Statutory Authority – Emergency Order

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WI Supreme Court

Case Name: Sara Lindsey James, et al., v. Janel Heinrich, et al.,

Case No.: 2021 WI 58

Focus: Statutory Authority – Emergency Order

Exercising our original jurisdiction under Article VII, Section 3(2) of the Wisconsin Constitution, 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) 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 Petitioners 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.

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

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.

Rights declared; order vacated

Concur: HAGEDORN, J., filed a concurring opinion.

Dissent: DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

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Derek A Hawkins is Corporate Counsel, at Salesforce.