Wisconsin Supreme Court Strikes Down Dane County Emergency Order

On September 10, 2020, the Wisconsin Supreme Court issued an emergency temporary injunction, barring Public Health Madison & Dane County (PHMDC) from enforcing its own Emergency Order #9. The PHMDC Order prohibited in-person instruction for certain students in Dane County public and private schools.

The Supreme Court’s Decision

In James, et al., v. Heinrich/Parisi, et al., the Supreme Court jointly considered a request from three parties to issue an injunction against PHMDC, preventing enforcement of its Emergency Order concerning in-person instruction. All three parties (the Petitioners) had filed a petition for leave to commence an original action concerning the PHMDC’s Emergency Order.

The Court began by noting that parties must meet certain legal criteria to obtain injunctive relief. In this regard, the Court noted that the Petitioners must show (1) a reasonable probability of success on the merits; (2) lack of an adequate remedy at law; (3) that the movant will suffer irreparable harm in the absence of an injunction; and (4) that a balancing of the equities favors issuing the injunction. The Court also noted that, at times, the Court has also stated that “[t]emporary injunctions are to be issued only when necessary to preserve the status quo.”

The Court concluded that a temporary injunction was warranted.

The Court reasoned that the Petitioners were likely to succeed on the merits, because local health officers “do not appear to have statutory authority to do what the Order commands.” The Court reasoned that while Wis. Stat. §252.02(3) explicitly grants the Department of Health Services (DHS) the power to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics,” the statutory powers and duties of local health officers are different on their face. The Court noted that local health officers’ statutory authority under Wis. Stat. §252.03 “conspicuously omits” the power to “close schools” from the authority granted to local health officers while, in contrast, the Secretary of DHS has the specific power to “close schools” under Wis. Stat. §252.02.

The Court reasoned that this difference in language was critical to interpreting the scope of local health officers’ authority under the statute in the circumstances presented. The Court noted that granting DHS the specific power to “close schools,” establishes that the legislature’s failure or refusal to grant that same authority to local health officers is meaningful. The Court concluded that this warranted application of the principle of statutory interpretation known as “the expression of one thing implies the exclusion of others (expressio unius est exclusio alterius)”; put more colloquially, if a party is specifically given certain powers, we should not assume that other powers that have not been enumerated are still within that party’s authority. The Court added that both Wis. Stat. §252.02 and Wis. Stat. §252.03 were drafted at the same time and by the same legislature, so this distinction cannot be taken to be the product of an “historical quirk or later amendment”; instead, these circumstances indicate that the legislature had to have meant to give DHS and local health officers different powers and that local health officials’ powers do not include the power to close schools.

Consequently, the Court concluded that the “Petitioners are likely to succeed on the merits of their argument that the Order’s broad closure of schools in this case is not within the statutory grant of power to local health officers in Wis. Stat. §252.03.”

The Court also concluded that the Petitioners did not have a legal remedy available to them and, therefore, refusing to grant an injunction would cause the Petitioners irreparable harm.

The Court observed that denying students an in-person education could conceivably harm the educational institution-Petitioners (comprised of a private school, St. Ambrose Academy, Inc. and the Wisconsin Council of Religious and Independent Schools) as well as the parent-Petitioners and their children. According to the Court, “many parents irreparably lose the full benefits of the communal education they chose for their children, including in-person instruction, relationships with teachers and other students, and religious and spiritual formation.” Unless an injunction is granted, the Court reasoned, Petitioners will not have “a second opportunity to provide in-person instruction for classes currently underway.” Noting that neither Respondent disputed the Petitioners’ claims of irreparable harm nor lack of legal remedy, the Court concluded that the Petitioners would be irreparably harmed unless the Court granted an injunction.

Finally, the Court concluded that a temporary injunction is appropriate when the equities presented are balanced.

The Court noted that local health authorities have an interest in protecting the health and safety of Dane County residents. However, the Court also noted that the Petitioners have compelling interests in “advancing childhood education and providing students a stable and effective learning environment. The Court added that the Petitioners had gone to great lengths to provide for a safe learning environment, and that both parents and the educational institutions voluntarily seek in-person instruction with full knowledge of the risks associated with doing so. Consequently, the Court concluded that a temporary injunction was appropriate in light of the equities involved and what it described as the tenuous legal grounds for the PHDMC Emergency Order.

The Supreme Court’s Order: Are There Takeaways To Be Had?

School and technical college officials are rightfully interested in what we can take away from the Court’s Order. The COVID-19 pandemic has affected virtually every decision that Wisconsin school districts and technical colleges have made and will be making in the near future. Consequently, what we can discern from the Court’s Order is vitally important.

As a general matter, the rationale for the Court’s Order is narrowly drawn and, as a result, it may have limited application to other cases. At the same time, however, the Court’s Order provides clear, definitive guidance for situations where it does or will apply.

First, it is relatively clear what the Court means when it discusses the authority to “close schools”; nevertheless, there is more to be said on this issue and the Court may take the opportunity to do so as part of its decision on the merits of this case.

In this case, Respondent Heinrich contended that “she (was) not closing schools, just preventing in-person instruction.” The Court responded that “this statute was drafted in 1923, so the most reasonable reading of what it means to ‘close schools’ would seem to be preventing in-person instruction, not just preventing learning generally.” Nevertheless, for a variety of other statutory purposes, schools are not “closed” when virtual instruction is being provided, meals are being delivered, and innumerable other statutory functions of school districts are being executed.

In addition, the Court’s strict application of the historical context for this legislation may require further discussion in the Court’s decision on the merits of this case. Our Supreme Court’s use of historical context as a means of interpreting legislation could be a matter of great interest in any number of cases, and the Court’s decision on the merits may be a matter of interest on this issue alone. In any event, while the Court’s Order concludes that preventing in-person instruction is tantamount to deciding to “close schools” for certain statutory purposes, the Court may develop this and related principles in a decision on the merits in this case, or in other cases.

This case also highlights the importance of local rules implemented by school district or technical college officials. There has still been no case successfully challenging a school district or technical college district boards’ authority to require in-person instruction, virtual instruction, or a combination of the two. The same can be said of local rules concerning face coverings, social distancing, sanitation, and a series of other mitigating measures for combatting the spread of COVID-19. The absence of cases against school districts and technical colleges may be pure happenstance, but it also may reflect the fact that citizens generally believe that local officials are acting within their statutory authority.

The Supreme Court’s decision is important, providing Wisconsin citizens with their first glimpse of the Court’s take on the scope of local health authorities’ powers. The Court’s Order also provides some indication of how the Court views the relationship between the authority of DHS and that of local health officials. Nevertheless, the Court’s Order is narrowly drawn to provide emergency temporary injunctive relief; as a result, several unanswered questions remain concerning the power of local health authorities.

We will continue to monitor the Court’s activities and keep you informed.