Covid in the Courts: Why Wisconsin?
California Covid court decisions will affect most of California’s nearly 40,000,000 residents. For that reason, this and future Patch articles will discuss Covid legal issues.
Why discuss a Wisconsin Covid Supreme Court case? Because as famed bank robber Willie Sutton said when asked why he robbed banks: That’s where the money is. And, at the moment, the Wisconsin Supreme Court Covid analysis is where the action is. With a Michigan Supreme Court decision likely to follow in the next few weeks.
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Wisconsin v. Secretary-Designee Palm
As noted in the last Covid article, the Wisconsin Supreme Court 4-person majority tossed out the Wisconsin Department of Health (DH) severe Covid restrictions, which kept Wisconsinites at home. Bottomline: The court recognized Palm’s power to regulate but found Palm failed to follow the proper regulatory procedure.
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Barely a few steps from a duel at high noon, the 3 dissenters scoffed at the majority’s analysis.
Can California learn anything from the 161 page decision of all the Wisconsin justices?
Covid Issues: Wisconsin: Understanding a Statute
Some scientists suggest that the Covid virus is mutating into ever new variants threatening different health effects. The legal issues seem similarly complex. The Wisconsin case was “simple” compared to the overall issues soon to arise.
In Wisconsin, a state law said that Palm could establish a health-related RULE by following a detailed procedure, which required public input. The same law said that Palm could summarily publish an ORDER taking immediate effect.
The Issue: Could Palm act summarily or were detailed procedures required?
The Wisconsin Case Relevance to California
Typically, states enact their own laws. Accordingly, it is highly unlikely that California laws repeat the wording in Wisconsin health laws. One possible exception deals with so-called “Model Laws.”
Sometimes a national law revision commission adopts model laws in specific areas and encourages states to adopt the model law. In this way, uniformity among states is encouraged.
But assume that California’s health laws read differently from those of Wisconsin. Should California legislators forget Palm? No, for two reasons.
REASON 1: Think about it. Why did it take 7 Wisconsin Supreme Court justices 161 pages to explain what procedure the Wisconsin Department of Health had to follow? Answer: The Wisconsin law was not written plainly enough. What should Sacramento and every California County with a Health Department be doing today – even before suits are filed? Read the health laws on the books and revise them if they are not clear.
REASON 2: Clarify who can sue to challenge the laws. In the Palm case, a threshold issue the Court decided was: Did the Wisconsin Legislature have the right [in legal parlance, the standing] to even file suit? The justices differed on this issue. Conceivably, the Supreme Court could have thrown out the case without ever getting to the merits.
California has laws (including court decisions) looking at whether elected representatives can challenge a decision of the entire body, for instance a council person challenging a city council decision.
Do those California laws apply in Covid cases? Should they? Should Sacramento review the issue?
Why? Departments of Health address health, not economic issues. Covid restrictions need a consideration of both. So should existing California standing requirements continue or be changed by Sacramento?
What are you doing California legislators?
