Two months ago, the Washington Supreme Court issued an order requiring court employees and contractors either to be vaccinated against COVID-19 or to qualify for a medical or religious exemption from vaccination. The court also “strongly encouraged” other Washington courts to adopt a similar requirement for themselves. Since then, there has been public criticism of the court’s order, including from within the legal community.
I don’t intend to discuss whether the court’s order is good policy, because that’s a question best left to other forums. I simply want to analyze whether the court’s order is lawful. And in my view, that’s not a close legal question. The order is undoubtedly lawful.
The Washington Supreme Court’s power to issue the order comes from two sources: inherent and statutory.
First, the court has the inherent power “to administer justice and to ensure the safety of court personnel, litigants and the public.” It was within the court’s discretion to find that maximizing the number of vaccinated employees and contractors would impede the transmission of COVID-19 within the court, thereby ensuring the safety of court personnel, litigants, and public visitors.
Second, the Legislature has provided that the Washington Supreme Court, like other Washington courts, may “control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto.” This remarkably broad language likewise gives the Supreme Court the discretion to find that the quality of its justice would be furthered by requiring vaccinations for its employees and contractors. Yes, the statute doesn’t refer explicitly to the power to require vaccination, but it doesn’t have to. A broad grant of authority is necessarily phrased in generalities, not in specifics.
Some have criticized the court’s order on the ground that only the State Board of Health has the power to prevent and control infectious diseases. But the relevant grant of power to the Board of Health isn’t exclusive. And anyway, the Washington Supreme Court’s order isn’t intended to prevent and control COVID-19. The order is far too limited to do that. It’s simply meant to minimize the chance that an infectious disease will reach the court. Requiring court employees to be vaccinated no more regulates infectious disease than cleaning the court’s bathrooms regulates public sanitation.
Does the order violate the constitutional rights of court employees and contractors? That seems unlikely. In Jacobson v. Massachusetts, the U.S. Supreme Court held that vaccine mandates don’t offend substantive due process. In reliance on Jacobson and other cases, courts have upheld recent vaccine mandates against constitutional challenges.
Some have incorrectly claimed that Jacobson requires vaccine mandates to be enacted by a legislative body rather than ordered by a court. The case says that a vaccine mandate may be “established directly by legislative enactment,” not that it must be imposed that way. In fact, Jacobson recognizes that states have the discretion to choose “[t]he mode or manner” of safeguarding the public health. No court, as far as I’m aware, has interpreted Jacobson to hold that only a legislative body may impose vaccine requirements.
Benjamin Gould. Benjamin is a partner in Keller Rohrback L.L.P.’s complex litigation group.He has a longstanding interest in public-health law and has written about vaccine law for NWLawyer (now the Washington State Bar News). He can be reached at bgould@kellerrohrback.com. The opinions expressed here are solely his own.
