2021 WI 58

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP1419-OA, 2020AP1420-OA, 2020AP1446-OA

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 petitioners, there was an opening brief filed by 

Richard M. Esenberg, Anthony LoCoco, Lucas T. Vebber, Luke N. Berg, 

Elisabeth Sobic and Wisconsin Institute for Law & Liberty, 

Milwaukee; with whom on the brief was Misha Tseytlin, Kevin M. 

LeRoy, Troutman Pepper, and 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, Kaardal & Erickson, P.A., Minneapolis, 

Minnesota; with whom on the brief was Joseph W. Voiland and 

Veterans Liberty Law, Cedarburg; with whom on the brief was Brent 

Eisberner and Levine Eisberner LLC, Madison; with whom on the brief 

was Bernardo Cueto, Onalaska. There was an oral argument by Richard 

M. Esenberg, Misha Tseytlin, and Joseph W. Voiland.
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 Institute for 

Justice by Lee U. McGrath, Minneapolis, Minnesota; with whom on 

the brief was Milad Emam, Arlington, Virginia. 

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, Aaron 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. 
2021 WI 58

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

Sara Lindsey James,

 Petitioner,

 v.

Janel Heinrich, in her capacity as Public 

Health Officer of Madison and Dane County,

 Respondent.

FILED

JUN 11, 2021

Sheila T. Reiff

Clerk of Supreme Court

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.
2021 WI 58

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.

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 Article VII, Section 3(2) of the Wisconsin 

Constitution,1 we consolidate and review three cases challenging

 

1 Article VII, Section 3(2) of the Wisconsin Constitution 

provides: "The supreme court has appellate jurisdiction over all 

courts and may hear original actions and proceedings. The supreme 

court may issue all writs necessary in aid of its jurisdiction." 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

3

the authority of Janel Heinrich, in her capacity as a local health 

officer of Public Health of Madison and Dane County (PHMDC), to 

issue an emergency order closing all schools in Dane County for 

in-person instruction in grades 3-12. Citing Wis. Stat. § 252.03

(2017-18)2 as authority, Heinrich issued Emergency Order #9 ("the 

Order") in an effort to decrease the spread of a novel strain of 

coronavirus, COVID-19. The Petitioners3 contend that the Order 

exceeds Heinrich's statutory authority under § 252.03 and violates 

their fundamental right to the free exercise of religion under 

Article I, Section 18 of the Wisconsin Constitution, as well as 

parents' fundamental right to direct the upbringing and education 

of their children under Article I, Section 1 of the Wisconsin 

Constitution.

¶2 In response, Heinrich asserts that local health officers 

have the statutory authority under Wis. Stat. § 252.03 to issue 

school-closure orders. Further, she argues that the Order is 

constitutional under the United States Supreme Court's ruling in 

Jacobson v. Massachusetts, 197 U.S. 11 (1905), and that, even if 

Jacobson does not apply, the Order does not violate the Wisconsin 

Constitution.

¶3 We agree with the Petitioners and hold: (1) local health 

officers do not have the statutory power to close schools under 

 

2 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated. 

3 The Petitioners include Sara Lindsey James, Wisconsin 

Council of Religious and Independent Schools (WCRIS), St. Ambrose 

Academy, parents of students in Dane County schools, and several 

other schools and membership associations.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

4

Wis. Stat. § 252.03; and (2) Heinrich's Order infringes the 

Petitioners' fundamental right to the free exercise of religion 

guaranteed under Article I, Section 18 of the Wisconsin

Constitution, which Jacobson cannot override. Accordingly, those 

portions of the Order restricting or prohibiting in-person 

instruction are unlawful, unenforceable, and are hereby vacated.

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 

 

4 COVID-19 is an acute respiratory syndrome spread through 

close contact with a contagious individual. Center for Disease 

Control, Coronavirus Disease 2019 (COVID-19): 2020 Interim Case 

Definition (Apr. 5, 2020), 

https://wwwn.cdc.gov/nndss/conditions/coronavirus-disease-2019-

covid-19/case-definition/2020/. 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

5

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 school year on virtual platforms

pursuant to the statewide "Safer at Home Order."

¶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, Heinrich's 

emergency orders were as follows:

1. 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.

2. 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." 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

6

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."

3. 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."

4. 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."

5. 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 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

7

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 were 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 virtual learning option.6 The Order further stated 

that, even though in-person instruction was prohibited for 

students in grades 3-12, schools could continue to operate in

person as "child care and youth settings." As a rationale for the 

mandate, the Order explained that "[t]his remains a critical time 

for Dane County to decrease the spread of COVID-19, keep people 

healthy, and maintain a level of transmission that is manageable 

by health care and public systems." The Order acknowledged that 

a "number of systematic reviews have found that school-aged 

children contract COVID at lower rates than older populations" and 

 

5 In relevant part, the Order stated: "Public and private 

school buildings and grounds are open for in-person student 

instruction for grades kindergarten through second (K-2) only." 

6 On September 1, 2020, Heinrich amended the Order to also 

allow in-person instruction for any qualifying students with 

disabilities.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

8

that "[o]utbreaks and clusters among cases aged 5-17 have been 

rare." Heinrich cited Wis. Stat. § 252.03(1), (2), and (4) as 

authority for issuing the Order.

¶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 for 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 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

9

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 inperson 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 

of the Eucharist, communal prayer throughout the day, and 

opportunities to go on retreats and service missions throughout

the local area. The Order prohibited these in-person activities.

¶13 All three petitions for original action raised the same 

two claims: (1) the Order exceeded Heinrich's statutory authority 

under Wis. Stat. § 252.03, and (2) the Order violated the 

 

7 WRCIS's petition for original action was joined by a group 

of parents of students attending Dane County schools, as well as 

several other membership associations and individual schools 

themselves.

8 Other religious schools and parents of children attending 

these schools joined St. Ambrose's petition for original action. 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

10

Petitioners' fundamental right to the free exercise of religion 

under Article I, Section 18 of the Wisconsin Constitution.9 The 

Petitioners also requested temporary injunctive relief. Heinrich 

filed a response opposing the petitions for original action.

¶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 

 

9 The Petitioners also contend that the Order violates 

Petitioners' fundamental right to direct the education and 

upbringing of their children under Article I, Section 1 of the 

Wisconsin Constitution. The Petitioners' principal constitutional 

claim, however, focused on the free exercise of religion and was 

more substantively developed than Petitioners' parental rights 

argument. Because we resolve the constitutional challenge under 

the free exercise of religion provision, we decline to address the 

Petitioners' additional constitutional argument.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

11

concluded that a balancing of equities favored issuing the 

injunction. On December 8, 2020, we heard oral argument.10

II. STANDARD OF REVIEW

¶15 We review this case under our original jurisdiction 

conferred in Article VII, Section 3(2) of the Wisconsin 

Constitution. The Petitioners ask this court to interpret Wis. 

Stat. § 252.03 in determining whether Heinrich violated her 

 

10 After oral argument, Heinrich issued another emergency 

order, which does not mandate school closures; Heinrich asserts 

her subsequent order renders this case moot. Even if Heinrich's 

latest order moots this original action, many of the recognized 

exceptions to the mootness doctrine apply. "[E]xceptions to 

dismissal for mootness include situations involving: (1) issues 

of great public importance; (2) the constitutionality of a statute; 

(3) issues that arise so often a definitive decision is essential 

to guide the trial courts; (4) issues likely to arise again and 

that should be resolved by the court to avoid uncertainty; or (5) 

issues . . . capable and likely of repetition and yet evade 

review[.]" Portage Cnty. v. J.W.K., 2019 WI 54, ¶29, 386 

Wis. 2d 672, 927 N.W.2d 509 (quoted source omitted). Given the 

ever-evolving orders from PHMDC, the issues presented are 

undoubtedly capable and likely of repetition but would evade review 

if every time a lawsuit challenging PHMDC's orders is filed, the 

health authority issues a modified order. Additionally, the 

statutory and constitutional issues in this case plainly present 

matters of great public importance. Accordingly, we address the 

merits of this dispute. See Roman Catholic Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63, 72 (2020) (Gorsuch, J., concurring) ("[J]ust 

as this Court was preparing to act . . . the Governor loosened his 

restrictions, all while continuing to assert the power to tighten 

them again anytime as conditions warrant. So if we dismissed this 

case, nothing would prevent the Governor from reinstating the 

challenged restrictions tomorrow. And by the time a new challenge 

might work its way to us, he could just change them again. The 

Governor has fought this case at every step of the way. To turn 

away religious leaders bringing meritorious claims just because 

the Governor decided to hit the 'off' switch in the shadow of our 

review would be, in my view, just another sacrifice of fundamental 

rights in the name of judicial modesty.").
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

12

statutory authority. Issues of statutory interpretation and 

application present questions of law. Police Ass'n v. City of 

Milwaukee, 2018 WI 86, ¶17, 383 Wis. 2d 247, 914 N.W.2d 597. The 

Petitioners also ask this court to interpret Article I, Section 18 

of the Wisconsin Constitution. Issues of constitutional 

interpretation also are questions of law. Serv. Emps. Int'l Union, 

Loc. 1 v. Vos, 2020 WI 67, ¶28, 393 Wis. 2d 38, 946 N.W.2d 35.

III. DISCUSSION

A. Statutory Powers Under Wis. Stat. § 252.03

¶16 The Petitioners argue that Heinrich lacks authority 

under Wis. Stat. § 252.03 to close schools. Heinrich responds

that both Wis. Stat. § 252.03(1) and (2) authorize local health 

officers to issue school-closure orders. The Petitioners are 

correct. Section 252.03 does not provide local health officials 

with any authority to close schools; accordingly, Heinrich's Order 

is statutorily unlawful.11

¶17 Wisconsin Stat. § 252.03 delineates the powers of local 

health officers regarding communicable diseases. Subsections (1) 

and (2) of the statute provide:

(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 

 

11 Both parties stipulated to the fact that the Order "closes 

schools," despite the availability of virtual learning options for 

students. Accordingly, we do not further address whether the Order 

constitutes a "school-closure order."
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

13

diseases, and shall report to the appropriate 

governing body the progress of the communicable 

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." Wis. Stat. § 252.03(1) and (2). 

Under the doctrine of expressio unius est exclusio alterius, the 

"express mention of one matter excludes other similar matters [that 

are] not mentioned." FAS, LLC v. Town of Bass Lake, 2007 WI 73, 

¶27, 301 Wis. 2d 321, 733 N.W.2d 287 (quoting Perra v. Menomonee 

Mut. Ins. Co., 2000 WI App 215, ¶12, 239 Wis.2d 26, 619 

N.W.2d 123); see also State v. Delaney, 2003 WI 9, ¶22, 259 

Wis. 2d 77, 658 N.W.2d 416; Antonin Scalia & Bryan A. Garner, 

Reading Law: The Interpretation of Legal Texts 107-11 (2012) ("The 

expression of one thing implies the exclusion of others (expressio 

unius est exclusio alterius)."). Pursuant to this doctrine, if 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

14

"the legislature did not specifically confer a power," the exercise 

of that power is not authorized. State ex rel. Harris v. Larson, 

64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974). 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. See

Jefferson v. Dane Cnty., 2020 WI 90, ¶29, 394 Wis. 2d 602, 951 

N.W.2d 556.

¶19 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. In § 252.02, the legislature 

specifically stated that "[t]he department [of health services] 

may close schools and forbid public gatherings in schools, 

churches, and other places to control outbreaks and epidemics." 

§ 252.02(3) (emphasis added). 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. Given that § 252.02 and § 252.03 mirror each 

other in other substantive respects, this stark difference 

supports our textual analysis. Under the related-statutes canon 

of statutory construction, statutes in the same chapter 

"contain[ing] the same subject matter . . . must be considered in 

pari materia and construed together." State v. Wachsmuth, 73 

Wis. 2d 318, 325, 243 N.W.2d 410 (1976); see also State v. Jensen, 

2000 WI 84, ¶20, 236 Wis. 2d 521, 613 N.W.2d 170; R.W.S. v. State, 

162 Wis. 2d 862, 871, 471 N.W.2d 16 (1991). "Several acts in pari 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

15

materia, and relating to the same subject, are to be taken 

together, and compared in the construction of them, because they 

are considered as having one object in view, and as acting upon 

one system." Scalia & Garner, supra, at 252 (quoting 1 James Kent, 

Commentaries on American Law 433 (1826)).

¶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 Wis. Stat.

§ 252.02 and Wis. Stat. § 252.03 were drafted at the same time and 

by the same legislature, so no historical quirk or later 

amendment . . . would suggest anything other than the legislature 

granted DHS and local health officers different powers."

¶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 Wis. Stat. § 252.03(2). She is 

incorrect. If local health officers' authority to take measures 

"reasonable and necessary" included the extraordinary power to 

close schools, then the legislature's specification of particular 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

16

powers, such as the power to "inspect schools," would be 

superfluous. The power to take measures "reasonable and necessary" 

cannot be reasonably read as an open-ended grant of authority. 

Doing so would swallow the rest of the statute and render it mere 

surplusage. "Statutory language is read where possible to give 

reasonable effect to every word, in order to avoid surplusage." 

Kalal, 271 Wis. 2d 633, ¶46; see also Scalia & Garner, supra, at 

174.

¶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.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

17

¶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 

construction 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 Wis. Stat. § 252.03 entirely redundant. If 

"[l]ocal health officers may do what is reasonable and necessary 

for the prevention and suppression of disease" then the legislature 

quite unnecessarily wrote that "[t]he 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." § 252.03(1). Under Heinrich's (and the 

dissent's) statutory construction, the legislature also needlessly 

wrote that local health officers "may forbid public gatherings 

when deemed necessary to control outbreaks or epidemics." 

§ 252.03(2). Heinrich's (and the dissent's) interpretation of 

§ 252.03 violates the "cardinal rule of statutory interpretation 

that no provision should be construed to be entirely redundant." 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

18

Kungys v. United States, 485 U.S. 759, 778 (1988) (citations 

omitted).12

 

12 Justice Rebecca Dallet would apparently jettison the canons 

of statutory construction that have guided judicial interpretation 

for centuries. While the canons represent "a generally agreed-on 

approach to the interpretation of legal texts" judges who reject 

this textually-grounded method of decision making "refuse to yield 

the ancient judicial prerogative of making the law, improvising on 

the text to produce what they deem socially desirable results[.]" 

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation 

of Legal Texts xxvii, 4 (2012). Justice Dallet disparages these 

canons because they interfere with her desired results. In her 

dissent to the court's order granting injunctive relief, Justice 

Dallet criticized the court (and the petitioners) for "fail[ing] 

to understand that we are all in this together; voluntarily sending 

children to school may put others in the community at risk." 

Contrary to Justice Dallet's policy-focused approach, the canons 

serve as "helpful, neutral guides" and are "grounded in experience 

developed by reason and tend to a better administration of justice 

than leaving interpretation in each case to feelings of policy on 

the part of the tribunal." Scalia & Garner, supra, at 61 (quoting 

3 Roscoe Pound, Jurisprudence 506 (1959)).
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

19

 

Justice Antonin Scalia and Bryan Garner, co-authors of the 

"first modern attempt . . . to collect and arrange only the valid 

canons and to show how and why they apply to proper legal 

interpretation," Scalia & Garner, supra, at 9, included in their 

treatise only those venerable canons representing "what the best 

legal thinkers have said for centuries." Id. at xxix. Justice 

Dallet dismisses their work as just one "toolbox" that is "not the 

law" but merely an "extrinsic source" (while citing a plethora of 

secondary sources herself) and ignores the fact that every canon 

on which the court relies in this opinion has been previously 

adopted and applied not only by this court, but both federal and 

state courts——for centuries. Dissent, ¶76. Rejecting 

longstanding precedent, Justice Dallet would cabin the use of 

canons solely for "clearing up confusing or ambiguous text." Id., 

¶77. Fundamentally, Justice Dallet misunderstands how to 

interpret legal texts. "[N]either written words nor the sounds 

that the written words represent have any inherent meaning. 

Nothing but conventions and contexts cause a symbol or sound to 

convey a particular idea." Scalia & Garner, supra, at xxvii. The 

canons represent "a generally agreed-on approach to the 

interpretation of legal texts." Id. Justice Dallet's 

marginalization of their role flies in the face of centuries of 

jurisprudence and her proffered method of statutory interpretation 

falls on the fringes of acceptable approaches, far outside of the 

judicial mainstream. "[L]egislators enact; judges interpret" and 

the canons simply "explain how [judges] should perform this task." 

Id. at xxx.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

20

 

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 as 

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 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

21

¶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 Wis. 

Stat. § 252.03. In particular, Heinrich mentions Wis. Stat. 

§ 115.01(10)(b), which says that "school days" are "days on which 

school is actually taught and the following days on which is not 

taught: . . . [d]ays on which school is closed by order of a local 

health officer." Heinrich's reliance on this statute is misplaced. 

A plain textual reading of § 115.01(10)(b) shows that the provision 

is not a grant of authority to local health officers; instead, it 

is merely a "classifications" section for statutes wholly 

unrelated to the duties of local health officers regarding 

communicable diseases. Accordingly, this statute has no bearing 

on the authority of state actors in this case.

¶25 Heinrich further argues that Wis. Stat. § 120.12(27)(a)

contemplates that local health officers have the power to close 

schools under Wis. Stat. § 252.03. Section 120.12(27)(a) states 

that "[the school board shall] [w]ithin 24 hours of a school being 

closed for a reason specified in § 115.01(10)(b) or (c) or by the 

department of health services under § 252.02(3), notify the 

department." Nothing in this provision gives local health officers

any authority to close schools. Rather, the statute contemplates 

that DHS has the power to close schools under ch. 252. Section 

 

canons but the text, context, and structure of Wis. Stat. § 252.03 

to reach her desired outcome in this case.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

22

120.12(27)(a) is silent concerning local health officers. 

Instead, Wis. Stat. § 120.12 pertains to the duties of local school 

boards. When interpreting the "duties of local health officers" 

during the presence of "communicable diseases," this court must 

turn to the plain text of the statute that governs these duties: 

§ 252.03.13 That statute withholds the power to close schools from 

local health officers.14

B. Legislative and Statutory History of Wis. Stat. § 252.03

¶26 The plain text of Wis. Stat. § 252.03 confers no 

authority on local health officers to close schools; accordingly,

 

13 Adopting Heinrich's arguments, Justice Dallet cites 

statutory provisions referencing school closures by local health 

officers as proof of their authority under Wis. Stat. § 252.03 to 

close schools. This is a plain logical fallacy. Like § 252.03, 

none of these other statutes confer such authority on local health 

officers. Statutory references to a school closure by a local 

health officer may stem from Wis. Stat. § 250.042(1), which says: 

"If the governor declares a state of emergency related to public 

health under s. 323.10 and designates the department [of health 

services] as the lead state agency to respond to that emergency, 

the department shall act as the public health authority during the 

state of emergency . . . . During the period of the state of 

emergency, the secretary may designate a local health department 

as an agent of the department and confer upon the local health 

department, acting under that agency, the powers and duties of the 

public health authority." That statutory provision is not 

challenged in this case so we do not construe it or consider its 

validity under the constitution; nevertheless, on its face it 

explains the existence of statutory references to school closures 

by order of local health officers although no statute confers such 

authority.

14 Heinrich points to a few additional statutes from unrelated 

chapters to support her conclusion that local health officers have 

the power to close schools under Wis. Stat. § 252.03. Heinrich 

fails to flesh out these other provisions in any substantive way; 

accordingly, we decline to discuss them.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

23

our analysis of the statute could end there. Kalal, 271 

Wis. 2d 633, ¶45 ("[S]tatutory interpretation 'begins with the 

language of the statute. If the meaning of the statute is plain, 

we ordinarily stop the inquiry.'"). However, "legislative history 

is sometimes consulted to confirm or verify a plain-meaning 

interpretation." Id., ¶51. Similarly, "statutory history" may 

also be used as part of "plain meaning analysis." See Richards 

v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 

N.W.2d 581. In this case, both the legislative and statutory 

history confirm that local health officers do not have the power 

to close schools. Although the legislature at one point 

contemplated giving them this power, it never did so.

¶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 

 

15 This article is available at 

https://content.wisconsinhistory.org/digital/collection/wmh/id/4

3606. 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

24

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 Heath 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 case, 

the statute conferred four powers on the State Board of Health:

1. The power "to establish quarantine . . . "; 

2. The power "to order and execute what is reasonable and 

necessary for the prevention and suppression of diseases";

3. The power "to close schools and churches"; and

4. 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 heath laws. In May 1919, the 

 

16 In more detail, the 1883 law read: "[I]t shall be the duty 

of such health officer at all times promptly to take such measures 

for the prevention, suppression and control of the diseases herein 

named as may in his judgment be needful and proper, subject to the 

approval of the board of which he is a member . . . ." § 1, 

ch. 167, Laws of 1883.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

25

legislature expanded the powers of local health officers to include 

the following:

1. The power "to establish quarantine . . . ";

2. The power "to order and execute what is reasonable and 

necessary for the prevention and suppression of disease";17

and

3. 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.

¶30 This legislative choice was no accident. Early drafts

of the bill reveal that the legislature at one point contemplated 

giving local health officers the power to close schools. At the 

time the legislature asked the Attorney General to opine on its 

constitutionality, an earlier version stated that "the local board 

of health of each township, incorporated village or city, shall 

have the power to close schools, theatres, and churches" for the 

prevention and suppression of disease. 8 Wis. Op. Att'y Gen. 157, 

157-58 (1919) (emphasis added). The Attorney General responded

that the provision in the bill "'clos[ing] schools, theatres, and 

churches' seems to be without limitation." Id. Expressing concern 

over the language's constitutionality, the Attorney General 

recommended that the language "should . . . more clearly state[]" 

 

17 The legislature first gave this power to local health 

officers under its 1883 law.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

26

that the "[the provision closing schools] is intended to limit 

this [authority] to the necessity of controlling epidemics." Id. 

After receiving the Attorney General's opinion, the legislature 

struck the provision concerning school closures. Gone was any 

language allowing local health officers to "close schools" during 

an epidemic——or otherwise. Ultimately, the legislature enacted 

this bill without any mention of school closures. See § 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 Wis. Stat. §§ 143.02 and 143.03 (1923-24). 

In 1981, the legislature again amended these laws, with only minor 

additions. See 1981 Wis. Act 291, §§ 21, 23. In all this time, 

the legislature never gave local health officers the power to 

"close schools"—only the statewide health agency (now DHS). Both 

the plain text of Wis. Stat. § 252.03 as well as its legislative 

and statutory history lead to only one reasonable conclusion: 

Heinrich exceeded her statutory authority under Wis. Stat. 

§ 252.03 when she issued the Order closing all schools in Dane 

County.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

27

C. Constitutional Claims18

 

18 In espousing the doctrine of constitutional avoidance as a 

compulsory rule, Justice Dallet proclaims that "we generally reach 

constitutional claims only if the case is 'incapable of resolution 

without deciding the constitutional conflict,'" misciting Gabler 

v. Crime Victims Rights Bd., 2017 WI 67, ¶¶51-52, 376 Wis. 2d 147, 

897 N.W.2d 384. Dissent, ¶85. Gabler actually said: "This case 

is incapable of resolution without deciding the constitutional 

conflict presented by the Board's exercise of its statutory 

powers." Gabler, 376 Wis. 2d 147, ¶51. Although "[t]his court 

does not normally decide constitutional questions if the case can 

be resolved on other grounds" such "[c]onstitutional avoidance is 

'a matter of judicial prudence' and does not apply where the 

constitutionality of a statute is 'essential to the determination 

of the case.'" Id., ¶52 (quoting Kollasch v. Adamany, 104 

Wis. 2d 552, 561, 313 N.W.2d 47 (1981); then citing Fleeman v. 

Case, 342 So.2d 815, 818 (Fla. 1976) and Hammond v. Bingham, 362 

P.2d 1078, 1079 (Idaho 1961)). This exception to the 

constitutional avoidance doctrine applies no less to governmental 

edicts such as the Order we consider in this case. Like other 

state and federal courts around the country, we have elected to 

answer constitutional questions of great public importance. 

"Courts in other jurisdictions have also recognized that the 

principle of constitutional avoidance gives way where the 

constitutional question is of great public importance." Id.

(citing State ex rel. Bland v. St. John, 13 So. 2d 161, 170 (Ala. 

1943) and Buckingham v. State ex rel. Killoran, 35 A.2d 903, 904-

05 (Del. 1944)). In Gabler, we elected to decide "a separation of 

powers issue of great public importance." Id., ¶53. In this case, 

we opt to decide a religious liberty issue of great public 

importance. In doing so, we recognize, as we did in Gabler, that 

"the greatest of our judges have not always followed [the 

constitutional avoidance doctrine] as a rigid rule. Perhaps had 

they done so the great opinion of Chief Justice Marshall in Marbury 

v. Madison would never have been written." Id., ¶52 (quoting Clay 

v. Sun Ins. Office Ltd., 363 U.S. 207, 223-24 (1960) (Black, J., 

dissenting)).

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 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

28

 

"support the constitution of the United States and the constitution 

of the state of Wisconsin." Wis. Stat. § 757.02(1). In fulfilling 

its sworn duty, "[t]he judiciary cannot, as the legislature may, 

avoid a measure because it approaches the confines of the 

constitution. We cannot pass it by because it is 

doubtful . . . with whatever difficulties, a case may be attended, 

we must decide it, if it be brought before us." Cohens v. Virginia, 

19 U.S. 264, 404 (1821). When parties present constitutional 

questions of great public importance, "[t]he courts of the [United] 

States are bound to take notice of the constitution," and to 

"emphatically . . . say what the law is." Marbury v. Madison, 5 

U.S. (1 Cranch) 137, 138, 177 (1803).

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.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

29

¶32 Turning to the Wisconsin Constitution, the Petitioners 

contend that the Order violates their fundamental right to the 

free exercise of religion under Article I, Section 18. In 

response, Heinrich asserts that the Order is constitutional under 

the United States Supreme Court's ruling in Jacobson v. 

 

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.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

30

Massachusetts, 197 U.S. 11 (1905), and that, even if Jacobson does 

not apply, the Order does not violate Article I, Section 18 of the 

Wisconsin Constitution. We hold that the Wisconsin Constitution—

—not Jacobson——controls the question, and 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.19

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 Fourteenth Amendment of 

the United States Constitution. Jacobson, 197 U.S. at 14. In 

essence, Jacobson brought an "implied substantive due process" 

claim asserting that the law violated his "bodily integrity." See

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 

(2020) (Gorsuch, J., concurring). The Court ruled that

Massachusetts's compulsory vaccination law was a "reasonable 

 

19 The Petitioners who are religious schools or parents with 

children attending religious schools raise an as-applied challenge 

to the constitutionality of those portions of the Order restricting 

or prohibiting in-person instruction. The remedy for violating

the constitutional right to the free exercise of religion is 

vacating those portions of the Order as applied to those 

Petitioners. Because the Respondent lacks any statutory authority 

to close schools (whether religious or secular), we vacate those 

portions of the Order entirely.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

31

exercise of [its] police power" and was constitutional under the 

Fourteenth Amendment. Jacobson, 197 U.S. at 35.

¶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 Article I, Section 18 of the Wisconsin Constitution——a 

provision containing Wisconsin's free exercise clause.20 In 

contrast, in Jacobson the defendant asserted that the compulsory 

vaccination law violated an implied "substantive due process" 

right to "bodily integrity" in violation of the Fourteenth 

Amendment. See Roman Catholic Diocese, 141 S. Ct. at 70 (Gorsuch, 

J., concurring); Jacobson, 197 U.S. at 14. The issue in Jacobson

involved "an entirely different right" and "an entirely different 

kind of restriction" than the Petitioners' current challenge.

Roman Catholic Diocese, 141 S. Ct. at 70 (Gorsuch, J., concurring).

¶35 Second, Jacobson's case did not involve a violation of 

the free exercise of religion under the First Amendment or any 

state constitution. In contrast, the Petitioners in this case 

challenge the government's infringement of their constitutionallyprotected right to the free exercise of their religion. "Nothing 

in Jacobson purported to address, let alone approve, such serious 

and long-lasting intrusions into settled constitutional rights." 

Id. at 71 (Gorsuch, J., concurring).

 

20 Article I, Section 18 contains two clauses referring to the 

rights of conscience, but we understand both of these provisions 

to protect the free exercise of religion. Coulee Catholic Sch. v.

LIRC, 2009 WI 88, ¶58, 320 Wis. 2d 275, 768 N.W.2d 868. 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

32

¶36 Third, even if Jacobson could somehow inform a free 

exercise claim, the Petitioners' challenge in this case invokes a 

state constitutional provision that affords heightened protections 

for the free exercise of religion compared to its federal 

counterpart. See State ex rel. Warren v. Reuter, 44 Wis. 2d 201, 

227, 170 N.W.2d 790 (1969). Article I, Section 18's "protections 

and prohibitions . . . are far more specific [than the First 

Amendment]" and provide "expansive protections for religious 

liberty." Coulee Catholic Sch. v. LIRC, 2009 WI 88, ¶60, 320 

Wis. 2d 275, 768 N.W.2d 868. Indeed, the Wisconsin Constitution 

"provides much broader protections for religious liberty than the 

First Amendment." Id., ¶66. Accordingly, this court must review

whether Heinrich's Order survives strict scrutiny under 

Wisconsin's own constitutional provisions, not whether the United 

States Constitution allows it; Jacobson would inform only the 

latter and therefore is irrelevant.

¶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 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

33

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 to stand guard against abuses of executive 

 

21 Justice Dallet reads into the statutes the extraordinary 

and virtually unlimited power of local health officials to "take 

all measures necessary" in a pandemic, without considering any 

constitutional constraints on its exercise. Justice Dallet's 

failure to grapple with the incompatibility of her statutory 

interpretation with the Wisconsin Constitution violates the 

foundational principle that the constitution reigns supreme over 

statutory law: "[T]he Constitution is to be considered in court 

as a paramount law" and "a law repugnant to the Constitution is 

void, and . . . courts, as well as other departments, are bound by 

that instrument." Marbury, 5 U.S. at 178, 180.

Instead of undertaking a constitutional analysis, Justice 

Dallet remarkably blames the petitioners themselves for the 

infringement of their own constitutional rights. Taking a position 

diametrically opposed to Heinrich's and belied by the record, 

Justice Dallet says that "[i]f 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"

since "Section 8 of the Order explicitly exempts religious 

practices from its in-person gathering restrictions[.]" Dissent, 

¶88. The parties' stipulated facts "torpedo" Justice Dallet's 

assertion. The parties——including Heinrich——stipulated that 

"Emergency Order #9, itself, does not allow for the opening of inperson education for grades 3-12 under any conditions except for 

a new order superseding and replacing Emergency Order #9, and 

except for qualifying students with disabilities or an 

individualized education program." Joint Stipulation of Facts 

#147 (emphasis added). Had the petitioner schools tested Justice 

Dallet's theory, they would have exposed themselves to "a penalty 

of not more than one thousand dollars $1,000" for "[e]ach and every 

day of violation." Joint Stipulation of Facts #170.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

34

power——however well-intentioned——that infringe on the free 

exercise of religion.

2. 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 Article I, Section 18, which "contains two clauses 

referring to the rights of conscience . . . , which we understand 

to refer generally to the exercise of religious freedom." Coulee, 

320 Wis. 2d 275, ¶58. In these provisions, Wisconsin's framers 

"use[d] the strongest possible language in the protection of this 

right." Id., ¶59. The clauses read, in relevant part, as follows:

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[.]

Wis. Const. art. I, § 18. In line with this "extremely strong 

language," Coulee, 320 Wis. 2d 275, ¶60, this court construes 

Article I, Section 18 as "more prohibitive than the First Amendment 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

35

of the United States Constitution." King v. Vill. of Waunakee, 

185 Wis. 2d 25, 59, 517 N.W.2d 671 (1994).

¶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 sincerelyheld 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 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

36

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 of their children 

receiving the sacrament of Holy Communion at weekly Masses and 

engaging in communal prayer throughout the day. St. Ambrose 

specifically states that its "religious mission depends on inperson attendance to be fully realized," given that the "community 

experience . . . is a mark of educational activity."22 The 

Petitioners clearly demonstrate sincerely-held religious beliefs, 

uncontested by Heinrich; accordingly, they satisfy the first 

factor.

¶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 

 

22 The other religious schools joining St. Ambrose in this 

action echo similar beliefs.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

37

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 

schooling; it burdened the exercise of religious practices. While 

Heinrich allowed schools to use their premises for child care and 

youth recreational activities, the government barred students from

attending Mass, receiving Holy Communion at weekly Masses with 

their classmates and teachers, receiving the sacrament of 

Confession at school, participating in communal prayer with their 

peers, and going on retreats and service missions throughout the 

area.23 As the United States Supreme Court has opined, "the 

'exercise of religion' often involves not only belief and 

profession but the performance of . . . physical acts[,] 

[including] assembling with others for a worship service." Emp.

Div., Dep't of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 877 

(1990) (emphases added). "Our Founders conceived of a Republic 

receptive to voluntary religious expression, and provided for the 

possibility of judicial intervention when government action 

 

23 Contrary to Heinrich's argument, it is of no import that 

the Order may be neutral and generally applicable to all schools. 

Unlike federal jurisprudence and in light of Article I, Section 

18's heightened protection for the free exercise of religion, this 

court considers whether the petitioners' sincerely-held beliefs 

were burdened by the application of the law at issue, even if the 

Order governs secular schools as well. See DeBruin v. St. Patrick 

Congregation, 2012 WI 94, ¶26 n.8, 343 Wis. 2d 83, 816 N.W.2d 878.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

38

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 . . . that cannot 

be served by a less restrictive alternative." Id. She fails to 

meet this burden. For public health purposes, the State certainly 

has a compelling interest in slowing the spread of COVID-19. The 

Petitioners do not dispute this point. However, the Order does 

not impose the "least restrictive" means of doing so.

¶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 

 

24 This is not to say, however, that "anything interfering 

with a religious organization is totally prohibited." Coulee, 320 

Wis. 2d 275, ¶65. In this case, however, "[w]e need not explore 

the outer boundaries" of the Wisconsin Constitution's protections 

of religious liberty because the Order unquestionably burdens the 

Petitioners' sincerely-held religious beliefs by prohibiting inperson religious education. Id., ¶66.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

39

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 inperson 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-yearold 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. 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

40

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 

Article I, Section 18 of the Wisconsin Constitution, which the 

government may not override, even in a pandemic. "Even in times 

of crisis——perhaps especially in times of crisis——we have a duty 

to hold governments to the Constitution." South Bay United 

Pentecostal Church v. Newsom, 141 S. Ct. 716, 718 (2021) (granting 

in part an application for injunctive relief) (statement of 

Gorsuch, J.).

IV. CONCLUSION

¶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 

Wis. Stat. § 252.03. Article I, Section 18 of the Wisconsin

Constitution——not Jacobson——controls the constitutional question.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA 

41

Because Heinrich's Order violates the Petitioners' fundamental 

constitutional right to the free exercise of religion, it cannot 

stand.

By the Court.—Rights declared; order vacated.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh

1

¶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 

Wisconsin Constitution. I join the court's opinion in all 

respects, with the exception of footnote 18. I write separately 

to discuss the proper role of this court in addressing 

constitutional questions——both when we should decide these issues 

and how we ought to do so.

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.

 

1 Dissent, ¶85.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh

2

¶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 of 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 

 

2 Because I do not join it, footnote 18 does not garner a 

majority of the court and does not constitute part of the 

precedential opinion of the court.

3 Majority op., n.18.

4 Id.

5 Id.

6 Id. (alteration omitted).
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh

3

you find it in the decisions of the United States Supreme Court.7 

Rather, the Wisconsin Constitution, like the Constitution of the 

United States, envisages a far more circumscribed role for the 

judiciary.

¶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 

 

7 Our cases do not support the broad theory proposed. Quite 

the contrary, we have explained the default rule consistently: 

"As a matter of judicial prudence, a court should not decide the 

constitutionality of a statute unless it is essential to the 

determination of the case before it." Kollasch v. Adamany, 104 

Wis. 2d 552, 561, 313 N.W.2d 47 (1981); see also State v. Frear, 

138 Wis. 173, 176, 119 N.W. 894 (1909) (per curiam) ("Sound 

judicial policy precludes the court from considering the question 

of the constitutionality of a legislative act unless a decision 

respecting its validity is essential to the determination of some 

controversy calling for judicial solution.").

In footnote 18, the opinion also claims support in the 

writings of Alexander Hamilton, Chief Justice John Marshall,

Justice Neil Gorsuch, Justice Antonin Scalia, and Justice Clarence 

Thomas, among others. However, none of citations, and none of the 

named authors, have supported the proposition advanced——that the 

court must address certain constitutional questions of great 

importance when properly presented. Instead, the United States 

Supreme Court has the same general rule that this court has 

embraced: "[W]e ought not to pass on questions of 

constitutionality unless such adjudication is unavoidable." Matal 

v. Tam, 137 S. Ct. 1744, 1755 (2017) (cleaned up); see also Tory 

v. Cochran, 544 U.S. 734, 740 (2005) (Thomas, J., dissenting) ("As 

a prudential matter, the better course is to avoid passing 

unnecessarily on the constitutional question.").

8 The Federalist No. 78, at 464 (Clinton Rossiter ed. 2003).
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh

4

branches and the least likely to trample the liberty of the people.9 

The Wisconsin Constitution follows this same design.10 While this 

vision held sway for some time, in recent years, the judiciary has 

insisted on a far more expansive role for itself. A distorted 

conception of judicial supremacy has taken hold, all too often 

inserting the judiciary into nearly every aspect of public life. 

Justice Scalia aptly called this dangerous development the 

"overjudicialization of the process of self-governance."11

¶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 

 

9 Id. ("The judiciary . . . has no influence over either the 

sword or the purse; no direction either of the strength or of the 

wealth of the society, and can take no active resolution 

whatever.").

10 Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶31, 

393 Wis. 2d 38, 946 N.W.2d 35.

11 Antonin Scalia, The Doctrine of Standing as an Essential 

Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 

881 (1983).

12 We also must be faithful in addressing the legal questions 

we do address. There is no room to rewrite statutes in an effort 

to avoid addressing a complicated constitutional question.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh

5

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 and humble, one that exercises the 

judicial power with fortitude and modestly acknowledges where its 

power and duties end. This is why judicial modesty and judicial 

fortitude are among the cardinal judicial virtues. Humility 

without courage can lead to an abdication of our judicial duty to 

declare the law in cases properly before us.13 Courage unbounded 

by the humility to recognize and accept the limits of the judicial 

role quickly leads to the rule of judges, rather than the rule of 

law.

¶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 

 

13 I too reject the kind of judicial modesty that advocates 

"extreme deference to majoritarian impulses" or one that reflects 

a "trepidation over fully embracing our duty to be faithful 

guardians of the Constitution." See Majority op., n.18 (internal 

quotation marks omitted).

14 United States v. Sineneng-Smith, 140 S. Ct. 1575, 1587 

(2020) (Thomas, J., concurring) (alterations omitted) (quoting 

Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973)).
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh

6

adjudicating rights in particular cases between the litigants 

brought before the Court."15 In other words, we are not lawdeclarers-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 questions 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 

 

15 Broadrick, 413 U.S. at 611.

16 See 16 C.J.S. Constitutional Law, § 212 ("A longstanding 

principle of judicial restraint requires that courts avoid 

reaching constitutional questions in advance of the necessity of 

deciding them."); id. (collecting cases).
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh

7

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 This argument 

has been oft-repeated in cases around the country during the 

pandemic and is incorrect.19 The court's opinion today resolves 

this important question, which gives needed guidance to the public. 

Finally, we blaze no new ground in reaffirming and applying wellsettled law. Religious liberty receives heightened protection 

under the Wisconsin Constitution. That's what the text says, and 

our precedent is clear.20 Today's decision appropriately applies 

the governing test in this area. Therefore, even though it is 

true that we need not address the constitutional question in this 

case, it is prudent to do so. These are important questions with 

immediate consequences far beyond this case. They were fully 

presented, fully briefed, and our decision provides clarity where 

it is needed. My disagreement is only with the notion in footnote 

18 that judicial duty requires us to answer this question.

 

17 See, e.g., Roman Catholic Diocese of Brooklyn v. Cuomo, 141 

S. Ct. 63 (2020) (per curiam).

18 Jacobson v. Massachusetts, 197 U.S. 11 (1905).

19 See Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 70-

71 (Gorsuch, J., concurring).

20 See Wis. Const. art. I, § 18; Coulee Catholic Sch. v. LIRC, 

2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh

8

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 

Wisconsin Constitution is the law to which we are bound.22

¶62 Our return to a method of statutory interpretation based 

not on policy concerns, but on the text of the law itself, has 

 

21 State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, 

¶¶44-52, 271 Wis. 2d 633, 681 N.W.2d 110; Vos, 393 Wis. 2d 38, 

¶28.

22 Vos, 393 Wis. 2d 38, ¶28.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.bh

9

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 

Wisconsin Constitution, bring us a textual analysis rooted in the 

original public meaning of the words of the Wisconsin Constitution. 

Of course, litigants should employ and explain our precedent. But 

especially when raising claims of a novel character, recourse to 

first principles is most appropriate, and briefing focused on the 

original public meaning of the Wisconsin Constitution is therefore 

most welcome.

 

23 See generally Daniel R. Suhr, Interpreting Wisconsin 

Statutes, 100 Marq. L. Rev. 969 (2017).

24 Indeed, we adhered to this method in our earliest 

interpretations of the Wisconsin Constitution. See State ex rel. 

Bond v. French, 2 Pin. 181, 184 (Wis. 1849) ("In deciding this 

question, our only guide is the constitution, in construing which 

we are to be governed by the same general rules of interpretation 

which prevail in relation to statutes."); see also Daniel R. Suhr, 

Interpreting the Wisconsin Constitution, 97 Marq. L. Rev. 93, 96-

97 (2013) ("In the earliest days of the state, the Wisconsin 

Supreme Court used the same methodology to interpret both 

constitutional and statutory texts. Until 1974, the court relied 

on classical principles for all interpretive questions." (footnote 

omitted)).
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd

1

¶63 REBECCA FRANK DALLET, J. (dissenting). This is not a 

difficult statutory interpretation case. The only statutory 

question before the court is whether Wis. Stat. § 252.03 prohibits 

local health officers from closing schools. It takes no special 

"canons" or abstract linguistic principles——only a common sense 

understanding of the English language——to see that it does not. I 

therefore dissent.

¶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 Wisconsin Stat. § 252.03 plainly says what it means and 

means what it says. It requires local health officers to "promptly 

take all measures necessary to prevent, suppress[,] and control 

communicable diseases," and authorizes them to "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-19.1 The statute's plain language, its history, 

and numerous related statutes all confirm that local health 

 

1 Whether the Order was "necessary" or "reasonable" is a factbased question that is not before the court.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd

2

officers may close schools, so long as doing so is at least 

reasonable and necessary to suppress disease.

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 Wis. Stat. ch. 167, § 1 (1883). That initial 

statute required every locality to establish its own board of 

health, which subsequently appointed a health officer. Id. One 

of the local health officer's duties was to "at all times 

promptly . . . take such measures for the prevention, 

suppression[,] and control [of contagious diseases] as may in his 

judgment be needful and proper," subject to the local health 

board's approval. Id. Then, in the aftermath of the 1918 Spanish 

Flu outbreak, the legislature granted to local boards of health 

the similar but more inclusive power to do "what is reasonable and 

necessary for the prevention and suppression of disease," 

including "forbid[ding] public gatherings when deemed necessary to 

control epidemics." See Wis. Stat. ch. 159, § 1411-5 (1919). 

After a 1981 amendment, that power now belongs to local health 

officers rather than local health boards. See § 23, ch. 291, Laws 

of 1981. For our purposes here, the legislature has since made no 

other substantive changes to the statute's text.2

¶67 Today, local health officers continue to have the 

authority and duty to act quickly to "prevent, suppress[,] and 

 

2 The legislature restructured the public health statutes 

in 1923 and renumbered them 70 years later, but the relevant 

language has stayed the same. See § 14, ch. 448, Laws of 1923; 

1993 Wis. Act 27, § 285; Wis. Stat. § 252.03.
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3

control communicable diseases." See § 252.03(1). At the first 

sign of an outbreak, local health officers' obligations are 

mandatory and time sensitive: they "shall" investigate 

"immediately" and act "promptly." Id. To that end, the 

legislature gives local health officers the discretion to 

determine how best to react, instructing them to "take all measures 

necessary" to stop the disease's spread. Id.. Should local health 

officers "fail" to take "all measures necessary" to stop the 

disease's spread, the state Department of Health Services (DHS)

"shall take charge" at the local government's expense. 

§ 252.03(3).

¶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." § 252.02(3); see also Wis. Stat. ch. 674, § 1407a-6.2 

(1913). Local health officers' power to forbid public gatherings 

contains no similar limitation. See § 252.03(2). Moreover, DHS 

"may" take only "emergency" measures to control the spread of 

disease after an outbreak occurs; but local health officers must 

take "all" measures to not only control outbreaks but also to 

prevent them. See §§ 252.02(6); 252.03(1)-(2). Thus, despite 

some overlap in local and state health officers' powers, the 

textual distinctions between §§ 252.02 and 252.03 reveal fewer 

limitations on local officers' authority to respond to diseases 
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4

and to prevent their spread.3 And none of those limitations prevent 

a local health officer from closing schools.

 

3 The majority twice errs regarding the history of Wis. Stat. 

§§ 252.02 and 252.03. First, while the statutes were renumbered 

at the same time, they were drafted and enacted decades apart. 

Second, building on its false premise, the majority mistakenly 

concludes that the statutes' history supports only one conclusion. 

A full examination of the historical evidence, however, reveals at 

least one other reasonable inference, with no principled way of 

choosing between the two.

An earlier draft of Wis. Stat. ch. 159, § 1411-5 (1919)——the 

predecessor to Wis. Stat. § 252.03(2)——gave local health officers 

the power to "close schools, theaters[,] and churches," mirroring 

the state health board's power, but without the qualification "when 

deemed necessary to control epidemics." See 8 Wis. Op. Att'y 

Gen. 157, 157 (1919). The state attorney general warned that, 

without such qualification, the statute may be unconstitutional as 

an unlimited and arbitrary grant of power to local officials. Id. 

He suggested, however, that if the legislature rephrased the 

provision to read "when necessary to control epidemics, [local 

health officers] may forbid public gatherings and close schools, 

theaters, and churches," that would cure any "constitutional 

objections to the bill." Id. at 158 (emphasis added). The enacted 

text jettisoned the specific "close schools, theaters[,] and 

churches" language for the more open-ended power "to order and 

execute what is reasonable and necessary," while still limiting 

such actions to those related to "the prevention and suppression 

of disease." See Wis. Stat. ch 159, § 1411-5 (1919).

That history reveals two equally reasonable inferences. One 

is that the legislature removed the "close schools" language from 

the draft bill because it intended only for DHS to have the power 

to close schools. The other is that the legislature removed that 

language because it did not intend to restrict local health 

officers' response options to only closing schools, theaters, and 

churches. Neither inference is more or less consistent with the 

statute's plain text. The legislative history is therefore no 

help in resolving this case. See Greenwood v. United States, 350 

U.S. 366, 374 (1956) ("[W]hen the legislative history is doubtful, 

go to the statute."). Accordingly, our analysis starts and ends 

with the statute's plain text, which on its face does not prohibit 

local health officers from closing schools.
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B

¶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 § 252.03, the majority opinion impermissibly 

adds language to the statute, misinterprets local health officers' 

other duties, and nullifies a host of other statutory provisions.

1

¶70 Nowhere in the legislature's directive under § 252.03 

that a local health officer "promptly take all measures necessary 

to prevent, suppress[,] and control" disease outbreaks did the 

legislature add the caveat "except close schools" or "except the 

measures DHS may take under § 252.02." The majority cannot "read 

into the statute a limitation the plain language does not 

evidence." See County of Dane v. LIRC, 2009 WI 9, ¶33, 315 

Wis. 2d 293, 759 N.W.2d 571. And there is no textual evidence for 

the majority to conclude that when the legislature directed local 

health officers to take "all" measures reasonable and necessary to 

control a disease outbreak, it did not mean exactly what it said. 

See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, 

¶39, 271 Wis. 2d 633, 681 N.W.2d 110 ("We have stated time and 

again that courts must presume that a legislature says in a statute 

what it means and means in a statute what it says there." (quoting 
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6

Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54 (1992))); see 

also Benson, 376 Wis. 2d 35, ¶25 (explaining that courts must not 

"arbitrarily limit[]" general terms; rather such terms "are to be 

accorded their full and fair scope" (quoted source omitted)). 

Reading in to the statute a phantom restriction impossibly requires 

the legislature to write statutes today that specifically address 

all potential situations in the future, even those "not readily 

imagined." See United States v. Persichilli, 608 F.3d 34, 40 (1st 

Cir. 2010). The more sensible reading of § 252.03 is that when

the legislature wrote "all measures," it meant all measures.

¶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

§§ 252.02(3), 252.03(2); City of Kaukauna v. Vill. of Harrison, 

2015 WI App 73, ¶10, 365 Wis. 2d 181, 870 N.W.2d 680. Moreover, 

while some disease outbreaks, such as COVID-19, are so widespread 

that DHS may need to close schools across the state, others may 

affect only one community. Thus, to "remove any doubt and make 

doubly sure" that it left no gaps in officials' ability to respond 

to outbreaks both local and statewide, it is unsurprising that the 

legislature "employ[ed some] overlap or redundancy" in state and 

local officials' powers. See Loving v. IRS, 742 F.3d 1013, 1019 

(D.C. Cir. 2014). And without clear language to the contrary, 

nothing about DHS having the power to close schools statewide 

negates local health officers' power to close their local schools 

when reasonable and necessary to prevent the spread of disease.
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2

¶72 The statute's plain language also undermines the 

majority's argument that local health officers' specific power to 

inspect schools under § 252.03(1) somehow preludes them from 

closing schools under § 252.03(2). The text indicates that those 

powers have significantly different scopes and are not mutually 

exclusive. A local health officer may inspect a school "as needed" 

to verify that "the buildings are kept in a sanitary condition." 

§ 252.03(1). She may close a school, however, if doing so is 

reasonable and necessary to prevent and suppress disease. 

§ 252.03(2). Nothing about being able to close local schools when

"reasonable and necessary" to prevent and suppress disease is 

redundant with the power to inspect schools' sanitary conditions 

at any other time. Moreover, local health officers' mandate to 

"take all measures necessary" and authorization to "do what is 

reasonable and necessary" become meaningless if, as the majority 

claims, § 252.03 allows them only to "inspect schools" and "forbid 

gatherings." Cf. Moreschi v. Vill. of Williams Bay, 2020 WI 95, 

¶13, 395 Wis. 2d 55, 953 N.W.2d 318.

3

¶73 The majority's reading nullifies not only much of the 

language of § 252.03, but also that of numerous other statutory 

provisions that acknowledge local health officers' power to close 

schools. See id. (explaining that statutory terms must be read in 

their broader statutory context and in a way that is consistent 

with other statutes that address the same subject matter). 

Heinrich points to at least three statutes and one administrative 

code provision recognizing that local health officers' orders may 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd

8

close schools. See Wis. Stat. § 115.01(10)(b) (defining "school 

days" to include "[d]ays on which school is closed by order of a 

local health officer"); § 118.60(12) (precluding the department of 

public instruction from withholding payment to a private school 

under the parental-choice program if that school "is closed for at 

least 10 school days . . . by a local health officer"); 

§ 120.12(27)(a) (requiring the school board to notify the 

department of public instruction within 24 hours of a school being 

closed due to a local health officer's order); Wis. Admin. Code § 

PI 8.01(4) (defining "school closure," in part, as a closure by 

order of a local health officer). Undoubtedly these provisions, 

some of which the legislature enacted in response to the COVID-19 

epidemic, have meaning only if local health officers have the 

authority to close schools under § 252.03.

¶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: § 252.03, by authorizing measures "reasonable and 

necessary for [disease] prevention and suppression," already gives 

local health officers that power. The majority's reading of those 

provisions impermissibly renders them all meaningless, effectively 

repealed by the court. See Kalal, 271 Wis. 2d 633, ¶46 (explaining 

that "the court is not at liberty to disregard the plain, clear 

words of the statute" (quoted source omitted)).

4

¶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, 
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9

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.

II

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——statutoryinterpretation tools. Thus, we should be careful not to treat it 

as though it is the only toolbox available.
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10

¶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 
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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 is how that word is 

commonly or ordinarily used).

¶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, 
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https://newrepublic.com/article/106441/scalia-garner-readingthe-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 lastantecedent 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 
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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 "surplusage" 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 § 252.03's mandate that a 

local health officer take "all" necessary measures as well as every 

statutory provision that references a local health officer closing 

schools. Supra, ¶¶11-13. Heinrich's position, on the other hand, 

maintains the independent effect of all relevant provisions. Id. 

Thus, to the extent the canon against surplusage counsels in favor 

of either position, it does so more strongly for Heinrich's.

¶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 
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd

14

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 § 252.03, which clearly and unambiguously authorizes "all 

measures necessary to prevent, suppress[,] and control 

communicable diseases." Cf. Peters, 263 Wis. 2d 475, ¶14. On its 

face, nowhere does § 252.03 prevents local health officers from 

closing schools. The majority offers no persuasive statutory 

analysis for why we should interpret the legislative text contrary 

to its plain meaning. So long as it is reasonable or necessary 

for local health officers to close schools to prevent and suppress 

disease, nothing in the plain text of § 252.03, its background, or 

the relevant statutory context prevents them from doing so.

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 
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15

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, one could reasonably argue 

that nearly every case with a constitutional dimension raises such 

an issue. And the majority offers no explanation for why this 

particular constitutional question, about an expired local health 

order that applies to just one of Wisconsin's 72 counties, is of 

any greater public import than any other claim involving an alleged 

violation of individual liberties. See, e.g., Kollasch, 104 

Wis. 2d at 561. Such a malleable exception all but abandons what 

 

4 Indeed, the same rationale the majority offers for declining 

to address the petitioners' other constitutional claims applies 

with equal force to their free-exercise claim. See majority op., 

¶13 n.9.
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has been this court's "[s]ound judicial policy" for over 100 

years: avoiding constitutional questions unless answering them is 

"essential" to deciding the case. See, e.g., State ex rel. 

Rosenhein v. Frear, 138 Wis. 173, 176, 119 N.W. 894 (1909); Smith 

v. Journal Co., 271 Wis. 384, 390, 73 N.W.2d 429 (1955); Kollasch, 

104 Wis. 2d at 554; Adams Outdoor Advert., Ltd. v. City of 

Madison, 2006 WI 104, ¶91, 294 Wis. 2d 441, 717 N.W.2d 803; State 

v. Scott, 2018 WI 74, ¶12, 382 Wis. 2d 476, 914, N.W.2d 141. At 

its core, "the doctrine of constitutional avoidance requires that 

we act with restraint." Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 

¶138, 382 Wis. 2d 496, 914 N.W.2d 21(Ziegler, J., concurring).

¶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 (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 
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17

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 Wis. Stat. § 252.03 contains no 

indication that closing schools falls outside of local health 

officers' directives to "take all measures necessary to prevent, 

suppress[,] and control communicable diseases," and to do what is 

"reasonable and necessary for the prevention and suppression of 

disease." Nothing about DHS's directive under § 252.02 suggests 

otherwise. The majority reaches a contrary interpretation through 

an unnecessary reliance on, and misuse of, tools for interpreting 

ambiguous statutes. That erroneous interpretation fully resolves 

this case, obviating any reason to reach the constitutional 

question. Thus, for the foregoing reasons, I respectfully dissent.

¶90 I am authorized to state that Justices ANN WALSH BRADLEY 

and JILL J. KAROFSKY join this dissent.
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd

18
Nos. 2020AP1419-OA & 2020AP1420-OA & 2020AP1446-OA.rfd

1