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Court: Pandemics can’t trump constitution

By M.D. Kittle

MADISON — In the better-late-than-never file of judicial action, the Wisconsin Supreme Court has struck down Public Health Madison & Dane County’s order closing schools to in-person learning.

More so, the ruling is a smackdown of the court’s liberal justices’ defense of local, unchecked power in the time of a public health emergency —power that comes at the peril of constitutional rights.

The 4-3 decision finds public health director Janel Heinrich’s sweeping order shuttering in-person education to students in third grade and above to be “unlawful, unenforceable, and are hereby vacated.”

It comes on the week the academic year ends for Madison-area schools, but Rick Esenberg, one of the attorneys who helped bring the case, said the implications are clear.

“The order from Public Health Madison and Dane County closing all county schools was illegal, unnecessary, and unconstitutional. Even as the COVID-19 pandemic recedes, the Court’s decision provides a critical correction that ought to prevent future abuses of power in an emergency,” said Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty.

Just days before the school year began late last summer, Heinrich issued the order, which forced all schools, including religious schools, to use virtual education platforms.

Private religious schools and parents fought back against the health order. They filed lawsuits claiming the order violated state law and stepped on their First Amendment rights of freedom of religion. The Supreme Court in a 4-3 ruling in September agreed to take the case and issued a temporary injunction against Heinrich and her edict.

Justice Rebecca G. Bradley’s majority opinion says Heinrich’s order does indeed infringe on the schools’ “fundamental right to the free exercise of religion guaranteed under Article I, Section 18 one the Wisconsin Constitution.”

Bradley points to the hypocrisy of Dane County’s health order, noting that higher education institutions were allowed to remain open for in-person instruction, and many businesses continued to conduct in-person operations during the pandemic.

Several private schools in the lawsuit, including St. Ambrose Academy, a classical Catholic school based in Madison, argued that their religious mission “depends on in-person attendance.”  St. Ambrose offers its students the opportunity to receive Holy Communion at weekly Masses, frequent confessions before a Catholic priest, Adoration of the Eucharist, communal prayer throughout the day, and opportunities to go on retreats and service missions throughout the local area. All impossible to do in their purest forms online.

Heinrich has argued that state law gives her the authority to issue school closure orders. They do not, the court ruling finds.

“Nowhere in this statute did the legislature give local health officers the power to “close schools,” the ruling states. While local health offices do possess “discrete” authority to do things such as limit or prohibit gatherings in a health emergency, they do not have the precise power to close schools.

To allow otherwise, Bradley wrote, would give the court legislative powers, which, of course, it does not possess.

The court’s three liberal justices, however, have no problem legislating from the bench. In the dissenting opinion, Justice Rebecca Dallet insists state law gives local health officials extraordinary and virtually unlimited power to “take all measures” necessary during a pandemic. Bradley chides the liberal justice for failing to consider the “constitutional constraints” on their power.

“Justice Dallet’s failure to grapple with the incompatibility of her statutory interpretation with the Wisconsin Constitution violates the foundational principle that the constitution reigns supreme over statutory law,” Bradley wrote.

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