Supreme Court ruling has many lessons
By Ed Byrne
The Brillion News
MADISON – Last week’s ruling by the Supreme Court of Wisconsin got cursory coverage in most of the news media, with many outlets just reporting the 4-3 vote that overturned Emergency Order 28 (OE28) that was issued by Health Services Secretary-designee Andrea Palm to extend the SaferAtHome order issued in March by Governor Tony Evers.
Evers could have sought extension of his original order, but that would have required approval of the state legislature – which is in Republican control. Evers then ordered Palm to issue her own order, under State Statute 252.02. When she did, the legislative leaders filed suit, and the state Supreme Court sided with their arguments by declaring EO28 “unlawful, invalid and unenforceable.”
But the issue has plenty of shadow issues – including the law itself that is at the heart of the complaint.
The decision of the high court is a 161-page document. It includes the majority opinion written by Chief Justice Patience Roggensack. She also filed a concurring opinion with her own comments. Justice Daniel Kelly added his own concurring opinion.
Justice Ann Walsh Bradley filed a dissenting opinion, as did Justice Rebecca Dallet and Justice Brian Hagedorn.
Although traditionally one of the most conservative justices, Hagedorn dissented and filed a 51-page opinion explaining why he felt the arguments in the legislature’s suit were wrong.
The opinion of the majority, of four justices, found that Chapter 252 simply didn’t give Palm the powers she exercised by issuing EO28.
The fundamental argument of the majority is that Palm essentially made new law – something that is the exclusive province of the state legislature.
“We do not construe Chapter 252.02 (6) as an ‘open-ended grant’ of police powers to an unconfirmed cabinet secretary,” the majority wrote.
EO28 didn’t just issue orders with which everyone in the state had to comply, it also imposed criminal penalties – arrest, fines and incarceration.
“For example, Order 28 purports to impose 30 days in jail when a person leaves home for a purpose Palm did not approve,” the majority wrote.
The four justices felt that claims of a pandemic danger exceeding constitutional restraints on government were a problem.
The majority cited a Mississippi case in April, also prompted by COVID-19, where the U.S. Justice Department wrote: “There is no pandemic exception ... to the fundamental liberties the Constitution safeguards. Indeed, individual rights secured by the Constitution do not disappear during a public health crisis.”
The conclusion of the majority opinion sums things up well. It said that Palm could issue Emergency Order 28, “subject to statutory rulemaking procedures established by the Legislature.”
Because she did not get the legislature’s required approval of EO28, it is not enforceable.
The court also determined that certain portions of the order itself went too far even under Chapter 252.
“We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. 252.02, upon which Palm claims to rely.”
In addition to writing the majority opinion, Roggensack also urged the Evers Administration and the state legislature to start working together.
“I trust that the parties will place the interests of the people of Wisconsin first and work together in good faith to quickly establish a rule that best addresses COVID-19 and its devastating effects on Wisconsin,” the chief justice wrote.
Justice Rebecca Grassl Bradley wrote, in a concurring opinion, that the big issue was a member of the executive branch trying to create law, a power reserved only to the legislative branch of government.
“The people of Wisconsin never consented to any elected official, much less an unelected cabinet secretary, having the power to create law, execute it, and enforce it,” she said. (Emphasis by underlining is hers.)
She quoted from James Madison, a founding father and the fourth U.S. President, who wrote in the Federalist Papers (No. 47): “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many ... may justly be pronounced the very definition of tyranny.”
She also cited the federal case of Korematsu v. United State, in 1944, where the U.S. Supreme Court ruled it constitutional to round up American citizens of Japanese ancestry during World War II, confiscate their property, and put them in “relocation camps” under guard.
It seemed legitimate at the time, but is now considered one of the worst decisions in the history of the U.S. Supreme Court.
Grassl Bradley said the state Supreme Court should not go down the path of compromising constitutional rights for the sake of “expediency” in an emergency.
“Urging courts to approve the exercise of extraordinary power during times of emergency may lead to extraordinary abuses of its citizens.” she wrote. “Indeed, it is in the midst of emergencies that constraints on government power are most important.”
Justice Grassl Bradley’s concurring opinion also raises a serious concern about Chapter 252 .02 itself. That’s the law that Palm used to defend her order extending SaferAtHome after the governor’s order expired.
“The statutory language is indeed sweeping, and if interpreted expansively, calls into question its constitutionality as an impermissible delegation of legislative power never authorized by the people,” she said.
In short, that statute seems to allow actions that are in conflict with the separation of powers firmly established within the U.S. and state constitutions.
“As a general principal, it is the duty of the legislature to create the law, and any delegation of lawmaking responsibility to administrative agencies like [the Department of Health Services (DHS)] must be carefully circumscribed in order to avoid the people being governed by unelected bureaucrats,” Justice Grassl Bradley wrote.
Justice Daniel Kelly, who lost his election to a 10-year term in April, made an important point about the government and the people in his concurring opinion.
He noted that the Constitution of the state begins with :We the people of Wisconsin ... do establish this constitution.”
“This is a declaration of ownership; it establishes that the power to create and maintain governments belongs to the people,” Kelly wrote. “Our constitution recognizes that the authors merely loan their authority to the government, they do not cede it.”
If Chapter 252 is written so broadly that it gives some power to make law to the DHS, then the legislature is to blame for that.
“The separation of powers forbids abdication of core power just as much as it protects one branch from encroachment by another.” Kelly wrote.
If Palm is guilty to trying to exercise powers only the legislature has, Kelly warns that the legislature is also guilty of passing a law – Chapter 252.02 – that allows that to happen.
But Kelly also blames Palm for over-reaching in EO28 by issuing an order that confines people to their homes, closes private businesses, bans private gatherings, prohibits travel within the state and dictates personal behavior.
“There are no statutes or rules that confer on the Secretary these sweeping powers,” Justice Kelly said.
Dissenting Justice Rebecca Dallet joined in Kelly’s criticism of Chapter 252.
“A majority of this court falls hook, line, and sinker for the Legislature’s tactic to rewrite a duly enacted statute through litigation rather than legislation,” she wrote.
Like Kelly, she feels that Chapter 252 is the problem, if there is one. He thinks there is a problem but Dallet does not.
“It is first important to understand Wisconsin’s long-standing history of giving a broad grant of power to its public health authority, a history the majority purposefully overlooks,” Dallet wrote.
She cited how Wisconsin responded to the Spanish Flu Pandemic of 1918. The state health officer, Dr., Cornelius Harper, closed all schools, theatres, amusement houses and other public gathering place “for an indefinite period of time.”
No other state went that far in closing down places of contact. It lasted for three months.
Dallet said the Legislature is reading state law too narrowly, and said that Chapter 252 “gives a broad grant of authority” that has been granted by the legislature over time.
She said EO28 was a response to one situation – COVID-19 – and was never meant to be a permanent rule.
“Emergency Order 28 is an immediate response to current circumstances and has an end-date of May 26, 2020,” she wrote. “It does not serve an guidance for response to any future unique contagious disease, or even circumstances surrounding COVID-19, and is therefore by its very nature not a rule.”
Thus, she said, it was not necessary for the legislature to approve it.
The petition to the Supreme Court asked that Palm’s order be struck down, but also for a six-day period before the order would go in effect. That six-day stay was intended to allow the governor and legislature to sit down and hammer out a new emergency order that would pass constitutional muster.
Instead, the majority stuck down Palm’s order immediately, with no six-day period to come up with a new order.
One of the dissenting opinions was written by Justice Ann Walsh Bradley. In addressing the legislature, which filed the lawsuit to get Palm’s emergency order struck down, Walsh Bradley said: “If there is no stay, I repeat to the petitioner, the Wisconsin Legislature, the old adage: ‘be careful what you wish for’ ... There appears nothing in place to fill the void rendered by such a majority decision.”
That was the reason given for her dissent from the majority opinion.
Justice Dallet joined her in that opinion.
In her own dissenting opinion, Dallet called the majority decision “:analytical gymnastics to arrive at a desired conclusion.”
She said the emergency order was needed because the pandemic was spreading too quickly for the rule-making process to be responsive enough.
She also argued that, if the court didn’t feel the emergency order should include criminal penalties, it could have simply replaced them with civil fines, similar to a traffic ticket.
Dallet also said the legislative leadership didn’t have the standing to bring the lawsuit. She said “legal standing” in this case would have been a private citizen or business saying the order violated legal rights, inflicting harm.
Justice Brian Hagedorn dissented from the majority in a 51-page opinion that made several points. He said:
The legislature could have challenged the emergency order on its infringements of constitutional protections of freedoms like religion, speech and assembly. But it didn’t do that, instead saying the emergency order should have been an emergency rule requiring legislative approval.
The legislature’s only role in government is making law, and it has no business filing a suit based how the executive branch exercises rules and enforces the law. “Such claims should be raised by those injured by the enforcement action...”
The majority decision strikes down the health secretary’s power to issue emergency orders without legislative consent, but really offers no guidance on his to handle similar emergencies in the future.
The suit challenged EO28 as not following the law that outlines adoption of an emergency rule, but EO28 was really not a permanent rule, just an emergency order of very short duration to respond quickly to an emergency.
Hagedorn noted that 252.02 mentions both rules and orders as two separate things, and “rules are designed to have an enduring effect” but emergency orders are not.
The state’s emergency rule-making process is slow and cumbersome, estimated at 12 days at the very least. Hagedorn said: “The administrative rulemaking process is about as smooth sailing as a canoe traversing the Atlantic Ocean ... Twelve days is far too long in a real emergency.”
The big lessons
1] There’s a clear need for everyone in government to understand that the Constitution and the rights it protects are not to be compromised even when a pandemic comes calling.
2] The Wisconsin Constitution clearly separates executive powers from legislative powers and bureaucrats’ orders are not law, no matter what.
3] Chapter 252.02, which Secretary Palm used to justify her emergency order, needs to be cleaned up so it clearly separate legislative and executive powers, as the Constitution envisioned. When the two are not clearly separated, it is a case of political bigamy and you can expect fireworks to result.
4] A legal rule to deal effectively with the realities of the COVID-19 pandemic requires the executive branch to propose it, a public hearing to let the people have a say, and legislative approval to give it the power of law.
5] Legislation is needed to clearly delineate between an emergency rule and an emergency order. The confusion about this was the crux of the problem that sent this issue to the state Supreme Court.
~ To read the source documents, visit https://wscca.wicourts.gov/index.xsl, click “agree” and go to the search page and enter Appeal Number 20AP765.