Jim Walsh on Covid Shot Mandates
Updated: Aug 24, 2021
This was taken from Rep. Jim Walsh's Facebook Page.
More thoughts on the un-lawfulness of COVID shot mandates from my friend, Judge Dave Larson.
We've been discussing these problems on this page (Facebook) for months. I'm just glad to read someone else in a position to know confirming what we've discussed here. There have been moments when I--like many of you, I know--have wondered if I was the only one who read the constitution and statutes this way. Anyway, here's the analysis:
In Washington, unlike Massachusetts, the legislature has reserved to itself the decision on whether mandatory vaccines would be needed. This is evidenced by only providing for mandatory vaccines of school-aged children, not mandating vaccinations for adults, and by NOT delegating that specific power to either the state or local boards of health as Massachusetts did with local jurisdictions in Jacobson.
The State Board of Health is able to enact regulations that apply to immunizations for children because the legislature permitted that to occur by the adoption of RCW 28A.210. However, state and local boards of health cannot adopt a vaccine mandate for adults because there is no statutory authority enacted by the legislature that provides for such a mandate or delegation of that decision. See Jacobson, Supra at p.24.
In addition, the Governor’s emergency powers do not give him the authority to create laws, only to waive or suspend them. See RCW 43.06.220(2). RCW 43.06.220 provides for limited actions that can be taken by the governor and those powers do not include managing vaccine policy. The Supreme Court definitely has no legislative or executive authority to pass vaccine mandates. There is also no law or regulation that conditions public employment on any form of vaccine or other medical procedure. This means that the Governor, the justices, and/or any other state or local officials cannot mandate vaccinations as a condition of employment BECAUSE NO LAW PASSED BY THE LEGISLATURE HAS GIVEN THEM THE AUTHORITY TO DO SO.
Most all public employees have a property interest in their positions and they cannot be terminated without due process of law. In Board of Regents v Roth, 408 US at 564 (1972), the Court held:
“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.” 408 US at p. 577.
The Roth court held that a property interest "can... be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law." Id.
The concepts in Roth were confirmed in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). “Loudermill hearings” are commonplace in jurisdictions across our state. In addition, many public employees are protected by collective bargaining agreements.
Terminating a public employee for not performing an act that the public employer HAS NO AUTHORITY TO COMPEL would be a problematic violation of due process and it would fly in the face of fundamental fairness. The monetary liability for wrongful termination would be staggering and there may even be an argument for attorney’s fees under 42 USC1983.
The reasoning above also calls into question public colleges, counties, cities, school districts, hospital districts, and other local government entities' attempts to require proof of vaccination for continued employment when there is no statutory or regulatory authority to do so.
In conclusion, the Supreme Court, the Governor, and all other government bodies need to reconsider VACCINE MANDATES THAT ARE NOT PERMITTED BY LAW.