May 14, 2020

"We are allowing the legislature to argue its own laws are unconstitutional, a legal claim it has no authority to make... The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS .... But those are the laws it drafted."

Wrote Justice Brian Hagedorn, who was chief legal counsel to GOP governor Scott Walker, dissenting from the other conservatives on the Wisconsin Supreme Court, quoted in "Wisconsin Supreme Court strikes down stay-at-home order" (Wisconsin State Journal).

It was a 4-3 decision, and one of the votes in the majority was Daniel Kelly, who just lost an election and will be leaving the court. It's hard for people to maintain their respect for judicial decisions when things split in such a starkly partisan way. But I suppose a lot of people think it's only the other side that's partisan, and the judges on their team got it right.

55 comments:

narciso said...

Checks and balances how di they work again?

Gahrie said...

dissenting from the other conservatives

It's hard for people to maintain their respect for judicial decisions when things split in such a starkly partisan way.

?????

lane ranger said...

I've been looking without success for analysis of this decision that explains the legal reasoning on both sides, but as is typical of what passes for journalism now, all the articles I've seen are too busy arguing that this is a terrible result to be bothered to explain the underlying argument. This is one of the many losses resulting from the primary media outlets turning into left-wing cheerleaders.

Another old lawyer said...

So a partially living Wisconsin constitution? If the "Legislature" passes an unconstitutional law, that law is constitutional whenever "Legislature" asserts it's not? So if that law is applied to individual legislators, can a legislator who voted against claim it's unconstitutional? What about a legislator who voted for it? Different results based on purely on who's making the arguement? Justice must be peaking through the blindfold.

Does it matter if the "Legislature" is made up of 51% different legislators? Or if the turnover was attributable to the very law now complained of?

Do the standing dance if you want to avoid such challenges, but dont make the rest of us suffer with an unconstitutional law because you want to teach the "Legislature" a lesson.

narciso said...

Overbroad authority has to be challenged and palms diktat wasjust that.

Ignorance is Bliss said...

But I suppose a lot of people think it's only the other side that's partisan, and the judges on their team got it right

Needs an All the assholes are on the other side tag

narciso said...

https://www.maciverinstitute.com/2020/05/maciver-news-minute-supreme-court-ends-safer-at-home/

Ignorance is Bliss said...

The judge is correct that the legislature does not have the authority to make that claim. They do have the liberty to make that claim, and to argue it in court. The validity of the claim is independent of the legislature's authority, or lack thereof.

JAORE said...

Legislators are lazy,and somewhat stupid beasts. They write laws that broadly address things they deem problems. (Often the real problem is getting re-elected).

Now they always are just clever/cunning enough to name the bill. It can be the I love a fluffy bunny act. Or I'm here to save y'all act. But it always needs to sound like the act of a benefactor for the very best of purposes.

Their remaining energy is totally consumed by stuffing pork, favors and payoffs into the nooks and crannies of the language in the bill.

Having exhausted their mental strength they throw in that the regulations and implementation will be given to cabinet level bureaucrat XYZ.

It astounds me these clods keep giving away their authority. But ya gets what ya vote for....



Mark said...

Hagedorns questioning in the argument was on point.

Kelly is an ass. He called Rebecca Dallet 'Mrs Dallet' during arguments ... as petty as a middle school girl.

Time to end lame duck judges.

narciso said...

https://mobile.twitter.com/AlexBerenson/status/1260777259679481856

tim maguire said...

It's always been my understanding that the legislature has a duty to consider constitutional issues when crafting legislation. Which makes a lot of sense. It is logically inconsistent to to then turn around and say they can't decide they got it wrong and that something they passed is not constitutional.

If Hagedorn asserts that the legislature's remedy if they feel the law is unconstitutional is to repeal it, I could get on board with that. But I can't get on board with his claim that they can't argue against constitutionality in a case before the court.

Big Mike said...

Needs an All the assholes are on the other side tag,

@Ignorance is Bliss, +1

brylun said...

"It's hard for people to maintain their respect for judicial decisions when things split in such a starkly partisan way."

Tell that to the Dem federal judges who have been doing this since Clinton. Perhaps the Republican judges now think it's only fair - what goes around comes around.

brylun said...

A little history on Emmett Sullivan and the Clinton-appointed judges to the D.C. Court, and judicial partisanship in assignment of cases:

Clinton Federal Judges Private Meetings 'Reek With Impropriety'

Sullivan was part of what was called the "Magnificent Seven" until Roberts was appointed and made it 8.

"The eight federal judges appointed by President Clinton to the U.S. District Court in Washington meet privately every month in closed-door sessions that other jurists believe are improper and call into question the court's impartiality.

"Chief U.S. District Judge Norma Holloway Johnson is being publicly criticized for selectively assigning criminal cases against friends and associates of Mr. Clinton's to judges the president has appointed. * * * Judge Johnson had bypassed the court's random case assignment procedures "by taking the unusual step of handpicking" judges appointed by Mr. Clinton to hear cases involving Webster L. Hubbell and Charles Yah Lin Trie."

One judge, not part of the group, said:
"But a very important part of what we do here is our collegiality. We all come with political viewpoints but we try to leave politics behind. Unfortunately, the Clinton appointees have gone off on their own."

Sullivan was appointed by Clinton in 1994.

Third Coast said...

As someone who worked in engineering most of his life, I look at today's "legal system" run by our elitists with nothing but disdain. It seems to largely be populated by people who, if truth be told, are practicing nothing but a form of haruspicy. Shakespeare knew this a long time ago.

Gusty Winds said...

Wait? The court can't rule that a law passed by the Legislature and signed by the Executive is unconstitutional?

I thought that was the whole point....

Gusty Winds said...

Hagedorn took the cowards way out. "You should not have been allowed to even ask me this question!"

The decision is a last of the gifts to Wisconsin from the Walker era. It was a prosperous time. Now it is over.

The idea that a legislature can hand unchecked power to ANYONE is unconstitutional. You don't even have to go to law school to know that. Maybe just get >80% on the 7th Grade constitution test.

Gusty Winds said...

Two bars in Sussex we're open withing and hour of the decision and both we're full. Party weekend coming up! Can't wait for a fish fry and a bloody mary with a beer chaser.

Jake said...

Hagedorn’s argument is shite.

Browndog said...

Blogger Gusty Winds said...

Wait? The court can't rule that a law passed by the Legislature and signed by the Executive is unconstitutional?

I thought that was the whole point....


That was the point.

Now, the legislature writes down words, then those words are submitted to a judge to determine 'what they really mean'.

rcocean said...

Basically, the Court is allowing the Legislature - the people's representatives - to have a voice in the proceedings. Its restoring the balance of power between the two branches. Of course, the liberals on the court voted the party line. they always do. Everywhere. Look at the SCOTUS. You will occasionally find an Conservative or R Appointee who will stand on principle and vote against party. The Liberals? Almost never.

PJ said...

The dissent passage quoted in the post makes it sound as though the majority had ruled that the administration’s action was unconstitutional. If that is what happened, then it is certainly plausible that the Legislature would not have legal standing to challenge the constitutionality of its own act, requiring dismissal of that claim (depending on Wisconsin’s “standing” rules). That would be true regardless of the merits of the constitutional claim and notwithstanding the court’s duty to uphold the constitution.

But the linked article says that the court majority ruled that the administration’s action violated a statute. Perhaps the Legislature made both a statutory claim and a constitutional claim, and the dissent was simply observing that the constitutional claim could not be considered for lack of standing. But the dissent’s reference to the breadth of discretion conferred by the statute seems to represent a simple disagreement with the majority over the meaning of the statute, not a disagreement about whether the statute, as construed by the majority, is constitutional.

Sebastian said...

"We are allowing the legislature to argue its own laws are unconstitutional, a legal claim it has no authority to make"

Why does the legislature need "authority" to make an argument in court?

"The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS .... But those are the laws it drafted."

I have not studied WI law and have no opinion on the discretion granted, but why should the fact of drafting prevent a legislature from arguing in court that it was done in error, particularly when a decision has to be made asap? If a state constitution allows for judicial review, why not in this situation?

Mike (MJB Wolf) said...

“ Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat. Whether it is strict scrutiny or some other rigorous form of review, courts must identify and apply a legal standard by which to judge the constitutional validity of the government’s anti-virus actions. When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns. As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.”

Texas Supreme Court this morning.

Tom T. said...

Was the legislature really arguing that the statue is invalid, or was it arguing that the statue is valid but the health official exceeded her authority thereunder? It's hard to trust the dissent's characterization.

iowan2 said...

The people are always the final voice.

This is a slow rolling event. Not a rapid time sensitive emergency. Governors can call in the legislators and make these decisions. The people will then make their desires known. The people are much better weighers of risk

Art said...

Hagedorn actually agreed that the order was an unconstitutional exercise if the DHS discretion, only saying that he would require a different plaintiff to make the argument.

Section 252 is obviously a grant of authority to the DHS Secretary to use the normal tools of public health but the DHS order went way beyond that in banning any travel outside the four walls of a residence unless it was done for a reason that Ms. Palm and Ms. Palm alone decided was an appropriate reason. Even a criminal under house arrest has a known date when that confinement will end that cannot be extended. The combination of actions by Palm went way beyond any public health authority allowed outside of a declared emergency. The emergency ended 60 days from when Evers declared it because he refused to work with the legislature to extend it and so only normal public health types of orders can be supported, things that are spelled out in the statute such as closing schools which was the only paragraph in the entire EO 28 that was upheld by the court.

60 days is well beyond what any normal person would define as a period of emergency. If something is expected to last beyond that duration there are other mechanisms to use which better protect the rights of the people of the state and Evers should have used them instead of being a petty jack---.

Birkel said...

Can the legislature give DHS power that the legislature never rightly held? Of course not.

If we are a free people then the government cannot order is to stay in our homes or otherwise detain us without satisfying due process. There have been no trials. There is no right to challenge the orders. There is no habeus corpus right.

The legislature cannot give away that which it did not have. The Justice is wrong.

But that doesn't mean the other side of the opinion was right, either.

deepelemblues said...

The constitutionality of a law and government actions taken under the authority of that law rests on whether it is constitutional, not whether a legislature thought that it was at the time of its passage. Really weird reasoning from that dissenting judge. If the standard is the legislature thought it was okay, what point is there to judicial review again?

Birkel said...

Also, the legislature should be arguing that it never intended to pretend to give powers to executive branch employees that it does not itself hold. The DHS interpretation is clearly wrong.

The below article, posted by Althouse, makes clear that this emergency power could extend forever. That would be the executive branch argument. Again, that interpretation is plainly wrong.

Also, Wisconsin should be smarter than to fuck itself over by electing Democratics. Learn the fucking lesson already, about these power-mad shit heels.

walter said...

Jay Weber
@JayWeber3
·
52m
Scott Fitzgerald tells WISN he is no longer interested in micromanaging WI businesses, but he's also not obsessed with local/county orders that extend out another week or so.
When he, Vos, and Evers meet at 10 today, he wants to address the larger issues, like K-12 reopening.
--
OMG, legislators legislating. Vos was on air recently saying he wanted to allow others to do the protesting to preserve non-partisan credibility going into "negotiation".
I hope the court ruling gives him a spine implant.
Don't Fuck This Up.

Dust Bunny Queen said...

a lot of people think it's only the other side that's partisan, and the judges on their team got it right.

I don't like partisanship in judges or legal professionals. They are supposed to be impartial and above the political fray. Looking at the legalities and Constitution in regards to the laws. This, of course, doesn't mean that judges do not have human emotions or have partisan feelings. They are supposed to be able to set those things aside.

This is ability to set aside and concentrate on the bones of the legal issues is why I admire Johnathan Turley . He will lambaste and correct with impartiality. Republicans and Democrats alike get to be scathed, excoriated and called out on their bull. The focus is on the law.

MadisonMan said...

It would be nice if Legislators would craft laws that address issues and not rely on the Judiciary to make up Legislators' minds for them.

Howard said...

The system keeps working to check and balance itself. Nice.

walter said...

Donald J. Trump
@realDonaldTrump
·
2h
The Great State of Wisconsin, home to Tom Tiffany’s big Congressional Victory on Tuesday, was just given another win. Its Democrat Governor was forced by the courts to let the State Open. The people want to get on with their lives. The place is bustling!

PJ said...

@Birkel, as I read the linked article, "We never intended to give that executive branch employee such sweeping powers" is exactly the argument that carried the day with the majority. When you bring in "we can't confer powers we ourselves do not hold," that's a constitutional argument that would involve a different "standing" analysis.

Lucien said...

Interviewed on MSNBC Governor Evers referred to the state of individual liberty now present in Wisconsin as “chaos”, stating “when you have no requirements, that’s a problem”.
And Ann wonders how these become partisan issues.
(By the way, individuals and businesses that want to follow the Governor’s guidance are free to do so.)

roesch/voltaire said...

To quote judge Dallet: “This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history,” she wrote.

Mark said...

Walter, it's May 14 and they want to re-open schools ... for two weeks?

That seems remarkably pointless. I don't think online schooling is giving my kid the same as in the classroom, but beyond cleaning out lockers I don't see a lot of academic benefit in a couple weeks at most with a lot of kids being held home by parents.

If Vos and Fitzgerald really wanted to do something, shouldn't they have already been working on it? Leading from behind, trying to make sure they cannot be held accountable.

Plenty of bars open last night, Wisconsin isn't going to lead the nation in drunk driving if we stay shut!

ColoradoDude said...

Althouse characterizes the Wisconsin decision as split “in a starkly partisan way.” Note she’s not saying that each justice actually voted out of partisanship.

Here in Colorado our Supreme Court Chief Justice has selected several members to our reapportionment Commission in the last four reapportionments. In all four cases the Chief Justice’s appointees all backed the final plan that determined how the next decade’s district lines. All four plans gave a huge advantage to the party of the governor who appointed that Chief Justice.

Given this partisan result, I think reasonable people could conclude that all these Chief Justices made their appointments out of a highly partisan personal spirit. The alternative possibility is that each governor said, “Here’s the deal. I will make you Chief Justice if you promise me that you will appoint panel members who will support reapportioning Colorado in a way that gives my party a big advantage.”

Partisanship lives, even in our hallowed court chambers.

walter said...

it's probably re summer and Fall:

new​ On April 16th, 2020, Secretary-designee Andrea Palm issued Emergency Order #28, which extends Safer at Home and makes some changes to the initial order. The changes from Emergency Order #28 will go into effect on April 24. Safer at Home order will remain in effect until 8 a.m. on Tuesday, May 26, 2020. Governor Tony Evers’ office also provided a question and answer document accompanying the order. See the Safer at Home extension FAQ.

While the Safer at Home Order continues to keep buildings closed, it does not close school operations. The Department of Public Instruction (DPI) encourages schools to continue what they have been doing to provide continuity of learning and school meals. Please see the statement from State Superintendent Carolyn Stanford Taylor below:

“The closure of school buildings does not mean the end of services to children. The Department of Public Instruction remains committed to supporting schools and districts as they continue to care for their students, advance continuity of learning, provide meals for students, plan for the remainder of the year, and begin to plan for summer school opportunities and next fall due to COVID-19.”

Jupiter said...

"We are allowing the legislature to argue it's own laws are unconstitutional, a legal claim it has no authority to make ...".

Unless I am missing something, Hizzoner is arguing that the plaintiff has not standing. That argument might be valid coming from the defendant. I don't believe Hizzoner has standing to insert that claim into contention when neither side has advanced it.

Birkel said...

Jupiter,
I do believe standing is something a court can reasonably decide even if the briefs/arguments did not contemplate the issue.

But it has been a while since I closely considered that issue.

Mark said...

Walter, from what I understood that falls under DPI whose head is elected and generally operates with a different set of rules as compared to other departments.

Jupiter said...

Birkel,

Wouldn't that logically mean, that standing is something the court must always consider, and indeed resolve, prior to considering the merits of the case?

Stephen said...

Let's be clear about what happened here.

The Supreme Court allowed a suit by a party who wasn't injured, and, who, if it did suffer injury, had a wholly effective non litigation remedy, which was to change the statutes involved. It then adopted an implausible reading of the statutes and struck down the public health orders taken pursuant to them, in the middle of an active pandemic, leaving nothing to replace them and without even staying its order. Not only that, but in pure dictum, it attempted to specify what the permissible scope of a response to an active pandemic should be-something that it had zero competence to do in the first instance and which it did without any factual record. What an embarrassment.

Let's hope it all works out for the best. The prompt action by Dane, Milwaukee, and Brown County officials will surely help to contain the damage. But if it does not turn out well, both the legislature and the justices in the majority bear a heavy burden of responsibility for any resulting harms.

Clark said...

The general idea is that without standing there is no jurisdiction. The judge should raise the issue sua sponte if there is any doubt about standing. This might play out differently under Wisconsin law. And it could also be that a statute might specify who has "standing" to bring a claim under the statute, where the issue would not be jurisdictional. IANAWL.

Stephen said...

Jupiter, in fact standing was raised by the respondents and extensively briefed by the parties. Hagedorn had to address it.

Stephen said...

Jupiter, in fact standing was raised by the respondents and extensively briefed by the parties. Hagedorn had to address it.

Mark said...

If a law is unconstitutional, it is unconstitutional, regardless of when that understanding was realized and regardless of who comes to that understanding.

NMObjectivist said...

I was troubled in law school when I saw crucial federal cases decided 5-4. Finally I saw they are voting their philosophy not law. Philosophy is important in ways not well understood. Everyone has a philosophy whether they know it of not. The county is roughly evenly divided for better worse. Probably for the better until we can figure out what's right in some deeper sense.

Birkel said...

Jupiter,
Standing is always an issue. You are correct. In most cases it is obviously not an issue because one of the parties alleges particularized harm.

Usually standing is a dodge by the courts, imho.

Calypso Facto said...

Stephen said ... "The Supreme Court allowed a suit by a party who wasn't injured,"
Who is injured by executive branch overreach of legislative power if not the legislature? And would it really have made any difference if one of the millions of Wisconsin residents materially harmed by the extension order was the face of the complaint?

"and, who, if it did suffer injury, had a wholly effective non litigation remedy, which was to change the statutes involved."
In another thread, you said, "A first point: they obviously had to move fast to put the order in place." Does not the same thing apply here? In time of a government-created economic emergency, which is quicker, re-negotiate and re-write the legislation which you then hope passes a Governor's veto (the same Governor whose authority your challenging) and then, and only then go to the Supreme Court? Or just skip the pretending and do the "obvious"?

"It then adopted an implausible reading of the statutes"
I find the finding of the supposed "order" as a "rule", complete with financial penalty, to be a completely plausible reading of the statutes, and I bet almost everyone else not politically motivated would too.

"and struck down the public health orders taken pursuant to them"
Found the orders to be far beyond the scope of public health, actually.

"in the middle of an active pandemic, leaving nothing to replace them and without even staying its order."
Which you immediately contradict, yourself, by saying, "The prompt action by Dane, Milwaukee, and Brown County officials will surely help to contain the damage."

Listen, Stephen, we know you're upset over your boss' loss of extra-constitutional dictatorial powers, but please don't pretend your dog's breakfast of emotional response is anything close to a convincing argument.

JAORE said...

why should the fact of drafting prevent a legislature from arguing in court that it was done in error

Isn't it just because the legislature, having found they erred, can rewrite the law to correct that error?