James v. Heinrich

960 N.W.2d 350

2021 WI 58

Sara Lindsey JAMES, Petitioner,

v.Janel HEINRICH, in her capacity as Public Health Officer of Madison and Dane County, Respondent.

Wisconsin Council of Religious and Independent Schools, School Choice Wisconsin Action, Abundant Life Christian School, High Point Christian School, Lighthouse Christian School, Peace Lutheran School, Westside Christian School, Craig Barrett, Sarah Barrett, Erin Haroldson, Kent Haroldson, Kimberly Harrison, Sheri Holzman, Andrew Holzman, Myriah Medina, Laura Steinhauer, Alan Steinhauer, Jennifer Stempski, Bryant Stempski, Christopher Truitt and Holly Truitt, Petitioners,

v.Janel Heinrich in her official capacity as Public Health Officer and Director of Public Health of Madison and Dane County and Public Health of Madison and Dane County, Respondents.

St. Ambrose Academy, Inc., Angela Hineline, Jeffery Heller, Elizabeth Idzi, James Carrano, Laura McBain, Sarah Gonnering, St. Maria Goretti Congregation, Nora Statsick, St. Peter's Congregation, Anne Kruchten, Blessed Sacrament Congregation, Amy Childs, Blessed Trinity Congregation, Columbia/Dane County, WI Inc., Loretta Hellenbrand, Immaculate Heart of Mary Congregation, Lorianne Aubut, St. Francis Xavier's Congregation, Mary Scott, Saint Dennis Congregation and Ruth Weigel-Sterr, Petitioners,

v.Joseph T. Parisi, In his Official Capacity as County Executive of Dane County and Janel Heinrich, In her Official Capacity as Director, Public Health, Madison & Dane County, Respondents.

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

Supreme Court of Wisconsin.

Oral Argument: December 8, 2020

Opinion Filed: June 11, 2021

For the petitioners, there was an opening brief filed by Richard M. Esenberg, Anthony LoCoco, Lucas T. Vebber, Luke N. Berg, Elisabeth Sobic and Wisconsin Institute for Law & Liberty, Milwaukee; with whom on the brief was Misha Tseytlin, Kevin M. LeRoy, Troutman Pepper, and Hamilton Sanders LLP, Chicago, Illinois; with whom on the brief was Andrew M. Bath and Thomas More Society, Chicago, Illinois; with whom on the brief was Erick Kaardal and Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota; with whom on the brief was Joseph W. Voiland and Veterans Liberty Law, Cedarburg; with whom on the brief was Brent Eisberner and Levine Eisberner LLC, Madison; with whom on the brief was Bernardo Cueto, Onalaska. There was an oral argument by Richard M. Esenberg, Misha Tseytlin, and Joseph W. Voiland.

For the respondent, there was a brief filed by Remzy D. Bitar, Sadie R. Zurfluh, and Municipal and Litigation Group, Waukesha. There was an oral argument by Remzy D. Bitar.

For the petitioners Wisconsin Council of Religious and Independent Schools, et al., there was a reply brief filed by Richard M. Esenberg, Anthony LoCoco, Luke N. Berg, Elisabeth Sobic, and Wisconsin Institute for Law & Liberty, Milwaukee.

For the petitioners St. Ambrose Academy, Inc. et al., there was a reply brief filed by Misha Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders LLP, Chicago, Illinois; with whom on the brief was Andrew M. Bath and Thomas More Society, Chicago, Illinois; with whom on the brief was Erick Kaardal and Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota.

An amicus curiae brief was filed on behalf of Attorney General Josh Kaul by Colin A. Hector, assistant attorney general, and Colin T. Roth, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general.

An amicus curiae brief was filed on behalf of Institute for Justice by Lee U. McGrath, Minneapolis, Minnesota; with whom on the brief was Milad Emam, Arlington, Virginia.

An amicus curiae brief was filed on behalf of Freedom from Religion Foundation by Brendan Johnson, Patrick C. Elliott, and Freedom From Religion Foundation, Inc., Madison.

An amicus curiae brief was filed on behalf of State Superintendent of Public Instruction Carolyn Stanford Taylor and Wisconsin Department of Public Instruction by Heather Curnutt, Madison.

An amicus curiae brief was filed on behalf of City of Milwaukee by Tearman Spencer, city attorney, and Gregory P. Kruse, city attorney.

An amicus curiae brief was filed on behalf of Madison Metropolitan School District and Monona Grove School District by Sheila M. Sullivan, Melita M. Mullen, and Bell, Moore & Richter, S.C., Madison.

An amicus curiae brief was filed on behalf of Madison Teachers Inc., Wisconsin Association of Local Health Departments and Boards, Wisconsin Education Association Council, Milwaukee Teachers’ Education Association, Racine Educators United, Kenosha Education Association, and Green Bay Education Association by Diane M. Welsh, Aaron G. Dumas, and Pines Bach LLP, Madison.

An amicus curiae brief was filed on behalf of Governor Tony Evers and Secretary–Designee of Department of Health Services Andrea Palm by Sopen B. Shah and Perkins Coie LLP, Madison.

An amicus curiae brief was filed on behalf of Wisconsin Faith Voices for Justice by Barry J. Blonien, Tanner Jean-Louis, and Boardman & Clark LLP, Madison.

An amicus curiae brief was filed on behalf of Liberty Justice Center, Alaska Policy Forum, Pelican Institute For Public Policy, Roughrider Policy Center, Nevada Policy Research Institute, and Rio Grande Foundation by Daneil R. Suhr, Reilly Stephens, and Liberty Justice Center, Chicago, Illinois.

An amicus curiae brief was filed on behalf of League of Wisconsin Municipalities by Claire Silverman and Maria Davis, Madison.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., and ROGGENSACK, J., joined; and in which HAGEDORN joined except for footnote 18. HAGEDORN, J., filed a concurring opinion. DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

REBECCA GRASSL BRADLEY, J.

¶1 Exercising our original jurisdiction under Article VII, Section 3(2) of the Wisconsin Constitution,¹ we consolidate and review three cases challenging the authority of Janel Heinrich, in her capacity as a local health officer of Public Health of Madison and Dane County (PHMDC), to issue an emergency order closing all schools in Dane County for in-person instruction in grades 3-12. Citing Wis. Stat. § 252.03 (2017-18)² as authority, Heinrich issued Emergency Order #9 ("the Order") in an effort to decrease the spread of a novel strain of coronavirus, COVID-19. The Petitioners³ contend that the Order exceeds Heinrich's statutory authority under § 252.03 and violates their fundamental right to the free exercise of religion under Article I, Section 18 of the Wisconsin Constitution, as well as parents’ fundamental right to direct the upbringing and education of their children under Article I, Section 1 of the Wisconsin Constitution.

¶2 In response, Heinrich asserts that local health officers have the statutory authority under Wis. Stat. § 252.03 to issue school-closure orders. Further, she argues that the Order is constitutional under the United States Supreme Court's ruling in Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), and that, even if Jacobson does not apply, the Order does not violate the Wisconsin Constitution.

¶3 We agree with the Petitioners and hold: (1) local health officers do not have the statutory power to close schools under Wis. Stat. § 252.03 ; and (2) Heinrich's Order infringes the Petitioners’ fundamental right to the free exercise of religion guaranteed under Article I, Section 18 of the Wisconsin Constitution, which Jacobson cannot override. Accordingly, those portions of the Order restricting or prohibiting in-person instruction are unlawful, unenforceable, and are hereby vacated.

I. BACKGROUND

¶4 In February 2020, Dane County authorities confirmed the first diagnosis of an individual with COVID-19 in Wisconsin.⁴ The number of cases throughout the state soon began to rise. On March 12, 2020, Governor Tony Evers declared a public health emergency in Wisconsin. The next day, then Secretary-Designee of the Department of Health Services (DHS), Andrea Palm, issued an order mandating "the closure of all public and private Wisconsin schools for purposes of [in-person] instruction and extracurricular activities."

¶5 On March 24, 2020, Palm issued a statewide "Safer at Home Order." Among other dictates, this order required all people in the state to remain in their homes, prohibited non-essential travel, closed all "non-essential" businesses, and—as relevant to this case—closed "[p]ublic and private K-12 schools ... for [in-person] instruction and extracurricular activities." On April 16, 2020, Palm extended the "Safer at Home Order" for another month. Palm's new order mandated that schools remain closed for in-person instruction "for the remainder of the 2019-20 school year."

¶6 In Wisconsin Legislature v. Palm, we invalidated many of the mandates in Palm's extension of the "Safer at Home Order," declaring that the "Safer at Home Order" was unenforceable because it "was subject to statutory emergency rulemaking procedures established by the Legislature." 2020 WI 42, ¶3, 391 Wis. 2d 497, 942 N.W.2d 900. However, this court did not address Palm's mandate closing schools for in-person instruction. Id., ¶3 n.6. Accordingly, schools throughout Wisconsin finished their instruction for the 2019-20 school year on virtual platforms pursuant to the statewide "Safer at Home Order."

¶7 Following this court's decision in Palm, PHMDC and its local health officer, Janel Heinrich, began issuing a series of emergency orders governing Dane County. Many of these orders regulated COVID-19 safety protocols in public and private schools throughout the county. As they relate to schools, Heinrich's emergency orders were as follows:

1. On May 13, 2020, Heinrich issued Emergency Order #1, which "adopted the provisions" contained in the "Safer at Home Order," including the mandate closing schools.

2. On May 18, 2020, Heinrich issued Emergency Order #2, which expressly reiterated that public and private K-12 schools must stay

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