WISCONSIN - Wisconsin Supreme Court Justice Brian Hagedorn wrote the dissenting opinion in the May 13 decision that ended the ‘Safer at Home’ extension. That extension, enacted by Department of Health Services Secretary Designee Andrea Palm had extended the order until May 26, which is the day after Memorial Day.

Hagedorn’s dissent diluted what many expected to be a 5-2 decision by the court. This would have reflected the current balance of power on the court, with five sitting conservatives and two sitting liberals. Instead, the decision was 4-3, with liberal-leaning justices Ann Walsh Bradly and Rebecca Frank Dallet concurring with Hagedorn’s dissent.

This is particularly noteworthy because Justice Brian Hagedorn is not typically an individual known for supporting liberal opinions. Hagedorn served for almost five years as chief legal counsel to Governor Scott Walker. He was elected to the Wisconsin Supreme Court in April 2019. Prior to that, he was a judge on the Court of Appeals, having been appointed by Governor Walker in 2015 and elected in 2017.

If this decision had taken place after August 1, then Jill Karofsky, who defeated Justice Daniel Kelly in the April 7 election, would have ruled on the case. At that time, it might have been possible that the decision would have gone the other way, with a 4-3 vote against ending the ‘Safer at Home’ order.

Future uncertain

With additional spikes in the COVID-19 pandemic possible in coming months, it is unclear if another ‘Safer at Home’ order will be considered to slow the increase in infections and deaths, and protect health care workers and hospital’s capacity to treat serious infections. 

Because the decision did not take away the DHS Secretary’s authority to make such orders, but only overruled the extension to May 26, it is unclear if this strategy will be used again or what the outcome will be if it is challenged in court.

Following the decision, Palm immediately began an emergency rule-making process in consultation with leaders in the state legislature. In the Monday, May 18 COVID-19 media briefing, Governor Tony Evers declared the statewide rule-making process “dead” because legislative leaders had made clear their satisfaction  with the current state of affairs.

That state of affairs is that most municipalities are allowing businesses to reopen, and people to return to work. The one exception to the overturning of the ‘Safer at Home’ order is that public schools remain closed through the end of the school year until July 1.

Some counties have chosen to extend the order, particularly counties with large populations where infections continue to increase. Those counties are all on the eastern side of the state, and include Dane, Milwaukee and Brown counties.

Many municipalities have encouraged citizens to remain cautious, and continue to practice social distancing, stay home if sick, and wash hands frequently. Businesses have been encouraged to reopen carefully, and take into account Wisconsin Economic Development Council guidelines for a safe reopening.

Perhaps presaging the next step in the battle to limit the authority of DHS, State Senator Tom Tiffany called for Secretary Designee Palm to resign from her position last Thursday.

"The recent Supreme Court ruling confirmed that Ms. Palm's power grab ex-ceeded her authority. Her shotgun approach to lock down Wisconsin has pro-duced disastrous conse-quences.”

Following the lead of President Trump, Tiffany referred to the COVID-19 pandemic as the ‘Wuhan Virus.’ Tiffany laid out a laundry list of reasons to distrust Palm in his press release that basically boiled down to her being a Democrat.

"Ms. Palm came here as Governor Evers' hired gun, and she will leave with Wisconsin's corpse if she continues," Tiffany alleged.

Points of dissension

Justice Hagedorn’s dissent hinged upon the notion that to challenge the order, it would require the suit to be brought by a party that had been injured by the order. Hagedorn opined that the legislature’s ability to legislate had not been impaired, and that being their constitutionally given role, they therefore lacked standing to bring the suit.

“Executive branch overreach may be challenged by those who are harmed by the executive branch action. Except in unusual cases, the lawmaking body is not injured in its lawmaking functions by executive branch enforcement gone awry,” Hagedorn wrote. “Therefore, the legislature lacks standing to bring this claim, and it should be dismissed.”

As Justice Hagedorn wrote in his dissent:

“The legislature may have buyer's remorse for the breadth of discretion it gave to DHS in Wis. Stat. § 252.02. But those are the laws it drafted; we must read them faithfully whether we like them or not.”

Hagedorn reminded his colleagues who decided with the majority that “we are a court of law.” He asserted that the Wisconsin Supreme Court is “not here to do freewheeling constitutional theory. We are not here to step in and referee every intractable political stalemate. We are not here to decide every interesting legal question.”

Display of integrity

Justice Hagedorn displayed his deep study of the law and of America’s democratic heritage and institutions in his dissenting opinion. At issue is whether the power of the DHS Secretary to issue an order should be subject to the administrative rule-making process that is controlled by the legislature.

“In some ways, Secretary Palm's interpretation of the statutes may even be constitutionally required,” Hagedorn wrote. “To the extent rulemaking has a justification under our state constitution, it is because it retains the legislature's con-stitutional prerogative to determine the general poli-cies that will govern the state.”

Upholding that state’s constitution, Hagedorn observed that the legislature’s actions were “upending the constitution” by attempting to usurp the role it gives to the executive branch of government to enforce the laws enacted by the legislature. 

 “Our constitution's commitment to the separation of powers means the legislature should not, as a general matter, have a say in the executive branch's day-to-day application and execution of the laws,” Hagedorn wrote. “The legislature gets to make the laws, not second-guess the executive branch's judgment in the execution of those laws.”

Hadedorn wrote that “if rulemaking morphs into subjecting executive branch enforcement of enacted laws to a legislative veto, that turns our constitutional structure on its very head.”

Statewide questioned

In their oral arguments, the legislature argued that Secretary Palm could have issued 72 ‘Safer at Home’ order extensions in all 72 of Wisconsin’s counties, but not one statewide extension.

Hagedorn described this legislative gambit as “a game of statutory twister,” and contended that “Wisconsin Stat. § 252.02(4) contemplates that orders may be issued statewide and not be rules.”

Hagedorn explained to his colleagues that Palm’s order did not pertain to all public health crisis responses going forward, but only to the current specific COVID-19 pandemic, and only until May 26. Therefore, he said that the legilature’s position that the order had ‘general application,’ and was thus subject to rule-making, is in error.”

 “This order does not have general application to future DHS actions based on Wis. Stat. § 252.02; it has no application after May 26, 2020,” Hagedorn wrote. “Rather, it is an effort to apply and enforce the statute pursuant to the authority DHS has already been granted. Order 28 therefore does not meet the definition of a rule in Wis. Stat. § 227.01(13).”

State constitution

The legislature also made a fall back claim that Secretary Palm’s extension of the order exceeded her authority as granted by state statute and the state constitution.

Hagedorn’s dissent also countered this argument, stating that “the legislature is not the state's litigator-in-chief or even the representative of the people at large.” He explained to his colleagues on the bench that “the legislature is a constitutional creation having a significant, but limited, role in governance—the enactment of laws.”

 “To accept this principle would grant the legislature a seat in every executive branch enforcement action, whether public or private, in the state of Wisconsin,” Hagedorn wrote. “Can the legislature sue over unlawful DNR permit requirements? Overbroad criminal prosecutions? Generally, not. While we have allowed the legislature to litigate and sue the governor and other executive branch officials in limited situations, that is not a blanket invitation to the legislature to litigate every challenge to executive action.”

Hagedorn expressed concern that executive authority could be exceeded, but continued to maintain that the legislature lacked standing to challenge that execution. He ran down a list of the options that the citizens have to challenge the manner in which the executive branch administers the laws passed by the legislature.

 “Sometimes we the people respond by persuading lawmakers to change the law. Sometimes we throw the bums out. Sometimes we respond with protest and argument, and sometimes civil disobedience,” Hagedorn wrote. “In extraordinary situations, even revolution may be justified. See The Declaration of Independence (U.S. 1776).” 

“But the ordinary legal remedy for executive branch overreach is for someone personally harmed by that overreach to seek judicial relief. If a business ordered closed wants to challenge the authority of the executive branch to close its business, it may do so. If a person wanting to travel wishes to challenge the authority of the executive to forbid travel, she may do so. If a church wanting to challenge the authority of the executive branch to shut down Sunday services, it may do so.” 

Hagedorn expressed that the legislature’s unfounded claims, in addition to lacking standing to bring the challenge, were also lacking in the facts that would help the court in “separating the wheat from the chaff.” 

“The legislature cites no law in support of the notion that they are injured by poor or even unlawful enforcement of the laws. We do not let anyone bring any case they want, and we certainly don't let the legislature bring any case it wants,” Hagedorn wrote. “The legislature did not even try to assert that it is harmed by the alleged statutory overreach. Therefore, I conclude the legislature lacks standing to raise this issue.”

In his dissent, Hagedorn lessoned his colleagues on the court about their role. 

“As a court of law, and as an appellate court of last resort, it is essential we do not turn ourselves into a panel that offers advisory opinions to the legislature on what the laws it passed mean.”

Conclusion

In his conclusion, Justice Hagedorn wrote that while it is the court’s role to defend the constitution during this crisis, it is also imperative that it defend the laws passed by the legislature.