Note: Sam Hagedorn is a Republican activist in Milwaukee and the father of Wisconsin Supreme Court Justice Brian Hagedorn. This is reposted from Sam’s personal Facebook page with his permission and edited for clarity.
Let me lay out my reason for this post. I wanted the state to open up and I’m glad that it is. I also wanted to know why my son, Wisconsin Supreme Court Justice Brian Hagedorn, dissented in the Safer at Home case. A side note, I’m not a lawyer nor do I play one on the Facebook. Sorry for the length. I did my best to keep it as short as I possibly could.
The case was about two statutory issues.
#1 – Was Emergency Order #28 in violation of the statues?
The majority ruled the “ordinance was a rule because it was a ‘regulation of general application’”. Brian’s dissent concluded it was not an order of “general application” because Order #28 is an order applying to specific factual circumstance (Gov. Tony Evers’ Health Emergency).
This is a technical and legal issue of “rules”, “order”, “general application” and “general order.”
The majority employed the constitutional doubt canon in reaching its conclusion. They state, “We disfavor statutory interpretations that unnecessarily raise serious constitutional questions about the statue under consideration.”
Looking up constitutional doubt I found this, “Justice [Clarence] Thomas has noted that ‘[a] disturbing number of this [US Supreme] Courts’ cases have applied the canon of constitutional doubt to statutes that were clear on their face value.”
Issue #2 – If Emergency Order #28 exceeds the Department of Health Services statutory authority, whether it was in violation of the statues or not.
The majority concluded Order #28 exceeded the statutory authority because it had standing to proceed because “as legislators, they claimed that a member of the executive branch invaded the Legislature’s core powers.”
The dissent said, “we are allowing the legislature to argue its own laws are unconstitutional, a claim it has no authority to make. In its briefing the only harm the legislature offers is it right to suspend administrative rules it finds objectionable. That’s it, they allege nothing else.“
For that reason Brian believed they had no standing to sue.
Did we see conservative judicial activism in this ruling?
Brian’s dissent brings up sua sponte. In law, sua sponte or suo motu describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties.
Neither side in this case argued constitutional issues. Watch the video of Chief Justice Pat Roggensack questioning to the lawyer for the Assembly.
So who made an argument, sua sponte and why might it be important? The majority did and they used the constitutional doubt principle to make a ruling when neither side made a constitutional argument. It is the prerogative of a court to do so; it’s also the prerogative of a Supreme Court justice to rule strictly on the law as written.
I’m not sure what the definition of judicial activism is, but it seems to me that both sides of the political spectrum are comfortable with it as long as it makes them happy.
So who’s right on this ruling? Probably both, I guess it depends on how you want laws written. I’ve heard from people on both sides.
Brian’s been quoted in the press: “During my campaign, I said that my job is to say what the law is, not what I think the law should be. I meant what I said,” Hagedorn told the AP in a text message. “To the best of my ability, I will apply the law as written, without fear or favor, in every case before me.”
I hope he continues to do so.