Part Seven: THE WISCONSIN SUPREME COURT’S SNOW PLOW: Wisconsin’s Approach to COVID-19
by Jacques C. Condon
PART SEVEN: The Wisconsin Supreme Court’s Snow Plow
Part seven, with this and other posts raising issues worth considering in addressing Wisconsin’s response to COVID-19, also known as the coronavirus pandemic.
In the first six parts of this series, a storm analogy was used to describe Wisconsin’s approach to handling the COVID-19 pandemic. Since then, multiple lawsuits have been filed across the state (and indeed across the country) challenging government action. One such lawsuit was filed by the Wisconsin legislature, a lawsuit currently being decided by the Wisconsin Supreme Court. Oral presentment of the argument happened today (Tuesday, May 5). A decision is expected in the coming days. But regardless of that decision, this blog discusses the argument being offered — including the odd twist at the end.
So here is the argument, in layman’s terms.
The legislature, in 1981, passed a communicable disease statute. Per the language of that statute, it gave authority to the department — in this case Wisconsin’s department of health services — to close public gatherings “in schools, churches, and other places”.
The authority to act doesn’t mean it has to act. Meaning the department doesn’t have to close anything. In the wording of the statute, it “may” act.
And it needs to be acting for a purpose, with that purpose also in the statute, “to control outbreaks and epidemics”. So if you have an outbreak, or an epidemic, the legislature has basically said that the department can close public places.
For those of you opposed to closing the schools, or church, too bad — the legislature spoke.
As did Governor Evers. Once again, Wisconsin’s Governor didn’t have to act, but he did so by directing the department to act. The Governor could have directed the department to do nothing, or he could have simply done nothing about COVID-19 — sort of a wait-and-see approach, or perhaps a less draconian approach as implemented by other states.
The opposite happened. The Governor directed the department to close schools, churches and other public places, and, going one step further, attached the closure-order to all non-essential businesses.
Back to the statute. The statutory language doesn’t differentiate between types of business — that was squarely either derived on their own by department or government officials, or perhaps copied from other states — and instead is written broadly. Where one section of the statute mentions schools, churches and other public places, in other sections the legislature empowered the department to act (once again, it “may” act as opposed to is required to act) to control and suppress communicable disease or implement emergency measures to control communicable disease.
Much of this authority traces to 1981. It’s been on the books for many decades.
So you begin with that context. The legislature, in its wisdom, empowered the department to act, with the Governor now saying “act this way”.
The legislature lawsuit took issue with those acts.
THE ASSUMPTION OF MODELING
Now before jumping into those issues, there is a rather large assumption that is not part of the legislature’s lawsuit: the data behind COVID-19.
That is, the data to support the Governor’s directive and the department’s act was provided by Wisconsin’s health officials, largely in the form of “modeling” spread, infection and death.
But when I say “data” I really mean conclusions because the underlying data was not produced.
Let’s assume, for now, that the data was true. (Hint: see next post.)
That data is not at issue in the legislature’s lawsuit. The data may be at issue in other lawsuits, including those from other petitioners both in Wisconsin and across the country, but it is not at issue in the legislature’s lawsuit.
Thus, instead of digging into the data, the legislature has argued, wait, Mr. Governor and your unelected Department head, what you did in issuing an “order” related to COVID-19 went too far.
To get to this conclusion the legislature has invoked a different statute that addresses the powers of an administrative body — like the department — to act.
If you’re old enough to recall the After School Special on making a bill, you would know that our laws come from the legislature and how that process works. It’s a catchy-episode, at least in the special, but not so enamoring in real-life, and there are exceptions aplenty.
Here, the legislature’s argument is that the department’s COVID-19 orders are essentially a “rule”, with basic ramifications. In other words, certain acts — let’s call them rules — are either exempted from procedures (not the case here) or would require steps such as publication and legislative review.
Essentially, the legislature is saying that it is entitled to a seat at the table.
The department (and the Governor) have not given it a seat (at least according to the legislature’s lawsuit).
Then again, this too is nuanced. The legislature wants at the table for the blanket COVID-19 order issued in March but has essentially conceded that some COVID-19 orders would be okay. Look again at the school-closure and public gathering rules. Here, the legislature is not necessarily weighing-in on whether it was right or wrong to close schools or sports or concerts or fairs or even Sunday school, but is instead taking on the bigger-picture of the rule as a whole.
If you are worried about school closures, say, in September, you should be: it appears to be an area that the legislature, based on today’s oral presentment, may punt; if so, the decision to close schools would squarely lie in the hands of the Governor and the department, neither of which hesitated to close schools at the outset (based on “modeling”).
Unexplained in the lawsuit is what discussion has taken place between the Governor and the legislature (albeit it appears little), what would be acceptable to the legislature (although segments of the legislature have proposed some guidance), or how quickly either side could come to the table.
Moreover, there is a fallback argument related to the acts themselves, and this gets into Constitutional implications. Many of the Supreme Court’s justices mentioned these implications during argument, and rightfully so: such implications would, in my view, be central to the role of the Court in upholding the law.
But for whatever reason, and perhaps because of the wording of Wisconsin’s communicable disease statute, the legislature and department’s approach to argument has largely relegated such challenges to under-the-surface ripples as opposed to an outright wave.
So if you’re expecting a big Constitutional splash, you may get some sound bytes from the Court’s written decision but probably not the soaker that it deserves.
What the legislature’s entire lawsuit boils down to are some relatively simple, albeit nuanced and emotionally charged, concepts. The department says there is a pandemic, it has the authority to act, and acted. In contrast, the legislature says that while perhaps some acts would be okay, the breadth of these particular acts — call them a rule, and without getting into specifics of the rule — cannot stand.
And if this leaves you with somewhat dumbfounded view, and if the lawsuit back-and-forth seems a bit underwhelming, the legislature, again, in its wisdom, has asked that the Wisconsin Supreme Court shred the order but — and here it comes! — not act for six to ten days after engaging the shredder. Why? Because if the COVID-19 orders were in fact unlawful, then the proper step, per the legislature, is to have a sit down between branches, discuss, and come up with a new plan, which will take six to ten days.
This seems odd (as if recent events were not odd enough).
Indeed, the legislature has requested that the Court not act for six to ten days even if the department’s Safer-At-Home Order is unlawful.
So, If you’re looking to be out from under the thumb-nail of government action, the legislature has suggested: keep waiting.
Conversely, if you’re okay with the current state of the state for awhile the longer, the legislature has suggested: keep waiting.
Of course, at least from a common sense perspective, either the legislature gave the department the power to act, or it didn’t, and the fact that the legislature would be okay with the department’s act continuing for any period of time seems to undercut it’s argument of an immediate seat at the table.
Perhaps the Wisconsin Supreme Court sees it different.
And perhaps — count on this — there will be considerable disagreement between the 7 justices to the point any decision will be a hodge-podge of legal reasoning, raising more questions than answers. Indeed, as you’re looking for a snow plow to address a COVID storm, you’re about to get the Wisconsin Supreme Court’s response, like it or not, and left to determine whether more clean-up is necessary.
My suggestion: the legislature’s entire lawsuit is about a lack of communication, and whether politically motivated or not, reasonable minds need to come together from the Governor and the legislature — the people, businesses and the public of Wisconsin deserve actual leadership on all sides that has been sorely missing.
Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action — and much more in between.