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Wednesday, May 13, 2020

Wisconsin Supreme Court decision on COVID-19: a quick take

A 4-3 majority struck down the DHS emergency shelter-in-place order.  In a remarkably convoluted opinion, sowing confusion at the very least and reflecting the polarization that plagues modern-day law & politics in the great state of Wisconsin.

How so?

First, you’ll see that it is 161 pages.  40 pages is taken up with two concurring opinions which offer a rather extravagant set of claims about nondelegation, separation of powers, anti-administrative state, natural rights, etc., etc.  Over-the-top stuff. Read it and (depending upon your priors) weep or cheer.

Second, there is a hard question surfaced by Justice Bradley at the beginning of the dissent and that is whether there are truly four votes for implementing this decision immediately, and therefore without a stay.  One of the concurring judges says she would impose a stay.  But she joins the majority opinion “in full” (see her fn.1).  So, it is confusing whether this is 4-3 or 3-3-1.  The answer to this question is of course essential as a practical matter.  Maybe this will be unraveled in the next day or even in the next few hours.

Third, the scope of the ruling is narrow, in that four justices note that this order exceeds the agency’s statutory authority – not the governor’s authority, which he could arguably exercise under his emergency powers.  On the other hand, we know from the two concurring opinions that these two justices wouldn’t go along with a do-over whereby the governor imposed the order or, alternatively, an order that complied with all the administrative procedures imposed by the statute.

So, this case took a week to come out, and I can see why.  They never were able to reach any real agreement about why the order was bad.  Nor were they able to give any real guidance to either the executive or legislative branch about truly how to fix the problem.  Nonetheless, we are treated to 161 pages of text, wandering around John Locke, Thomas Jefferson, Scalia and Gorsuch, some prominent anti-administrativists, a couple Wisconsin L Rev student comments, and a bunch of Wisconsin cases that don’t, at least at a glance, seem to be very much on point.

UPDATE: As the first comment notes, I mixed up two justices in noting that a concurring justice said in footnote that she joined the majority opinion "in full." This was not the justice who authored the majority opinion, Chief Justice Roggensack. I stand corrected.  However, the same confusion remains: What do we do about a majority opinion that says "no stay" with a concurring opinion, issued by the author of the majority opinion, that says "stay?"  If I had to choose, I would say that the majority opinion stands on its own terms, and we thereby get to four.  But we get there by simply disregarding the CJ's concurring opinion. It's tantamount to "I wish I could have convinced my colleagues to issue a stay, but I couldn't and so I'll just tell you why I am bummed."


Posted by Dan Rodriguez on May 13, 2020 at 08:31 PM in Daniel Rodriguez | Permalink



Posted by: El roam | May 14, 2020 12:42:47 PM

Well, El roam, you got your wish. I just pray that these idiots in Wisconsin who hit hard the bars last night don't get sick and don't infect others.

Posted by: Daniel Rodriguez | May 14, 2020 12:35:30 PM

I guess so Daniel.....but to delay the court's ruling makes no sense. Because it would mean, that the order, shall yet be valid in that interim period. But it can't whatsoever due to the reasons mentioned by me. So, the court, effectively, besides declaratory judgment or remedy, couldn't do nothing. One Wisonsint, can refuse to comply with such order, since it is almost prima facie illegal and unconstitutional, and, legally, get away with it.

So, only an executive order it seems, during that interim period, until full legislation, would come into effect, could maybe solve it.

Result is bad, crowded bars is not desirable of course. But, things must be legal and constitutional, not even despite the pandemic, but, particularly, due to it.


Posted by: El roam | May 14, 2020 12:13:11 PM

On El Roam's comment, yes, I understand that the order is invalid irrespective of the stay. What the stay would do is to postpone the implementation of the court's ruling so as to give the legislature & the governor time to fix this. According to WaPost, Wisconsinites poured into bars last night after the decision. Not good. And we can agree to disagree about the merits of the court's decision. Would require a longer analysis than my quick take.

Posted by: Daniel Rodriguez | May 14, 2020 11:57:49 AM

Great post. Thanks, Dan. I actually used the Stay-at-home orders challenges as one of my hypos for my Remedies Exam. As you note, this decision is odd and a bit tortured in terms of its logic, and constitutional basis for rejecting the executive's decision. Thanks again.

Posted by: Ediberto Roman | May 14, 2020 8:29:57 AM

Important case. But, and although one ruling should be clear and effective, and although , it may seem that this one is not so, the real issue is different:

Here we have public official, that issued an order, exceeding his power. But, this is far greater than that, and even greater than the pandemic itself. Violating the order ( unauthorized at first place) bears sanctions, criminal sanctions, I quote:

"Because Palm did not follow the law in creating order 28, there can be no criminal penalties for violations of her order."

End of quotation:

So, whatsoever, it is constitutionally, so flawed, that, the effective issue of stay order or not, is futile. It is per se, non valid. The court, declares only the invalidity of it. But, by itself, can't stand whatsoever.


P.S: Sanctions of up to 30 days imprisonment , or up to 250 dollars fine, or both.

Posted by: El roam | May 14, 2020 5:20:27 AM

Yes, you are right. I will correct that. But the same underlying confusion noted by the dissent exists here. CJ writes an opening that ends by saying this order is invalid and is so immediately. Then she writes a concurrence saying she would issue a stay. So, to get to four votes to invalidate the order immediately we need to read the majority opinion as stating the ruling on behalf of four justices, and basically disregard her concurrence, no?

Posted by: Daniel Rodriguez | May 13, 2020 11:15:58 PM

"One of the concurring judges says she would impose a stay. But she joins the majority opinion “in full” (see her fn.1)."

I think you're mixing up concurring justices. The justice who says she'd impose a stay is the Chief Justice, who is also the author of the majority opinion (and of course joins that opinion in full, having written it). The justice who says she joins the majority opinion "in full" in footnote 1 of her concurring opinion is Rebecca Bradley, who I take it does not support a stay, or at least doesn't say she does.

Posted by: Asher Steinberg | May 13, 2020 10:52:55 PM

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