RESPONSE TO LEGAL OPINION FINAL

RESPONSE TO LEGAL OPINION  FINAL

by Michael Peroutka

The piece below relates to some recent efforts on behalf of residents of Spokane Washington. I am publishing this in the hope that it may prove helpful for other counties as well.  This information was delivered to the Commissioners of Spokane County on Friday, May 8,2020

 

MEMORANDUM IN RESPONSE TO LEGAL OPINION PROVIDED by the CHIEF CIVIL DEPUTY PROSECUTING ATTORNEY for SPOKANE COUNTY TO COMMISSIONERS OF SPOKANE COUNTY, WASHINGTON, May 8, 2020

BACKGROUND

The following is a response to the legal opinion provided by John F Driscoll, Jr., Chief Civil Deputy Prosecuting Attorney for Spokane County in an April 30, 2020 letter to the Commissioners of Spokane County, Washington.

The elected members of the Commission (Commissioners), desirous of ending the suffering of their citizen constituents due to the draconian and inconsistent orders of the Governor of Washington, requested a legal opinion from the County Attorney, Mr. Driscoll.

The subject of the opinion is the Governor’s purported emergency powers and the question posed by the Commissioners is this:

“What are the governor’s emergency powers during the present COVID-19 pandemic, including enforcement of any orders issued by the governor during that time?”

The April 30th letter (the opinion) contains one paragraph which is titled SHORT ANSWER and then 5 pages titled ANALYSIS which includes text taken from the State Code.

RESPONSE

We respectfully disagree with the substance of the short answer and with the body of analysis for the reasons herein:

 

Short answer Section:

The opinion begins by making the following statement:

“The Governor derives his power both constitutionally and statutorily.”

This is true but begs the question as to the lawful source and limits of that power. The remaining sentences in this section recite the penalties for disobeying the governor and asserts that the orders of local health officers also must be obeyed so as to avoid fines and punishments. We can find no discussion in the opinion documenting the constitutional source of authority for health officials to make law.

 

Analysis Section:

This section begins with the statement that the governor’s power to make law is initially derived from Article X of the Bill of Rights to the United States Constitution commonly known as the Tenth Amendment which states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”

After citing the Tenth Amendment the opinion concludes, “This basically allows the state, through its executive, to decide state matters.”

This is not an accurate summation of the nature, purpose and effect of the Tenth Amendment. Under the terms of the United States Constitution certain powers are delegated to the national government by the states. In addition, the language of Article I, Section 10, prohibits the states from certain other things, i.e. treaties and coining money.

The Tenth Amendment clarifies that, but for these powers, powers that previously belonged to the states continue to rest with them.  At the same time, powers that previously belonged to the people are similarly reserved to them.

The Tenth Amendment, then, is not a grant of plenary power which devolves to the executive of the state.  It is simply an acknowledgment that powers, other than those affected by the terms of the Constitution of the United States, remain as status quo ante. That is, whatever powers resided in the state government still exist. In like manner, whatever powers resided in the people still reside there.

This last point is salient because Article I, Section 1 of the Washington State Constitution acknowledges that all governmental authority comes from the people and is authorized by virtue of their consent:

ARTICLE I, Section 1:  All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.

Nothing in the 10th amendment operates, then, to subtract in any way from the authority of the people, or to give the governor of Washington State any power or authority which is not specifically delegated to him by the people under the terms of the Washington State Constitution.

Turning then to the Washington State constitution, the opinion cites Article III, Sections 2 and 5 as follows:

ARTCLE  III

SECTION 2 GOVERNOR, TERM OF OFFICE. The supreme executive power of this state shall be vested in a governor, who shall hold his office for a term of four years, and until his successor is elected and qualified.

SECTION 5 GENERAL DUTIES OF GOVERNOR. The governor may require information in writing from the officers of the state upon any subject relating to the duties of their respective offices, and shall see that the laws are faithfully executed.

 

The opinion then states:

 “This basically allows the governor to enforce state laws, including orders or proclamations he may issue under those laws.”

We respectfully disagree. This is not an accurate statement. Pursuant to article III, Section 2 the governor is not “allowed” but is required to faithfully execute state laws. But there is nothing in the constitution that authorizes or permits him to make laws or to issue orders or proclamations that pretend to be law.

In fact, all authority to make law is reserved to the legislative branch under Article II, Section 1.

ARTICLE II

SECTION 1 LEGISLATIVE POWERS, WHERE VESTED. The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.

Therefore, any proclamation issued by the Governor must be executory in nature (executing existing law) and not legislative (pretending to make law). And since valid executive orders only apply to those who are under the authority of the executive, no executive order is binding on anyone outside the executive branch of government. 

The opinion’s reference to Article III, Section 5 above is consistent with the idea that the Governor may impose requirements on those in the executive branch, that is, those already under his authority, but NOT on anyone else. (See Addendum 2 for separate discussion regarding executive orders generally).

Moreover, Article II, Section 18, confirms this point by stating plainly that no laws shall be enacted except by bill (not by order, mandate, directive or edict).

ARTICLE II

SECTION 18 STYLE OF LAWS. The style of the laws of the state shall be: "Be it enacted by the Legislature of the State of Washington." And no laws shall be enacted except by bill.

Finally, and in any event, no executive order or pretended legislation is lawful which contravenes or violates the God-given constitutionally protected rights of the people as particularly described in Article I, Sections 2,3,4,5 and 11, as well as many other sections of the Washington State Constitution:

ARTICLE I

SECTION 2 SUPREME LAW OF THE LAND. The Constitution of the United States is the supreme law of the land.

SECTION 3 PERSONAL RIGHTS. No person shall be deprived of life, liberty, or property, without due process of law.

SECTION 4 RIGHT OF PETITION AND ASSEMBLAGE. The right of petition and of the people peaceably to assemble for the common good shall never be abridged.

SECTION 5 FREEDOM OF SPEECH. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.

SECTION 11 RELIGIOUS FREEDOM. Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion…

 

The dangerous situation in which we find ourselves was contemplated and provided for by the Founders and the necessity for civil officials to exercise fidelity to the rule of law has been rearticulated by courts throughout the American political experience.

 

For example, in Federalist 51, Madison observed that when one level or branch of government gets out of its lane, another level and/or branch will interpose itself to defend the people from tyranny.


"Hence, a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself. (Federalist 51, at 323)"  

More recently, Justice Scalia observed:

"But the Constitution protects us from our own best intentions.  It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” (Printz V. United States (95-1478), 521 U.S. 898 (1997)

For these reasons we believe that the analysis in the opinion should be revisited and reconsidered.  The circumstances of the “current crisis” can never be used to justify lawlessness, either on the part of individuals or government officials or institutions.

We have included some addenda which we hope will prove helpful for further understanding and to persuade other officials and the people of Washington and America the righteousness of our causes and intentions.

Respectfully submitted,

Michael Anthony Peroutka, Attorney at Law

Co-Founder, Institute on the Constitution

151 Longfellow Drive, Millersville, MD  21108

410-971-5650

 

ADDENDA:

  • Statement of Judge Andrew Napolitano
  • The Nature of Executive Orders
  • Suggested Message to Law Enforcement Officials
  • Suggested Letter to Washington State Agencies

 

Addendum 1:

Statement by Judge Andrew Napolitano:

On Friday, May 1st, Judge Andrew Napolitano was interviewed by Stuart Varney on the Fox Business Channel.  Asked to comment about a restaurant owner in Maine who declared his intention to open his restaurant despite an executive order forbidding it, the judge said this:

“The lockdown in Maine, just like the lockdowns everywhere else, is without legal authority…; the overwhelming majority of Americans may cooperate with it, but it is not the law... governors don’t write the law.  Only state legislatures do.  What this restauranteur is railing against is an executive order written by the governor of Maine, without the legal authority to do so…I hope he defies the governor of Maine and brings this to a head.  And if it ends up in court, he should prevail.”

ADDENDUM 2:

WHAT ARE EXECUTIVE ORDERS?

Right now, our lives are being severely affected by executive orders.

So, it is imperative for us to understand just what they are --- and what they are not.

Back in 1789, George Washington’s first executive order was to the heads of departments “to impress me with a full, precise, and distinct general idea of the affairs of the United States”.

As you may note, the first president’s order was addressed to officials of the executive branch of the national government.  It was applicable to those already under his authority as head of the executive branch.

Properly understood, this is the nature of executive orders.  They are directives or policy instructions addressed to and binding upon persons who are already under the authority of the executive.  But they have no binding effect on anyone else.  They are not “law” and they do not have the force of law.

Only legislatures have lawmaking power.  And that power is specified and limited by the constitution.

So, if the governor of Washington wanted to do so, he could direct his department heads and employees in the executive agencies of Washington to wear masks and stay six feet apart while they are in state office buildings.

He could, arguably, order them to do that because they work for him. 

But he can’t order the rest of us to do that because we don’t work for him -- he works for us.

Executive orders have their purpose and place.  But it is crucial that all Washingtonians,  and especially those in law enforcement understand that they are not law and cannot lawfully be enforced.

 

Addendum 3:

SUGGESTED MESSAGE TO SHERIFFS, POLICE and OTHER LAW ENFORCEMENT OFFICIALS

This message is intended to inform and persuade LAW ENFORCEMENT OFFICIALS.

“Our State Constitution provides that all lawmaking power is vested in our state legislature.  It further provides that the powers and authorities of one branch of government shall not be discharged by a person vested with power from a different branch.

So, lawmaking power is vested in the legislature, meaning the Governor has no constitutional authority to make law.

Therefore, the edicts of Governor Inslee, whether they are characterized as mandates, orders, proclamations, or directives, are not law.  They cannot lawfully be enforced by the law enforcement officials of Washington State or its political subdivisions.

Now, there are many who are saying that this current Covid-19 crisis makes it necessary to suspend the exercise of God-given, constitutionally protected rights; including the freedom to practice religion, freedom of assembly and association as well as the freedom to move about without molestation.

However, no governor, in any state, has the authority to suspend the Constitution.  And no pretended “Emergency Powers” legislation can give it to him because the legislature cannot give the Governor an authority that they, themselves, do not have.

And any attempt for a Governor to suspend Constitutional rights is an act of lawlessness and a violation of his/her oath of office.

When you took your oath of office, as a Sheriff, police, or other law enforcement official, you swore obedience and fidelity to the United States Constitution and the Constitution of Washington. 

You solemnly declared THAT YOU WOULD ALWAYS FOLLOW THE CONSTITUTION.  You did not swear allegiance to a mayor or a governor or a judge or a president.

Right now, we are encouraging you to remember that solemn promise and to live up to its terms.

Because right now, as your country and your state are in peril, it is especially crucial that you rededicate yourself to this noble calling and duty.

Your fidelity to your oath and to the rule of law requires you to abstain from enforcing any edict or order from a Governor, or any executive, which lacks constitutional authority.

Moreover, your duty requires that you resist such edicts and orders and that you act in such a manner as to shelter and protect the citizenry from all acts of lawlessness, even and especially when they originate from civil authorities.

ADDENDUM 4:

Suggested Letter to Washington State Agencies

The following is a rough draft of a letter that could be directed to State regulatory agencies if there were concern that they might come into the county to violate the rights of some of constituents:

 

Dear Washington State Agency:

I believe in working with all federal, state, and local agencies to achieve peace and prosperity for the people we all work for. Indeed, the people pay all of our salaries and as such, each of us has promised them in solemn oath, to protect and defend their God given rights. No public official has the authority to suspend the Constitution, State of Federal, in the name of public safety. No public official has the authority to suspend liberty or the civil rights of the people and then pretend that doing so is for their own good. This is wrong and immoral. It is the antithesis of American idealism.

 

It has come to my attention that several people in my county are facing bankruptcy and cannot pay their bills. In a matter of days some of these good people will be facing foreclosures on their homes and businesses. Therefore, they are reopening their stores. I know these people. They are my neighbors. I have compassion for them and their dire circumstances. I am asking you to do likewise.

 

Thus, my reason for this letter. I trust that each business is conducting their affairs in a safe manner. I will expect that none of your regulators will harass or annoy any of these good people. I also will not allow any of these business owners to be arrested, cited, or shut down. This is still America and the rights of all citizens must be protected without exception. The Declaration of Independence states the purpose for which all of us in government exist, "That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."

 

I will also trust that none of these good people will have their liquor licenses revoked or any other licenses that are necessary for the successful management of their businesses. Please check with me if you feel a need to come check on these establishments. I will accompany you to any or all of them.

 

Your cooperation will be very much appreciated. Please feel free to contact me if you have any questions or concerns.

 

                             County Sheriff