Courts

How Courts Work Or Don’t

A recent letter to the editor of this page criticized me for questioning a decision by the Wisconsin Supreme Court to reverse Governor Evers’ second emergency declaration regarding the spread of coronavirus. The writer opined that, as an attorney, I should know that a decision by the State’s highest court was the law of the land and the end of the discussion.

Unfortunately, or fortunately depending upon your point of view, there is no absolutes in the law. 

Laws passed by legislatures and administered by the executive branch are always, repeat always, subject to interpretation. There are usually, if not always, lots of lawyers available to interpret what is written in different ways and arrive at different conclusions about what the words really mean. No writer is ever able to convey a complex topic with absolute clarity. There is almost always room for argument and discussion. 

That is why we have courts to exercise the power to decide which of the competing interpretations of the written law will prevail. Even courts are not correct all of the time. That is why we have three layers of courts in Wisconsin. Trial courts in each county get the first shot at finding the correct interpretation. The losing side in the trial court, then gets to appeal to the Court of Appeals in their district. The Court of Appeals then gets its shot at telling the parties and the trial court which interpretation is correct. That court may or may not get it right. 

Whoever loses in the Court of Appeals then gets to ask the Wisconsin Supreme Court to take up the case. While the Court of Appeals has to take every case filed and render a decision, the state Supreme Court gets to pick and choose which cases it wants to hear. That decision usually depends on whether the issue presented by the case is of statewide importance and not controlled by an earlier decision by the Supreme Court that ruled on the same issue. 

When our Supreme Court agrees to take a case, it too tries to decide what the controlling law is and how that law applies to the facts of the case before it. It is the rare case indeed where all of the Justices on the state’s Supreme Court can agree on whether the case should be heard in the first place, what the controlling law is or what the correct interpretation of that law happens to be. In the end, decisions are usually based upon the Justice’s judicial philosophy, political persuasion and ability to persuade a majority of the other Justices on the Court to agree with her reasoning. 

The resulting majority decision from the Supreme Court controls the actions of the parties in that particular lawsuit for sure. It can also be argued that the decision also controls other cases that present the same facts. Beyond that, the application of a particular decision by the Court to a new or even slightly different set of facts, sets the process going all over again. 

If the state Supreme Court’s decision involves an issue of federal constitutional law, then the decision is subject to challenge and further appeals in the federal judicial system. Where the interpretation battles start all over again. 

With this understanding of how the judicial process works, or does not work, we are allowed to give an opinion that a given decision was decided incorrectly. 

Some decisions by state supreme courts are clearly incorrect and reversed by federal courts when they violate federal constitutional principles. Even decisions by the United States Supreme Court turn out to be wrong after the passage of time and changes in the will of the body politic. 

The infamous Dred Scott decision by the United States Supreme Court in 1857 is the classic, but not the only, example. In that 7-2 decision, the Court held that a slave, Dred Scott, who lived in a state where slavery was prohibited was not entitled to his freedom because African Americans could never be citizens of the United States. The Court further ruled that the Missouri Compromise of 1820 that declared certain states “slavery free” was unconstitutional.

Chief Justice Roger Taney wrote “…We think they (people of African ancestry) are…not included, and not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

By any measure in today’s understanding of American citizenship, Taney’s words are clearly and unequivocally incorrect. 

So too were the decisions of the Wisconsin Supreme Court which overturned Governor Evers’ emergency declarations and occupancy limits in public establishments. They were based on interpretations of laws passed limiting the powers of the governor which disregarded the overriding need for prompt an effective action in the face of a public health emergency. 

The deaths resulting from premature actions by people eager to get back to “normal” who choose to go about their lives pretending there is no threat will be on the hands of Wisconsin Supreme Court majority who decided those cases. 

False Freedom

Don’t Follow False Freedom

Stay the Course

Once again Wisconsin Republicans have snatched defeat from the jaws of victory by convincing their conservative friends on the Wisconsin Supreme Court to strike down Governor Tony Evers common sense, science-based approach to slowing the spread of COVID-19 in Wisconsin. More Wisconsin citizens will undoubtedly die needlessly as a result. One’s personal liberty should not be allowed to create conditions where others are more likely to become seriously ill or die.

 

Governor Evers issued a series of executive orders declaring public health emergencies in response to the spread of the virus in Wisconsin. His orders required people to wear masks in public, observe social distances between you and others whenever possible and other simple steps like washing your hands, all shown convincingly to slow the spread of the virus. These steps, coupled with a robust vaccine rollout, cut the numbers of new infections and deaths from the virus dramatically. 

 

As new virus variants have evolved from the original strains and been fueled by people and businesses which refused to follow the rules, we are starting to see new infection rates and deaths creep back up. It was in this environment, that a majority of the Wisconsin Supreme Court decided to throw out Evers’ emergency declarations along with the mandates they imposed. This left Wisconsin citizens free to stop wearing masks, stop social distancing and enables them to ignore the science and go back to how they lived in January 2020 before COVID was recognized as the killer it turned out to be. Washington County “freedom lovers” must be thrilled. 

 

Unfortunately, this is no April Fools joke. 

 

Wisconsin Republicans, stung by the defeat of their champion, the former occupant of the White House, have doubled down on their politicization of the pandemic. Casting it in lighthearted terms and minimizing its ability to spread and kill, the GOP has used it to whip up a false frenzy over governmental overreach. Unfortunately, a majority of our Supreme Court drank that Kool Aid.

 

Some issues transcend politics. Public health and safety should be at the top of that list. They were until the insurrection at the Capitol on January 6 where white supremacist mobs battled and killed Capitol Police officers and defaced the seat of government. Now public health and safety have been relegated to the dumpster and anti-government personal liberty has become ascendant. 

 

Imagine if that had been the case when parents in the 1950s faced a polio epidemic or when earlier generations faced death at the hands of countless diseases made avoidable by new childhood vaccinations. Those generations of parents lined up, lined their children up and rolled up their collective sleeves to get the shots. There was no talk of government overreach when laws were passed to combat these plagues. People were glad to have the chance to continue living.

 

Millions in my generation, the Boomers and older, have gotten both shots. We feel like a weight has been lifted as we cautiously venture out to visit grandchildren and eat once more in safely laid out restaurants. We still wear our masks in public because we do not want to help spread the new variants, much less contract an infection from one. We still practice social distancing in stores, wash our hands and applaud those businesses which have not succumbed to the false freedom frenzy.

 

Most doctors and public health professionals supported Governor Evers’ emergency declarations and their mandates and have spoken out against the Court’s decision to trash them. Try to go into a clinic or doctor’s office without a mask. They recognize that voluntary compliance with suggestions from the Centers for Disease Control and local public health agencies has not worked, especially in counties like ours where local officials have jumped on the false freedom bandwagon with both feet. 

 

We are close to beating COVID, just like we did with polio, measles, mumps, chicken pox, and other very infectious afflictions. It is lunacy to roll back restrictions and embrace the false freedom flags when we are so close.