhaps recognizing the textual shortcomings of her argument, Heinrich points to other statutes that make reference to local health officers closing schools, arguing that these statutes support a local health officer‘s power to close schools under
¶25 Heinrich further argues that
B. Legislative and Statutory History of Wis. Stat. § 252.03
¶26 The plain text of
¶27 Wisconsin‘s public health infrastructure originated 145 years ago in 1876, when the legislature created the State Board of Health, which, like DHS today, served as the statewide public health agency. Steven Burg, Wisconsin and the Great Spanish Flu Epidemic of 1918, Wisconsin Magazine of History, Autumn 2000, at 44.15 At that time, the legislature gave the State Board of Health the power to issue statewide health orders in times of crisis. Id. In 1883, the legislature required every town, village, and city in the state to establish a local board of health and appoint a local health officer. Id. In delineating the duties of local health officers, the legislature mandated that local health officers “take such measures for the prevention, suppression, and control of the diseases.”16 § 1, ch. 167, Laws of 1883. Nowhere in this law (or in any other) did the legislature give local health officers the power to close schools.
¶28 Thirty years later, in 1913, the legislature enacted a law giving the State Board of Health the power to close schools during an epidemic. In contrast, the legislature declined to grant such authority to local health officers. As relevant to this сase, the statute conferred four powers on the State Board of Health:
- The power “to establish quarantine . . . “;
- The power “to order and execute what is reasonable and necessary for the prevention and suppression of diseases“;
- The power “to close schools and churches“; and
- The power “to forbid public gatherings.”
§ 1, ch. 674, Laws of 1913 (emphasis added). Only five years later, when the Spanish Flu infected Wisconsinites, the State Board of Health invoked these extraordinary powers. Burg, supra, at 45.
¶29 In the aftermath of the Spanish Flu, the legislature revisited Wisconsin‘s public health laws. In May 1919, the legislature expanded the powers of local health officers to include the following:
- The power “to establish quarantine . . . “;
- The power “to order and execute what is reasonable and necessary for the prevention and suppression of disease“;17 and
- The power “to forbid public gatherings.”
§ 1, ch. 159, Laws of 1919. This language mirrors the powers accorded the State Board of Health—with one notable exception: the power to close schools. Compare § 1, ch. 674, Laws of 1913 with § 1, ch. 159, Laws of 1919.
¶31 The 1919 law established the foundation for Wisconsin‘s current statute concerning local health officers, with periodic amendments over the ensuing decades. In 1923, the legislature restructured its public health laws, retaining the same language adopted in 1919. See
C. Constitutional Claims18
Treating the constitutional avoidance doctrine as a rigid principle directing courts to disregard any constitutional questions whenever a case may be resolved on statutory grounds is not only inconsistent with our precedent, it would violate the judiciary‘s obligation to uphold the constitution. As part of their oath of office, judges in Wisconsin “solemnly swear” to “support the constitution of the United States and the constitution of the state of Wisconsin.”
Contrary to Justice Hagedorn‘s conception of the judicial role, there is nothing unprecedented about fulfilling our responsibility to decide important constitutional questions, which was recently affirmed by this court in Gabler and has been echoed by preeminent jurists since Chief Justice John Marshall pronounced it in Marbury. Alexander Hamilton said the “duty” of the judiciary “must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” The Federalist No. 78, at 466 (Alexander Hamilton) (C. Rossiter ed. 1961). Accordingly, “when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of ‘fortitude . . . to do [our] duty as faithful guardians of the Constitution.‘” Gundy v. United States, 139 S. Ct. 2116, 2135 (2019) (Gorsuch, J., dissenting) (quoting The Federalist No. 78, at 470 (C. Rossiter ed. 1961) (ellipsis in original)).
Justice Hagedorn misconstrues the basis for this court‘s decision to resolve petitioners’ religious liberty claim. No one is suggesting we must address every important constitutional question raised. In this very case we declined to decide whether the Order violates the constitutionally-protected right of parents to direct the upbringing and education of their children.
¶32 Turning to the Wisconsin Constitution, the Petitioners contend that the Order
Our duty to uphold the Constitution, however, is particularly urgent when governmental action is alleged to infringe the people‘s fundamental right to religious freedom. “The courts have both the title and duty when a case is properly before them to review the actions of the other branches in light of constitutional provisions[.]” Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 19 (1959). Declining to decide the constitutional question in this case would “shirk[] our duty” to say what the supreme law of our state is. Bond v. United States, 572 U.S. 844, 882 (2014) (Scalia, J., concurring in the judgment). Justice Hagedorn relegates what Alexander Hamilton and Chief Justice Marshall characterized as our judicial “duty” to a mere “power” to be exercised “with modesty.” Concurrence, ¶58. This reformulation of the judicial role is rooted in the progressive era, when judges abandoned their obligation to uphold the Constitution in extreme deference to majoritarian impulses, thereby elevating legislative acts over the Constitution——at the expense of individual rights and liberty. See Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People 122-53 (2016). Justice Hagedorn‘s trepidation over fully embracing our “duty as faithful guardians of the Constitution” is incompatible with our constitutional structure, and his standard for answering constitutional questions based upon an individual justice‘s belief that “it is prudent to do so” would leave the people with justifiably little faith in the judiciary as a bulwark of liberty. See The Federalist No. 78, at 469 (C. Rossiter ed. 1961) (“[T]he courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments[.]“). Preserving the free exercise rights constitutionally retained by the people lies well within the bounds of the judicial role and is not “needlessly opin[ing]“——it is a constitutional imperative. Dissent, ¶64. As the bulwark of our Wisconsin Constitution, we should defend the people‘s rights with fortitude, not modesty.
Massachusetts, 197 U.S. 11 (1905), and that, even if Jacobson does not apply, the Order does not violate
1. Jacobson v. Massachusetts
¶33 The United States Supreme Court decided Jacobson over a century ago in the midst of the smallpox epidemic. Jacobson alleged that a Massachusetts law requiring residents to receive vaccinations violated his rights under the
¶34 Contrary to Heinrich‘s argument, Jacobson does not apply to this case, for at least four reasons. First, the Petitioners’ challenge to the constitutionality of the Order is couched entirely within
¶35 Second, Jacobson‘s case did not involve a violation of the free exercise of religion under the
¶37 Fourth, the Jacobson Court upheld Massachusetts’ compulsory vaccination law because it was “a reasonable exercise of [its] police power.” Jacobson, 197 U.S. at 35. However, “in this state, constitutional rights do not expand the police power; they restrict the police power.” State v. Hamdan, 2003 WI 113, ¶39, 264 Wis. 2d 433, 665 N.W.2d 785. That an order reflects an exercise of police power does not save it if the order “eviscerates [a] constitutionally protected right.” Id., ¶40. Indeed, police powers are “hedged about on all sides by constitutional restraints with the judiciary to stand guard at the boundaries.” State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 502, 107 N.W. 500 (1906). Our constitutional review of measures adopted by state or local health officers to curb the spread of disease is particularly important because such police powers necessarily curtail the freedom of those citizens who are subject to their exercise.21 In this case, we examine
Article I, Section 18 of the Wisconsin Constitution
¶38 The framers of the Wisconsin Constitution understood that “religious freedom was in need of . . . protection,” in order for individuals to freely exercise their religion. Jennifer A. Faulker, The Transformation of Religion in America and the Preservation of the Freedom of Religion in Wisconsin, in Defining a People, Creating a State: The Wisconsin Constitution in Jacksonian Context 201, 202 (1998). “The framers of the constitution, backed by Wisconsin residents, chose to describe the religious freedoms that they should be entitled to in greater detail than were given in the federal constitution.” Id. at 223. The result was
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[.]
¶39 When examining a law alleged to violate an individual‘s or organization‘s freedom of religious exercise, “we have generally applied the compelling state interest/least restrictive alternative test. Under this test, the [individual] or religious organization has to prove (1) that it has a sincerely held religious belief, and (2) that such belief is burdened by the application of the . . . law at issue. Upon this showing the burden shifts to the state to prove (3) that the law is based upon a compelling state interest (4) that cannot be served by a less restrictive alternative.” Coulee, 320 Wis. 2d 275, ¶61 (citing State v. Miller, 202 Wis. 2d 56, 66, 549 N.W.2d 235 (1996)). Applying the strict scrutiny embodied in these four factors, Heinrich‘s Order unconstitutionally infringes the Petitioners’ freedom of religious exercise.
¶40 For the first factor, all petitioners have sincerely-held religious beliefs, to which the respondent expressly stipulated. James, for example, believes that it is essential for her children to receive a faith-based education and that such education must take place “in-person” and “together with others as part of the body of Christ.” James sent her children to Our Redeemer Lutheran School precisely to fulfill this religious mission. Likewise, WCRIS and its member schools, along with other petitioners joining WCRIS’ action, declared that “in-person religious instruction” is a “vital part of [the students‘] religious formation.” Parents of children attending these schools specifically chose these institutions so their children could “participat[e] in [their] religious activities in-person” and “exercise their faith.”
¶41 The parents of students at St. Ambrose Academy hold similar beliefs. They attest it was important for their children to attend St. Ambrose, a Catholic institution, so that its teachers could “closely mentor [their] students to foster a deep love of Jesus Christ and [to] encourage them to imitate a life of virtue and service to Christ and His Church.” In order to practice their faith, the parents embrace the importance
¶42 Turning to the second factor, the Order incontrovertibly burdens Petitioners’ beliefs. The Petitioners established that in-person religious instruction is a vital part of the exercise of their religion. Under Heinrich‘s Order, all schools in Dane County——including these private religious institutions——were required to cease all in-person instruction for students in grades
3-12 and instead provide a virtual learning environment. Consequently, all in-person religious practices interwoven with religious education at these schools——ones deemed essential to the Petitioners’ exercise of their faith——were suspended by government decree.
¶43 Indeed, the Order did not merely burden academic schоoling; it burdened the
threatens or impedes such expression.” McCreary Cnty., Ky. v. Am. Civ. Liberties Union of Ky., 545 U.S. 844, 883 (2005) (emphasis added). Heinrich‘s Order not only impeded the Petitioners’ religious expression and practice, it outright precluded both from occurring in Petitioners’ schools altogether. The Petitioners’ exercise of their sincerely-held beliefs was unquestionably “burdened by the application” of the Order,24 and the Petitioners accordingly satisfied the second factor.
¶44 Because the Petitioners satisfy both the first and second factors, the burden shifts to Heinrich to prove that her Order is “based upon a compelling state interest
¶45 “The least-restrictive-means standard is exceptionally demanding, and it requires the government to show that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party.” Holt v. Hobbs, 574 U.S. 352, 364-65 (2015) (citations and internal quotations omitted). “If a less restrictive means is available for the Government to achieve its goals, the Government must use it.” Id. at 365 (citations and internal quotations omitted). Heinrich‘s earlier orders implemented less restrictive means such as specifying classroom student limits, mandating the use of masks, and requiring social distancing. In Emergency Order #8, for example, Heinrich outlined detailed safety protocols for schools, including “[e]nsuring students are at least six (6) feet from other students” and requiring that “employees are provided with and wear face coverings.” These nuanced and tailored measures were completely abandoned in the Order at issue, replaced by the drastic step of forbidding in-person religious school education entirely for students in grades 3-12.
¶46 The Order distinguishes between the age demographics of students, permitting only students in grades K-2 to receive in-person instruction while relegating all students in grades 3-12 to virtual instruction only. By the Order‘s own reasoning, this distinction was unnecessary to achieve the government‘s goals. As stated in the Order‘s introduction, “[o]utbreaks and clusters among cases aged 5-17 have been rare.” Nevertheless, a five-year-old student in kindergarten and an eight–year-old student in third grade, despite comparable infrequencies of COVID-19 transmission, were afforded entirely different educations in Dane County.
¶47 Furthermore, while students in grades 3-12 were prohibited from attending school in person, the Order allowed all higher education institutions to continue to provide in-person learning and dormitory housing, subject to certain restrictions. The Order failed to explain why college-aged students could continue to live, learn, and socialize in close communities, while students in grades 3-12 were consigned to computer screens. While the Order demonstrates the availability of less restrictive alternatives and employs them for college students as well as students in grades K-2, the Order denies them to students in grades 3-12. For this reason, the Order fails under the fourth factor for establishing a freedom of religion claim.
¶48 In total, the Order fails the strict scrutiny test: the 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. Accordingly, Heinrich‘s Order violates
¶49 Those portions of Heinrich‘s Order restricting or prohibiting in-person instruction are both statutorily and constitutionally unlawful, and are hereby vacated. Local health officers do not have the statutory authority to close schools under
By the Court.—Rights declared; order vacated.
¶50 BRIAN HAGEDORN, J. (concurring). Today‘s decision correctly interprets the statutes, and faithfully applies our precedent on the religious liberty protections ratified in the
I
¶51 The dissent criticizes the court for deciding the religious liberty question raised in this case. 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.1 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. That‘s a bad thing anytime, but it‘s especially bad when expounding on the constitution that serves as the foundation for the existence, operation, and success of our republic. So we should decide cases on narrow and firm grounds, and in ways that avoid the risk of judicial error——particularly on constitutional questions.
¶52 The opinion for the court responds in footnote 18.2 It first observes that this doctrine is a general rule and not rigidly applied in all cases.3 I agree. But portions оf footnote 18 go further and suggest that when the issue is of “great public importance,” addressing it is mandatory.4 Not deciding an important constitutional question, it claims, would “violate the judiciary‘s obligation to uphold the constitution,” disregarding our oath of office.5 Failing to address it would therefore “shirk our duty,” and possibly violate the constitution itself (addressing the religious liberty question “is a constitutional imperative“).6
¶53 This assertion——that we are duty-bound to address important constitutional questions raised in a case even though it can be resolved on other grounds——is without precedent. I am unaware of any appellate court, state or federal, anywhere around the country having ever adopted this as a rule for judicial decision-making. It certainly has no basis in our cases, nor will you find it in the decisions of the
¶54 Under the Constitution, the judiciary was designed to be the least dangerous branch.8 This is because its ability to act was limited, making it the least able to dominate the other branches and the least likely to trample the liberty of the people.9 The
¶55 To be sure, the judiciary was granted real power and given real responsibilities. An independent judiciary is an indispensable guardian of our constitutional order. When parties properly bring cases before us, we serve the essential functions of resolving disputes about the law and ensuring that the law is followed. We would be derelict in our duty if we simply deferred to other public or private actors when appropriately raised questions requiring an answer come our way.12 We should not avoid the hard questions, including constitutional questions, when addressing them is necessary. It is our solemn duty to say what the law is when cases require us to do so.
¶56 Our constitution, then, paints a picture of a judiciary that is at once courageous
¶57 We need——and the constitution requires of us——both modesty and fortitude, humility and courage. We are not charged by the constitution to provide clarity whenever a constitutional question is unresolved. We are not empowered to ensure all constitutional violations are corrected. The United States Supreme Court has explained that “under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation‘s laws.”14 Instead, “Constitutional judgments . . . are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court.”15 In other words, we are not law declarers-in-chief; we are case-deciders.
¶58 That is why the general rule is correct and, so far as I can tell, universally accepted: cases should ordinarily be decided on narrow grounds, reaching only what is necessary to decide the case.16 Consistent with this rule, we generally do not issue advisory opinions or decide cases where we cannot provide relief to the injured party. Nothing about our case-deciding role, and nothing about the judicial power itself, requires us to address every question we deem important, constitutional or otherwise, when the dispute is effectively resolved on other grounds. Judicial modesty remembers that we make mistakes, we often don‘t know what we don‘t know, and that these realities are compounded when complicated constitutional quеstions are involved. Our role is modest and limited; it is important for the rule of law that we keep it that way.
¶59 That said, I believe addressing the religious liberty question in this case is appropriate for several reasons. First, government actors issuing health-related orders during this pandemic have at times been inattentive to religious liberty concerns, as this case and others around the country demonstrate.17 This is a reoccurring issue, and decision-makers should understand the legal requirements that must inform their decisions in this area. Second, Heinrich argued that religious liberty deserves almost no additional protection, relying largely on the United States Supreme Court‘s 1905 decision in Jacobson.18
II
¶60 Finally, I write further to extend an invitation to litigants. As those familiar with this court‘s jurisprudence know, we are committed to reading statutes according to their plain meaning. Because the text is the law, we focus our interpretive inquiry on the text, context, and structure of statutory language, seeking to understand what the words meant when they were written.21 This court is often the beneficiary of excellent briefing and argument directing us to exactly that——the meaning of the statutory text.
¶61 Our constitutional jurisprudence should be no different. Far too often, our cases have simply copied and pasted federal case law and called it Wisconsin constitutional law. And at times, this court has drifted from a jurisprudence rooted in the text and appealed instead to its own sense of justice. But our constitution means what it says, not what federal cases say, and not what we might want it to say. Our role is to discern the meaning of the words approved by the people and apply them faithfully. No matter how captivating a clarion call for justice may be, the text of the
¶62 Our return to a method of statutory interpretation based not on policy concerns, but on the text of the law itself, has been a breath of fresh air in Wisconsin courts.23 It is time to reinstitutionalize the same norms in our constitutional analysis.24 Therefore, my request is this. When raising claims based on the
¶63 REBECCA FRANK DALLET, J. (dissenting). This is not a difficult statutory interpretation case. The only statutory question before the court is whether
¶64 I also dissent because there is no reason for the majority opinion‘s constitutional analysis. The majority‘s statutory analysis, flawed as it is, fully resolves the case. 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.
I
¶65
A
¶66 Ever since the legislature enacted the first statute addressing disease outbreaks in 1883, it has entrusted to local health officers the power and flexibility to respond to disease outbreaks. See
¶68 By contrast, DHS‘s statutory authority to control disease outbreaks is more targeted. For instance, the legislature has granted DHS (and its predecessor, the state board of health) the power to “forbid public gatherings when deemed necessary to control epidemics,” but only in “schools, churches, and other places.”
¶69 Contrary to the majority‘s analysis, the statute itself is “perfectly clear“; there is no “troublesome statutory language” here that requires a “set of arcane rules” to understand. See Facebook, Inc. v. Duguid, 592 U.S. ___, 141 S. Ct. 1163, 1175 (2021) (Alito, J., concurring); Benson v. City of Madison, 2017 WI 65, ¶31, 376 Wis. 2d 35, 897 N.W.2d 16 (explaining that there is “no need to resort” to “canon[s]” of statutory interpretation when a statute‘s meaning is “not unclear“). In straying from the clear language of
1
¶70 Nowhere in the legislature‘s directive under
¶71 Similarly, there is no reason why DHS and local health officers cannot share the power to close schools. The legislature is free to grant different entities similar powers to accomplish the same ends, as it did in granting both DHS and local health officers the same power to “forbid public gatherings.” See
¶72 The statute‘s plain language also undermines the majority‘s argument that
¶73 The majority‘s reading nullifies not only much of the language of
¶74 In brushing off those provisions because they do not explicitly grant local health officers the power to close schools, the majority opinion misunderstands their obvious implication:
¶75 The majority‘s last gasp is a strawman: that what is “reasonable and necessary” cannot mean that local health officers have “any powers necessary” to combat outbreaks. Of course, Heinrich argues no such thing. The majority opinion ignores the limiting principle plainly present both in the statute‘s scope (authorizing public health measures) and its text (“for the prevention and suppression of disease“). See, e.g., Am. Power & Light Co. v. SEC, 329 U.S. 90, 104-05 (1946). What the majority claims “cannot be” already isn‘t.
A
¶76 The majority opinion‘s flawed conclusion is a direct result of its flawed methods. The majority over-relies on “canons” or “rules” of statutory interpretation from Antonin Scalia and Brian A. Garner‘s book, Reading Law: The Interpretation of Legal Texts (2012), without due regard for their limits. To start with the obvious, Scalia and Garner‘s book is not the law. In a strict sense, it is an extrinsic source that has no binding authority on this court. Indeed, some of the book‘s “rules” are irreconcilable with this court‘s precedent. Compare MBS-Certified Pub. Accts., LLC v. Wis. Bell, Inc., 2012 WI 15, ¶58, 338 Wis. 2d 647, 809 N.W.2d 857 (“Remedial statutes should be liberally construed . . . .“), with Scalia & Garner, supra, at 364-66 (alleging that it is a “false notion that remedial statutes should be liberally construed“). In a broader sense, it is a compilation of certain grammar rules, some of which can occasionally help determine what legislative text means. In both senses, it is just one toolbox that contains some——but not all——statutory interpretation tools. Thus, we should be careful not to treat it as though it is the only toolbox available.
¶77 We also should be wary of assuming that interpretive tools are necessary or even relevant to every statutory interpretation case. See State v. Peters, 2003 WI 88, ¶14, 263 Wis. 2d 475, 665 N.W.2d 171. Interpretive tools may be helpful in clearing up confusing or ambiguous text, but statutory text is often straightforward. And when a statute‘s text “has a plain and reasonable meaning on its face,” interpretive tools are “inapplicable.” Id. Worse, treating interpretive tools as “rigid rules” without acknowledging their caveats and limitations can “lead[] us astray” from the plain text. See Duguid, 141 S. Ct. at 1173-75 (Alito, J., concurring).
¶78 Even when interpretive tools are relevant or helpful, they are not gospel. See, e.g., id. at 1173 (cautioning that while Scalia and Garner‘s chosen canons are sometimes “useful tools, . . . it is important to keep their limitations in mind“). Although certain textualists believe that applying select interpretive canons will always reveal the legislative text‘s true meaning, reality offers little support for that belief. Particularly damning is the fact that most legislative drafters have no idea what the interpretive canons are. See, e.g., William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1123-26 (2017); Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside——An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. 725, 742-46, 745 tbl.1 (2014). And in the rare instance a drafter knows of a particular canon, such “awareness d[oes] not translate to routine use in the drafting process.” Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside——An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 932-48 (2013). To take a specific example, statutory drafters who know that courts often refer to dictionaries to interpret statutory text note nevertheless that dictionaries are “mostly irrelevant” to writing statutes. Id. at 938 (one drafter added, bluntly, “no one uses a freaking dictionary“). Just like other interpretive tools, dictionaries, while sometimes helpful, can be misused if their limitations are ignored. See, e.g., Noffke v. Bakke, 2009 WI 10, ¶¶60-64, 315 Wis. 2d 350, 760 N.W.2d 156 (Abrahamson, C.J., concurring) (cautioning that while dictionaries reveal the many ways a word “can be used,” they are generally unhelpful in determining whether one meaning or another
¶79 Additionally, most canons are notoriously malleable, and there is no concrete approach for choosing between multiple or conflicting canons. See, e.g., Anita Krishnakumar, Dueling Canons, 65 Duke L.J. 909 (2016). Those problems undermine the claim, touted by devotees of Scalia and Garner‘s brand of textualism, that strictly adhering to the canons leads to strictly objective results; in reality, that approach is just as subjective as any other. See, e.g., Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2156-57, 2159-62 (2016) (book review) (explaining that some “fancy-sounding canons . . . warrant little weight in modern statutory interpretation,” in part because they often lead to “wrongheaded” judicial “policymaking“); Baude & Sachs, supra, at 1140-43; Richard A. Posner, The Incoherence of Antonin Scalia, https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism. For that reason, some states, such as Oregon, have “virtually banished the substantive canons of construction” because they “inject[] subjectivity and unpredictability into . . . statutory interpretation.” Abbe R. Gluck, Statutory Interpretation Methodology as “Law”, 47 Willamette L. Rev. 539, 546-47 (2011). Oregon‘s approach, of course, still allows courts to use the textual canons, which are really just general grammar rules. But see Lockhart v. United States, 577 U.S. 347, 363-69 (2016) (Kagan, J., dissenting) (pointing out that even certain textual “rules,” such as the last antecedent rule, often conflict with “ordinary usage“); Baude & Sachs, supra, at 1125-26. In any event, when we employ any tool or canon, we must do so with our eyes open to its shortcomings rather than naïvely championing it as a perfect method for interpreting all statutory language.
B
¶80 These shortcomings pervade the majority opinion, where the majority‘s resorting to statutory interpretation canons leads it astray from the statute‘s plain language. It misapplies, for instance, the general principle that a specific provision controls over a broader one. That principle applies only when necessary to harmonize two conflicting statutes. See Kramer v. Hayward, 57 Wis. 2d 302, 311, 203 N.W.2d 871 (1973); Scalia & Garner, supra, at 183 (“The general/specific canon . . . deals with what to do when conflicting provisions simply cannot be reconciled——when the attribution of no permissible meaning can eliminate the conflict.“). But here, there is no conflict between DHS‘s and local health officers’ authority. The legislature simply gave local health officers, who are potentially the first to respond to a communicable disease, more flexibility.
¶81 Similarly, the majority‘s use of the “surplusаge” canon is unhelpful because it supports Heinrich‘s position just as much as the majority‘s, if not more. Using that tool, courts are supposed to read a statute to give full effect, when possible, to every word in the statute: “If a provision is susceptible of (1) a meaning that . . . deprives [a] provision of all independent effect, and (2) another meaning that leaves both provisions with some independent operation, the latter should be preferred.” Scalia & Garner, supra, at 176. As explained above, the majority‘s position deprives of independent effect
¶82 The point is that statutory interpretation tools are just like every other tool: they are useless without a matching problem. When an interpretive tool is needlessly or incorrectly applied, it can lead to a result contrary to the “more natural reading” of the text; and in such cases, the tool should be rejected. See, e.g., Encino Motorcars, LLC v. Navarro, 584 U.S. ___, 138 S. Ct. 1134, 1141-42 (2018) (declining to apply a “canon” because it resulted in an “unnatural fit” with the statute‘s plain text). When interpretive aids are necessary, we should use them; whichever tool will help us get closest to the meaning of the legislative text, that is the tool we should use. But sometimes, such as here, we need only our “ordinary understanding of how English works” to decide a case. See Lockhart, 136 S. Ct. at 969 (Kagan, J., dissenting).
C
¶83 No special tools are necessary to understand the plain text of
III
¶84 Even though the majority resolves the case on statutory grounds, it bulldozes its way through an unnecessary constitutional analysis. 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. Thus, the majority‘s analysis of the petitioners’ free-exercise-of-religion claim is wholly beside the point.
¶85 This court has stated time and again that it decides cases on the narrowest available grounds. See, e.g., Voters with Facts v. City of Eau Claire, 2018 WI 63, ¶26, 382 Wis. 2d 1, 913 N.W.2d 131. When a party raises both a statutory and a constitutional challenge, as is the case here, we should attempt to interpret the challenged statute in a way that both resolves the case and avoids the constitutional question.4 Milwaukee Branch of the NAACP v. Walker, 2014 WI 98, ¶64, 357 Wis. 2d 469, 851 N.W.2d 262. That approach is known as the doctrine of constitutional avoidance, under which we generally reach constitutional claims only if the case is “incapable of resolution without deciding the constitutional conflict.” Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶¶51-52, 376 Wis. 2d 147, 897 N.W.2d 384; Kollasch v. Adamany, 104 Wis. 2d 552, 561, 313 N.W.2d 47 (1981).
¶86 The reason our precedent so strongly discourages reaching unnecessary constitutional questions is that we have no established method for deciding when to do so. For example, there is no objective test for what constitutes a constitutional issue of great public importance. In fact,
¶87 The majority acts with anything but. Its tortured statutory interpretation fully resolves this case; yet it barrels its way to a constitutional challenge no longer in play. The majority makes no claim that this case is incapable of being resolved on statutory grounds. Cf. Gabler, 376 Wis. 2d 147, ¶51. Nor could it, having already resolved the case on statutory grounds. See Labor & Farm Party v. Wis. Elections Bd., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984) (refusing to address “various constitutional issues” because the court resolved the case “on statutory construction grounds alone“). Rather, the majority opinion “reaches for the constitution unnecessarily,” exemplifying the antithesis of judicial restraint. See Tetra Tech EC, 382 Wis. 2d 496, ¶138 (Ziegler, J., concurring); Wis. Legislature v. Palm, 2020 WI 42, ¶168, 391 Wis. 2d 497, 942 N.W.2d 900 (Hagedorn, J., dissenting) (explaining that the court‘s proper role is not “to do freewheeling constitutional theory” or “to decide every interesting legal question” but to “precise[ly]” and “carefully focus[]” on the narrow . . . question[]” before it).
¶88 Furthermore, the facts here counsel strongly against reaching the constitutional question. Section 8 of the Order explicitly exempts religious practices from its in-person gathering restrictions: “[r]eligious entities are exempt from mass gathering requirements for religious services and religious practices” (emphases added). The majority makes no mention of that provision——possibly because it torpedoes the majority‘s constitutional analysis. If in-person education on every subject, religious or not, is truly religious practice, as some petitioners here claim, nothing in the Order burdens that practice. But regardless of the constitutional question presented, there is no need to reach it.
IV
¶89 The plain text of
¶90 I am authorized to state that Justices ANN WALSH BRADLEY and JILL J. KAROFSKY join this dissent.