2021 WI 58



# S UPREME 

# C OURT OF 

# W ISCONSIN

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C OMPLETE T ITLE : 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 S chools, 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 Harr ison, 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, B lessed 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

O PINION F ILED : June 11, 2021 S UBMITTED ON B RIEFS : O RAL A RGUMENT : December 8, 2020

S OURCE OF A PPEAL : C OURT : C OUNTY : J UDGE :

J USTICES : 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 opini on in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. N OT P ARTICIPATING :

A TTORNEYS : 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, Tr outman 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 w hom 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., t here 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 Fr eedom 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 Depa rtment 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 Metrop olitan 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 Educatio n 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 Go vernor Tony Evers and Secretary

– Designee of Department of Health Services Andrea Palm by So pen 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 Danie l R. Suhr, Reilly Stephens, and Li berty Justice Center , Chicago, Illinois.

An amicus curiae brief was filed on behalf of Lea gue of Wisconsin Municipalities by Claire Silverman and Maria Davis , Madison.2021 WI 58

NOTICE This opinion is subject to further editing and modificati on. The final version will appear in the bound volume of the official reports.
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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 C lerk 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 Sch ool, 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 He inrich 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., L oretta 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 Count y Executive of Dane County and Janel Heinrich, In her Official Capacity as Director, Public Health, Madison & Dane County,

Respondents.

REBECCA GRASSL BRADLEY, J. , deliver ed the majority opinion of the C ourt, 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 dissent ing 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 w e consolidate and review three cases challeng ing

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."No s . 2020AP1419

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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. Citi ng 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 P etitioners 3 contend that the Order exceeds Heinrich's statutory authority under § 252.03 and violates
the ir 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 educat ion 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

- clos ure orders. Further, sh e 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 P etitioners and hold: (1) local health offic ers do not have the statutory power to close schools under

2 All subsequent references to the Wisconsin Statutes are to the 201 7

- 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 membersh ip associations

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4 Wis. Stat. § 252.03; and (2) Heinrich's Order infringes the
P etitioners' 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 beg an 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, t his order required all people in the state to remain in their homes, prohibited non

- essential travel, clos ed all " non - essential " businesses, and

—— as relevant to this case

—— close d "[p]ublic and private K

- 12 schools
. . . for [in

- person] instruction an d extracurricular activities." On April

4 COVID

- 19 is a n 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/nnds s/conditions/coronavirus

- disease

- 2019

- covid

- 19/case

- definition/2020/.No s . 2020AP1419

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5 16, 2020, P alm extended the "Safer at Ho me 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 I n Wisconsin Legislature v. Palm , we invalidated m any 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
regu lated 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 t he "Safer at Home Order," includ ing the mandate closing schools

. 2. On May 18, 2020, Heinrich issued Emergency Order #2, which expressly reiterated that pu blic and private K

- 12 schools
must stay closed for in

- person instruction, but allowed
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6 Th e 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 o perations" 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" effe ctive July 1, 2020. The

o rder 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] nsuringNo s . 2020AP1419

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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 Order s #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, thr ee 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 s tudents in grades K

- 2, so long as the schools provide d

a n altern ative 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, t he 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 publi c systems." The Order acknowledged that
a "num ber 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

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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, t he 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 conduc t 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 da y after Heinric h issued the Order , S ara Lindsey James, a parent of two student s 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 child ren in Ou r Redeemer Lutheran School because of her sincerely

- held religious belief that it is essential for her child ren to receive a faith

- based education. Our Redeemer Lutheran was one of the schools the Order required to cease in

- person instruction. James beli eves 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 Othe r petitions for original action soon followed. Wisconsin Council of Religious and Independent Schools (WCRIS), a membership

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9 schools, 7 filed a petition for origina l action with this court challenging the lawfulness of the Order . WCRIS represents over 600 schools thr oughout 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 for mation. ¶ 12 Additionally, St. Ambrose Academy, a classical Catholic school located in the City of Madison, together with parents of children at tending St. Ambrose, 8 brought a petition for original action to this court challenging the lawful ness of the Order
. According to St. Ambrose, its "religious mission depends on in

person attendance to be fully realized." St. Ambrose offers its students the opportunity to receive Holy Communion at weekly
M asses, 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. T he Order prohibited these in

- person activities. ¶ 13 All three petitions for origin al a ction 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.

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10 P etitioners' fundamental right to the free exercise of religion under Article I, Section 18 of the Wisconsin Constitution. 9 The
P etitioners also requested temporary injunctive relief. Heinrich filed a response opposing the petition s for original action. ¶ 14 On September 10, 2020, this court granted the three petitions for original acti on 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 a llowing schools to re

- open for in

- person instruction. In issuing the injunction, this court determined that P etitioners: (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 und er our constitutional design , " w e

9 The Petitioners also contend that the Order vi olates 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.No s . 2020AP1419

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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
conferre d in Article VII, Section 3(2) of the Wisconsin
Con stitution. The P etitioners ask this court to interpret Wis.
Stat. § 252.03 in determin ing whether Heinrich violated her

10 After oral argument, Heinrich issued a n other emergency order , which does not mandate school closure s; 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 PHMD C 's orders is filed, the health authority i ssues 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 t his 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.")

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12 statutory authority. Issues of statutory interpretation and application present que stions of law. Police Ass'n v. City of Milwaukee , 2018 WI 86, ¶ 17, 383 Wis . 2d 247, 914 N.W.2d 597. The
P etitioners also ask this court to interpret Article I, Section 18 of the Wisconsin Constitution. Issues of constitutional interpretation also are qu estions of law. Serv. Emps. I nt'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 P etitioners 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 P etitioners are
correct
. Section 252.03 does not provide l ocal health o fficials 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 offi cers regarding communicable diseases. Subsection s (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 th e department. The local health officer shall promptly take all measures necessary to prevent, suppress and control communicable

11 Both par ties 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

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13 diseases, and shall report to the appropriate governing body the progress of the communicable diseases and the measures used ag ainst 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 wh ether 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 shal l advise the department of measures taken. ¶ 18 N owhere in this statute did the legislature give local health officers the power to "close schools." T he statute lists

a series of discrete powers afforded local health officers in order
to ad dress 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 ar e kept in a sanity condition." Wis. Stat. § 252.03(1) and (2).
U nder 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 W I 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, Readin g Law: The Interpretation of Legal Texts 107

- 11 (2012) ("The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius).")

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14 "the legislature did not specifically confer a power," the exer cise 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 of ficers 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 C nty
. , 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

- r e la t ed statute governing the powers of DHS regarding communicable diseases. In § 252.02 , the legislature specifically stated that "[t]he department [of health servic es]
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 § 252.0 3
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 pariNo s . 2020AP1419

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15 materia , and relating to the same subject, are to be taken together, and compared in the construction of them, because t hey 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 t hese 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 Stat e 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 loc al health officers different powers." ¶ 21 Despite th e 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. I f local health officers' authority to take measures "reasonable and necessary" included the extraordinary power to close schools, then the legislature 's specification of particularNo s . 2020AP1419

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16 powers, such as the power to "inspect schools , " would be superfluous
. T he 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 w ere correct, then the general provision would essential ly afford local health officers any powers necessary to limit the spread of communicable diseases. This cannot be. W hat is reasonable and necessary cannot
be reasonably read to encompass anything and everything. N othing in th e text of the statute confers upon local hea lth 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.No s . 2020AP1419

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17 ¶ 23 As recognized since the founding of our nation, "it is no more the court's function to re vise 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 wr ote 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 th e dissent's) interpretation of § 252.03 violates the "c ardinal rule of statutory interpretation that no provision should be construed to be entirely redundant."No s . 2020AP1419

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

. 12

12 Justice Rebecca Dallet would a pparently 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 meth od of decision making "refuse to yield the ancient judicial prerogative of making the law, improvising on the text to produce what the y deem socially desirable results [
. ] " Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts xx vii, 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 develope d 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)).No s . 2020AP1419

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19 Justice Antonin Scalia and Bryan Garner, co - author s 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 vene rable 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, Jus tice 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. Ju stice 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.No s . 2020AP1419

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20 Justice Dallet distorts the words of textualists to support her rejection of the fair reading met hod 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 t he 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 Kava naugh 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 Inter pretation , 129 Harv. L. Rev. 2118, 2161 (2016) (book review). He also never said the canons "often lead to 'wrongheaded' judicial 'policymaki ng , '" 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 216 2. 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 inte rpretation 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 t o 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 theNo s . 2020AP1419

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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 statut e is misplaced. A plain textual reading of § 115.01(10)(b) shows that the provision is not a grant of authority to local health offic ers; instead, it is merely a "classifications" section for statutes wholly unrelated to the duties of local health officer s regarding communicable diseases. Accordingly, this statute has no bearing

o n the authority of state actors in this case. ¶ 25 Heinrich further argues that Wis. Stat. § 120.12(27)(a) contempl ates that local health officers have the power to close schools under Wis. Stat. § 252.03. Section 120.12(27)(a) states
that " [t he school board shall] [w]ithin 24 hours of a school being closed for a reason specif ied in § 115.01(10 ) (b) or (c) or by the department of health services under § 252.02(3), notify the department." Nothing in t his provision gives local health officers

a ny autho rity to close schools. Rather, the statute contemplates
that DHS has the power to close schools under ch. 2 52
. Section

canons but the text, context, and structure of Wis. Stat. § 252.03 to reach her desired outcome in this case.No s . 2020AP1419

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22 120.12(27)(a) is silent c oncerning 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," thi s 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 s uch 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 desi gnates 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 d o not construe it or consider its validity under the c onstitution; 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 point s 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.No s . 2020AP1419

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23 our analysis of the statute could end t here. Kalal , 271 Wis. 2d 633, ¶45 ("[S]tatutory interpretation 'begins with the language of the statu te. 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 par t 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. A l though the legislature at one point contemplated giving them this power , it never did so

. ¶ 27 Wisconsin's public health infrastructure originated 14 5
years ago in 1876, when the legislature created the State Board of Health, which, like DH S 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 requir ed 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 mandat ed that local

15 This article is available at https://content.wisconsinhistory.org/digital/collection/wmh/id/4 3606.No s . 2020AP1419

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24 health officers "take such measure s 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, t he legislature declined to grant such authority to local h ealth 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 d iseases"; 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 Wisconsin ites , the State Board of Health invoked these ex traordinary p owers. Burg, supra , at 45. ¶ 29 In the aftermath of the Spanish Flu, the legislature revisit ed 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 measur es 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.No s . 2020AP1419

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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 draft s of the bi ll 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). T he 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 stat e[]"

17 The legislature first gave this power to local health officers under its 1883 law.No s . 2020AP1419

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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
str uck 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
amend ments over the ensuing decades. In 1923, the legislature restructured its public health laws, re taining the same language adopted in 1919. See Wis. Stat. §§ 143.02 and 143.03 (1923

- 24). In 1981, the legislature again amend ed 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"

— o nly the statewide health agency ( now DHS )
. B oth 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 clos ing all schools in Dane County.No s . 2020AP1419

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27 C. Constitutional Claims 18

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 de ciding 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 q uestions 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 Koll asch 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 tha t 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 , t hat "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 judici ary's obligation to uphold the c onstitution. As part of their oath of office, judges in Wisconsin "solemnly swear" toNo s . 2020AP1419

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28 "support the constitution of the United States and the c onstitution of the st ate 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 dou btful
. . . 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 [U nited] 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 pro nounced 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. 7 8 , 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 crosse d. 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.'" Gu ndy 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 Or der violates the constitutionally

- protected right of parents to direct the upbringing and education of their children.No s . 2020AP1419

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29 ¶ 32 Turning to t he Wisconsin Constitution, the P etitioners 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 fundame ntal 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 lig ht of constitutional provisions [.] " Herbert Wechsler, Toward Neutral Principles of Constitutio nal 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 judg ment). 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 progre ssive era, when judges abandoned their obligation to uphold the C onstitution in extreme deference to majoritarian impulses, thereby elevating legislative acts over the C onstitution

—— 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, a nd 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 bound s of the judicial role and is not "needlessly opin[ing]"

—— it is a constitutional imperative. Disse nt, ¶64
. As the bulwark of our Wisconsin Constitution, we should defend the people's rights with fortitude, not modesty.No s . 2020AP1419

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30 Massachusetts , 197 U.S. 11 (1905), and that , even if Jacobson does not apply, the Order does not violate Article I, Section 18 o f 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 1 4
. 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)

. T he 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 porti ons of the Order entirely.No s . 2020AP1419

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31 exercise of [its] police power" and was constitutional under the
Fourteenth Amendment. Jacobson , 197 U.S. at 3 5
. ¶ 34 Contr ary to Heinrich's argument, Jacobson does not apply
to this case, for at least four reasons
. First, the P etitioners' challenge to the constitutionality of the Order is couched entirely within Article I, Section 1 8 of the Wisconsin Constitution

—— a provision containing Wisconsin's free exercise clause. 20 In contrast, in Jacobson the defend ant asserted that the compulsory vaccination law violated an implied "substantive due process" right to "bodily integrity" in violation of the Fourteenth
Amendm ent
. 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 entirel y different kind of restriction " than the P etitioners' 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 P etitioners in this case challenge the government's infringement of their constitutionally

protected 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 cons titutional rights."
Id. at 71 (Gorsuch, J., concurring).

20 Article I, Section 18 contains two clauses referri ng 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
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32 ¶ 36 Third, even if Jacobson could somehow inform a free exercise claim , the P etitioners' 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 rel igious 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 ir relevant
. ¶ 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, "i n 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

. T hat a n order reflects an exercise of police power does not save it if the order "evi scerates [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, 107No s . 2020AP1419

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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 o f 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. J ustice 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 considere d 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 r emarkably 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 in

person 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 petition er 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.No s . 2020AP1419

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34 power —— however well

- intentioned

—— that infringe on the free exercise of religion.

2. Article I, Sec tion 18 of the Wisconsin Constitution ¶ 38 T he 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). "T he framers of the constitution, backed by Wisco nsin 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 exe r cise of religious freedom." Coulee , 320 Wis . 2d 275, ¶58
. I n these provisions, Wisconsin's framers "use[d] the strongest possible language in the protection of this right." Id. , ¶5 9
. 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 permit ted [
. ] Wis. Const. a rt. I, § 18. In line with this "extremely strong language, " Coulee , 320 Wis . 2d 275, ¶ 60, t his court construes Article I, Section 18 as "more prohibitive than the First AmendmentNo s . 2020AP1419

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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 i ndividual's or organization's freedom of religious exercise, "we have generally applied the compelling state interest/least restrictive
alt ernative test. Under this test, the [individual] or religious organization has to prove (1) that it has a sincerely held religious belief, and (2) tha t 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 inter est (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) )
. Applyi ng the strict scrutiny embodied in these four factors, Heinrich's Order unconstitutionally infringes the P etitioners'
freedom of religious exercise. ¶ 40 For the first factor, all petitioners have sincerely

held religious beliefs, to which t he respondent expressly stipulated. James, for example, believes that it is essential for her child ren 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 child ren to Our Redeemer Lutheran School precisely to fulfill this religi ous 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 at tending these schoolsNo s . 2020AP1419

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36 specifically chose these institutions so their children could "participat[e] in [their] religious activities in

- person" and "exercise their faith." ¶ 41 The p arents of students at St. Ambrose Academy hold similar beliefs

. T hey 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 Chris t 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 M asses and engaging in communal prayer throughout the day. St. Ambrose specifically states that its "religious mission depends on in

person attendance to be fully realized," given that the "community experience

. . . is a mark of educational activity." 22 T he
P etitioners clearly demonstrate s incerely

- held religious beliefs, uncontested by Heinrich ; accordingly , they satisfy the first
factor. ¶ 42 Turning to the second factor , the Order incontrovertibly
burdens P etitioners' beliefs. T he P etitioners establish ed that in

- person religious instruction is a vital part of the exercise of their religio n . 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 g rades

22 The other religious schools joining St. A mbrose in this action echo similar beliefs.No s . 2020AP1419

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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
P etitioners' exercise of their faith

—— were suspended by gover nment decree
. ¶ 43 Indeed, the Order did not merely burden academic
school ing; it burden ed the exercise of religious practice s . While Heinrich allowed schools to use their premises for child care and youth recreational activities, t he government barred s tudents from attending Mass, receiv ing Holy Communion at weekly M asses with their classmates and teachers , receiving the sacrament of
C onfession at school , participat ing in communal prayer with their
peers, and go ing on retreats and serv ice 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] assembl ing with others for a worship serv ice." Emp
. Div., Dep't of Hum

. Res. of Oregon v. Smith , 494 U.S. 872, 877 (1990) (emphase s added). "Our Founders conceived of a Republic receptive to voluntary religious expression , and provided for the possibility of judicial intervention when governmen t 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 protec tion 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.No s . 2020AP1419

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38 threatens or impedes such expression." McCreary C nty., Ky. v. Am. Civ. Liberties Union of Ky. , 545 U.S. 844, 883 (2005) (emphasis added). Hein rich's Order not only impede d the P etitioners' religious expression and practice , it outright precluded both from occurring in P etitioners' schools altogether
. T he P etitioners' exercise of their sincerely

- held beliefs was unquestionably "burdened by the application" of the Order, 24 and the P etitioners accordingly satisfied the second factor. ¶ 44 Because the P etitioners 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. F or public health purposes, the State certainly has a compelling interest in slowing the spread of COVID

- 19. The
P etitioners 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 obj ecting 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 Or der unquestionably burdens the P etitioners' sincerely

- held religious beliefs by prohibiting in

person religious education. Id. , ¶66
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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 quo tations omitted). Heinrich's earlier o rders 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 i ssue , replaced by the drastic step of forbidding in

- person religious school education entirel y for students in grades 3

- 12. ¶ 46 T he Order distinguishes between the age demographics of
students , permitting o nly s tudents in grades K

- 2 to receive in

person instruction while relegating all student s in grades 3

- 12 to virtual instruction only . By the Order's own reasoning, this distinction was unnecessary to achieve the government's goals . As stated in the Order's introduction, "[o]utbreaks and clusters among cases aged 5

- 17 have been rare." Nevertheless, a five

- year old student in kindergarten and an eight

– year - old student in third grade, despite comparable infrequencies of COVID

- 19 transmission,

were afforded entirely differen t educations in Dane County. ¶ 47 Furthermore , while students in grades 3

- 12 were prohibited from attending school in person, the Order allow ed all higher education institutions to continue to provide in

- person learning and dormitor y housing , subject to certain restrictions.No s . 2020AP1419

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40 The Order fail ed to expla i n why college

- aged students could continue to live , learn, and socialize in close communities, while
students in grades 3

- 12 were consigned to computer screen s . 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 gra des 3

- 12. For this reason , the Order fails under the fourth fac tor for establishing a freedom of religion claim

. ¶ 48 In total, the Order fails the strict scrutiny test : the applic ation of the Order burdens the P etitioners' sincerely

- held religious beliefs, and Heinrich fails to demonstrate why the Ord er, al though based upon a compelling interest, cannot be met by less restrictive alternatives. Accordingly, Heinrich's Order violates Article I, Section 18 of the Wisconsin Constit ution , 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." S outh 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
. L ocal 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

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41 Because Heinrich's Order violates the P etitioners' fundamental
const itutional right to the free exercise of religion , it cannot
stand
. By the Court.

—

Rights declared ; order vacated
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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 foo tnote 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 relig ious 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 co rrect; 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 narr ow and firm grounds, and in ways that avoid the risk of judicial error

—— particularly on constitutional questions.

1 Dissent, ¶ 85
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2 ¶ 52 The opinion for the court responds in footnote 18. 2 It first observes that this doctrine is a general rule and not rigidl y 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 judic iary'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 imperativ e"). 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, a nywhere 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.

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3 you find it in the decisions of t he United States Supreme Court. 7 Rather, the Wisconsin Constitution, like the Co nstitution 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 th e 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 i t." Kollasch v. Adamany , 104 Wis. 2d 552, 561, 3 13 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 legis lative 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 g reat 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 , 1 37 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).No s . 2020AP1419

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4 branches and the least likely to tra mple the liberty of the people. 9 The Wisconsin Constit ution follows this same design. 10 While this vision held sway for some time, in recent years, the judiciary has insisted on a f ar 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 pro cess 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 re qui ring an answer come our way. 12 We should not avoid the hard questions, including constitutional questions, when

9 Id. ("The judici ary . . . 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.No s . 2020AP1419

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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 l aw in cases properly before us. 13 Courage unbounded by the humility to recognize and accept the limits of the judicial role quickly leads t o 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
ques tion 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 validit y of the Nation's laws." 14 Ins tead, "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 refle cts 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) (alteration s omitted) (quoting Broadrick v. Oklahoma , 413 U.S. 601, 610

– 11 (1973)).No s . 2020AP1419

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6 adjudicating rights in particular cases between the litig ants brought before the Court." 15 In other words, we are not law

declarers

- in

- chief; we are case - deciders. ¶ 58 That is why the general rule is correct and, so far as I can tell, universally accepted: cases should ordinarily be decided on narrow grounds, reaching only what is necessary to decide the case. 16 Consistent with thi s 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 impor tant, 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. Fir st, 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 i n advance of the necessity of deciding them."); id. (collecting cases).No s . 2020AP1419

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7 concerns, as this case and others around the country demonstrate. 17 This is a reoccurring issue, and decision

- makers should underst and 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 argum ent 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 applyin g well

settled law. Religious liberty receives heightened protection under the Wisconsin Constitution. That's what the text sa ys, and our precedent is clear. 20 Today's decision appropriately applies the governing test in this area. Therefore, even thoug h 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 cl arity 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
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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 wor ds 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 constituti on 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 te xt 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.No s . 2020AP1419

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9 been a breath of fresh air in Wisconsin courts. 23 It is time to reinstitutionalize the same norms in our constitutional analysis. 24
Ther efore, 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 S tate 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 al so 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

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1 ¶ 63 REBECCA FRANK DA LLET, 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 li nguistic 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
t o 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, suppr ess[,] 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 fact

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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

s tatute 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 legis lature 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." Se e 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 c hanges 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 restructur ed the public health statutes in 1923 and renumber ed 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.Nos. 2020AP1419

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3 control communicable diseases." See § 252.03(1). At the first sign of an outbreak, local h ealth 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 "tak e 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 tak e charge" at the local government's ex pense. § 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 gathe rings 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 diseasesNos. 2020AP1419

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4 and to prevent their spread. 3 And n one 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 epidemi cs." See 8 Wis. Op. Att'y Gen. 157, 157 (1919). The state attorney general w arned 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 epi demics , [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, th eaters[,] 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 (191 9). 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 remove d 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 therefor e 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.Nos. 2020AP1419

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5 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
clea r 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 und er § 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 majori ty 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 dire cted 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. " (quotingNos. 2020AP1419

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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 t o 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. M oreover, 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' abili ty 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.Nos. 2020AP1419

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7 2 ¶ 72 The statute's plain lang uage 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 sc opes 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 preven t and suppress disease. § 252.03(2). N othing 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 h ealth 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 officer s' 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 mayNos. 2020AP1419

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8 close schools. See Wis. Stat. § 115.01(10)(b) (defining "school days" to include "[d]ays on which school is closed by or der 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 f or at least 10 school days
. . . by a local health offi cer"); § 120.12(27)(a) (requiring the school board to notify the department of public instr uction 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 closu re by

o rder 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 [d isease] 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
tha t "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,Nos. 2020AP1419

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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 a nd 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, S calia 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 construe d"). In a broader sense, it is a compilation of certain grammar rules, some of which can occasionally help determine what legislative text means. In both senses, it is just one toolbox that contains some

—— but not all

—— statutory

interpretation tools. Thu s, we should be careful not to treat it as though it is the only toolbox available.Nos. 2020AP1419

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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," inter pretive 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 o f Congressional Drafting, Delegation, and the Canons: Part I I , 66
Stan. L. Rev. 725, 742

- 46, 745 tbl.1 (2014). And i n 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 fromNos. 2020AP1419

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11 the Inside

—— An Empirical Study of Congressional Drafting,
De legation, and the Canons: Part I , 65 Stan. L. Rev. 901, 932

- 48 (2013). To take a specific example, statutory drafters who kno w 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 interpret ive 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 t he 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 concret e 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; Richar d A. Posner, The Incoherence of Antonin Scalia ,Nos. 2020AP1419

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12 https://newrepublic.com/article/106441/scalia

- garner - reading

the

- law

- textual

- originalism . For that reason, some states, such as Oregon, have "virtually banished the substantive canons of construction" becaus e they "inject[] subjectivity and unpredictability into

. . . statutory interpretation." Abbe R. Gluck, Statutory Interpretation Methodology as "Law" , 47 Willamette L. Rev. 539, 546

- 47 (2011). Oregon's approach, of course, still allows courts to use the textual canons, which are really just general grammar rules. But see Lockhart v. United
States , 577 U.S. 347, 363

- 69 (2016) (Kagan, J., dissenting) (pointing out that even certain textual "rules," such as the last

antecedent rule, often conflict with "ord inary 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 pro vision 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 ("T he 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 andNos. 2020AP1419

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13 local health officers' authority. The legislatur e 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 suscepti ble of (1) a meaning that

. . . deprives [a] provision of all ind ependent 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 m andate 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 Mo torcars, 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, weNos. 2020AP1419

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14 should use them; whichever tool will he lp 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." C f. 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 ava ilable grounds. See, e.g. , Voters withNos. 2020AP1419

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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 st atute 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 p ublic 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.Nos. 2020AP1419

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16 h as 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 it s 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 to rtured 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 res traint. 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 constitu tional theory" or "to decide everyNos. 2020AP1419

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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 que stion. 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 major ity 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 burd ens 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' dire ctives 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 questio n. 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

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18Nos. 2020AP1419

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1