Wisconsin Legislature v. Andrea Palm ( 2020 )

2020 WI 42SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP765-OA
COMPLETE TITLE: Wisconsin Legislature,
Petitioner,
v.
Secretary-Designee Andrea Palm, Julie Willems
Van Dijk and
Lisa Olson, In Their Official Capacities As
Executives of
Wisconsin Department of Health Services,
Respondents.
ORIGINAL ACTION
OPINION FILED: May 13, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: May 5, 2020
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
ROGGENSACK, C.J., delivered the majority opinion of the Court,
in which ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ.,
joined. ROGGENSACK, C.J., filed a concurring opinion. REBECCA
GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY,
J. joined. KELLY, J., filed a concurring opinion, in which
REBECCA GRASSL BRADLEY, J., joined. ANN WALSH BRADLEY, J.,
filed a dissenting opinion, in which DALLET, J., joined.
DALLET, J., filed a dissenting opinion, in which ANN WALSH
BRADLEY, joined. HAGEDORN, J., filed a dissenting opinion, in
which ANN WALSH BRADLEY, and DALLET, JJ., joined with respect to
¶¶198-258.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners, there was a petition and reply filed by
Eric M. McLeod, Lane E.B. Ruhland and Husch Blackwell LLP, Madison
and Ryan J. Walsh, John K. Adams, Amy Miller and Eimer Stahl LLP,
Madison. There was an oral argument by Ryan J. Walsh, Madison.
For the respondents, there was a response filed by Colin A.
Hector, Thomas C. Bellavia, Colin R. Stroud, Hannah S. Jurss,
Steven C. Kilpatrick, assistant attorneys general, and Joshua L.
Kaul, attorney general. There was an oral argument by Colin Thomas
Roth, assistant attorney general.
An amicus curiae brief was filed on behalf of The Tavern
League of Wisconsin by James A. Friedman, Zachary P. Bemis, Maxted
M. Lenz and Godfrey & Kahn, S.C., Madison.
An amicus curiae brief was filed on behalf of Wisconsin Faith
Voices for Justice by Stephen E. Kravit, Benjamin J. Glicksman and
Kravit, Hovel & Krawczyk, S.C., Milwaukee.
An amicus curiae brief was filed on behalf of Americans for
Prosperity – Wisconsin by Matthew M. Fernholz and Cramer, Multhauf
& Hammes, LLP, Waukesha and Eric R. Bolinder, pro hac vice,
Arlington, Virginia.
An amicus curiae brief was filed on behalf of Wisconsin
Manufacturers and Commerce and Wisconsin Dairy Alliance by Robert
I. Fassbender and Great Lakes Legal Foundation, Madison and Corydon
J. Fish, Madison.
An amicus curiae brief was filed on behalf of Wisconsin Public
Health Association, Wisconsin Nurses Association, Wisconsin
Chapter of American Academy of Pediatrics and Other Healthcare
Amici Curiae by Jeffrey A. Mandell and Stafford Rosenbaum LLP,
Madison.
An amicus curiae brief was filed on behalf of Legal Scholars
as Amici Curiae by Miriam Seifter, Robert Yablon and the University
2
of Wisconsin Law School and Barry J. Blonien and Boardman & Clark
LLP, Madison.
An amicus curiae brief was filed on behalf of Wisconsin
Association of Local Health Departments and Boards and Associated
Municipalities and Counties by Paul V. Gagliardi, Salem.
An amicus curiae brief was filed on behalf of 24 Wisconsin
Community, Advocacy, Labor and Membership Organizations by Douglas
M. Poland and Rathje Woodward LLC, Madison and Richard Saks and
Hawks Quindel, S.C., Milwaukee.
An amicus curiae brief was filed on behalf of Hunter Nation,
Wisconsin Lakeshore Business Association, Sport-Fishing Guides and
Individual Anglers by Adam M. Jarchow and Jarchow Law, LLC, Clear
Lake.
An amicus curiae brief was filed on behalf of Legal Action of
Wisconsin, Inc. by Amanda C. Aubrey, Carlos N. Bailey and Robert
Bebb Held, Madison.
An amicus curiae brief was filed on behalf of Americans for
Prosperity – Wisconsin by Matthew M. Fernholz and Cramer, Multhauf
& Hammes, LLP, Waukesha and Eric R. Bolinder, pro hac vice,
Arlington, Virginia.
An amicus curiae brief was filed on behalf of Disability
Rights Wisconsin, The Arc Wisconsin, The Arc and Disability and
Aging Organizations by Elaine J. Goldenberg, pro hac vice, Brendan
B. Gants, pro hac vice and Munger, Tolles & Olson LLP, Washington
D.C. and Kristin M. Kerschensteiner, Madison and Lauren C. Barnett,
pro hac vice and Munger, Tolles & Olson LLP, Los Angeles,
California and Shira Wakschlag, pro hac vice, Washington, D.C.
3
An amicus curiae brief was filed on behalf of Milwaukee
Teachers’ Education Association, Madison Teachers, Inc., SEIU
Healthcare Wisconsin, and Amalgamated Transit Union Local 998 by
Lester A. Pines, Tamara B. Packard, Christa O. Westerberg and Pines
Bach LLP, Madison.
An amicus curiae brief was filed on behalf of Independent
Business Association of Wisconsin, Double Decker Automotive, Inc.
and Shear Xcellence, LLC by Richard M. Esenberg, Luke Berg, Anthony
LoCoco, Lucas Vebber and Wisconsin Institute for Law and Liberty,
Inc., Milwaukee.
An amicus curiae brief was filed on behalf of Washington
County, Wisconsin by Bradley S. Stern, county attorney, West Bend.
4
2020 AP 42
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP765-OA
STATE OF WISCONSIN : IN SUPREME COURT
Wisconsin Legislature,
Petitioner,
v.
FILED
Secretary-Designee Andrea Palm, Julie Willems MAY 13, 2020
Van Dijk and Lisa Olson, In Their Official
Capacities As Executives of Wisconsin Sheila T. Reiff
Clerk of Supreme Court
Department of Health Services,
Respondents.
ROGGENSACK, C.J., delivered the majority opinion of the Court, in
which ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined.
ROGGENSACK, C.J., filed a concurring opinion. REBECCA GRASSL
BRADLEY, J., filed a concurring opinion, in which KELLY, J. joined.
KELLY, J., filed a concurring opinion, in which REBECCA GRASSL
BRADLEY, J., joined. ANN WALSH BRADLEY, J., filed a dissenting
opinion, in which DALLET, J., joined. DALLET, J., filed a
dissenting opinion, in which ANN WALSH BRADLEY, joined. HAGEDORN,
J., filed a dissenting opinion, in which ANN WALSH BRADLEY, and
DALLET, JJ., joined with respect to ¶¶198-258.
ORIGINAL ACTION. Rights declared.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This case is about the
assertion of power by one unelected official, Andrea Palm, and her
No. 2020AP765-OA
order to all people within Wisconsin to remain in their homes, not
to travel and to close all businesses that she declares are not
"essential" in Emergency Order 28. Palm says that failure to obey
Order 28 subjects the transgressor to imprisonment for 30 days, a
$250 fine or both. This case is not about Governor Tony Evers'
Emergency Order or the powers of the Governor.
¶2 Accordingly, we review the Wisconsin Legislature's
Emergency Petition for Original Action that asserts: (1) Palm as
Secretary-designee of the Department of Health Services (DHS),
broke the law when she issued Emergency Order 28 after failing to
follow emergency rule procedures required under Wis. Stat.
§ 227.24 (2017-18),1 and (2) even if rulemaking were not required,
Palm exceeded her authority by ordering everyone to stay home,2
closing all "non-essential" businesses,3 prohibiting private
gatherings of any number of people who are not part of a single
household,4 and forbidding all "non-essential" travel.5 Palm
responded that Emergency Order 28 is not a rule. Rather, it is an
Order, fully authorized by the powers the Legislature assigned to
DHS under Wis. Stat. § 252.02.
1 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2 Order 28, Section 1.
3 Id., Section 2.
4 Id., Section 3.
5 Id., Section 5.
2
No. 2020AP765-OA
¶3 We conclude that Emergency Order 28 is a rule under the
controlling precedent of this court, Citizens for Sensible Zoning,
Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore
is subject to statutory emergency rulemaking procedures
established by the Legislature. Emergency Order 28 is a general
order of general application within the meaning of Wis. Stat.
§ 227.01(13), which defines "Rule." Accordingly, the rulemaking
procedures of Wis. Stat. § 227.24 were required to be followed
during the promulgation of Order 28. Because they were not,
Emergency Order 28 is unenforceable.6 Furthermore, Wis. Stat.
§ 252.25 required that Emergency Order 28 be promulgated using the
procedures established by the Legislature for rulemaking if
criminal penalties were to follow, as we explain fully below.
Because Palm did not follow the law in creating Order 28, there
can be no criminal penalties for violations of her order. The
procedural requirements of Wis. Stat. ch. 227 must be followed
because they safeguard all people.
¶4 We do not conclude that Palm was without any power to
act in the face of this pandemic. However, Palm must follow the
law that is applicable to state-wide emergencies. We further
conclude that Palm's order confining all people to their homes,
forbidding travel and closing businesses exceeded the statutory
authority of Wis. Stat. § 252.02 upon which Palm claims to rely.7
6 This decision does not apply to Section 4. a. of Emergency
Order 28.
7The Legislature's petition included a third issue: "Even
if the Department did not violate [Wis. Stat.] § 227.24, whether
the Department acted arbitrarily and capriciously in issuing
3
No. 2020AP765-OA
I. BACKGROUND
¶5 Although we do not address the Governor's order, we note
for purposes of background, that on March 12, 2020, Governor Evers
issued Executive Order 72 "Declaring a Health Emergency in Response
to the COVID-19 Coronavirus." Order 72:
 proclaimed that a public health emergency existed in
Wisconsin;
 designated DHS as the lead agency to respond to the
emergency;
 directed DHS to take "all necessary and appropriate
measures to prevent and respond to incidents of COVID-19
in the State";
 suspended administrative rules that the DHS Secretary
thought would interfere with the emergency response and
increase the health threat;
 authorized the Adjutant General to activate the National
Guard to assist in responding to the emergency;
 directed all state agencies to assist in responding to the
emergency;
 proclaimed "that a period of abnormal economic disruption"
existed; and
 directed the Department of Agriculture, Trade, and Consumer
Protection to guard against price gauging during the
emergency.
Emergency Order 28." The court declined to take the third issue.
Therefore, we do not address it.
4
No. 2020AP765-OA
¶6 As further background we note that DHS Secretary-
designee, Andrea Palm, issued Emergency Order 12 on March 24, 2020,
"under the authority of Wis. Stat. § 252.02(3) and (6) and all
powers vested in [her] through Executive Order #72, and at the
direction of Governor Tony Evers[.]" Palm's Emergency Order 12
ordered "[a]ll individuals present within the State of
Wisconsin . . . to stay at home or at their place of residence"
with certain delineated exceptions. It remained in effect until
April 24, 2020.
¶7 On April 16, 2020, Palm issued Emergency Order 28, also
titled "Safer at Home Order." This order was not issued by the
Governor, nor did it rely on the Governor's emergency declaration.
Rather, it relied solely on "the authority vested in [Andrea Palm,
Department of Health Services Secretary-designee] by the Laws of
the State, including but not limited to [Wis. Stat. §] 252.02(3),
(4), and (6)." Emergency Order 28 commands all individuals in
Wisconsin "to stay at home or at their place of residence" with
certain limited exceptions approved by Palm or risk punishment "by
up to 30 days imprisonment, or up to $250 fine, or both." 8 Order
28 also:
 Prohibits "[a]ll forms of travel" except what Palm deems
essential.
 Orders "[a]ll for-profit and non-profit businesses" to
"cease all activities" except for minimum operations that
Palm deemed basic.
8 Emergency Order 28, Section 18.
5
No. 2020AP765-OA
 Prohibits "[a]ll public and private gatherings of any
number" "not part of a single household."
 Declares that all public and private K-12 schools "shall
remain closed" for the remainder of the year.
 Declares that libraries shall remain closed for "all in-
person services."
 Declares all "public amusement and activity" places closed
regardless of whether "indoors or outdoors" except golf
courses (with restrictions). The order says "Driving
ranges and miniature golf must remain closed."
 Continues the ordered closure of all salons and spas.
 Continues the closure of every restaurant and bar except
for take-out or delivery service.
 Orders religious groups to limit gatherings to "fewer than
10 people in a room" including weddings and funerals.
 Imposes a six-foot social distancing requirement for any
person not "residing in a single living unit or household."
Order 28 purports to remain in effect until May 26, 2020.
¶8 However, on April 20, 2020, Palm issued Emergency Order
31. It is not challenged directly in this action. In it, Palm
established "Gating Criteria" that must be met in order to limit
Emergency Order 28's proscriptions.9 Order 31 has no end date and
relies solely on Palm's assertion of authority.
¶9 It is Order 28 that is being challenged in this original
action. The Legislature filed an Emergency Petition for Original
9 Emergency Order 31, Section 2. b.
6
No. 2020AP765-OA
Action on April 21, 2020. On the same date, we issued an order
setting a briefing schedule that required a response from Palm by
April 28, 2020, and a reply from the Legislature by April 30, 2020.
We also allowed numerous amici motions and briefs to be filed by
April 29, 2020.10 On May 1, 2020, we granted the Legislature's
Emergency Petition for Original Action and assumed jurisdiction
over two issues: (1) whether Palm violated Wis. Stat. § 227.24,
governing emergency rules, by issuing Emergency Order 28 without
complying with § 227.24's procedures, and (2) even if Palm did not
violate § 227.24, whether Palm's Order 28 exceeds her authority
under Wis. Stat. § 252.02 by ordering all persons to stay at home,
forbidding all "nonessential" travel and closing all
"nonessential" businesses. The court heard oral argument on May
5, 2020.
II. DISCUSSION
A. Our Review
¶10 We review this controversy under our original
jurisdiction found in the Wisconsin Constitution, Article VII,
§ 3(2), which provides: "The supreme court has appellate
jurisdiction over all courts and may hear original actions and
proceedings. The supreme court may issue all writs necessary in
aid of its jurisdiction." Wis. Const. art. VII, § 3(2). We
exercise original jurisdiction when "the matter is one that should
trigger the institutional responsibilities of the Supreme Court."
Wis. S. Ct. IOP III (September 12, 2019). See Petition of Heil,
10 We accepted 14 amici briefs.
7
No. 2020AP765-OA
230 Wis. 428, 436, 284 N.W. 42, 45 (1939) ("[T]he purpose of the
constitution was, 'To make this court indeed a supreme judicial
tribunal over the whole state; a court of last resort on all
judicial questions under the constitution and laws of the state;
a court of first resort on all judicial questions affecting the
sovereignty of the state, its franchises or prerogatives, or the
liberties of its people.'" (quoted source omitted)).
¶11 The dispute in this case involves whether the Secretary-
designee of DHS issued an order in violation of the laws of
Wisconsin——an order that impacts every person in Wisconsin, as
well as persons who come into Wisconsin, and every "non-essential"
business. Exercising original jurisdiction is appropriate in this
dispute.
¶12 Palm has contended that the Legislature does not have
standing to invoke our original jurisdiction for these claims.
Whether a party has standing is a question of law. Schill v. Wis.
Rapids Sch. Dist., 2010 WI 86, ¶38, 327 Wis. 2d 572, 786 N.W.2d
177 (Lead opinion). "Wisconsin courts evaluate standing as a
matter of judicial policy rather than as a jurisdictional
prerequisite." Id. (citing Milwaukee Dist. Council 48 v. Milwaukee
Cty., 2001 WI 65, ¶38 n.7, 244 Wis. 2d 333, 627 N.W.2d 866). One
has standing to seek judicial review when one has a stake in the
outcome of the controversy and is affected by the issues in
controversy. Schill, 327 Wis. 2d 572, ¶38 (Lead opinion).
¶13 The crux of the Legislature's claims is that Emergency
Order 28 was promulgated without following required statutory
procedures applicable to an emergency, and in so doing, Palm
8
No. 2020AP765-OA
impinged upon the Legislature's constitutional core power and its
functions under Wis. Stat. §§ 227.24 and 227.26. The Legislature's
claim is grounded in the concept of separation of powers that is
inherent in the Wisconsin Constitution. We previously have
concluded that petitioners had standing to sue when, as
legislators, they claimed that a member of the executive branch
invaded the Legislature's core powers. Panzer v. Doyle, 2004 WI
52, ¶42, 271 Wis. 2d 295, 680 N.W.2d 666, abrogated on other
grounds by Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107,
¶2, 295 Wis. 2d 1, 719 N.W.2d 408. Accordingly, we conclude that
the Legislature has standing to proceed on the two claims for which
we granted review.
B. Standard of Review
¶14 Whether Emergency Order 28 fits the statutory definition
of a "Rule" is critical to deciding the issues presented herein.
We decide whether an action is a rule by interpreting Wis. Stat.
§ 227.01(13), which defines when an action is a rule and when
specified actions are not rules. § 227.01(13)(a)–(zz). Issues of
statutory interpretation and application present questions of law.
Milwaukee Police Ass'n. v. City of Milwaukee, 2018 WI 86, ¶17, 383
Wis. 2d 247, 914 N.W.2d 597.
C. Applicable Statutes
1. Wisconsin Stat. § 227.01(13)
¶15 The Legislature contends that Palm violated the law by
issuing Emergency Order 28 because Order 28 is a "Rule" as defined
in Wis. Stat. § 227.01(13), and Palm did not follow rulemaking
procedures that were required by Wis. Stat. § 227.24 when Order 28
9
No. 2020AP765-OA
was propagated. Palm contends that Order 28 is not a rule, but
rather an order of state-wide application, which did not require
that rulemaking procedures be followed during propagation. If
Order 28 meets the statutory definition of a rule, then Palm
violated the law because Palm admits that rulemaking procedures
were not employed.
¶16 Wisconsin Stat. § 227.01(13), which defines "Rule" and
those actions that are not rules is central to this controversy.
It provides in relevant part:
"Rule" means a regulation, standard, statement of
policy, or general order of general application that has
the force of law and that is issued by an agency to
implement, interpret, or make specific legislation
enforced or administered by the agency or to govern the
organization or procedure of the agency. "Rule"
includes a modification of a rule under s. 227.265.
"Rule" does not include, and s. 227.10 does not apply
to, any action or inaction of an agency, whether it would
otherwise meet the definition under this subsection,
that: [come within the actions described in (a)–(zz)].
¶17 The Legislature argues that Emergency Order 28 is a rule
because it is a "general order of general application." Wis. Stat.
§ 227.01(13). The Legislature focuses the relevant inquiry on to
whom the order applies; not why or how it applies. It is undisputed
that Emergency Order 28 is applicable to every person physically
present in Wisconsin, whether they were present when the order was
issued or entered Wisconsin subsequently. Order 28 is not an
"order in a contested case" nor "an order directed to a
specifically named person or to a group of specifically named
persons that does not constitute a general class."
10
No. 2020AP765-OA
§ 227.01(13)(b), (c). If it were either, it would be exempt from
the definition of a rule set out in § 227.01(13).
¶18 Palm asserts that Emergency Order 28 is not a general
order of general application because it responds to a specific
situation. She states, "While an order responding to the pandemic
may be a 'general order' because it applies to the population as
a whole, it is not of 'general application' because it responds
only to a specific, limited-in-time scenario."
¶19 Palm also cites Wis. Stat. § 252.02(4), which states, in
part, that "[a]ny rule or order" made by DHS "may be made
applicable to the whole or any specified part of the state." She
argues there has to be some way for an order to be applicable to
the "whole" state without it being a general order of general
application or the reference to orders in § 252.02(4) is redundant
because all general orders of general application are rules.
Therefore, Palm contends, Emergency Order 28 cannot be a general
order of general application solely because it applies to every
person physically present in Wisconsin. She also cites
§ 252.02(6), which states that DHS can "authorize and implement
all emergency measures to control communicable diseases."
¶20 The question of when a general order is of general
application has been addressed previously by Wisconsin courts. We
addressed the meaning of Wis. Stat. § 227.01(13)'s term, "of
general application," in Citizens for Sensible Zoning, 90
Wis. 2d 804. There, "the DNR issued an order which found that
Columbia County had not enacted a reasonable and effective flood
plain zoning ordinance and which adopted a zoning ordinance for
11
No. 2020AP765-OA
the delineated flood plain." Id. at 808. Over ten months after
DNR promulgated the ordinance, Citizens for Sensible Zoning, Inc.
(Citizens) sought declaratory judgment that the ordinance was
invalid. Id. at 809. The DNR moved to dismiss on the ground that
Citizens' claim was time-barred. Id. As we explained, Citizens'
claim was not time-barred if the ordinance was a rule. Id. at
813–14.
¶21 Our answer to the question of whether the ordinance was
a rule, was determined by the definition of "Rule" now set out in
Wis. Stat. § 227.01(13).11 We concluded the ordinance was a rule
because it was a "regulation of general application." Id. at 816.
We stated:
It is not always easy to determine whether an agency
action is a rule and is of general application or is a
determination which affects specific parties. The
Columbia County flood plain zoning ordinance applies
only to land within the floodplain in unincorporated
areas of Columbia County. The ordinance restricts the
conduct of only those persons with a legal interest in
such land. Nevertheless, to be of general application,
a rule need not apply to all persons within the state.
Even though an action applies only to persons within a
small class, the action is of general application if
that class is described in general terms and new members
can be added to the class.
Id. at 814–16 (emphasis added).
11At the time that Citizens for Sensible Zoning, Inc. v. DNR,
90 Wis. 2d 804, 280 N.W.2d 702 (1979) was decided, Wis. Stat.
§ 227.01(3) (1973-74) defined "Rule" as "a regulation, standard,
statement of policy or general order . . . of general application
and having the effect of law, issued by an agency to implement,
interpret or make specific legislation enforced or administered by
such agency or to govern the organization or procedure of such
agency."
12
No. 2020AP765-OA
¶22 We explained that "a rule for purposes of ch. 227 is
(1) a regulation, standard, statement of policy or general order;
(2) of general application; (3) having the effect of law;
(4) issued by an agency; (5) to implement, interpret or make
specific legislation enforced or administered by such agency as to
govern the interpretation or procedure of such agency." Id. at
814. We concluded that the flood plain ordinance was a rule. Id.
In so doing, our focus was on the people who were regulated by the
order. Id. (explaining that the ordinance restricts the conduct
of those persons with a legal interest in property in the flood
plain). Our focus was not on the type of factual circumstances
that led to the DNR order. We concluded that when the class of
people regulated by an order "is described in general terms and
new members can be added to the class," the order is of general
application and is a rule. Id. at 816. There, the class of people
were described in general terms and new members could be added to
the class when others secured legal interests in property in the
flood plain.
¶23 Citizens for Sensible Zoning has been cited for its
explanation of the Wis. Stat. § 227.01(13) term, "of general
application," when a challenge is made to an agency action
asserting that the action is a "Rule." In Cholvin v. DHFS, 2008
WI App 127, 313 Wis. 2d 749, 758 N.W.2d 118, the court of appeals
applied Citizens for Sensible Zoning. Id., ¶23. In Cholvin, the
plaintiff had been receiving Wisconsin Medicaid program benefits.
Id., ¶1. She challenged an instruction given to screeners that
hindered her ability to continue receiving benefits. Id. One of
13
No. 2020AP765-OA
the issues was whether the instruction was a policy of general
application and therefore a rule. She argued the policy was "of
general application because it applie[d] to the entire class of
persons who have their eligibility for a Medicaid waiver program
determined by the use of the functional screen." Id., ¶24. She
contended "that new members can be added to the class as additional
people seek to receive Medicaid waiver benefits and as changes in
their fluctuating abilities occur." Id. The court of appeals
agreed, concluding that the instruction was a policy of general
application and therefore a rule. Id., ¶25. As with Citizens for
Sensible Zoning, in Cholvin, the focus was on the people regulated,
not on the factual context in which the regulation arose. The
class of people was described in general terms and there was the
ability to add new members to the class. Id.
¶24 We conclude that Order 28 is a "general order of general
application." The order regulates all persons in Wisconsin at the
time it was issued and it regulates all who will come into
Wisconsin in the future. If we were to read the definition of
"Rule" as Palm suggests, one person, Palm, an unelected official,
could create law applicable to all people during the course of
COVID-19 and subject people to imprisonment when they disobeyed
her order.
¶25 Palm has not addressed either Citizens for Sensible
Zoning or Cholvin, yet these precedential decisions directly
address whether Palm's Order 28 is a rule. In addition, both cases
stand contrary to her argument that the reason for the order is
controlling. Furthermore, both cases noted the openness of the
14
No. 2020AP765-OA
groups of people regulated. Stated otherwise, people not regulated
by the order one day could have been regulated the next. Citizens
for Sensible Zoning, 90 Wis. 2d at 814–16; Cholvin, 313
Wis. 2d 749, ¶24. In the case now before us, persons travelling
from other states become bound by Order 28 when they cross into
Wisconsin.
¶26 We note that the legislative history underlying Wis.
Stat. § 252.02 confirms our understanding that the drafters of the
language on which Palm relies did not contemplate expanding DHS's
authority, nor did DHS understand the amendment to do so. 1981
Assembly Bill 711 created the "issue orders" language. In the
"Explanatory Notes" DHS stated that the bill is "basically
technical changes designed to bring the statute into concordance
with the current public health and epidemiologic thought and
terminology." In 1979, the predecessor statute of Wis. Stat.
§ 227.01(13) addressed "general orders of general application,"
showing that DHS had the authority to issue orders in 1979, but
that an "order" was a "Rule" when it met the statutory definition
of a rule. Citizens for Sensible Zoning, 90 Wis. 2d at 815. And
finally, the Legislative Reference Bureau never described the
added language as changing DHS's authority.
¶27 We also are not persuaded by Palm's characterization of
Emergency Order 28. Her assertion that "it responds only to a
specific, limited-in-time scenario" is questionable and not
relevant to whether Order 28 is a rule. Furthermore, a "limited-
in-time scenario" is not the power that Palm has seized. To
15
No. 2020AP765-OA
explain further, subsequent to Order 28, Palm has issued Emergency
Order 31, which states:
Wisconsin shall adopt a phased approach to re-opening
its economy and society, with each phase being
incrementally less restrictive on businesses and
individuals while protecting the public from COVID-19.
The Department of Health Services shall announce the
transition to each Phase with an order fully
articulating the activities that will resume.
Emergency Order 31's "Gating Criteria" direct repeated extensions
of the restrictions in Order 28 until criteria Palm has
established, again without following the procedures for
emergencies set out in Wis. Stat. § 227.24, are met. Stated
otherwise, Palm's subjective judgment in regard to "Gating
Criteria" is the only limitation of Order 28's restrictions.
¶28 Rulemaking exists precisely to ensure that kind of
controlling, subjective judgment asserted by one unelected
official, Palm, is not imposed in Wisconsin. See NLRB v. Wyman-
Gorden Co., 394 U.S. 759, 764 (1969) (plurality opinion)
(explaining that "rule-making provisions of that Act [the
Administrative Procedures Act], which the Board would avoid, were
designed to assure fairness and a mature consideration of rules of
general application").
¶29 We recognize that emergency rulemaking procedures
contemplate that rules may have to be promulgated in response to
extraordinary circumstances. Wisconsin Stat. § 227.24(1)(a)
explains that:
An agency may . . . promulgate a rule as an emergency
rule without complying with the notice, hearing, and
publication requirements under this chapter if
16
No. 2020AP765-OA
preservation of the public peace, health, safety, or
welfare necessitates putting the rule into effect prior
to the time it would take effect if the agency complied
with the procedures.
An emergency rule promulgated under § 227.24(1)(a) "remains in
effect only for 150 days," § 227.24(1)(c), unless extended by the
Legislature's Joint Committee for Review of Administrative Rules.
§ 227.24(2)(a). As counsel for the Legislature explained during
oral argument: "Necessarily under [ch.] 227 you're dealing with
a rule that's time limited and necessarily you're dealing with a
rule that's responding to a new set of circumstances and is
prospective." Therefore, Emergency Order 28 is a general order of
general application: the class is generally defined and new
members are added to the class when people enter Wisconsin.
¶30 We also note that Wis. Stat. § 227.01(13)(a)–(zz)
contains 72 specific exemptions from the definition of "Rule."
The exemptions are extraordinarily detailed.12 Some exemptions
apply to DHS. For example, DHS actions relating "to computing or
publishing the number of nursing home beds, to be added in each
12For example, "standards under subch. IX of ch. 254" are
exempted. Wis. Stat. § 227.01(13)(zu). Subchapter IX covers the
"Sale or Gift of Cigarettes or Tobacco Products to Minors."
Wisconsin Stat. § 254.916(1)(b) states: "The department, in
consultation with other governmental regulatory authorities and
with retailers, shall establish standards for procedures and
training for conducting investigations under this section."
Further, a rule does not include agency action that "[e]stablishes
criteria and standards for certifying instructors for the trapper
education program." § 227.01(13)(zn). Furthermore, the definition
of rule does not cover decisions that "relate[] to the curriculum
of, admission to or graduation from a public educational
institution, as determined by each institution." § 227.01(13)(f).
The list goes on and on, describing § 227.01(13)'s 72 exemptions
from the definition of "Rule."
17
No. 2020AP765-OA
health planning area under s. 150.33(1)" are exempt from the
definition of "Rule." § 227.01(13)(u). Some exemptions relate to
"orders," e.g., § 227.01(13)(b) and (c). However, despite the
detailed nature of the list, and the Legislature's consideration
of acts of DHS and its consideration of "orders," no act or order
of DHS pursuant to Wis. Stat. § 252.02 is exempted from the
definition of "Rule."
¶31 In addition, we employ the constitutional-doubt
principle. That is, we disfavor statutory interpretations that
unnecessarily raise serious constitutional questions about the
statute under consideration. Clark v. Martinez, 543 U.S. 371,
380-81 (2005). Palm points to statutes that she asserts give her
broad authority to impose regulation; but it does not follow she
can impose regulation without going through a process to give the
people faith in the justness of the regulation. However, under
Palm's theory, she can "implement all emergency measures necessary
to control communicable diseases," Wis. Stat. § 252.02(6), even at
the expense of fundamental liberties, without rulemaking. That
interpretation is constitutionally suspect. We do not construe
§ 252.02(6) as an "open-ended grant" of police powers to an
unconfirmed cabinet secretary. Indus. Union Dep't, AFL-CIO v. Am.
Petroleum Inst., 448 U.S. 607, 646 (1980) (plurality) (explaining
that statutory construction that affords a "sweeping delegation of
legislative power" has the potential to cause constitutional
problems in future cases).
¶32 To explain further, Article I, Section 1 of the Wisconsin
Constitution provides that "All people are born equally free and
18
No. 2020AP765-OA
independent, and have certain inherent rights; among these are
life, liberty and the pursuit of happiness; to secure these rights,
governments are instituted, deriving their just powers form the
consent of the governed." The people consent to the Legislature
making laws because they have faith that the procedural hurdles
required to pass legislation limit the ability of the Legislature
to infringe on their rights. These limits include bicameralism
and presentment, Wis. Const. art. V, § 10, quorum requirements,
Wis. Const. art. IV, § 7, and journal and open door requirements,
Wis. Const. art. IV, § 10. At times, legislation is enacted that
infringes on a person's rights despite these front-end procedures,
however, for that we have judicial review.
¶33 We have allowed the Legislature to delegate its
authority to make law to administrative agencies. But as we stated
in Martinez v. DILHR, 165 Wis. 2d 687, 697, 478 N.W.2d 582 (1992),
such a delegation is allowed only if there are "adequate standards
for conducting the allocated power." Stated otherwise, "[a]
delegation of legislative power to a subordinate agency will be
upheld if the purpose of the delegating statute is ascertainable
and there are procedural safeguards to insure that the board or
agency acts within that legislative purpose." J.F. Ahern Co. v.
Wis. State Bldg. Comm'n, 114 Wis. 2d 69, 90, 336 N.W.2d 679(Ct. App. 1983) (quoting Watchmaking Examining Bd. v. Husar, 49
Wis. 2d 526, 536, 182 N.W.2d 257 (1971)).
¶34 When a grant of legislative power is made, there must be
procedural safeguards to prevent the "arbitrary, unreasonable or
oppressive conduct of the agency." J.F. Ahern, 114 Wis. 2d at 90
19
No. 2020AP765-OA
(quoting DOA v. DILHR, 77 Wis. 2d 126, 135, 252 N.W.2d 353 (1977)).
Procedural safeguards, generally, are those requirements imposed
by the Administrative Procedures Act, codified at ch. 227. Id. at
135.
¶35 Palm cannot point to any procedural safeguards on the
power she claims. At oral argument, she continuously referenced
judicial review; but judicial review takes place after an
allegation is made that an individual's rights have been violated.
That is why our case law consistently speaks of "procedural and
judicial safeguards." E.g., id. (emphasis added). Rulemaking
provides the ascertainable standards that hinder arbitrary or
oppressive conduct by an agency. Judicial review does not prevent
oppressive conduct from initially occurring.
¶36 Furthermore, Emergency Order 28 purports to criminalize
conduct pursuant to Wis. Stat. § 252.25 when a factual directive
of Order 28 is transgressed.13 For example, Order 28 purports to
impose 30 days in jail when a person leaves home for a purpose
Palm did not approve.
¶37 However, in order to constitute criminal conduct
proscribed by statute, the conduct must be set out with specificity
in the statute to give fair notice. State v. Starks, 51 Wis. 2d
256, 263-64, 186 N.W.2d 245 (1971). The same specificity is
Emergency Order 28, Section 18; Wis. Stat. § 252.2513
provides: "Any person who willfully violates or obstructs the
execution of any . . . department order under this chapter and
relating to the public health, for which no other penalty is
prescribed, shall be imprisoned for not more than 30 days or fined
not more than $500 or both."
20
No. 2020AP765-OA
required in a properly promulgated rule before criminal sanctions
could follow violations. Both must "meet the standards of
definiteness applicable to statutory definitions of criminal
offenses." State v. Courtney, 74 Wis. 2d 705, 709, 247 N.W.2d 714(1976) (violation of rule, Wis. Admin. Code § Ag 29.12(6), was
charged as a misdemeanor).
¶38 It has long been the law in Wisconsin that in order for
the violation of an administrative agency's directive to
constitute a crime, the directive must have been properly
promulgated as a rule. HM Distribs. of Milwaukee v. Dep't of Ag.,
55 Wis. 2d 261, 268-69, 198 N.W.2d 598 (1972) (discussing a
contention that criminal penalties were not proper because the
administrative regulation was not properly promulgated as a rule);
see also State v. Lambert, 68 Wis. 2d 523, 526, 229 N.W.2d 622(1975) (explaining that criminal conduct can follow from a properly
promulgated rule).
¶39 Palm asserts that Order 28 is not a rule, yet she also
asserts Wis. Stat. § 252.25 endows her with the power to create
criminal penalties for violations of Order 28. Her argument stands
§ 252.25 on its head. This is so because criminal penalties can
arise from a rule violation only when the rule was properly
promulgated. HM Distribs., 55 Wis. 2d at 268-69 (explaining that
HM Distributors' contention that "proper and required rulemaking
procedures were not followed" was without merit). Without the
promulgation of a rule, no criminal penalties are possible for
violations of administrative agency directives. Id.21
No. 2020AP765-OA
¶40 Notwithstanding the law, Emergency Order 28 does not
rely on a statute within ch. 252 defining the elements of the crime
to which punishment under Wis. Stat. § 252.25 must refer. Rather,
the prohibited "criminal conduct" to which Palm refers is factually
defined solely by Emergency Order 28. Stated otherwise, Palm
created the potential for a crime by Order 28. Counsel for Palm
admitted as much at oral argument when he said that there was only
one element that needed to be proved in a criminal prosecution for
a violation of Emergency Order 28: that a provision of the order
was violated. Such an argument is without legal foundation and
ignores more than 50 years of Wisconsin law, some of which we cited
above.
¶41 As we said at the beginning of this decision, the
Governor's emergency powers are not challenged by the Legislature,
and Palm does not rely on the Governor's emergency powers.
Constitutional law has generally permitted the Governor to respond
to emergencies without the need for legislative approval. "With
no time for ex ante deliberation, and no metric for ex post
assessments, the executive's capacities for swift, vigorous, and
secretive action are at a premium." Deborah N. Pearlstein, Form
and Function in the National Security Constitution, 41 Conn. L.
Rev. 1549, 1565 (2009) (internal quotations omitted). But the
Governor's emergency powers are premised on the inability to secure
legislative approval given the nature of the emergency. For
example, if a forest fire breaks out, there is no time for debate.
Action is needed. The Governor could declare an emergency and
respond accordingly. But in the case of a pandemic, which lasts
22
No. 2020AP765-OA
month after month, the Governor cannot rely on emergency powers
indefinitely.14
¶42 Emergency Order 28 is a general order of general
application within the meaning of Wis. Stat. § 227.01(13). It is
a rule; and accordingly, the rulemaking procedures of Wis. Stat.
§ 227.24, which protect people affected by DHS orders, were
required to be followed during the promulgation of Order 28.
Furthermore, Palm's reliance on Wis. Stat. § 252.25 for criminal
penalties for those who violate Order 28 is misplaced. She chose
not to follow the law; therefore, there can be no criminal
penalties for violations of Order 28. Courtney, 74 Wis. 2d at
709.
2. Wisconsin Stat. ch. 252
¶43 Chapter 252 addresses communicable diseases. Palm
relies on Wis. Stat. § 252.02 for the legitimacy of Order 28. As
already explained, Palm was in error to assert that she was not
required to comply with rulemaking procedures. However, because
we granted review of the second issue presented by the Legislature,
we assume, arguendo, that rulemaking was not required, and consider
Indeed, Wis. Stat. § 323.10 authorizes the Governor to
14
invoke special emergency powers for 60 days when the Governor
declares an emergency, which Governor Evers did here. We note
that 60 days is more than enough time to follow rulemaking
procedures pursuant to Wis. Stat. § 227.24. Therefore, emergency
circumstances do not justify Palm's failure to follow the
Administrative Procedures Act. However, Palm claims that neither
rulemaking nor time-constraints inherent to emergency powers
restrict her power. That assertion is contrary to the law in the
State of Wisconsin.
23
No. 2020AP765-OA
whether Emergency Order 28 exceeded the scope of permissible
actions under § 252.02.
¶44 Palm claims that "the meaning of the provisions in [Wis.
Stat. §] 252.02 are plain." She argues that "DHS has the power to
take direct action to control communicable diseases, just as it
did through Safer-at-Home [Order 28]." She asserts that
§ 252.02(6) gives DHS expansive authority to respond to a rare
public health crisis like COVID-19. Therefore, she can "authorize
and implement all emergency measures necessary to control
communicable diseases." In addition, Palm asserts that Order 28
is independently authorized under § 252.02(4), which provides DHS
with multiple avenues "for the control and suppression of
communicable diseases." And finally, many of Order 28's provisions
also fall under § 252.02(3), which Palm asserts empowers her to
"close schools and forbid public gatherings in schools, churches,
and other public places to control outbreaks and epidemics."
¶45 Palm asserts her broadest grant of authority is Wis.
Stat. § 252.02(6) because it says she can authorize and implement
"all" emergency measures "necessary" to control communicable
diseases.15 She asserts that "'all' [as a modifier] suggests an
expansive meaning because 'all' is a term of great breadth." She
cites Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 336
(4th Cir. 2012) (quoting Nat'l Coal. for Students with Disabilities
Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 290 (4th Cir.
Wisconsin Stat. § 252.02(6) provides: "The department may
15
authorize and implement all emergency measures necessary to
control communicable diseases."
24
No. 2020AP765-OA
1998)). She argues that she does not have limitless power under
this subsection because it applies "only in an 'emergency,'" and
"the statute requires an action be 'necessary.'"
¶46 Crimes created by the Legislature in statutes must have
specificity in order to be enforceable. State v. Popanz, 112
Wis. 2d 166, 173, 332 N.W.2d 750 (1983) (explaining that a
"criminal statute must be sufficiently definite to give a person
of ordinary intelligence who seeks to avoid its penalties fair
notice of conduct required or prohibited"). Because Palm fails to
understand the specificity necessary to a valid criminal statute,
she also fails to understand that no less specificity is required
of a rule to which criminal penalties are assigned. Courtney, 74
Wis. 2d at 709.
¶47 If Wis. Stat. § 252.02(6) were the sole factual
foundation for criminal charges, no criminal prosecution could
result because § 252.02(6) does not have the specificity required
for fair notice of the conduct required or prohibited. Stated
otherwise, it has no definable standards for required or prohibited
conduct. Popanz, 112 Wis. 2d at 173. If Emergency Order 28 had
been promulgated as a rule, it has much more specificity; however,
since no rulemaking occurred, Order 28 cannot save itself.
¶48 Palm next cites Wis. Stat. § 252.02(4).16
Section 252.02(4) addresses four occurrences that permit DHS
16 Wisconsin Stats. § 252.02(4) provides:
Except as provided in ss. 93.07 (24) (e) and 97.59, the
department may promulgate and enforce rules or issue
orders for guarding against the introduction of any
communicable disease into the state, for the control and
25
No. 2020AP765-OA
action: First, "for guarding against the introduction of any
communicable disease into the state;" second, "for control and
suppression of communicable diseases;" third, "for the quarantine
and disinfection of persons, localities and things infected or
suspected of being infected by a communicable disease," and fourth,
"for the sanitary care of jails, state prisons, mental health
institutions, schools, and public buildings and connected
premises."
¶49 However, Order 28 goes far beyond what is authorized in
Wis. Stat. § 252.02(4). For example, Order 28 exceeds the
§ 252.02(4) authority to quarantine those infected or suspected of
being infected. Instead, Palm quarantines "[a]ll individuals
present within the State of Wisconsin" by ordering them "to stay
at home or at their place of residence" with exceptions she deems
appropriate.17 She also prohibits "All public and private
gatherings of any number of people that are not part of a single
suppression of communicable diseases, for the quarantine
and disinfection of persons, localities and things
infected or suspected of being infected by a
communicable disease and for the sanitary care of jails,
state prisons, mental health institutions, schools, and
public buildings and connected premises. Any rule or
order may be made applicable to the whole or any
specified part of the state, or to any vessel or other
conveyance. The department may issue orders for any
city, village or county by service upon the local health
officer. Rules that are promulgated and orders that are
issued under this subsection supersede conflicting or
less stringent local regulations, orders or ordinances.
17 Emergency Order, Section 1.
26
No. 2020AP765-OA
household or living unit."18 Again, this directive is not based
on persons infected or suspected of being infected.
¶50 Palm skips over this obvious overreach and contends that
the first and second provision of Wis. Stat. § 252.02(4) permit
actions taken in Order 28. However, once again, Order 28 is overly
broad in its proscriptions. "Áll forms of travel are prohibited
except for essential travel as defined in this Order,"19 i.e., by
Palm. If this restriction supposedly is connected to the first
permissible action under § 252.02(4) to "guard against the
introduction of any communicable disease into the state," Order 28
goes well beyond entry of communicable disease into the state. It
prevents "All forms of travel," not simply interstate travel.
Furthermore, nothing in § 252.02(4) permits Palm to close "All
for-profit and non-profit businesses with a facility in Wisconsin,
except [those Palm defies as essential businesses and
operations]." She cites no authority for this vast seizure of
power.
¶51 In opposition to Palm's claims, the Legislature raised
legislatively-imposed directives that courts are to follow when
interpreting the scope of agency authority. To place this
contention in context, the reader should note that there is history
underlying how courts have interpreted administrative agency
powers. Formerly, court decisions permitted Wisconsin
administrative agency powers to be implied. See Wis. Citizens
18 Id., Section 3.
19 Id., Section 5.
27
No. 2020AP765-OA
Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶14, 270 Wis. 2d
318, 677 N.W.2d 612. In theory, "any reasonable doubt pertaining
to an agency's implied powers" was resolved "against the agency."
Wis. Builders Ass'n v. DOT, 2005 WI App 160, ¶9, 285 Wis. 2d 472,
702 N.W.2d 433. However, the Legislature concluded that this
theory did not match reality. Therefore, under 2011 Wis. Act 21,
the Legislature significantly altered our administrative law
jurisprudence by imposing an "explicit authority requirement" on
our interpretations of agency powers. Kirsten Koschnick, Comment,
Making "Explicit Authority" Explicit Deciphering Wis. Act 21's
Prescriptions for Agency Rulemaking Authority, 2019 Wis. L.
Rev. 993, 997.
¶52 The explicit authority requirement is codified at Wis.
Stat. § 227.10(2m), which provides: "No agency may implement or
enforce any standard, requirement, or threshold, . . . unless that
standard, requirement, or threshold is explicitly required or
explicitly permitted by statute or by a rule that has been
promulgated in accordance with this subchapter[.]" Furthermore,
Wis. Stat. § 227.11(2)(a)1.—3., as summarized by a recent comment
in the Wisconsin Law Review, "prevent[s] agencies from
circumventing this new 'explicit authority' requirement by simply
utilizing broad statutes describing the agency's general duties or
legislative purpose as a blank check for regulatory authority."20
Wisconsin Stat. § 227.11(2)(a)2. provides: "A statutory
20
provision describing the agency's general powers or duties does
not confer rule-making authority on the agency or augment the
agency's rule-making authority beyond the rule-making authority
that is explicitly conferred on the agency by the legislature."
28
No. 2020AP765-OA
Koschnick, Making "Explicit Authority" Explicit, at 996. The
explicit authority requirement is, in effect, a legislatively-
imposed canon of construction that requires us to narrowly construe
imprecise delegations of power to administrative agencies. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 225 (2012) ("Interpretive-Direction
Canon": "interpretation clauses are to be carefully followed.").
¶53 In addition, the Legislature cites two more canons of
construction that it asserts apply here: first, the Legislature
does not alter fundamental details of a regulatory scheme in vague
terms or in ancillary provisions. Second, the Legislature cites
the constitutional-doubt principle. As the United States
Department of Justice has recently written in a COVID-19-related
case raising constitutional issues, "There is no pandemic
exception . . . to the fundamental liberties the Constitution
safeguards. Indeed, 'individual rights secured by the
Constitution do not disappear during a public health crisis.'
These individual rights, including the protections in the Bill of
Rights made applicable to the states through the Fourteenth
Amendment, are always in force and restrain government action."
Statement of Interest, Temple Baptist Church v. City of Greenville,
No. 4:20-cv-64-DMB-JMV (N.D. Miss. April 14, 2020), ECF No. 6
(quoting In re Abbott, 954 F.3d 772 (5th Cir. 2020)).
¶54 With these canons as guides, the Legislature interprets
Wis. Stat. § 252.02(3), (4) and (6) much differently than Palm.
To some extent, Palm and the Legislature are talking past each
other. For example, Palm focuses on § 252.02(6) which she asserts
29
No. 2020AP765-OA
granted broad powers to DHS. The Legislature focuses on the
necessary procedural foundation that must precede DHS's
implementation or enforcement. As Wis. Stat. § 227.10(2m)
directs, unless a rule has been promulgated pursuant to ch. 227 or
the DHS action is "explicitly required or explicitly permitted by
statute" DHS has no power to implement or enforce its directives.
¶55 We do not define the precise scope of DHS authority under
Wis. Stat. § 252.02(3), (4) and (6) because clearly Order 28 went
too far. We cannot expansively read statutes with imprecise
terminology that purport to delegate lawmaking authority to an
administrative agency. The Legislature appropriately cites the
statutory explicit authority requirement, Wis. Stat. § 229.10(2m),
and has provided plausible readings of the text.
¶56 We have declared rights under the law wherein we have
concluded that Emergency Order 28 is invalid and therefore,
unenforceable. Although a very unusual request, on April 21, 2020,
the Legislature asked this court to issue a temporary injunction
of Emergency Order 28 but then requested a stay of that injunction
for at least six days. We perceive this request as being grounded
in a concern for an orderly transition from Order 28 to a lawful
rule.
¶57 However, more than two weeks have passed since we began
our consideration of this case. Therefore, we trust that the
Legislature and Palm have placed the interests of the people of
Wisconsin first and have been working together in good faith to
establish a lawful rule that addresses COVID-19 and its devastating
effects on Wisconsin. People, businesses and other institutions
30
No. 2020AP765-OA
need to know how to proceed and what is expected of them.
Therefore, we place the responsibility for this future law-making
with the Legislature and DHS where it belongs.
IV. CONCLUSION
¶58 We conclude that Emergency Order 28 is a rule under the
controlling precedent of this court, Citizens for Sensible Zoning,
Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore
is subject to statutory emergency rulemaking procedures
established by the Legislature. Emergency Order 28 is a general
order of general application within the meaning of Wis. Stat.
§ 227.01(13) which defines "Rule." Accordingly, the rulemaking
procedures of Wis. Stat. § 227.24 were required to be followed
during the promulgation of Order 28. Because they were not,
Emergency Order 28 is unenforceable.21 Furthermore, Wis. Stat.
§ 252.25 required that Emergency Order 28 be promulgated using the
procedures established by the Legislature for rulemaking if
criminal penalties were to follow. Because Palm did not follow the
law in creating Order 28, there can be no criminal penalties for
violations of her order. The procedural requirements of Wis. Stat.
ch. 227 must be followed because they safeguard all people.
¶59 We further conclude that Palm's order confining all
people to their homes, forbidding travel and closing businesses
This decision does not apply to Section 4. a. of Emergency
21
Order 28.
31
No. 2020AP765-OA
exceeded the statutory authority of Wis. Stat. § 252.02, upon which
Palm claims to rely.
By the Court.—Palm's Emergency Order 28 is declared unlawful,
invalid, and unenforceable.
2
No. 2020AP765-OA.pdr
¶60 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). I join
the majority opinion, but for the reasons set forth below I also
concur.
¶61 We have declared that Emergency Order 28 is invalid and
therefore, unenforceable. Earlier, the Legislature asked us to
issue an injunction but to stay such an injunction for six days,
and at oral argument, the Legislature implied that a longer stay
may be appropriate if we were to enjoin Order 28.
¶62 Requesting a stay for a requested injunction is a very
unusual request, but we understand that it is driven by the
Legislature's concern that confusion may result if Order 28 is
declared invalid and actions to enforce our declaration
immediately commence. People, businesses and other institutions
may not know how to proceed or what is expected of them.
¶63 Furthermore, there is authority supporting such a
request. Declaratory judgment is a legal remedy; however, it is
analogous to an injunction, which is an equitable remedy. Samuels
v. Mackell, 401 U.S. 66, 70–71 (1971). In Samuels, The United
States Supreme Court stated:
Although the declaratory judgment sought by the
plaintiffs [in Great Lakes Dredge & Dock Co. v. Huffman,
319 U.S. 293 (1943)] was a statutory remedy rather than
a traditional form of equitable relief, the Court made
clear that a suit for declaratory judgment was
nevertheless 'essentially an equitable cause of action,'
and was 'analogous to the equity jurisdiction in suits
quia timet or for decree quieting title.' . . . [T]he
Court held that in an action for a declaratory judgment,
'the district court was as free as in any other suit in
equity to grant or withhold the relief prayed, upon
equitable grounds.
1
No. 2020AP765-OA.pdr
Samuels, 401 U.S. at 70-71 (internal citations omitted). The Court
emphasized the "continuing validity" of its analogy between
declaratory judgments and injunctive relief. Id. at 71.
¶64 The analogy between declaratory judgment and injunctive
relief is particularly strong in the context of this case. As
then-Chief Justice Abrahamson and Justice Ann Walsh Bradley said,
"[t]he oft-stated, oft-repeated legal maxim is clear: declaratory
judgments are treated functionally as injunctions, when applied to
governmental parties who are bound by the force and meaning of
judgments under the law." Madison Teachers, Inc. v. Walker, 2013
WI 91, ¶43, 351 Wis. 2d 237, 869 N.W.2d. 388 (Abrahamson, C.J., &
A.W. Bradley, J., dissenting).1
¶65 Therefore, I conclude there is a legal basis upon which
to consider the Legislature's extraordinary request. I too am
appreciative of the concerns raised by COVID-19 and the possibility
of throwing the state into chaos. Accordingly, although our
declaration of rights is effective immediately, I would stay future
actions to enforce our decision until May 20, 2020. However, I
1 In Village of Brown Deer, we concluded that the circuit
court could not stay execution of a declaratory judgment. Village
of Brown Deer v. City of Milwaukee, 8 Wis. 2d 631, 635, 99
N.W.2d 860 (1959). However, Village of Brown Deer is factually
distinct from the case before us because the stay resulted in
creation of a financial obligation for a city. Id. at 637. We
explained that by staying execution, "the city would be required
to finance services in an area that had been judiciary [sic]
determined to belong to the village. The trial court had no
authority to impose that duty upon the city." Id. In the present
dispute, there is no burden imposed on DHS as a result of our stay.
Indeed, it will be helpful to Palm because she and her staff can
use the period to promulgate an emergency rule pursuant to Wis.
Stat. § 227.24.
2
No. 2020AP765-OA.pdr
trust that the parties will place the interests of the people of
Wisconsin first and work together in good faith to quickly
establish a rule that best addresses COVID-19 and its devastating
effects on Wisconsin.
2
No. 2020AP765-0A.rgb
¶66 REBECCA GRASSL BRADLEY, J. (concurring).1 Under the
Wisconsin Constitution, all governmental power derives "from the
consent of the governed" and government officials may act only
within the confines of the authority the people give them. Wis.
Const. art. I, § 1. The people of Wisconsin never consented to
any elected official, much less an unelected cabinet secretary,
having the power to create law, execute it, and enforce it.
"[E]ver vigilant in averting the accumulation of power by one body—
—a grave threat to liberty——the people devised a diffusion of
governmental powers" among three branches of government. Gabler
v. Crime Victims Rights Bd., 2017 WI 67, ¶60, 376 Wis. 2d 147, 897
N.W.2d 384. Whenever any branch of government exceeds the
boundaries of authority conferred by the people, it is the duty of
the judicial branch to say so.
¶67 However well-intentioned, the secretary-designee of the
Department of Health Services exceeded her powers by ordering the
people of Wisconsin to follow her commands or face imprisonment
for noncompliance.2 In issuing her order, she arrogated unto
herself the power to make the law and the power to execute it,
excluding the people from the lawmaking process altogether. The
1 I join the majority opinion in full.
2 I would have promptly granted the Legislature's Emergency
Motion for Temporary Injunction, enjoining Emergency Order 28, the
Safer at Home Order, a motion the legislature filed on April 21,
2020. An unlawful order should never issue in the first place,
and it should not remain in effect for any period past the time a
court ascertains its unlawfulness. In the context of a request
for injunctive relief, an unlawful order of this magnitude,
applicable to every citizen and every person present in the State
of Wisconsin, should be enjoined as soon as a court determines the
moving party is likely to succeed on the merits.
1
No. 2020AP765-0A.rgb
separation of powers embodied in our constitution does not permit
this. Statutory law being subordinate to the constitution,3 not
even the people's representatives in the legislature may
consolidate such power in one person.
To the Framers of the United States Constitution, the
concentration of governmental power presented an
extraordinary threat to individual liberty: "The
accumulation of all powers, legislative, executive, and
judiciary, in the same hands, whether of one, a few, or
many, . . . may justly be pronounced the very definition
of tyranny." The Federalist No. 47, at 298 (James
Madison) (Clinton Rossiter ed., 1961).
Spurning
3 more than two centuries of fundamental
constitutional law as well as the Wisconsin Constitution's
guarantee of liberty, Justice Brian Hagedorn shockingly proclaims
"the judiciary must never cast aside our laws or the constitution
itself in the name of liberty." Justice Hagedorn's dissent, ¶259.
Setting aside the self-contradictory nature of that statement,
Justice Hagedorn's 53-page opinion contains no constitutional
analysis whatsoever, affirmatively rejects the constitution, and
subjugates liberty. The Wisconsin Constitution IS the law——and it
reigns supreme over any statute. "The Constitution's supremacy
over legislation bears repeating: 'the Constitution is to be
considered in court as a paramount law' and 'a law repugnant to
the Constitution is void, and . . . courts, as well as other
departments, are bound by that instrument.' See Marbury [v.
Madison], 5 U.S. (1 Cranch) [137] at 178, 180 [1803]." Mayo v.
Wis. Injured Patients and Families Comp. Fund, 2018 WI 78, ¶91,
383 Wis. 2d 1, 914 N.W.2d 678 (Rebecca Grassl Bradley, J.,
concurring).
The Constitution is either a superior, paramount law,
unchangeable by ordinary means, or it is on a level with
ordinary legislative acts, and like other acts, is
alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a
legislative act contrary to the Constitution is not law;
if the latter part be true, then written constitutions
are absurd attempts, on the part of the people, to limit
a power, in its own nature illimitable.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
2
No. 2020AP765-0A.rgb
Gabler, 376 Wis. 2d 147, ¶4 (ellipsis by Gabler). Blackstone——
whose conception of the separation of powers "profoundly
influenced" the Founders——"defined a tyrannical government as one
in which 'the right both of making and of enforcing the laws, is
vested in one and the same man, or one and the same body of men,'
for 'wherever these two powers are united together, there can be
no public liberty.'" Koschkee v. Taylor, 2019 WI 76, ¶50, 387
Wis. 2d 552, 929 N.W.2d 600 (Rebecca Grassl Bradley, J.,
concurring) (citing DOT v. Association of Am. R.Rs., 575 U.S. 43,
73 (2015) (Thomas, J., concurring) (quoted source omitted)).
Thomas Jefferson similarly warned that "concentrating [all the
powers of government] in the same hands is precisely the definition
of despotic government."4
¶68 The people of Wisconsin pronounced liberty to be of
primary importance, establishing government principally to protect
their freedom. "The Wisconsin Constitution begins with a
Declaration of Rights, echoing language from our nation's
Declaration of Independence, recognizing that the proper role of
government——the very reason governments are instituted——is to
secure our inherent rights, including liberty:
All people are born equally free and independent, and
have certain inherent rights; among these are life,
liberty and the pursuit of happiness; to secure these
4Thomas Jefferson, Notes on the State of Virginia. Edited
by William Peden. Chapel Hill: University of North Carolina Press
for the Institute of Early American History and Culture,
Williamsburg, Virginia, 1954. The Founders' Constitution, Volume
1, Chapter 10, Document 9, http://press-
pubs.uchicago.edu/founders/documents/v1ch10s9.html The
University of Chicago Press.
3
No. 2020AP765-0A.rgb
rights, governments are instituted, deriving their just
powers from the consent of the governed.
Wis. Const. art. I, § 1 (emphasis added). 'Too much dignity cannot
well be given to that declaration.' An inherent right to liberty
means all people are born with it; the government does not bestow
it upon us and it may not infringe it." Porter v. State, 2018 WI
79, ¶52, 382 Wis. 2d 697, 913 N.W.2d 842 (Rebecca Grassl Bradley,
J. and Daniel Kelly, J., dissenting) (emphasis added; internal
citation omitted). Under the Wisconsin Constitution, government
officials, whether elected or appointed, are servants of the
citizens, not their masters.
¶69 Endowing one person with the sole power to create,
execute, and enforce the law contravenes the structural separation
of powers established by the people. Through the Wisconsin
Constitution, the people confer distinct powers on the
legislative, executive, and judicial branches of government.
"Three clauses of the Wisconsin Constitution embody this
separation: Article IV, Section 1 ('[t]he legislative power shall
be vested in a senate and assembly'); Article V, Section 1 ('[t]he
executive power shall be vested in a governor'); and Article VII,
Section 2 ('[t]he judicial power . . . shall be vested in a unified
court system')." Gabler, 376 Wis. 2d 147, ¶11. "[T]he
Constitution's central mechanism of separation of powers depends
largely upon common understanding of what activities are
appropriate to legislatures, to executives, and to courts." Lujan
v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). Under the
Wisconsin Constitution, the legislature makes the laws; an
4
No. 2020AP765-0A.rgb
unelected cabinet secretary serving in the executive branch cannot
unilaterally do so.
¶70 Underlying the separation of powers reflected in our
governmental structure is an avoidance of concentrations of
authority: "it may be too great a temptation to human frailty,
apt to grasp at power, for the same persons who have the power of
making laws to have also in their hands the power to execute them."
John Locke, The Second Treatise of Civil Government § 143 (1764),
reprinted in Two Treatises of Government 119, 194 (Thomas I. Cook
ed., 1947). "Montesquieu shared Locke's concern about the threat
to liberty from accumulated power, expressing apprehension that a
government with shared legislative and executive power could first
'enact tyrannical laws' then 'execute them in a tyrannical
manner.'" Gabler, 376 Wis. 2d 147, ¶5 (citing 1 Montesquieu, The
Spirit of the Laws 151-52 (Oskar Piest et al. eds., Thomas Nugent
trans., 1949) (1748) (footnote omitted)). Preserving the
perimeters of power constitutionally conferred on each branch of
government is essential for securing the liberty of the people.
"The purpose of the separation and equilibration of powers in
general . . . was not merely to assure effective government but to
preserve individual freedom." Morrison v. Olson, 487 U.S. 654,
727 (1988) (Scalia, J., dissenting). Although consolidation of
power in one person may be tempting in times of exigency, for
purposes of expeditiously producing an efficient and effective
response to emergencies like a pandemic, history informs of the
perils of the consolidation of power, and not merely through the
exhortations of the Founders and philosophers. Regrettably, we
5
No. 2020AP765-0A.rgb
have tangible examples of judicial acquiescence to
unconstitutional governmental actions considered——at the time——to
inure to the benefit of society, but later acknowledged to be
vehicles of oppression. This is particularly true in the context
of the police power, the source of authority cited by the DHS
secretary-designee in this case.
¶71 "Historically, when courts contaminate constitutional
analysis with then-prevailing notions of what is 'good' for
society, the rights of the people otherwise guaranteed by the text
of the Constitution may be trampled. Departures from
constitutional text have oppressed people under all manner of
pernicious pretexts:
[T]he notion of "social harm" supporting the police
power was completely untethered from constitutional text
and ripe for misuse in the hands of a Justice such as
Holmes, who believed that the Constitution could be
reduced to ad hoc balancing. Eugenics was built upon the
notion of harm; indeed, it thrived on a sense of imminent
doom: that society was degenerating because of what
were called its "weaklings" and "discards." The idea
that society was being swamped by incompetents was a
common trope for eugenicists: the unfit were a
"menace." . . . Like the great popular eugenicists of
the day, Holmes wrote in Buck that eugenics would prevent
society from being "swamped" by incompetents, that fewer
criminals would be executed, and that fewer imbeciles
would starve.
Victoria Nourse, Buck v. Bell: A Constitutional Tragedy from a
Lost World, 39 Pepp. L. Rev. 101, 114-15 (2011) (emphasis added;
footnotes omitted)." State v. Roberson, 2019 WI 102, ¶84, 389
Wis. 2d 190, 935 N.W.2d 813 (Rebecca Grassl Bradley, J.,
concurring) (some emphasis omitted; some emphasis added).
6
No. 2020AP765-0A.rgb
¶72 In Korematsu v. United States, 323 U.S. 214 (1944),5 the
United States Supreme Court professed to apply "the most rigid
scrutiny" to the internment of Japanese-Americans during World War
II but nevertheless found the "assembling together and placing
under guard all those of Japanese ancestry" in "assembly centers"
to be constitutional based on "[p]ressing public necessity" and
further rationalized this defilement of the Constitution because
"the need for action was great, and time was short." Id. at 216,
221, 223-24. "Korematsu is one of the Supreme Court's most reviled
decisions——a relic of the nation's dark past widely regarded as
unlikely to be repeated." Stephen Dycus, Requiem for Korematsu,
10 J. Nat'l Sec. L. & Pol'y 237 (2019). And thankfully so.
Nonetheless, the public fear underlying this contemptible case is
capable of pressuring jurists to misuse the constitution in other
contexts:
Judges "are heavily influenced by the perceived
practical consequences of their decisions rather than
being straight-jacketed by legal logic. . . . In a
democracy," [Eric Yamamoto] writes, "judicial
independence serves as the crucial check on the
political branches' majoritarian impulses." Careful
judicial scrutiny is especially important in times of
stress, when Americans may find themselves "at the mercy
of wicked rulers, or the clamor of an excited people."
Id. at 246 (citing Eric K. Yamamoto, In the Shadow of Korematsu:
Democratic Liberties and National Security (Oxford Univ. Press
2018) (footnotes omitted)). Although headlines may sensationalize
the invocation of cases such as Korematsu, the point of citing
them is not to draw comparisons between the circumstances of people
5 Abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018).
7
No. 2020AP765-0A.rgb
horrifically interned by their government during a war and those
of people subjected to isolation orders during a pandemic. We
mention cases like Korematsu in order to test the limits of
government authority, to remind the state that urging courts to
approve the exercise of extraordinary power during times of
emergency may lead to extraordinary abuses of its citizens.6 "Of
6 During oral arguments in this case, I posed multiple
questions to the state's attorney representing the DHS secretary-
designee, asking him to identify the limits on her powers.
Ultimately, he conceded the DHS secretary-designee could "take all
necessary action" and identified only judicial review and "the
medical community" as constraints on her power:
Court: One of the rationales that we're hearing
justifying the Secretary's order in this case is that,
well it's a pandemic, and there isn't enough time to
promulgate a rule and have the legislature involved with
determining the details of the scope of the Secretary's
authority. I'll direct your attention to another time in
history and the Korematsu decision where the Court said
the need for action was great and time was short and
that justified, and I'm quoting, "assembling together
and placing under guard all those of Japanese ancestry
in assembly centers during World War II." Could the
Secretary under this broad delegation of legislative
power or legislative-like power order people out of
their homes into centers where they are properly
socially distanced in order to combat the pandemic?
State's counsel: Your Honor, Korematsu was an equal
protection challenge to the action that the government
took to address the crisis. This is not a substantive
constitutional challenge to what DHS has done –
Court: My question goes to the scope again of the
Secretary's authority and what the limits are. What I'm
hearing is, well the legislature doesn't need to specify
the limits, it's a time of pandemic, there isn't enough
time to go through rulemaking, so the Secretary just has
to do whatever she alone deems necessary to combat the
pandemic. So my question to you in invoking Korematsu
is not the bases for the claims that were brought in
that case versus this case; the point of my question is,
8
No. 2020AP765-0A.rgb
what are the limits, constitutional or statutory? There
have to be some, don't there counsel?
State's counsel: Yes. There absolutely are your Honor.
Justice Bradley, I think if you read the petition for an
original action that was filed with your court just last
evening, there are a variety of fundamental rights based
claims that target different pieces of Executive [sic
"Emergency"] Order 28 on the basis of the freedom of
religion, the freedom to travel, and-and I don't know
all what's in there, it's a long petition, but there's
a lot of constitutional rights in it. That is one of
the fundamental backstops against an unreasonable and
unconstitutional exercise of power by DHS.
Court: Counsel, that's not answering my question. I
understand. We all understand that people have the right
to come to this court or another court to vindicate their
constitutional interests. What I'm asking——set aside the
constitution for a moment, then. What are the statutory
limits on the Secretary's power because I'm looking at
page 45 of your brief and you say that section "252.02
is not legislation 'enforced or administered by' DHS
through issuing Safer-at-Home, and DHS's actions did not
'implement, interpret, or make more specific' standards
that the legislature designed by statute." Section
252.02, according to your brief, "simply empowers DHS to
act." What are the limits on the powers of DHS to act?
What can't DHS do under the statute?
State's counsel: Your Honor, I think you take the
statutory text as it is and the statutory text empowers
DHS to take all necessary action to combat communicable
diseases. I understand your Honor may be uncomfortable
with that broad grant of authority in the sense that you
think it may allow DHS to go too far. I humbly submit
to you that that concern is best addressed to the
legislature and asking them to amend the statute that
they passed and-and-and lobby them to add limitations of
the kind that your Honor is discussing.
Court: Let me just follow-up please. I have one more
question. I think it goes to the heart of what this
case is all about and as I understand the legislature's
argument, the legislature is asking us to construe the
statute so that there isn't a constitutional problem
because counsel, I think there is a constitutional
problem with the legislature giving away this much power
9
No. 2020AP765-0A.rgb
to an unelected cabinet secretary. The people never
consented to a single individual having that kind of
power.
State's counsel: I would respond in two ways. First,
the DHS cabinet secretary serves at the pleasure of the
Governor. She's clearly accountable to the people in
the same way the Governor is. The second thing I'd say
is the people chose to grant a broad power to the state's
public health agency to do what's necessary in a pandemic
to fight it. Courts for over a century have recognized
that legislatures – I really encourage you to just think
about it – think about it.
Court: Counsel, I have thought a lot about it. And my
concern goes back to what the limits are on the Secretary
because under your interpretation of the statutes she
can do whatever she wants and she can order people to
jail if they don't comply and I don't think the
legislature can give that kind of power to an unelected
individual.
State's counsel: Your Honor, what I can say is for over
a century, courts have recognized that in the context of
infectious diseases, it is practically impossible for
the legislature to be able to predict exactly what is
necessary. You have to keep in mind this is a novel –
it is literally called the novel coronavirus. We have
never seen it before. We don't know exactly what it can
do. And so the legislature realized that it needed to
give an agency with the ability to respond with expertise
and alacrity to changing dynamic circumstances on the
ground.
Court: The logical consequence of your argument,
counsel, is that the government could step in and do
this, the DHS secretary could step in and do this every
single flu season, every year, because the flu kills
tens of thousands of people in America every year and
that's a communicable disease. So would you agree with
me then that the DHS secretary under your interpretation
could be empowered to do this every single flu season?
State's counsel: No your Honor. I think that the DHS
secretary if it tried to do that every single flu season
would have no support in the medical community for
imposing that kind of restriction.
10
No. 2020AP765-0A.rgb
course, history may repeat itself – if we ignore the lessons of
the past, and if the courts fail to do their duty." Stephen Dycus,
Requiem for Korematsu, 10 J. Nat'l Sec. L. & Pol'y at 252.7
¶73 These cases, among other similarly despicable examples,
illustrate rather painfully why the judiciary cannot dispense with
constitutional principles, even in response to a dire emergency.
Indeed, it is in the midst of emergencies that constraints on
government power are most important. It is during such emergencies
that our historical memory is of vital importance. Although
invoking the most odious instances of government-sanctioned
oppression makes many uncomfortable and tends to trigger outrage,
it is imperative to do so in order to remind the citizenry of grave
abuses that have been justified in the name of exigent need. These
repugnant cases must be cited to explain the fundamental importance
of judicial resistance to popular pressures, which in times of
crisis implore judges to cast aside the law in the name of
emergency. "History teaches that grave threats to liberty often
come in times of urgency, when constitutional rights seem too
extravagant to endure. . . . [W]hen we allow fundamental freedoms
to be sacrificed in the name of real or perceived exigency, we
(Emphasis added.)
7 Although Korematsu has been disavowed by the United States
Supreme Court, astonishingly, it has never been overruled. See
Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) ("The dissent's
reference to Korematsu, however, affords this Court the
opportunity to make express what is already obvious: Korematsu
was gravely wrong the day it was decided, has been overruled in
the court of history, and——to be clear——'has no place in law under
the Constitution.' [Korematsu v. United States,] 323 U.S. [214],
at 248 [1944] (Jackson, J. dissenting).").
11
No. 2020AP765-0A.rgb
invariably come to regret it." Skinner v. Railway Labor
Executives' Ass'n, 489 U.S. 602, 635 (1989) (Marshall, J.,
dissenting). Even if a significant portion of the public supports
the Safer at Home Order, the judiciary must protect the structural
separation of powers embodied in our state and federal
constitutions in order to avoid future monumental mistakes from
which our republic may never recover. "Experience should teach us
to be most on our guard to protect liberty when the Government's
purposes are beneficent. Men born to freedom are naturally alert
to repel invasion of their liberty by evil-minded rulers. The
greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding." Olmstead v.
United States, 277 U.S. 438, 479 (1928) (Brandeis, J. dissenting)
(overruled in part on other grounds by Katz v. United States, 389
U.S. 347 (1967)).
¶74 Thomas Jefferson counseled that "the powers of
government should be so divided and balanced among several bodies
of magistracy, as that no one could transcend their legal limits,
without being effectually checked and restrained by the others."8
The judiciary serves as a check not only on the legislative and
executive branches, but on itself no less. In the midst of the
COVID-19 pandemic, I dissented from this court's indefinite
8 Thomas Jefferson, Notes on the State of Virginia. Edited by
William Peden. Chapel Hill: University of North Carolina Press for
the Institute of Early American History and Culture, Williamsburg,
Virginia, 1954. The Founders' Constitution, Volume 1, Chapter 10,
Document 9, http://press-
pubs.uchicago.edu/founders/documents/ v1ch10s9.html The
University of Chicago Press.
12
No. 2020AP765-0A.rgb
suspension of criminal jury trials as a violation of the Sixth
Amendment to the United States Constitution.9 I also dissented
from this court's indefinite suspension of non-criminal jury
trials, which overrode every statutory deadline applicable to such
proceedings, because "[t]he court lacks any authority to infringe
the right of Wisconsin citizens to have their cases tried by juries
within the time frames established by the people's representatives
in the legislature."10 In its ongoing suspension of the laws
enacted by the people's representatives in the legislature, I
cautioned that this court "invades the province of the legislature,
violates the separation of powers, and 'creates a confrontation of
constitutional magnitude between the legislature and this
court.'"11 Notwithstanding COVID-19, "[n]either the constitution
nor the statutes recognize an exception for public health
emergencies."12
¶75 It "is the obligation of the Judiciary not only to
confine itself to its proper role, but to ensure that the other
branches do so as well." City of Arlington, Tex. v. F.C.C., 569
In Re the Matter of Jury Trials During the COVID-19 Pandemic
9
(S. Ct. Order issued March 22, 2020) (Rebecca Grassl Bradley, J.,
dissenting) ("The Wisconsin Supreme Court suspends the
constitutional rights of Wisconsin citizens, citing the exigency
of a public health emergency. The Constitution does not
countenance such an infringement.").
Interim Rule 20-02 In the Matter of an Interim Rule Re:
10
Suspension of Deadlines for Non-Criminal Jury Trials Due to the
COVID-19 Pandemic (March 31, 2020) (Rebecca Grassl Bradley, J.,
dissenting).
11 Id. (quoted source omitted).
12 Id.13
No. 2020AP765-0A.rgb
U.S. 290, 327 (2013) (Roberts, C.J., dissenting). In Gabler, this
court invalidated a legislative conferral of authority on the
executive branch: "In creating an executive branch entity with
authority to pass judgment and impose discipline on a judge's
exercise of core judicial powers, the Wisconsin legislature
violates the Wisconsin Constitution's structural separation of
powers and invades a domain recognized for over two hundred years
as the exclusive province of the judiciary." Gabler, 376
Wis. 2d 147, ¶1. Declaring the statute unconstitutional was
necessary to protect the independence of the judiciary: "By
statutorily authorizing executive action against the judiciary,
the legislature unconstitutionally conferred power on an executive
board to impair, improperly influence, and regulate the
judiciary's exercise of its constitutional duties." Id., ¶2.
¶76 These instances illustrate that the judiciary acts as
the backstop against encroachments by any branch——including the
judiciary——on the core powers of a coordinate branch. "Whenever
any branch of government claims the authority to act beyond the
boundaries of its powers, the people should be alarmed."13 It is
"judicial independence that serves as a bulwark protecting the
people against tyranny." Gabler, 376 Wis. 2d 147, ¶2.
¶77 This court is well aware that many Wisconsin citizens
support the Safer at Home Order while many oppose it. This court
does not base its decisions on popular opinion; it grounds them in
Interim Rule 20-02 In the Matter of an Interim Rule Re:
13
Suspension of Deadlines for Non-Criminal Jury Trials Due to the
COVID-19 Pandemic ¶15 n.1 (March 31, 2020) (Rebecca Grassl Bradley,
J., dissenting).
14
No. 2020AP765-0A.rgb
the law. It is for the political branches, not the judiciary, to
respond to the public's wishes, and for this court to declare
whether each branch acts within its constitutional grant of power
and in accord with statutory law.14 "Emergency does not create
power. Emergency does not increase granted power or remove or
diminish the restrictions imposed upon power granted or reserved.
The Constitution was adopted in a period of grave emergency. Its
grants of power to the federal government and its limitations of
the power of the States were determined in the light of emergency,
and they are not altered by emergency." Home Bldg. & Loan Ass'n
v. Blaisdell, 290 U.S. 398, 425 (1934) (emphasis added). In a
republic in which the constitution demarcates the powers assigned
to each branch of government, it is of foundational importance
which government official presumes the power to control the people.
Particularly in an emergency, this court may not cast aside the
constitution nor disregard statutory law.
14 In a thinly-veiled attempt at garnering a sensationalized
headline, Justice Rebecca Dallet repeatedly employs fear tactics
in lieu of the law in order to dramatize her perceptions of the
consequences of the majority's opinion. See, e.g., Justice
Dallet's dissent, ¶¶132, 147, 162. Well-established canons of law
soundly reject this method of statutory construction, which favors
an interpretation that will "produce sensible, desirable results,
since that is surely what the legislature must have intended. But
it is precisely because people differ over what is sensible and
what is desirable that we elect those who will write our laws——
and expect courts to observe what has been written." Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 22 (2012). Hyperbolic concerns about the consequences of
judicial interpretation of the law cannot override our duty to say
what the law is and not what we may wish it to be. Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
15
No. 2020AP765-0A.rgb
¶78 The DHS secretary-designee bases her authority to enter
the Safer at Home Order on Wis. Stat. § 252.02, which she
characterizes as a law that "simply empowers DHS to act"——
unilaterally, and with no input from the legislature or the people.
The statutory language is indeed sweeping, and if interpreted
expansively, calls into question its constitutionality as an
impermissible delegation of legislative power never authorized by
the people. As a general principle, it is the duty of the
legislature to create the law, and any delegation of lawmaking
responsibility to administrative agencies like DHS must be
carefully circumscribed in order to avoid the people being governed
by unelected bureaucrats.
¶79 "The concentration of power within an administrative
leviathan clashes with the constitutional allocation of power
among the elected and accountable branches of government at the
expense of individual liberty." Koschkee, 387 Wis. 2d 552, ¶42
(Rebecca Grassl Bradley, J., concurring). There is an inherent
incompatibility between "the system of bureaucratic rule that took
root in the Progressive era and now reaches into virtually every
realm of American life" and the constitution's "'deliberate
calibration of incentives and control between the branches'
reflected in the structural separation of powers." Id., ¶43 (first
quoting Charles J. Cooper, Confronting the Administrative State,
25 National Affairs 96, 96 (Fall 2015); then quoting Gabler, 376
Wis. 2d 147, ¶7). "The philosophical roots of rule by bureaucratic
overlords are antithetical to the Founders' vision of our
constitutional Republic, in which supreme power is held by the
16
No. 2020AP765-0A.rgb
people through their elected representatives." Koschkee, 387
Wis. 2d 552, ¶45 (Rebecca Grassl Bradley, J., concurring). When
legislatures expound broad policy goals and leave the details to
administrative bodies, "[t]he consolidation of power within
executive branch agencies 'often leaves Americans at the[ir]
mercy' endowing agencies with 'a nearly freestanding coercive
power' and '[t]he agencies thereby become rulers of a sort
unfamiliar in a republic, and the people must jump at their
commands.'" Id. (citing Phillip Hamburger, Is Administrative Law
Unlawful? 335 (2014)).
¶80 It is insufficient for the DHS secretary-designee to
point to the legislature's statutory delegation of lawmaking power
as the source of her authority to dictate how the people must
conduct their lives, without considering the constitutional
ramifications of such a broad statutory interpretation——namely,
the threat to the liberty of the people. "The Founders recognized
that maintaining the formal separation of powers was essential to
preserving individual liberty.
This devotion to the separation of powers is, in part,
what supports our enduring conviction that the Vesting
Clauses are exclusive and that the branch in which a
power is vested may not give it up or otherwise
reallocate it. The Framers were concerned not just with
the starting allocation, but with the 'gradual
concentration of the several powers in the same
department.' The Federalist No. 51, at 321 (J. Madison).
Koschkee, 387 Wis. 2d 552, ¶51 (Rebecca Grassl Bradley, J.,
concurring) (citing DOT v. Association of Am. R.Rs., 575 U.S. 43,
73 (Thomas, J., concurring)). "Under the original understanding
of the Constitution," devising and imposing "generally applicable
17
No. 2020AP765-0A.rgb
rules of private conduct" on the people "requires the exercise of
legislative power," and "the discretion inherent in executive
power does not comprehend the discretion to formulate generally
applicable rules of private conduct." Association of Am. R.Rs.,
575 U.S. at 69 (Thomas, J., concurring). Nor does the constitution
contemplate executive power to penalize noncompliance with
administratively-drawn rules of conduct through fines and
imprisonment. "In facilitating the vast expansion of the
administrative state, the legislative and executive branches
transferred power from the people's elected representatives and
elected executives, bestowing it upon unelected and unaccountable
bureaucrats, thereby jeopardizing the constitution's safeguards
against the tyrannical concentration of power." Koschkee, 387
Wis. 2d 552, ¶53 (Rebecca Grassl Bradley, J., concurring).
¶81 In a particularly chilling exchange with this court
during oral arguments, the attorney for the state representing the
DHS secretary-designee claimed the authoritarian power to
authorize the arrest and imprisonment of the people of Wisconsin
for engaging in lawful activities proscribed by the DHS secretary-
designee in her sole discretion:
Court: Are there any statutory or constitutional limits
on the powers of the Secretary?
. . . .
State's counsel: DHS's actions are limited by what is
necessary to combat the infectious disease that's
presented at the time. . . . when DHS faces an outbreak
of a dangerous, communicable disease, it can do what is
necessary to combat that disease.
Court: Whatever DHS and the cabinet secretary solely
determine is necessary, right?
18
No. 2020AP765-0A.rgb
State's counsel: . . . this is what the statute
says . . . it says that DHS shall implement all
emergency measures to control communicable
diseases. . . . [T]hat is what the statute says. It
gives that power to DHS. This is the statute the
legislature chose to enact.
Court: . . . [T]he Secretary can identify behavior that
is not otherwise criminal and . . . she can all by
herself sit down at her computer keyboard, write up a
description of behavior and make it criminal, correct?
. . . .
State's counsel: Yes. The scope of available
enforcement is determined by the order.
Yes. . . . That's true.
"If the separation of powers means anything, it must mean that the
prosecutor isn't allowed to define the crimes he gets to
enforce." Neil Gorsuch, A Republic If You Can Keep It 87 (Crown
Forum ed., 1st ed. 2019). Justice Gorsuch's admonishment applies
no less to an unelected cabinet secretary claiming the power to
unilaterally define the crime and then enforce it.
¶82 "The people of Wisconsin vest distinct constitutional
powers of governance in each branch of government, but consistent
with founding principles of limited government and individual
freedom, the people also impose constraints on the exercise of
those powers." Porter, 382 Wis. 2d 697, ¶52 (Rebecca Grassl
Bradley, J. and Daniel Kelly, J., dissenting). Among those
constraints, it is constitutionally impermissible for the
legislature to authorize the head of an administrative agency to
unilaterally compel the 5.8 million citizens of Wisconsin to stay
home, close their businesses, and face imprisonment if they do not
19
No. 2020AP765-0A.rgb
comply.15 Even in a pandemic, and notwithstanding the good
intentions of the cabinet secretary. Thomas Jefferson advised
against being "deluded by the integrity of" governmental actors'
"purposes" and cautioned against "conclud[ing] that these
unlimited powers will never be abused" merely because current
office holders "are not disposed to abuse them."16 Jefferson
forewarned that "[t]he time to guard against corruption and
tyranny, is before they shall have gotten hold on us. It is better
to keep the wolf out of the fold, than to trust to drawing his
teeth and talons after he shall have entered."17
¶83 While the rulemaking process the law requires as a
precondition to an order of this magnitude may seem cumbersome
during a pandemic, "the difficulties of the legislative process
were essential to [the constitution's] design, purposefully placed
there to ensure that laws would be more likely the product of
deliberation than haste; more likely the product of compromise
among the many than the will of the few; and more likely to respect
15The Safer at Home Order actually reaches beyond Wisconsin
citizens to any individual present within the State: "All
individuals present within the State of Wisconsin are ordered to
stay at home or at their place of residence[.]"
16Thomas Jefferson, Notes on the State of Virginia. Edited
by William Peden. Chapel Hill: University of North Carolina Press
for the Institute of Early American History and Culture,
Williamsburg, Virginia, 1954. The Founders' Constitution, Volume
1, Chapter 10, Document 9, http://press-
pubs.uchicago.edu/founders/documents/v1ch10s9.html The
University of Chicago Press.
17 Id.20
No. 2020AP765-0A.rgb
minority interests than trample on their rights." Neil Gorsuch, A
Republic If You Can Keep It 63 (Crown Forum ed., 1st ed. 2019).
* * *
¶84 Informed by the lessons of history, the Constitution was
established to safeguard the rights of the people even under the
most exigent circumstances. The framers "foresaw that troublous
times would arise, when rulers and people would become restive
under restraint, and seek by sharp and decisive measures to
accomplish ends deemed just and proper; and that the principles of
constitutional liberty would be in peril, unless established by
irrepealable law. The history of the world had taught them that
what was done in the past might be attempted in the future. The
Constitution of the United States is a law for rulers and people,
equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times, and under all
circumstances. No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that any of
its provisions can be suspended during any of the great exigencies
of government. Such a doctrine leads directly to anarchy or
despotism, but the theory of necessity on which it is based is
false; for the government, within the Constitution, has all the
powers granted to it, which are necessary to preserve its
existence; as has been happily proved by the result of the great
effort to throw off its just authority." Ex parte Milligan, 71
U.S. 2, 120-21 (1866) (emphasis added). It is especially in times
of emergency that we must protect the rights of the people, lest
we establish a dangerous precedent empowering less benevolent
21
No. 2020AP765-0A.rgb
government officials in the future to oppress the people in the
name of exigency.
¶85 "In America THE LAW IS KING! For as in absolute
governments the king is law, so in free countries the law ought to
be king; and there ought to be no other." Thomas Paine, 1776,
Common Sense (1776). In Wisconsin, as in the rest of America, the
Constitution is our king——not the governor, not the legislature,
not the judiciary, and not a cabinet secretary. We can never
"allow fundamental freedoms to be sacrificed in the name of real
or perceived exigency" nor risk subjecting the rights of the people
to "the mercy of wicked rulers, or the clamor of an excited
people." Fear never overrides the Constitution. Not even in times
of public emergencies, not even in a pandemic.
¶86 I am authorized to state that Justice DANIEL KELLY joins
this concurrence.
22
No. 2020AP765-OA.dk
¶87 DANIEL KELLY, J. (concurring). Secretary-designee
Andrea Palm, pursuant to authority she says she found in Wis. Stat.
§ 252.02 (2017-18),1 has taken control of a stunningly broad swath
of the lives and activities of every single individual and business
in the State of Wisconsin. Pursuant to Executive Order 28 (the
"Order"), she is dictating that, inter alia:
 all individuals present within the State of
Wisconsin stay at home or at their place of
residence, subject only to exceptions allowed by
the Secretary. Section 1;
 all for-profit and non-profit businesses with a
facility in Wisconsin, except essential businesses
and operations (as defined in the Order) cease all
activities at facilities located within Wisconsin
except as allowed by the Secretary. Section 2;
 all businesses allowed to remain open conform to
the Secretary's directives on how to conduct their
activities. Sections 2, 13, 14;
 there be no private gatherings except as allowed by
the Secretary. Section 3;
 no one may travel except as allowed by the
Secretary. Section 5;
 all people engaged in activities allowed by the
Order must comply with DHS guidelines. Section 6;
 everyone must comply with social distancing
requirements, including minimum spacing between
individuals, how to wash one's hands, how to cough
or sneeze, when to clean, and a ban on shaking
hands. Sections 1, 2(b), 5, 8, 11(c), 13, 14, 15,
16.
1 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
1
No. 2020AP765-OA.dk
And she asserts that violations of her Order are punishable as
crimes. Order, Section 18 ("This Order is enforceable by any local
law enforcement official, including county sheriffs. Violation or
obstruction of this Order is punishable by up to 30 days
imprisonment, or up to $250 fine, or both.").
¶88 The Secretary says the Legislature delegated to her the
authority to exercise this nearly total control over our lives via
Wis. Stat. § 252.02. As relevant here, that statute empowers the
Department of Health Services to:
"[C]lose schools and forbid public gatherings in
schools, churches, and other places to control outbreaks
and epidemics." Wis. Stat. § 252.02(3);
"[P]romulgate and enforce rules or issue orders for
guarding against the introduction of any communicable
disease into the state, for the control and suppression
of communicable diseases . . . ." Wis. Stat.
§ 252.02(4); and
"[A]uthorize and implement all emergency measures
necessary to control communicable diseases." Wis. Stat.
§ 252.02(6).
The court's opinion ably describes why these provisions do not
confer on her the authority necessary to support the Order, and I
join it. My purpose in writing separately is to describe why,
under our constitutional form of government, the Legislature
cannot possibly have given the Secretary the authority she believes
she has.
¶89 In the Secretary's view, the Legislature gave her
plenary power to simply "act" without the need of any further
statutory or regulatory policy. Her brief candidly asserts there
are no statutory or regulatory limitations on her authority to
address communicable diseases:
2
No. 2020AP765-OA.dk
Wis. Stat. § 252.02 is not legislation "enforced or
administered by" DHS through issuing Safer-at-Home
[Order], and DHS's actions here did not "implement,
interpret, or make more specific" standards that the
Legislature designed by statute. Unlike statutes that
regulate certain conduct or activities, like food safety
or traffic laws, section 252.02, as relevant here,
simply empowers DHS to act. Thus, Safer-at-Home is not
"enforc[ing]" any legislative requirement . . . .
(Emphasis added.) That is to say, she expressly disavows any
suggestion that she is implementing statutory standards. And she
not only acknowledges, but affirmatively asserts, that she is not
enforcing any statutory requirement. This statute, she says,
simply empowers her to "act." When queried during oral arguments,
her attorney said there are no limits on this power, saving only
judicial or legislative intervention.
¶90 But our constitution does not confer on any governmental
official, bureaucrat, or employee a generalized power to "act."
There are three powers on loan to our government——legislative,
executive, and judicial. To the extent governmental officials may
act at all, it is only within the context of one of those powers.
Therefore, we must discern what type of authority the Secretary
exercised when she issued her Order. And then, assuming Wis. Stat.
§ 252.02 granted the Secretary all the power necessary to issue
the Order, we must compare that grant against our basic
constitutional structure and the non-delegation doctrine to
determine whether the statute impermissibly delegated part of the
Legislature's power to the Secretary. I'll begin with a brief
rehearsal of the nature of legislative and executive powers.
I. THE LEGISLATIVE AND EXECUTIVE POWERS
3
No. 2020AP765-OA.dk
¶91 The executive's constitutionally-vested authority
consists of executing the laws, not creating them: "The executive
power shall be vested in a governor." Wis. Const. art. V, § 1.
The difference between legislative and executive authority has
been described as the difference between the power to prescribe
and the power to put something into effect:
In 1792, Jacques Necker, the famous French
statesman, neatly summed up the function and
significance of the executive power. Of the function:
"[I]f by a fiction we were for a moment to personify the
legislative and the executive powers, the latter in
speaking of the former might . . . say: All that this
man has talked of, I will perform." Of the significance:
"The laws would in effect be nothing more than counsels,
than so many maxims more or less sage, without this
active and vigilant authority, which assures their
empire and transmits to the administration the motion of
which it stands in need."
Saikrishna Prakash, The Essential Meaning of Executive Power, 2003
U. Ill. L. Rev. 701, 819 (2003) (alteration in original; quoted
source omitted). This commentator concluded that, "[i]n the late-
eighteenth century, someone vested with the executive power and
christened as the chief executive enjoyed the power to control the
execution of law." Id.¶92 On the other hand, we characterize legislative power as:
"the authority to make laws, but not to enforce them."
Schuette v. Van De Hey, 205 Wis. 2d 475, 480-81, 556
N.W.2d 127 (Ct. App. 1996). Powers constitutionally
vested in the legislature include the powers: "'to
declare whether or not there shall be a law; to determine
the general purpose or policy to be achieved by the law;
[and] to fix the limits within which the law shall
operate.'" See, e.g., Schmidt v. Dep't of Res. Dev., 39
Wis. 2d 46, 59, 158 N.W.2d 306 (1968) (quoting State ex
rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 472,
505, 220 N.W. 929 (1928)).
4
No. 2020AP765-OA.dk
Koschkee v. Taylor, 2019 WI 76, ¶11, 387 Wis. 2d 552, 929
N.W.2d 600 (alteration in original). It includes "the power to
adopt generally applicable rules of conduct governing future
actions by private persons——the power to 'prescrib[e] the rules by
which the duties and rights of every citizen are to be regulated,'
or the power to 'prescribe general rules for the government of
society.'" Gundy v. United States, 139 S. Ct. 2116, 2133, reh'g
denied, 140 S. Ct. 579 (2019) (Gorsuch, J., dissenting)
(alteration in original) (quoting Fletcher v. Peck, 10 U.S. (6
Cranch) 87, 136 (1810)). These powers must be kept forever
separate because, as Madison once observed, "[t]here can be no
liberty where the legislative and executive powers are united in
the same person, or body of magistrates." The Federalist No. 47,
at 299 (James Madison) (Clinton Rossiter ed., 1961). As I discuss
below, our duty to ensure the lines do not cross is mandatory and
non-discretionary.
II. THE SEPARATION OF POWERS AND THE NON-DELEGATION DOCTRINE
¶93 Our constitution opens with a frank statement of the
proper relationship between the people of Wisconsin and their
government. It declares that "[w]e, the people of
Wisconsin . . . do establish this constitution." Wis. Const.
pmbl. This is a declaration of ownership; it establishes that the
power to create and maintain governments belongs to the people.
Our constitution also recognizes that the authors merely loan their
authority to the government, they do not cede it. The very first
article and section of the Wisconsin Constitution states that
"[a]ll people are born equally free and independent, and have
5
No. 2020AP765-OA.dk
certain inherent rights; among these are life, liberty and the
pursuit of happiness; to secure these rights, governments are
instituted, deriving their just powers from the consent of the
governed." Wis. Const. art. I, § 1 (emphasis added). The
government's power must come to it as a loan because the freedom
to consent necessarily encompasses the freedom to withdraw that
consent.
¶94 That has serious implications for the work conducted by
each of the governmental branches. It means, first and foremost,
that we must respect the constitutional structure they chose to
create. Those selected to wield the government's loaned authority
have no right to question the handiwork of the constitution's
progenitors, except to the extent expressly allowed. See, e.g.,
Wis. Const. art. XII (providing for constitutional amendments and
conventions). As relevant here, that means we must respect the
fact that the constitution——the document adopted by the people of
Wisconsin to direct and control the government they created——
divides authority amongst three distinct branches. Goodland v.
Zimmerman, 243 Wis. 459, 466-67, 10 N.W.2d 180 (1943)
("[G]overnmental powers are divided among the three departments of
government, the legislative, the executive, and judicial[.]").2
2 "The executive power shall be vested in a governor." Wis.
Const. art. V, § 1. "The legislative power shall be vested in a
senate and assembly." Wis. Const. art. IV, § 1. "The judicial
power of this state shall be vested in a unified court
system . . . ." Wis. Const. art. VII, § 2.
6
No. 2020AP765-OA.dk
A. Separation of Powers
¶95 The "separation of powers" doctrine describes our
understanding of how the constitution allocates each type of power
to its respective branch.3 This fundamental principle of American
constitutional government was "established at the founding of our
nation and enshrined in the structure of the United States
Constitution," and "inform[s] our understanding of the separation
of powers under the Wisconsin Constitution." Gabler v. Crime
Victims Rights Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147, 897
N.W.2d 384; see also Flynn v. DOA, 216 Wis. 2d 521, 545, 576
N.W.2d 245 (1998) ("The doctrine of separation of powers is
implicitly found in the tripartite division of government [among]
the judicial, legislative and executive branches." (citation
omitted)); Goodland, 243 Wis. at 466-67 ("It must always be
remembered that one of the fundamental principles of the American
constitutional system is that governmental powers are divided
among the three departments of government, the legislative, the
executive, and judicial, and that each of these departments is
separate and independent from the others except as otherwise
provided by the constitution."); Rules of Court Case, 204 Wis. 501,
503, 236 N.W. 717 (1931) ("It is, of course, elementary that we
are committed by constitution to the doctrine of separation of
powers.").
¶96 We must be assiduous in patrolling the borders between
the branches. This is not just a practical matter of efficient
3I addressed this topic at some length in Tetra Tech EC, Inc.
v. DOR, 2018 WI 75, ¶¶44-46, 382 Wis. 2d 496, 914 N.W.2d 21, and
repeat it here for ease of access.
7
No. 2020AP765-OA.dk
and effective government. We maintain this separation because it
provides structural protection against depredations on our
liberties. The Framers of the United States Constitution
understood that "[t]he accumulation of all powers legislative,
executive and judiciary in the same hands, whether of one, a few
or many, . . . may justly be pronounced the very definition of
tyranny." The Federalist No. 47, at 298. Consequently, "[a]s
Madison explained when advocating for the Constitution's adoption,
neither the legislature nor the executive nor the judiciary 'ought
to possess, directly or indirectly, an overruling influence over
the others in the administration of their respective powers.'"
Gabler, 376 Wis. 2d 147, ¶4 (quoting The Federalist No. 48, at
305). "The purpose of the separation and equilibration of powers
in general," said Justice Antonin Scalia, "was not merely to assure
effective government but to preserve individual freedom."4
Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J.,
dissenting). To this day, "[a]fter more than two hundred years of
constitutional governance, th[is] tripartite separation of
independent governmental power remains the bedrock of the
structure by which we secure liberty in both Wisconsin and the
United States." Gabler, 376 Wis. 2d 147, ¶3. As Justice Joseph
Story said, "the three great powers of government . . . should for
4 See also Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 635 (1952) (Jackson, J., concurring) (stating that "the
Constitution diffuses power the better to secure liberty").
Centuries earlier, the French writer Montesquieu said "there is no
liberty, if the judiciary power be not separated from the
legislative and executive." Charles-Louis de Secondat
Montesquieu, The Spirit of Laws bk. XI, at 152 (Thomas Nugent
trans., The Colonial Press rev. ed. 1900) (1748).
8
No. 2020AP765-OA.dk
ever be kept separate and distinct." Id. (quoting 2 Joseph Story,
Commentaries on the Constitution of the United States § 519, at 2-
3 (Boston: Hilliard, Gray, & Co., 1833)).
¶97 The constitution does not, however, hermetically seal
the branches from each other. The separation of powers doctrine
"envisions a system of separate branches sharing many powers while
jealously guarding certain others, a system of 'separateness but
interdependence, autonomy but reciprocity.'" State ex rel.
Friedrich v. Circuit Court for Dane Cty., 192 Wis. 2d 1, 14, 531
N.W.2d 32 (1995) (quoting Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 635 (1952) (Jackson, J., concurring)). "The
constitutional powers of each branch of government fall into two
categories: exclusive powers and shared powers." State v. Horn,
226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999). "Shared powers lie
at the intersections of these exclusive core constitutional
powers," and "[t]hese '[g]reat borderlands of power' are not
exclusive to any one branch." Id. at 643-44 (quoting Friedrich,
192 Wis. 2d at 14); see also State v. Holmes, 106 Wis. 2d 31, 42–
43, 315 N.W.2d 703 (1982). Although the "branches may exercise
[shared] power within these borderlands," they "may [not] unduly
burden or substantially interfere with another branch." Horn, 226
Wis. 2d at 644.
¶98 Core powers, however, are not for sharing. "Each branch
has exclusive core constitutional powers, into which the other
branches may not intrude." Flynn, 216 Wis. 2d at 545. These
"[c]ore zones of authority are to be 'jealously guarded' by each
branch of government . . . ." Gabler, 376 Wis. 2d 147, ¶31
9
No. 2020AP765-OA.dk
(quoting Barland v. Eau Claire Cty., 216 Wis. 2d 560, 573, 575
N.W.2d 691 (1998)). The importance of constitutional limitations,
Chief Justice Marshall once said, is that they compel restraint
when restraint is not desired: "To what purpose are powers
limited, and to what purpose is that limitation committed to
writing, if these limits may, at any time, be passed by those
intended to be restrained?" Marbury v. Madison, 5 U.S. (1
Cranch) 137, 176 (1803).5
¶99 The separation of powers forbids abdication of core
power just as much as it protects one branch from encroachment by
another. "It is . . . fundamental and undeniable that no one of
the three branches of government can effectively delegate any of
the powers which peculiarly and intrinsically belong to that
branch." Rules of Court Case, 204 Wis. at 503; see also id.
(stating that "any attempt to abdicate [a core power] in any
particular field, though valid in form, must, necessarily, be held
void'" (quoting State ex rel. Mueller v. Thompson, 149 Wis. 488,
491, 137 N.W. 20 (1912))). Even if one branch truly wished to
abandon some aspect of its core power, no other branch may take it
up and use it as its own. "As to these areas of
authority, . . . any exercise of authority by another branch of
government is unconstitutional.'" Gabler, 376 Wis. 2d 147, ¶31
(quoting State ex rel. Fiedler v. Wis. Senate, 155 Wis. 2d 94,
5 Chief Justice Marshall could be reaching through the
intervening centuries to ask that exact question of Justice
Hagedorn, who deploys a bevy of decision-avoidance doctrines so
that he can affirm the Secretary's Order without determining
whether it, or the statute upon which she relies, has exceeded
constitutional boundaries. Justice Hagedorn's dissent, ¶¶245-258.
10
No. 2020AP765-OA.dk
100, 454 N.W.2d 770 (1990)); see also Town of Holland v. Vill. of
Cedar Grove, 230 Wis. 177, 190, 282 N.W. 111 (1938) ("This court
has repeatedly held that the judicial power vested by the
constitution in the courts cannot be exercised by administrative
or executive agencies.").
¶100 The borders between the branches require constant
surveillance. It is not enough that we carefully drew them when
our state was new. We need to keep a weather eye on the divide to
ensure they maintain their separation:
This devotion to the separation of powers is, in part,
what supports our enduring conviction that the Vesting
Clauses are exclusive and that the branch in which a
power is vested may not give it up or otherwise
reallocate it. The Framers were concerned not just with
the starting allocation, but with the "gradual
concentration of the several powers in the same
department." It was this fear that prompted the Framers
to build checks and balances into our constitutional
structure, so that the branches could defend their
powers on an ongoing basis.
Dep't of Transp. v. Ass'n of Am. Railroads, 575 U.S. 43, 74 (2015)
(Thomas, J., concurring) (quoted source and citations omitted).
B. The Non-Delegation Doctrine
¶101 The border between the legislature and the executive is
maintained, or at least it once was, under the aegis of the non-
delegation doctrine. There are some who say this is a dead letter.
See, e.g., Jason Iuliano & Keith E. Whittington, The Nondelegation
Doctrine: Alive and Well, 93 Notre Dame L. Rev. 619 (2017) ("The
nondelegation doctrine is dead. It is difficult to think of a
more frequently repeated or widely accepted legal conclusion.").
If that describes the doctrine's vitality in Wisconsin, it is not
because we never recognized it or outright rejected it, but because
11
No. 2020AP765-OA.dk
we allowed it to fall into desuetude.6 To the extent that has
happened, we have been derelict in our duties.
¶102 The non-delegation doctrine rests on the premise that
"[i]t is . . . fundamental and undeniable that no one of the three
branches of government can effectively delegate any of the powers
which peculiarly and intrinsically belong to that branch." Rules
of Court Case, 204 Wis. at 503. The operative principle here is
not that the branches should not delegate their core authority, it
is that they cannot.
¶103 This principle is a matter of power, not of prudence:
the constitution's progenitors did not grant the various branches
permission to shuffle their distinct powers amongst themselves.
Justice Neil Gorsuch, commenting on this principle in the federal
context, consulted John Locke ("one of the thinkers who most
influenced the framers' understanding of the separation of
powers") for its animating rationale:
The legislative cannot transfer the power of making
laws to any other hands; for it being but a delegated
power from the people, they who have it cannot pass it
over to others. The people alone can appoint the form of
the commonwealth, which is by constituting the
legislative, and appointing in whose hands that shall
be. And when the people have said we will submit to
rules, and be governed by laws made by such men, and in
such forms, nobody else can say other men shall make
laws for them; nor can the people be bound by any laws
but such as are enacted by those whom they have chosen
and authorised to make laws for them.
6 We described this creeping enervation in Gilbert v. State,
Med. Examining Bd., 119 Wis. 2d 168, 185, 349 N.W.2d 68 (1984):
"Since 1928, however, the doctrine of the delegation of legislative
power has shifted the focus away from the nature of the power
delegated through scrutiny of the delegating standard's language
and more toward the safeguards surrounding the delegated power."
12
No. 2020AP765-OA.dk
Gundy, 139 S. Ct. at 2133–34 (Gorsuch, J., dissenting) (quoting
John Locke, The Second Treatise of Civil Government and a Letter
Concerning Toleration § 41, p. 71 (1947)). It is for that reason
the legislature cannot alienate even a sliver of its core power,
even if it consciously intends that end. Not because it would be
unwise, or imprudent, but because those who created the legislature
gave it no power to do so. Therefore, prohibiting the legislature
from transferring its authority to the executive "isn't about
protecting institutional prerogatives or governmental turf."
Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting). Instead,
"[i]t's about respecting the people's sovereign choice to vest the
legislative power in [the legislature] alone. And it's about
safeguarding a structure designed to protect their liberties,
minority rights, fair notice, and the rule of law." Id. In the
constellation of constitutional doctrines, this serves as one of
the central organizing principles. Without it, our constitution
would be an incomprehensible jumble: "If [the Legislature] could
pass off its legislative power to the executive branch, the
'[v]esting [c]lauses, and indeed the entire structure of the
Constitution,' would 'make no sense.'" Id. at 2134-35 (quoted
source omitted).
¶104 But just because the legislature cannot pass off its
powers to the executive doesn't mean it won't sometimes try. Even
though the authors of our constitution designed it to maintain
equilibrium amongst the branches through its internal system of
checks and balances, and by arraying ambition against ambition, it
has always been apparent that aberrations might arise. "The
13
No. 2020AP765-OA.dk
framers knew . . . that the job of keeping the legislative power
confined to the legislative branch couldn't be trusted to self-
policing by Congress; often enough, legislators will face rational
incentives to pass problems to the executive branch." Id. at 2135.
And when an alleged aberration comes before us, we do not have the
luxury of shrugging off the duty to discern whether a border
incursion has occurred.
[T]he Constitution does not permit judges to look the
other way; we must call foul when the constitutional
lines are crossed. Indeed, the framers afforded us
independence from the political branches in large part
to encourage exactly this kind of "fortitude . . . to do
[our] duty as faithful guardians of the Constitution."
Id. (quoting The Federalist No. 78, at 468-469).
¶105 Adjudicating these constitutional border disputes is not
easy. Even when our country was young, government was less
pervasive, and there were far, far fewer statutes, Madison
acknowledged that "no skill in the science of government has yet
been able to discriminate and define, with sufficient certainty,
its three great provinces—the legislative, executive, and
judiciary." The Federalist No. 37, at 224. But as Justice Gorsuch
observed, there are three principles by which to guide our inquiry.
¶106 The first is that "as long as Congress makes the policy
decisions when regulating private conduct, it may authorize
another branch to 'fill up the details.'" Gundy, 139 S. Ct. at
2136 (Gorsuch, J., dissenting) (quoted source omitted). But the
filling up must truly comprise details. "The framers
understood . . . that it would frustrate 'the system of government
ordained by the Constitution' if [the legislature] could merely
14
No. 2020AP765-OA.dk
announce vague aspirations and then assign others the
responsibility of adopting legislation to realize its goals." Id.
at 2133. So legislation must "set forth standards 'sufficiently
definite and precise to enable Congress, the courts, and the public
to ascertain' whether Congress's guidance has been followed." Id.
at 2136 (quoted source omitted). Second, "once [the legislature]
prescribes the rule governing private conduct, it may make the
application of that rule depend on executive fact-finding." Id.And third, the legislature "may assign the executive and judicial
branches certain non-legislative responsibilities." Id. at 2137.
That is to say, a statute may require the executive to apply
authority already resident in the executive branch to the matter
addressed by the statute.
¶107 Although there is a great deal more that can be said——
and probably should be——about the non-delegation doctrine, we are
resolving this case on an extraordinarily expedited basis (barely
more than a week between arguments and release of our opinion).
But this is sufficient for the day, and will adequately answer the
Secretary's claim that the Legislature could give her enough power
to justify the Order.
III. THE ORDER
¶108 Secretary Palm is the head of the Department of Health
Services, an executive branch agency. Koschkee, 387 Wis. 2d 552,
¶14 ("Agencies are considered part of the executive branch."). As
a member of the executive branch, she has no inherent legislative
authority, and "no inherent constitutional authority to make
rules . . . ." Martinez v. DILHR, 165 Wis. 2d 687, 698, 478
15
No. 2020AP765-OA.dk
N.W.2d 582 (1992). See also Wis. Stat. § 227.11(2) ("Rule-making
authority is expressly conferred on an agency"). She says the
Order is a purely and "quintessentially" executive action
authorized by Wis. Stat. § 252.02, and so she need not promulgate
any new rules or refer to any other statute before issuing the
Order. So our task is to determine whether the Order incorporates,
either explicitly or implicitly, policy decisions not already
encompassed by current statutes or rules.7 If it does, and § 252.02
allows her to make those policy decisions, then the statute
violates the non-delegation doctrine. As Justice Scalia once said,
[f]requently an issue of this sort will come before the
Court clad, so to speak, in sheep's clothing: the
potential of the asserted principle to effect important
change in the equilibrium of power is not immediately
evident, and must be discerned by a careful and
perceptive analysis. But this wolf comes as a wolf."
Morrison, 487 U.S. at 699 (Scalia, J., dissenting).
¶109 Under any rational reading, the Order contains or
assumes policy decisions that are staggering both in their reach
and in their effect on what we once thought of as inherent rights—
—rights that, according to our constitution, the government exists
to secure. See Wis. Const. art. I, § 1. The Secretary insists
the Order does not adopt any policies because, by its nature, it
is time-delimited and directed at a certain set of temporary facts
that (we all hope) won't recur. She says "the power to set public
policy," on the other hand, is accomplished by "establishing
7 I express no opinion on whether the Department could have
supplied the standards on which the Order is based through the
rule-making process. I have no need to do so because the Secretary
insists her actions be judged without regard to any rule-making
authority she might have.
16
No. 2020AP765-OA.dk
prospective, generally applicable requirements to govern future
conduct." The Order, she claims, hasn't done that.
¶110 Although the Secretary's argument seems to accept the
conceptual distinction between executive and legislative power, it
does not adequately address the totality of what the Order
accomplishes. The Order, it is true, contains an executive
component. But much more significantly for our analysis today, it
also announces some shockingly profound public policy decisions,
or assumes they have previously been made. For example, the Order
could not function without a public policy decision that the
Secretary of the Department of Health Services has the authority
to confine people to their homes. That's a policy decision with
respect to both the grant of authority itself, as well as the
choice of person in which to vest it. So is the public policy
decision that the Secretary has the power to close private
businesses, or forbid private gatherings, or ban intra-state
travel, or dictate personal behavior. The Order also depends on
a public policy decision that the Secretary has the authority, all
by herself, to criminalize whatever conduct she believes is
anathema to controlling communicable diseases.
¶111 The heart of the Secretary's error is her failure to
recognize that her Order contains both executive and legislative
components. Executive action does not exist in a vacuum. It must
execute on a policy——a policy chosen by the legislature or
promulgated as a rule. When such a policy decision has not been
promulgated by the agency or adopted by the legislature, and the
executive acts anyway, it is by that very action either announcing
17
No. 2020AP765-OA.dk
adoption of the policy or erroneously assuming its existence.
Consequently, when the Order confines people to their homes to
manage the spread of COVID-19, it does far more than engage the
executive power. It also simultaneously asserts there has been a
public policy decision to vest this type of power in the Secretary.
Her exercise of that authority in this situation is executive in
nature, but the genesis of the authority itself is not——it is
legislative. The same is true with respect to the Order's implicit
assertion that there has been a public policy decision to vest in
the Secretary the power to close private businesses, or forbid
private gatherings, or ban intra-state travel, or dictate personal
behavior.
¶112 But no such public policy decisions have been taken.
There are no statutes or rules that confer on the Secretary these
sweeping powers. The Secretary not only knows this, she
affirmatively asserts that Wis. Stat. § 252.02 gave her all the
power needed to confer this type of authority on herself: "Under
the statute's plain language," the Secretary says, "DHS may give
legal force to suitable actions that it then carries out. The law
requires no intermediary that DHS must go through . . . ." If
§ 252.02 enables the Department to confer on itself the power to
confine people to their homes, close businesses, etc., then it has
quite obviously transferred no small amount of the legislature's
core authority to the executive branch, thereby enabling the
Secretary to make up public policy decisions as she goes along.
Without that understanding of the Secretary's authority, the Order
could not function. Justice Hagedorn mirrors this error, and even
18
No. 2020AP765-OA.dk
uses it as the organizing principle for his dissent. The whole of
his statutory analysis is faulty because he has not discerned that
the Order implicitly created, or assumed to exist, a host of public
policy decisions.8 Under Justice Hagedorn's rationale, an
executive branch agency is free to make ad hoc policy decisions,
so long as they are temporary and acted upon immediately. Nothing
in our legal canon supports such an odd proposition.
¶113 The Secretary's incursion on legislative authority is
readily apparent when we compare Wis. Stat. § 252.02 and the Order
to the three principles that give life to the non-delegation
doctrine. As described above, the first inquires into whether the
legislature decided on the conduct-regulating policy and left the
executive branch to only "fill up the details." The power to
confine law-abiding individuals to their homes, commandeer their
businesses, forbid private gatherings, ban their intra-state
travel, and dictate their personal behavior cannot, in any
imaginable universe, be considered a "detail." This comprehensive
claim to control virtually every aspect of a person's life is
something we normally associate with a prison, not a free society
governed by the rule of law.
¶114 Further, if Wis. Stat. § 252.02 actually allows this, as
the Secretary says, the Framers would recognize the statute as a
frustration of our system of government because it allows the
8 Justice Hagedorn's statutory analysis might be perfectly
serviceable if we were considering an executive order implementing
previously established public policy decisions. But that is not
this case. So, as a functional matter, his analysis is operating
on a hypothetical set of facts.
19
No. 2020AP765-OA.dk
legislature to "merely announce vague aspirations and then assign
others the responsibility of adopting legislation to realize its
goals." See Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting).
To avoid offending the separation of powers, § 252.02 would have
to "set forth standards 'sufficiently definite and precise to
enable [the Legislature], the courts, and the public to ascertain'
whether [the Legislature's] guidance has been followed." Id. The
Secretary eschews the need for any guidance. Her power, she says,
is simply to "act" with all dispatch. If § 252.02 allows this,
there is literally no means by which we could ascertain whether
the Secretary is following any legislatively determined policy at
all. The Secretary's view of the statute is, essentially, that
the Legislature charged her with the vague aspiration of
controlling communicable diseases, and then left to her the
responsibility of making the public policy decisions that she would
then execute.
¶115 If her authority is that boundless, there is no method
by which we can determine what power she might assert next. The
Secretary understands the scope of her power under Wis. Stat.
§ 252.02 to be so complete, so comprehensive, that she can do
literally anything she believes is necessary to combat COVID-19.
Can she also dictate what we do in our own homes? Can she tell us
how many hours we can spend outdoors in our own yards? Can she
forbid us from buying certain products? Compel us to buy others?
Nothing in § 252.02 is "sufficiently definite and precise to enable
[the Legislature], the courts, and the public to ascertain whether
[the Legislature's] guidance has been followed" with respect to
20
No. 2020AP765-OA.dk
the types of power the Secretary may employ. Indeed, nothing in
§ 252.02——the sole and sufficient source of power for everything
the Secretary is doing——gives us any benchmark or even the vaguest
of clues about what other types of power she might one day assert.
¶116 The Order fares no better under the second principle of
non-delegation: "[O]nce [the Legislature] prescribes the rule
governing private conduct, it may make the application of that
rule depend on executive fact-finding." Id. Under this rationale,
it could conceivably be appropriate for the Legislature to confer
on the Secretary the power to confine people to their homes if she
finds that such an action is necessary to control the spread of a
communicable disease. But no statute or rule confers on her that
authority, so the Order cannot be justified as the exercise of
executive authority under this principle.
¶117 Nor is the Order salvageable under the third non-
delegation principle, which provides that the legislature "may
assign the executive and judicial branches certain non-legislative
responsibilities." Id. at 2137. The Secretary, however, insists
that Wis. Stat. § 252.02 "simply empowers DHS to act," and that
the Order "embodies the quintessential executive task of deciding
how to address, for the time being, the exigency caused by COVID-
19," and that her authority to address that exigency is limited
only by judicial or legislative intervention. If accepted, this
would work an intolerable inversion in the nature of executive
authority, allowing it to swallow almost all of the Legislature's
power. Here's why.
21
No. 2020AP765-OA.dk
¶118 If Wis. Stat. § 252.02 makes the Order's contents
entirely executive, a few strategically written statutes would
make the legislature a virtual non-entity. What if the legislature
instructed the Department of Justice to "issue orders . . . for
the control and suppression of [crime]"? Or it enacted a statute
that "simply empower[ed] [the Department of Financial
Institutions] to act" with respect to the subjects within its
purview? Or it charged some agency or other with "the
quintessential executive task of deciding how to address, for the
time being, the exigency caused by" economic vicissitudes? If the
executive's authority under each of these hypothetical delegations
was as staggeringly broad as the Secretary claims for herself under
§ 252.02, the whole of our lives could be governed exclusively
from within the executive branch.
¶119 But none of those hypotheticals would be consistent with
the separation of powers for the same reason the Order is not. An
agency cannot confer on itself the power to dictate the lives of
law-abiding individuals as comprehensively as the Order does
without reaching beyond the executive branch's authority.9
Justice Hagedorn suggests my attention to constitutional
9
boundaries is merely an effort to "try to get around" his
observation that "[w]e do not enjoin particular enforcement
actions under a facially constitutional statute simply because the
statute could be deployed in ways that violate the constitution."
Justice Hagedorn's dissent, ¶¶249, 248. I have no need to "get
around" this observation because in this court we don't let the
tail wag the dog. Justice Hagedorn is concerned about remedies
when what we are concerned about is enforcing a structural
limitation on the branches' powers. It would be irresponsible of
us not to consider constitutional limitations when we declare what
the law is.
22
No. 2020AP765-OA.dk
IV. CONCLUSION
¶120 The Order may be a brilliantly conceived and executed
response to COVID-19. Or maybe it's not. Either way, that is not
the question before the court. Brilliance does not confer
authority. Nor does necessity. Our only task in this case was to
determine whether Secretary Palm has the authority to issue the
Order. We had an unavoidable, non-discretionary, obligatory
responsibility to decide that question. And so we have.10 Because
I agree with that declaration, I join the court's opinion. I wrote
separately because it is important to establish that, if we agreed
with the Secretary's reading of Wis. Stat. § 252.02, we would have
to conclude the statute violated the separation of powers by
10Justice Ann Walsh Bradley is concerned that, without a stay
on our decision, "chaos and confusion" may ensue. Although it is
true that the legislature requested a temporary injunction pending
our decision, subject to a stay for a period of time, it did not
ask us to stay our decision. And even if it had, I'm not entirely
sure what a stay would mean in this context. The petition
requested a declaration of rights. Our opinion declares those
rights . . . today. What would it mean to stay that declaration?
Would everyone have to act like they hadn't read our decision until
the end of the stay? Would there be an embargo on reporting on
our decision until that date? I don't think staying a declaration
of rights that we have just declared would mean anything at all
because it couldn't un-say what we just said.
23
No. 2020AP765-OA.dk
conferring on the Secretary the power to make laws without going
through the rule-making process.11
¶121 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
11Justice Hagedorn suggests that somehow it is ironic that
we should pay attention to the constitutionally-mandated
demarcation between the legislative and executive branches.
Justice Hagedorn's dissent, ¶252. Apparently, in his view, there
is to be no policing of this boundary unless we are prepared to
dismantle the entire administrative state. He condescends that
"[i]f we are going to have a serious discussion about the
separation of powers and its relationship to the administrative
state, I welcome that conversation," insinuating that our
reasoning is a species of "it's good for me but not for thee"
rationalizing. Id. Justice Hagedorn doesn't provide any
justification for this insult, and there appears to be none. As
for the "serious discussion about the separation of
powers" . . . the invitation to that conversation was included in
our oath of office, wherein we swore to uphold the Wisconsin
Constitution. He's free to join in anytime he wishes.
2
No. 2020AP765-OA.awb
¶122 ANN WALSH BRADLEY, J. (dissenting). Our
responsibility as a court is to write clear decisions that provide
guidance to the litigants, courts and the public at large. I write
separately to address the issue of a stay and the confusion arising
from the majority and concurring opinions of Chief Justice
Roggensack on the issue.
¶123 The majority opinion, authored by Chief Justice
Roggensack, does not grant a stay. Thus, the declaration of rights
takes immediate effect, leaving no time for a transitional safety
net that a stay could provide. Majority op., ¶¶56-57. That
opinion garnered four votes (Chief Justice Roggensack and Justices
Ziegler, Rebecca Grassl Bradley, and Kelly). However, concurring
to her own authored majority opinion, Chief Justice Roggensack
writes that she "would stay future actions to enforce our decision
until May 20, 2020." Chief Justice Roggensack's concurrence, ¶65.
These positions taken in the majority opinion and the concurrence
are fundamentally contradictory. If you are confused, you are not
alone.
¶124 Chief Justice Roggensack needs to clarify in an opinion
whether she is or is not voting for a stay of the majority's
decision. If her concurrence is to be interpreted as merely a
lament that she would stay it, then such a lament rings hollow.
She can stay the immediate effect of the majority opinion.
¶125 In a court of seven, it takes four votes to form a
controlling majority on an issue. Chief Justice Roggensack
provides the fourth vote to form a majority denying a stay.
Without her vote there would be only three votes and the
1
No. 2020AP765-OA.awb
declaration of rights would not have immediate effect. However,
assuming Chief Justice Roggensack is actually voting for a stay,
as her concurrence seemingly indicates, there appear to be four
votes for issuing a stay (Chief Justice Roggensack and Justices
Ann Walsh Bradley, Dallet, and Hagedorn).1 See Justice Dallet's
Dissent, ¶161; Justice Hagedorn's dissent, ¶263 n.25. So, is there
a stay or isn't there? It can't be both ways.
¶126 If the clarified vote is one for no stay, then the
concurrence cannot stand. It is illogical to vote to deny a stay,
while at the same time lamenting that because of the way you voted,
there is no stay.
¶127 If there is no stay, I repeat to the petitioner, the
Wisconsin Legislature, the old adage: "be careful what you wish
for." You have come to this court asking that Emergency Order 28
be deemed unlawful and unenforceable. Your wish is granted by
today's majority.2
¶128 But, it appears you did not intend that your wish would
go into effect immediately. You requested initially in briefing
1 This apparent existence of a majority to issue a stay is
unaffected by this court's statement in State v. Griep regarding
"pooling" the votes of separate writings to create a majority
proposition. See State v. Griep, 2015 WI 40, ¶37 n.16, 361
Wis. 2d 657, 863 N.W.2d 567. In Griep, the court set forth that
under Marks v. United States, 430 U.S. 188, 193 (1977), "the
positions of the justices who dissented from the judgment are not
counted in examining the divided opinions for holdings." In the
present case, we are not "examining the divided opinions for
holdings" on the presented issues, but instead we are deciding
whether an equitable remedy should be granted.
2 The majority strikes down Emergency Order 28 in its entirety
with the exception of section 4(a). Majority op., ¶3 n.6.
2
No. 2020AP765-OA.awb
that if you prevail, there should be a six-day stay before the
decision would go into effect. Later, at oral argument, presumably
mindful that any rulemaking would take longer than six days, your
counsel advanced that approximately 12 days would be necessary for
a rule replacing Emergency Order 28 to go into effect. Aware of
the delicate balance necessary to save both livelihoods and lives,
counsel likely was concerned with the chaos and confusion that
would be occasioned by any decision in your favor with no stay.
¶129 But if there is no stay, your request has fallen on deaf
ears. And there appears nothing in place to fill the void rendered
by such a majority decision. The lack of a stay would be
particularly breathtaking given the testimony yesterday before
Congress by one of our nation's top infectious disease experts,
Dr. Anthony Fauci. He warned against lifting too quickly stay-
at-home orders such as embodied in Emergency Order 28. He
cautioned that if the country reopens too soon, it will result in
"some suffering and death that could be avoided [and] could even
set you back on the road to trying to get economic recovery."3
¶130 Given the admonition of Dr. Fauci, I fail to see the
wisdom or the equity in invalidating Emergency Order 28 and, at
3 Sheryl Gay Stolberg, "At Senate Hearing, Government Experts
Paint Bleak Picture of the Pandemic," New York Times (May 12,
2020), https://www.nytimes.com/2020/05/12/us/politics/fauci-cdc-
coronavirus-senate-testimony.html.
3
No. 2020AP765-OA.awb
least for the time being, leaving nothing in its stead.4
Accordingly, I dissent.
¶131 I am authorized to state that Justice REBECCA FRANK
DALLET joins this dissent.
4 Declaratory judgments are treated functionally as
injunctions when applied to governmental parties who are bound by
the force and meaning of judgments. Chief Justice Roggensack's
Concurrence, ¶64. The issuance of a permanent injunction demands
that equity favors issuing the injunction. Pure Milk Prods. Co-
op v. Nat'l Farmers Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691(1979).
I also observe that, when balancing the equities to determine
whether injunctive relief is appropriate, courts around the
country have given the utmost weight to the protection of health
and human life. See McLaughlin by McLaughlin v. Williams, 801 F.
Supp. 633, 644 (S.D. Fla. 1992); see also Todd by Todd v. Sorrell,
841 F.2d 87, 88 (4th Cir. 1988); Rockhill Care Center, Inc. v.
Harris, 502 F. Supp. 1227, 1231 (W.D. Mo. 1980).
2
No. 2020AP765-OA.rfd
¶132 REBECCA FRANK DALLET, J. (dissenting). Today, a
majority of this court does the Legislature's bidding by striking
the entirety of Emergency Order 28, "Safer at Home Order," yet
confusingly, in a footnote, upholding Section 4. a. The majority
reaches its conclusion by torturing the plain language of Wis.
Stat. § 252.02 (2017-18)1 and completely disregarding the long-
standing, broad statutory powers the Legislature itself granted to
the Department of Health Services (DHS) to control COVID-19, a
novel contagion.2 This decision will undoubtedly go down as one
of the most blatant examples of judicial activism in this court's
history. And it will be Wisconsinites who pay the price.
¶133 A majority of this court falls hook, line, and sinker
for the Legislature's tactic to rewrite a duly enacted statute
through litigation rather than legislation. But legislating a new
policy from the bench exceeds the constitutional role of this
court. While a majority of this court is clearly uncomfortable
with the broad grants of authority the Legislature gave to DHS
1 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2 In the United States alone COVID-19 has sickened more than
1.34 million people and approximately 80,820 people have died.
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-
in-us.html. Here in Wisconsin, as of this writing, there are
10,902 confirmed cases and 421 COVID-19 related deaths, with cases
confirmed in almost every county.
https://www.dhs.wisconsin.gov/covid-19/data.htm.
1
No. 2020AP765-OA.rfd
through Wis. Stat. § 252.02 and throughout Wisconsin history,3 the
court's role is only to examine and apply the plain statutory
language. "It is the duty of the courts to enforce the law as
written." Baierl v. Riesenecker, 201 Wis. 454, 458, 227 N.W. 9(1929), rev'd on reh'g on other grounds, 201 Wis. 454, 230 N.W. 605(1930).
¶134 Rather than examine the plain language of Wis. Stat.
§ 252.02, the majority engages in analytical gymnastics to arrive
at a desired conclusion. One need only examine the clear and plain
statutory language to uncover what the majority attempts to
obscure. Because the Legislature has bestowed on the DHS Secretary
through § 252.02 the explicit authority to issue orders such as
Emergency Order 28 without first going through the rulemaking
process, the majority's exercise ultimately fails. I dissent.
I. EMERGENCY ORDER 28 DID NOT REQUIRE RULEMAKING
¶135 It is first important to understand Wisconsin's long-
standing history of giving a broad grant of power to its public
health authority, a history the majority purposefully overlooks.
The Wisconsin Legislature was among the first state legislatures
to address public health emergencies when it created the State
3 See, e.g., majority op., ¶31: "Palm points to statutes that
she asserts give her broad authority to impose regulation; but it
does not follow she can impose regulation without going through a
process to give the people faith in the justness of the
regulation"; "However, under Palm's theory, she can 'implement all
emergency measures necessary to control communicable diseases,'
Wis. Stat. § 252.02(6), even at the expense of fundamental
liberties . . . ."
2
No. 2020AP765-OA.rfd
Board of Health in March 1876.4 See ch. 366, Laws of 1876. This
was a panel of seven physicians who were responsible for "general
supervision of the interests of the health and life of the citizens
of the state." § 2, ch. 366, Laws of 1876.5 The Legislature
granted the board unusually broad powers, allowing it to impose
statewide quarantines unilaterally in times of public health
emergencies, as well as making "rules and
regulations . . . necessary for the preservation or improvement of
public health . . . ." § 10, ch. 366, Laws of 1876.
¶136 In 1904 this court recognized that the Legislature may
"rightfully grant to boards of health authority to employ all
necessary means to protect the public health" given the need to
"act immediately and summarily in cases of . . . contagious and
malignant diseases, which are liable to spread and become epidemic,
causing destruction of human life." Lowe v. Conroy, 120 Wis. 151,
155, 97 N.W. 942 (1904) (citing Bittenhaus v. Johnston, 92 Wis.
588, 66 N.W. 805 (1896); City of Salem v. E. Ry. Co., 98 Mass. 431(1868); Lawton v. Steele, 152 U.S. 133 (1894)). Similarly, the
United States Supreme Court has recognized that it was
4 The impetus for the creation of the State Board of Health
was "[t]he high death rate from various communicable diseases and
subsequent efforts of medical societies." See State of Wisconsin
Blue Book 465 (1983-84).
Notably, public health legislation in Wisconsin dates back to
the territorial days. Id.5 Wisconsin became the tenth state in the nation with such a
board. See Steven B. Burg, Wisconsin and the Great Spanish Flu
Epidemic of 1918, Wisconsin Magazine of History 37, 44 (Autumn
2000).
3
No. 2020AP765-OA.rfd
"surely . . . appropriate," and "not an unusual, nor an
unreasonable or arbitrary, requirement," to vest a board of health
with the authority to respond to "an epidemic of disease" because
it is composed of persons in the affected locality who presumably
had "fitness to determine such questions." Jacobson v.
Commonwealth of Mass., 197 U.S. 11, 27 (1905).
¶137 The State Board of Health exercised its broad emergency
powers during the Spanish Flu pandemic of 1918. In October 1918,
State Health Officer Dr. Cornelius Harper, in consultation with
the governor, issued an order closing all public institutions in
Wisconsin, including "schools, theaters, moving picture houses,
other places of amusement and public gathering for an indefinite
period of time." Burg, supra n.5, at 45. "[N]owhere except in
Wisconsin was such an order issued statewide or in such a
comprehensive fashion," as practically every local government in
Wisconsin cooperated with the order immediately. Id. For almost
three months, isolation rather than socialization was the norm for
citizens of Wisconsin. Id. at 52. Compliance undoubtedly spelled
the difference between life and death for hundreds, if not
thousands, of Wisconsin citizens. Id. at 53.
¶138 The broad executive power to take swift measures in
response to an outbreak of communicable disease has existed
uninterrupted since 1876. The language of ch. 252 expressly
4
No. 2020AP765-OA.rfd
confers on DHS, the modern successor to the State Board of Health,6
broad pandemic-response powers. Section 252.02, "Powers and
duties of department," sets forth the powers and duties of DHS,
the limits of which are not at issue in this case.
¶139 With this background, I turn to DHS's issuance of
Emergency Order 28. DHS asserts that the plain text of Wis. Stat.
§§ 252.02(3), (4), and (6) authorizes it to issue Emergency Order
28 without first engaging in rulemaking. To determine the extent
of the powers the Legislature has granted DHS to use during a
pandemic, I start with the plain language of the statute. State
ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271
Wis. 2d 633, 681 N.W.2d 110.
¶140 Wisconsin Stat. § 252.02(4) reads:
The department may promulgate and enforce rules or issue
orders for guarding against the introduction of any
communicable disease into the state, for the control and
suppression of communicable diseases, for the quarantine
and disinfection of persons, localities and things
infected or suspected of being infected by a
communicable disease and for the sanitary care of jails,
state prisons, mental health institutions, schools, and
public buildings and connected premises. Any rule or
order may be made applicable to the whole or any
specified part of the state, or to any vessel or other
conveyance. . . .
6 The State Board of Health was abolished in 1939 and its
functions were subsequently transferred throughout the executive
branch. See State of Wisconsin Blue Book 141 (1940-41). Chapter
250 of the Wisconsin Statutes designates DHS as "the state lead
agency for public health," with "all powers necessary to fulfill
the duties prescribed in the statutes." Wis. Stat.
§§ 250.03(1)(b); 250.04(2)(a). In Chapter 252 of the Wisconsin
Statutes, DHS is charged with controlling communicable disease
within Wisconsin.
5
No. 2020AP765-OA.rfd
(Emphasis added). Section 252.02(4) plainly grants DHS the power
to address COVID-19 through rulemaking or by issuing orders. The
use of the word "or" distinguishes "orders" from "rules." See
Loughrin v. United States, 573 U.S. 351, 357 (2014) (noting the
use of "or" in a statute is "disjunctive, that is, the words it
connects are to be given separate meanings"). Whichever
alternative DHS chooses, order or rule, it can be made "applicable
to the whole" of Wisconsin. The Legislature chose these words and
is presumed to say what it means and mean what it says. See
Johnson v. City of Edgerton, 207 Wis. 2d 343, 351, 558 N.W.2d 653(Ct. App. 1996) ("When the Legislature uses different terms in a
statute——particularly in the same section——we presume it intended
the terms to have distinct meanings.").
¶141 The statutory history of Wis. Stat. § 252.02(4), part of
a plain meaning analysis, confirms the authority of DHS to issue
orders applicable to the whole of Wisconsin separate and apart
from rules. See United States v. Franklin, 2019 WI 64, ¶13, 387
Wis. 2d 259, 928 N.W.2d 545 (quoted source omitted) ("Evaluation
of the context of a statute is part of a plain-meaning analysis
and includes a review of . . . 'previously enacted and repealed
provisions of a statute.'"). Originally, the predecessor to
§ 252.02(4) did not allow for the issuance of orders; DHS could
only "adopt and enforce rules and regulations," with "rule"
carrying a similar definition as it does today, including "general
order . . . of general application." See Wis. Stat. § 143.02(4)
(1955-56); compare Wis. Stat. § 227.01(3) (1955-56), with Wis.
Stat. § 227.01(13) (2017-18).
6
No. 2020AP765-OA.rfd
¶142 However, in 1982, at the beginning of the AIDS epidemic,7
the Legislature amended the predecessor to Wis. Stat. § 252.02(4)
to explicitly include as part of DHS's power the ability "to issue
orders" of statewide application. See § 21, ch. 291, Laws of
1981.8 Even though DHS had existing authority to promulgate a
"rule" which, again, had always included a "general order . . . of
general application," the Legislature chose to give DHS the
7 See https://www.hiv.gov/hiv-basics/overview/history/hiv-
and-aids-timeline
8 The majority cites to extrinsic evidence, an "Explanatory
Note" to Senate Bill 711, for support that the insertion of the
phrase "issue orders" was "basically technical changes designed to
bring the statute into concordance with the current public health
and epidemiologic thought and terminology." Majority op., ¶26.
Reliance on this "Explanatory Note" is problematic for several
reasons. First, the court has clearly enunciated that it does not
look to extrinsic sources in a plain language analysis. See State
ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271
Wis. 2d 633, 681 N.W.2d 110 ("Where statutory language is
unambiguous, there is no need to consult extrinsic sources of
interpretation, such as legislative history."). Second, the cited
"Explanatory Note" language was not even related to the "issue
orders" language. Instead, it refers to inserting words like
"communicable" before disease and switching the phrase "jails,
asylums, schoolhouses" to "correctional facilities, mental health
institutions, schools." The majority should have realized that
the "issue orders" language has nothing to do with "public health
and epidemiologic thought and terminology" and not blindly adopted
an argument made by Wisconsin Manufacturers and Commerce in its
amicus brief.
Further, the majority asserts that "the Legislative Reference
Bureau never described the added language as changing DHS's
authority." Majority op., ¶26. There is no support for the
proposition that the LRB is expected to make such comments or that
its description of any textual additions is dispositive. These
strained inferences from inapplicable extrinsic evidence and the
LRB's silence illustrate how willing the majority is to circumvent
the plain text of a statute to reach its desired policy outcome.
7
No. 2020AP765-OA.rfd
separate power to issue orders on a statewide basis to control and
suppress communicable diseases.
¶143 Additionally, in the same 1982 amendment giving DHS the
power to issue orders of statewide application, the Legislature
added the requirement that "Rules of general application shall be
adopted under ch. 227." See § 21, ch. 291, Laws of 1981 (emphasis
added).9 The amendment did not say that "orders" applicable to
the entire state shall be adopted pursuant to Wis. Stat. ch. 227.
This further supports the Legislature's distinction between
"orders" permitted under Wis. Stat. § 252.02(4) and "rules"
subject to ch. 227.
¶144 According to the majority opinion, any order applicable
to the whole state would be a rule. But an "order" "made applicable
to the whole" state cannot be synonymous with "rule" because, such
a reading ignores the different words chosen by the Legislature
and renders the language in the 1982 amendment superfluous. It is
a basic tenet of statutory interpretation that we must read
statutory language "to give reasonable effect to every word, in
order to avoid surplusage."10 See Kalal, 271 Wis. 2d 633, ¶46; see
also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 176 (2012) ("Because legal drafters
That language was removed from the predecessor to Wis. Stat.
9
§ 252.02(4) pursuant to 1993 Wis. Act 27, § 284.
Notably, a majority of this court just recently relied on
10
this interpretive canon against surplusage in striking down
Executive Order 74 which had suspended in-person voting in response
to the ongoing COVID-19 pandemic. See Am. Order, Wis. Legislature
v. Evers, No. 2020AP608-OA, at 3 (Apr. 6, 2020).
8
No. 2020AP765-OA.rfd
should not include words that have no effect, courts avoid a
reading that renders some words altogether redundant.").
¶145 Emergency Order 28 is authorized by two other
subsections of Wis. Stat. § 252.02: §§ 252.02(3) and (6), neither
of which require rulemaking under ch. 227. Section § 252.02(6) is
the broadest grant of authority given by the Legislature to DHS.
Subsection 6 reads: "The department may authorize and implement
all emergency measures necessary to control communicable
diseases." (Emphasis added). The very broad language of
§ 252.02(6) to "authorize and implement all emergency measures
necessary" includes the issuance of emergency orders necessary to
combat a deadly virus.11 The Legislature asks the court to read
in language that simply is not there. Section 252.02(6) does not
The concurrences of Justice Rebecca Grassl Bradley and
11
Justice Kelly attempt to resuscitate the non-delegation doctrine.
They cite dissenting opinions, evocative precedent, and a
selective assortment of foreboding historical quotes, but their
ultimate analyses of Wis. Stat. § 252.02 have been repeatedly
rejected under modern administrative law. Broad grants of
authority are routinely upheld where the statute as a whole,
including its purpose, factual background, and context, bind the
agency's authority. See, e.g., Am. Power & Light Co. v. SEC, 329
U.S. 90, 104–05, (1946); see also Gundy v. United States, 139 S.
Ct. 2116, 2130, reh'g denied, 140 S. Ct. 579 (2019) ("It is wisdom
and humility alike that this Court has always upheld such
'necessities of government.'") (citation omitted). The language
of § 252.02(6) fits comfortably within the range of broad grants
historically approved by the United States Supreme Court. See
Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J.,
dissenting) ("What legislated standard, one must wonder, can
possibly be too vague to survive judicial scrutiny, when we have
repeatedly upheld, in various contexts, a 'public interest'
standard?") (citing Nat'l Broad. Co. v. United States, 319 U.S.
190, 216-17 (1943)); N.Y. Cent. Sec. Corp. v. United States, 287
U.S. 12, 24-25 (1932)).
9
No. 2020AP765-OA.rfd
contain any limiting language——it does not say that DHS may
"authorize and implement all emergency measures necessary except
general orders of general application, for which rulemaking is
required." We will not read into a statute "words the legislature
did not see fit to write." Dawson v. Town of Jackson, 2011 WI 77,
¶42, 336 Wis. 2d 318, 801 N.W.2d 316; see also State v. Fitzgerald,
2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165 ("[R]ather, we
interpret the words the legislature actually enacted into law.").
¶146 The statutory history of Wis. Stat. § 252.02(6) further
supports a reading of § 252.02(6) which gives DHS a broad grant of
authority to issue the entirety of Emergency Order 28 without going
through the rulemaking process. The Legislature enacted this
subsection in 1982 contemporaneously with adding the power to issue
statewide orders and declaring that only rules of general
application, not orders, be adopted as rules under ch. 227. See
§§ 21-22, ch. 291, Laws of 1981. Section 252.02(6) post-dates
both §§ 252.02(3) and (4) and demonstrates how, over time, the
Legislature has continued to expand DHS's ability to act to control
contagion in emergencies such as this one.
¶147 Finally, Wis. Stat. § 252.02(3) independently provides
authority for the issuance of several provisions in Emergency Order
28 without rulemaking. Yet, it is significant that the majority
fails to even mention this subsection despite Emergency Order 28
explicitly citing § 252.02(3) as authority. Section 252.02(3)
allows DHS to "close schools and forbid public gatherings in
schools, churches and other places to control outbreaks and
epidemics." Although § 252.02(3) does not specify the method by
10
No. 2020AP765-OA.rfd
which DHS can close schools and forbid public gatherings, this
subsection clearly envisions the issuance of orders. To suggest
that in the midst of an outbreak or epidemic of a contagious
disease DHS must go through the process of rulemaking before
closing schools is preposterous and at odds with the other
subsections of § 252.02. See Kalal, 271 Wis. 2d 633, ¶46 (noting
that statutory language is examined "not in isolation but as part
of a whole; in relation to the language of surrounding or closely-
related statutes"). The majority opinion seemingly admits the
absurdity of this outcome when it states that the decision striking
the entirety of Emergency Order 28 "does not apply to Section 4.
a. of Emergency Order 28." Majority op., ¶3 n.6.
¶148 The majority's attempts to circumvent the statute's
plain meaning in order to reach its desired outcome are legally
suspect and, frankly, unpersuasive. To establish that Emergency
Order 28 is a rule subject to the emergency rulemaking provisions
in Wis. Stat. § 227.24, the majority reads "order" "made applicable
to the whole" in Wis. Stat. § 252.02(4) as a "general order of
general application." This reading makes the word "order"
superfluous and changes the language of § 252.02(4) to read "the
department may promulgate and enforce rules or issue
rules . . . ." Courts do not read in redundancies for the sake of
aligning a statute with a brand new policy preference. See Kalal,
271 Wis. 2d 633, ¶46; Scalia & Garner, supra ¶144, at 176.
¶149 This reading of Wis. Stat. § 252.02 is even more
illogical because it hamstrings DHS to a time-consuming, lengthy
rulemaking scheme inconsistent with the authorization for DHS to
11
No. 2020AP765-OA.rfd
act "immediately and summarily" to guard against the introduction
of communicable disease as well as to control and suppress it.
Lowe, 120 Wis. at 155. A review of the tedious multi-step process
required to enact an emergency rule illustrates why the Legislature
authorized DHS to issue statewide orders to control contagion.
¶150 The emergency rulemaking process set forth in Wis. Stat.
§ 227.24 includes 11-13 steps which the briefing indicates takes
a minimum of 18 and a maximum of 49 days.12 At oral argument,
counsel for the Legislature focused only on the first eight steps,
from the creation of a scope statement until the time a rule is
published, which he thought "could take 12 days, in this case."
However, counsel's phrases like "matter of an hour," "approve it
in one minute," and "about a second" show that the time it takes
to enact an emergency rule is guess work, at best, and discounts
the uncertainty tied to this process.
¶151 Even assuming the Legislature's best-case-scenario
timeframe of 12 days, DHS still may not be able to act to control
a contagion using only emergency rulemaking. While the Legislature
does not get a seat at the table to draft an emergency rule, a
12There are eleven mandatory steps contained in Wis. Stat.
§ 227.24, including drafting a statement of scope for the emergency
rule, obtaining gubernatorial approval for the statement of scope,
submitting the statement of scope for publication in the
Administrative Register, and obtaining approval for the statement
from the individual or body with the appropriate policy-making
powers. See § 227.24(1)(e)1d. Additionally, the Joint Committee
for Review of Administrative Rules (JCRAR), a legislative
committee, can request a preliminary public hearing, which is a
potential step that delays the process for several days to several
weeks.
12
No. 2020AP765-OA.rfd
partisan legislative committee13 has the ability to suspend any
emergency rule following a public hearing. See Wis. Stat. § 227.26(2)(d). This, and any other change in circumstances requiring a
new scope statement, would send DHS right back to the drawing
board. These procedures and timelines are wholly inconsistent
with the prompt and decisive action necessary to control and
suppress a deadly communicable disease like COVID-19.
¶152 The majority and the Legislature point the finger at DHS
and assert that it should have gone through emergency rulemaking
while Governor Evers' Executive Order 72 was in effect.14 This
overlooks the Legislature's own inaction. During the 23 days
before DHS issued Emergency Order 28, there was already in effect
a nearly identical emergency order issued under Wis. Stat.
§§ 252.02(3) and (6), which the Legislature never challenged. See
Emergency Order 12, at 2. During those 23 days, the Legislature
convened several times, including two special sessions, but chose
not to address Order 12 or DHS's claimed grant of authority under
The Joint Committee for Review of Administrative Rules is
13
currently made up of: Representative Joan Ballweg (R), Senator
Stephen Nass (R), Representative Adam Neylon (R), Senator Duey
Stroebel (R), Senator David Craig (R), Senator Chris Larson (D),
Senator Robert Wirch (D), Representative Romaine Quinn (R),
Representative Gary Hebl (D), and Representative Lisa Subeck (D).
https://docs.legis.wisconsin.gov/2019/committees/joint/1965.
In Executive Order 72, Governor Evers declared a public
14
health emergency.
13
No. 2020AP765-OA.rfd
§ 252.02. See Executive Order 73; Executive Order 74.15 Instead,
the Legislature now comes to this court and asks it to rescind the
broad powers it granted to DHS. Whatever policy choices the
Legislature makes going forward should be effectuated by the
legislative process, not as a result of a decision made by the
judiciary.
¶153 The majority further disregards the nature of Emergency
Order 28, which is inconsistent with the purpose of emergency
rulemaking. An emergency rule does not share the limited nature
of an order; instead, it is intended to be in place temporarily
until a permanent rule can be promulgated. See Wis. Stat.
§§ 227.24(1)(c), (2)(a). Moreover, a rule applies to future
circumstances and is enacted with the purpose of guiding future
conduct. Emergency Order 28 is an immediate response to current
circumstances and has an end-date of May 26, 2020. It does not
serve as guidance for response to any future unique contagious
disease, or even to the evolving circumstances surrounding COVID-
19, and is therefore by its very nature not a rule.
¶154 Finally, the majority conspicuously omits the fact that
Emergency Order 28 expressly allows this court to sever any
15The majority calls Secretary Palm an "unelected,"
"unconfirmed" cabinet member. Majority op., ¶¶24, 28, 31. It is
the Legislature who controls her confirmation and has yet to vote
despite her approval by a bipartisan Senate Committee in August of
2019. Secretary Palm does not need confirmation to serve as DHS
Secretary. Wisconsin's executive branch is structured such that
a department secretary, even one awaiting Senate confirmation,
"serve[s] at the pleasure of the governor." Wis. Stat. § 15.05.
14
No. 2020AP765-OA.rfd
unconstitutional provision and save the rest.16 Why? So it could
feign that it had no choice but to strike the entirety of the
order. The majority had another option: sever the provisions
besides those "clos[ing] schools and forbid[ding] public
gatherings in schools, churches, and other places," which the
Legislature conceded are valid under Wis. Stat. § 252.02(3).17
While the majority in a footnote says "This decision does not apply
to Section 4. a. of Emergency Order 28," majority op., ¶3 n.6, it
does not explicitly sever Section 4. a. In fact, the broad
language in the majority opinion suggests otherwise: "Emergency
Order 28 is invalid and therefore, unenforceable." Majority op.,
¶56. The majority's act of striking the entirety of Emergency
Order 28 effective immediately is a prime example of judicial
activism.
¶155 Relatedly, the majority makes much ado about nothing
when bemoaning that Emergency Order 28 allows the executive to
Section 19 of Emergency Order 28 says:
16 "To this end, the
provisions of this Order are severable."
For example, Section 4. a. of Emergency Order 28 indicates
17
that "Public and private K-12 schools shall remain closed for pupil
instruction and extracurricular activities for the remainder of
the 2019-2020 school year." Such a provision is clearly within
DHS's explicit authority pursuant to Wis. Stat.
252.02(3). Similarly, Section 4. c. closes "places of public
amusement and activity." Such places include but are not limited
to "amusement parks, carnivals, water parks, licensed public or
private swimming pools, splash pads, aquariums, zoos, museums,
arcades, fairs, children's play centers, playgrounds, funplexes,
theme parks, bowling alleys, movie and other theaters, concert and
music halls, country clubs, social clubs, and gyms and fitness
centers." Again, the Legislature concedes that DHS may order at
least some of these places to close under § 252.02(3).
15
No. 2020AP765-OA.rfd
arbitrarily define crimes and impose criminal penalties.18 In
fact, for shock value, the majority ties much of its reasoning to
the imposition of criminal penalties. As detailed in Justice
Hagedorn's dissent, ¶255 & n.21, criminal penalties for the
violation of an agency action is nothing new. Nonetheless, as the
assistant attorney general conceded at oral argument, this court
could simply issue a ruling that Emergency Order 28 can only be
enforced through civil fines and sever the language regarding
criminal penalties. The majority fails to even mention this
possibility because to do so would expose the flaws in their
reasoning. Instead, the majority of this court strikes the
entirety of Emergency Order 28, see majority op., ¶¶3, 56, and
limits DHS's ability to act quickly while in the midst of its
efforts to fight COVID-19.
II. THE MAJORITY'S ADVISORY OPINION ON THE LEGISLATURE'S
SECOND CLAIM
¶156 The majority opinion should end after it addresses the
Legislature's first claim and strikes the entirety of Emergency
Order 28. Instead, the majority "assumes arguendo" that rulemaking
was not required so that it can opine on issues not properly before
the court. The reason given by the majority is that the court
granted review of the second issue. See majority op., ¶43. Having
decided to accept a question on review has never provided a
justification to engage in an advisory opinion, which this court
18 Section 18 of Emergency Order 28 indicates that violations
of the order are punishable by up to 30 days imprisonment, pursuant
to Wis. Stat. § 252.25.
16
No. 2020AP765-OA.rfd
disfavors. See Am. Med. Servs., Inc. v. Mut. Fed. Sav. & Loan
Ass'n, 52 Wis. 2d 198, 203, 188 N.W.2d 529 (1971) ("Advisory
opinions should not be given under the guise of a declaration of
rights.").
¶157 The majority appropriately defines standing to seek
judicial review as "when one has a stake in the outcome of the
controversy and is affected by the issues in controversy."
Majority op., ¶12 (citing Schill v. Wis. Rapids Sch. Dist., 2010
WI 65, ¶38, 327 Wis. 2d 572, 786 N.W.2d 177). Yet, the majority
offers a cursory and incomplete analysis on this issue because it
only addresses standing based on an invasion of the Legislature's
core powers. While the Legislature conceivably has standing on
the first claim regarding rulemaking, this does not confer standing
to challenge Emergency Order 28 as exceeding DHS's statutory
authority. The majority opinion is void of any analysis as to the
Legislature's standing to bring its second claim.
¶158 The Legislature has no stake whatsoever in whether the
mandate in Emergency Order 28 exceeded DHS's authority under Wis.
Stat. §§ 252.02(3), (4), and (6). The Legislature itself is
expressly exempt from the legal directives of Emergency Order 28.
See Emergency Order 28 at 11 ("This section does not limit the
ability or authority of the Wisconsin Legislature to meet or
conduct business."). No single legislator signed on in an
individual capacity to this lawsuit. In order for this court to
properly reach this claim, it must be brought by one who is harmed
by the order, a Wisconsin citizen or business entity that falls
under the scope of Emergency Order 28.
17
No. 2020AP765-OA.rfd
¶159 Recognizing the Legislature's standing to bring a claim
that enforcement of a statute "exceeded statutory authority" sets
a dangerous precedent. This court has deemed it error for a
legislator to testify regarding legislative intent of a statute
and likewise the Legislature here cannot testify to its view of
the scope of a statute. Cartwright v. Sharpe, 40 Wis. 2d 494,
508-509, 162 N.W.2d 5 (1968); see also Responsible Use of Rural
and Agr. Land v. PSC, 2000 WI 129, ¶39 n.20, 239 Wis. 2d 660, 619
N.W.2d 888 ("ex post facto explanations from legislators cannot be
relied upon to determine legislative intent . . . ."); State v.
Consolidated Freightways Corp., 72 Wis. 2d 727, 738, 242
N.W.2d 192 (1976) ("However, neither a legislator, nor a private
citizen, is permitted to testify as to what the intent of the
legislature was in the passage of a particular statute.").
Moreover, allowing the Legislature to challenge the scope of a
duly enacted statute without a showing of any particularized harm
opens the floodgates for future litigation about the application
of each and every statute. See also Justice Hagedorn's dissent,
¶¶233-44 (providing a well reasoned and extensive discussion on
standing).
¶160 Even overlooking the clear standing issues, the advisory
part of the opinion is cursory and misreads the statutory language.
The majority cuts and pastes portions of Wis. Stat. § 252.02 and
reaches undeveloped conclusions. For example, the majority
opinion appears to say that Emergency Order 28 exceeds the
authority given to DHS in § 252.02(4) because it goes beyond the
quarantining of suspected infected persons and guarding against
18
No. 2020AP765-OA.rfd
the introduction of communicable disease into the state. Majority
op., ¶¶49-50. The majority conveniently fails to mention the rest
of § 252.02(4), including the authority to issue statewide orders
"for the control and suppression of communicable diseases."
Ultimately, by engaging in an advisory opinion about the potential
limits of § 252.02, the majority of this court did not just jump
when the Legislature asked it to, it asked "how high?"
III. CONCLUSION
¶161 It is important to understand that the Legislature's
request was not to immediately strike Emergency Order 28. Even
the Legislature appreciated the abrupt changes that will be wrought
by this decision and thus asked this court for a stay. In its
initial brief, the Legislature requested that this Court stay
enforcement of an injunction for a period of six days to allow DHS
"to promulgate an emergency rule consistent" with state law. The
reply brief suggests this court "stay enforcement of its injunction
in its equitable discretion, to allow DHS sufficient time to
promulgate a new emergency rule consistent with Wisconsin law."
In its last act of judicial activism, the majority takes it upon
itself to immediately overturn Emergency Order 28, a remedy neither
party asked for.
¶162 The effective date of this decision should be stayed and
the majority has the equitable power to do so. In her concurrence,
Chief Justice Roggensack claims she would stay "future actions to
enforce our decision," but since Emergency Order 28 will no longer
be in effect, there will be no "future actions" of enforcement.
These words are meaningless. It is clear that a majority of this
19
No. 2020AP765-OA.rfd
court has no appreciation of the consequences of doing the
Legislature's bidding in the midst of a pandemic. The Legislature
has always had the power to act, but would rather ask this court
to do so to avoid political fallout. Unfortunately for
Wisconsinites, this court took the bait.
¶163 For the foregoing reasons, I dissent.
¶164 I am authorized to state that Justice ANN WALSH BRADLEY
joins this dissent.
20
No. 2020AP765-OA.bh
¶165 BRIAN HAGEDORN, J. (dissenting). We are facing a
unique public health crisis the likes of which few among us have
ever seen. And the government response of shutting down
businesses, travel, and schools, forbidding private gatherings,
and other such measures is a demonstration of government power the
likes of which few among us have ever seen. Understandably, our
public discourse is full of passionate debate——both over how to
handle the public health issues facing our world, and over whether
this exercise of government power is appropriate for this crisis
and for a nation "conceived in Liberty." Abraham Lincoln, Address
at Gettysburg, Pennsylvania (Nov. 19, 1863).
¶166 The pressing and consequential nature of these questions
cannot be overstated, but this particular case has nothing to do
with them——nothing whatsoever. The judiciary receives its charge
from the people through the Wisconsin Constitution. And the people
have not empowered this court to step in and impose our wisdom on
proper governance during this pandemic; they left that to the
legislative and executive branches. They have empowered this court
to decide cases according to the law, and that alone is what we
must do.
¶167 Some would like to characterize this case as a battle
over the constitutional limits on executive power——can an
executive branch officer really shut down businesses, limit
travel, and forbid public gatherings? These are important
questions for sure, but they are not what this case is about. No
party has raised or developed such a claim. Some would also like
to frame this as a challenge to the government's potential
1
No. 2020AP765-OA.bh
infringement of certain constitutional protections like the
freedoms of religion, speech, and assembly, and the right to hunt
and fish. But these issues are not before us either. No party
has raised or developed a claim along these lines.
¶168 We are a court of law. We are not here to do freewheeling
constitutional theory. We are not here to step in and referee
every intractable political stalemate. We are not here to decide
every interesting legal question. It is no doubt our duty to say
what the law is, but we do so by deciding cases brought by specific
parties raising specific arguments and seeking specific relief.
In a case of this magnitude, we must be precise, carefully focusing
on what amounts to the narrow, rather technical, questions before
us. If we abandon that charge and push past the power the people
have vested in their judiciary, we are threatening the very
constitutional structure and protections we have sworn to uphold.
¶169 This court granted the legislature's petition for
original action on two issues. First, we are asked whether the
commands in Emergency Order 28 (Order 28) were required to be
promulgated as an administrative rule under chapter 227 of the
Wisconsin Statutes. I conclude they were not because Order 28 is
an order applying to a specific factual circumstance, and is
therefore not an order of "general application" under Wis. Stat.
§ 227.01(13) (2017-18).1 Second, the legislature asks us to
address whether, even if rulemaking was not required, Order 28
exceeds the Department of Health Services' (DHS) statutory
1All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2
No. 2020AP765-OA.bh
authority. Because this is a challenge to executive branch
enforcement of clearly on-point statutes, I conclude the
legislatureas a constitutional body whose interests lie in
enacting, not enforcing the lawslacks standing to bring this
claim. Such claims should be raised by those injured by the
enforcement action, not by the branch of government who drafted
the laws on which the executive branch purports to rely. To the
extent we countenance an argument that Wis. Stat. § 252.02 grants
too much power to DHS, we are allowing the legislature to argue
its own laws are unconstitutional, a legal claim it has no
authority to make.
¶170 In striking down most of Order 28, this court has strayed
from its charge and turned this case into something quite different
than the case brought to us. To make matters worse, it has failed
to provide almost any guidance for what the relevant laws mean,
and how our state is to govern through this crisis moving forward.
The legislature may have buyer's remorse for the breadth of
discretion it gave to DHS in Wis. Stat. § 252.02. But those are
the laws it drafted; we must read them faithfully whether we like
them or not. To be sure, this leaves much unanswered. Significant
legal questions remain regarding the limits, scope, and propriety
of the powers asserted in Order 28, and in the powers that might
plausibly be exercised pursuant to the broad authority and
responsibility given to DHS in § 252.02. But those are questions
we must leave for another day; this court has no business raising
and deciding claims to vindicate the rights of parties not before
3
No. 2020AP765-OA.bh
us now. Based on the legal issues presented in this case, I would
uphold Order 28. I respectfully dissent.
I. Background
¶171 The factual background to this case is well-known and
sufficiently stated in the other writings. But some pertinent
legal background will be helpful in understanding the issues——
namely, that which pertains to our basic constitutional structure
and the police power generally.
¶172 The foundation of our system of government rests in the
sovereignty of the people. Government has a morally legitimate
claim to order and command not because it has the biggest guns or
because it's always been that way, but because the people have
given it that power. The Declaration of Independence para. 2 (U.S.
1776); Wis. Const. art. I, § 1.
¶173 The people have granted power and delineated its limits
through the United States Constitution and the Wisconsin
Constitution. These constitutions reflect and describe both a
vertical separation of powers and a horizontal separation of
powers. More than even our Bill of Rights, our founders understood
the separation of powers as the central bulwark of our liberty.
See Morrison v. Olsen, 487 U.S. 654, 697 (1988) (Scalia, J.,
dissenting) ("The Framers of the Federal Constitution . . . viewed
the principle of separation of powers as the absolutely central
guarantee of a just Government.").
¶174 The vertical separation of powers is reflected in the
allocation of powers between the federal government and state
4
No. 2020AP765-OA.bh
governments, a concept known as federalism. Power is diffused
into two separate sovereigns, each having their own spheres of
authority within which they can and cannot act. The federal
government, as established by the federal constitution, is a
government of limited and enumerated powers. This means the
federal government can only do what the federal constitution itself
grants it power to do. Powers not given to the federal government
are retained by the people and the states. U.S. Const. amend. X
("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."); see also Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("Congress has no power to
declare substantive rules of common law applicable in a state
whether they be local in their nature or 'general,' be they
commercial law or a part of the law of torts. And no clause in
the Constitution purports to confer such a power upon the federal
courts.").
¶175 The horizontal separation of powers is the idea that
government power at large is divided and deposited into three
institutions or officers. The power to make law, to decide what
the law should be, is given to the legislative branch. Wis. Const.
art. IV, § 1. The power to enforce and execute the law already
enacted is given to the executive branch. Id. art. V, § 1. And
the power to decide disputes about the law is given to the judicial
branch. Id. art. VII, § 2. This horizontal separation of powers
is reflected in both the United States Constitution and the
5
No. 2020AP765-OA.bh
Wisconsin Constitution. See Gabler v. Crime Victims Rights Bd.,
2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384.
¶176 These two principles——both the vertical and horizontal
separation of powers——are of key importance to this case in a
number of ways.
¶177 First, while the federal government is one of limited
and enumerated powers, the state government is not. States have
what is known as the police power. This is the state's inherent
power "to promote the general welfare," which "covers all matters
having a reasonable relation to the protection of the public
health, safety or welfare." State v. Interstate Blood Bank, Inc.,
65 Wis. 2d 482, 490, 222 N.W.2d 912 (1974). If that sounds
incredibly broad and far-reaching, that's because it is. It is
the police power which allows states to enact general criminal
laws and punish those who don't comply. It is the police power
that allows states to enact permitting requirements on the use of
private property. It is the police power that allows the state to
tax its citizens, prohibit speeding, enact inheritance laws, and
on and on.2
2 Quoting the United States Supreme Court, this court has
explained:
But what are the police powers of a State? They are
nothing more or less than the powers of government
inherent in every sovereignty to the extent of its
dominions. And whether a State passes a quarantine law,
or a law to punish offenses, or to establish courts of
justice, or requiring certain instruments to be
recorded, or to regulate commerce within its own limits,
in every case it exercises the same powers; that is to
say, the power of sovereignty, the power to govern men
and things within the limits of its dominion. It is by
virtue of this power that it legislates; and its
6
No. 2020AP765-OA.bh
¶178 From the British common law through the Industrial
Revolution and up through today, the power to quarantine and take
other invasive actions to protect against the spread of infectious
diseases has been universally recognized as a legitimate exercise
of state police power. United States Supreme Court Chief Justice
John Marshall said in the 1824 case of Gibbons v. Ogden that the
police powers of the state include "every thing within the
authority to make regulations of commerce is as absolute
as its power to pass health laws, except in so far as it
has been restricted by the constitution of the United
States.
Thus has this court from the early days affirmed that
the power to promote the general welfare is inherent in
government. Touching the matters committed to it by the
Constitution the United States possesses the power, as
do the states in their sovereign capacity touching all
subjects jurisdiction of which is not surrendered to the
federal government.
Chi. & N.W. Ry. Co. v. La Follette, 43 Wis. 2d 631, 644, 169
N.W.2d 441 (1969) (quoting Nebbia v. New York, 291 U.S. 502, 524-
25 (1934)).
Nineteenth century legal luminary Thomas Cooley described the
police power this way:
The police power of a State, in a comprehensive sense,
embraces its system of internal regulation, by which it
is sought not only to preserve the public order and to
prevent offenses against the State, but also to
establish for the intercourse of citizen with citizen
those rules of good manners and good neighborhood which
are calculated to prevent a conflict of rights, and to
insure to each the uninterrupted enjoyment of his own,
so far as is reasonably consistent with a like enjoyment
of rights by others.
Thomas M. Cooley, A Treatise on the Constitutional Limitations
Which Rest upon the Legislative Power of the States of the American
Union *572 (1871) (citing Blackstone).
7
No. 2020AP765-OA.bh
territory of a State, not surrendered to the general government,"
including "quarantine laws" and "health laws of every
description." 22 U.S. (9 Wheat.) 1, 203 (1824). In 1902, the
Court again sounded a similar theme, concluding that preventing a
ship from docking due to a partial quarantine was a reasonable
exercise of Louisiana's police power. Campagnie Francaise de
Navigation a Vapeur v. Bd. of Health, 186 U.S. 380, 387-93 (1902).
And in 1905, the Supreme Court went even further and concluded
that mandatory vaccination to prevent the spread of infectious
disease was a valid exercise of the police power. Jacobson v.
Massachusetts, 197 U.S. 11, 27-30, 35 (1905).3
¶179 The power of state government is not without limits,
however. Every exercise of the police power is subject to the
limits set by the people through our constitutions. Bushnell v.
Town of Beloit, 10 Wis. 195, 225 (1860) ("[T]he constitution of
the state is to be regarded not as a grant of power, but rather as
a limitation upon the powers of the legislature, and . . . it is
competent for the legislature to exercise all legislative power
not forbidden by the constitution or delegated to the general
government, or prohibited by the constitution of the United
States."). The federal constitution imposes certain limits on
state action——prohibiting slavery, guaranteeing the right to vote
for men and women eighteen or older of any race, and guaranteeing
the right to due process and equal protection of the laws, among
3 I cite these cases not to approve or disapprove of their
holdings, but to establish that strong public health measures have
long been understood as valid exercises of the police power.
8
No. 2020AP765-OA.bh
others.4 The state constitution also contains many limits, some
overlapping with the protections in the federal constitution.
Among them are the freedom of religion, the right to hunt and fish,
the right to bear arms, and a variety of protections for crime
victims and those accused of crimes.5
¶180 These limits are real and substantive. Neither
legislative enactments themselves nor executive enforcement of
otherwise valid laws may transgress these or any other
constitutional boundary. See State v. Wood, 2010 WI 17, ¶13, 323
Wis. 2d 321, 780 N.W.2d 63 ("If a challenger successfully shows
that such a violation [of his or her constitutional rights]
occurred, the operation of the law is void as to the party
asserting the claim." (citation omitted)). And among these limits,
now generally understood to be housed in due process guarantees,
any exercise of police power must be legitimately aimed at
protecting the public health, safety, and welfare of the people.
State v. McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654 (1989) ("Due
process requires that the means chosen by the legislature bear a
reasonable and rational relationship to the purpose or object of
the enactment; if it does, and the legislative purpose is a proper
4See U.S. Const. amend. XIII (prohibiting slavery); id.amend. XV (suffrage for all races); id. amend. XIX (suffrage for
women); id. amend. XXVI (suffrage for eighteen-year-olds); id.amend. XIV (due process and equal protection).
5See Wis. Const. art. I, § 18 (freedom of worship); id. art.
I, § 26 (right to fish, hunt, trap, and take game); id. art. I,
§ 25 (right to bear arms); id. art. I, §§ 6, 7, 8, 9, 9m & 11
(protecting rights of crime victims and those accused of crimes).
9
No. 2020AP765-OA.bh
one, the exercise of the police power is valid." (citation
omitted)).
¶181 Of course, recognizing the potential breadth of state
power is not the same as applauding or affirming use of that power.
Whether the state can quarantine individuals, forbid public
gatherings, and take drastic emergency measures during a pandemic
is quite a different question than whether government has used
that power wisely or within constitutional limits.
¶182 Moving beyond the boundaries of potentially permissible
uses of the police power, its mechanism is also important to this
case. The scope of the police power determines the potentially
legitimate goals of government action——that is, the policies that
will govern the state. In our constitutional system, it is the
legislature that determines policy choices in the first instance.
Bushnell, 10 Wis. at 225 ("The legislature, subject to a qualified
veto of the executive, possesses all the legislative power of the
state."). It does this pursuant to its constitutional power to
enact laws. Wis. Const. art. IV, § 17. Following enactment of
laws, the legislature's constitutional role as originally designed
is generally complete.
¶183 The executive then has authority to faithfully execute
the laws already on the books. Wis. Const. art. V, § 4. Executive
authority is in one sense quite limited; the executive branch must
enforce the laws the legislature has passed whether it likes them
or not. In another sense, however, the authority is quite
extensive. The executive branch generally has broad authority to
execute the laws, and to use judgment and discretion in so doing.
10
No. 2020AP765-OA.bh
¶184 Where the legislature gives broad discretionary
authority to the executive——in the enforcement of the criminal
law, for example——that power can be immense. To illustrate, the
legislature defines crimes, and has created a system for the
prosecution of those crimes. But law enforcement has considerable
discretion in determining whether to arrest those who break the
law and refer them for punishment. All of us who have received a
kindly warning from a merciful officer for driving a bit over the
speed limit know this firsthand. Even after referral, prosecutors
are given vast discretion in choosing whether to file a criminal
complaint, and which crimes to charge. In practical effect, some
crimes are almost never prosecuted in some jurisdictions.6
¶185 Thus, under our constitutional design, the scope and
size of the executive branch, the areas in which the executive
branch is called upon to act, and the discretion with which it is
entrusted is set by the legislature through the enactment of laws.
¶186 While more can be said, it is with this foundation that
we proceed to the two issues before us. The first question is
whether Order 28, with all of its various dictates, was required
to be promulgated as an administrative rule, the failure of which
renders the order unlawful. The second issue is whether Order 28
goes beyond the statutory powers granted to DHS in Wis. Stat.
§ 252.02.
6 See, e.g., https://www.wiscontext.org/wisconsins-racial-
chasm-marijuana-enforcement (noting that the Dane County district
attorney informed law enforcement not to bring him cases based on
small amounts of marijuana possession).
11
No. 2020AP765-OA.bh
II. Order 28 Is Not an Administrative Rule
¶187 The legislature argues that Order 28 constitutes an
administrative rule that was not promulgated pursuant to the
procedural requirements in Wis. Stat. ch. 227 and should therefore
be struck down in its entirety. The legislature appears to have
standing to raise this issue since it has a statutory role in the
promulgation of rules, in particular, the authority to oversee and
suspend proposed rules through the Joint Committee for Review of
Administrative Rules (JCRAR). See generally Wis. Stat. § 227.19.
Moreover, nothing in Wis. Stat. § 227.40, the section pertaining
to judicial review of the validity of a rule, expressly precludes
the legislature from bringing a claim of this kind. While an
argument could be made that JCRAR is the proper party with a
cognizable harmrather than the legislature as a wholethis is,
at the very least, a close enough call that I do not see standing
as a roadblock to consideration of this issue.
A. Agency Authority and Rulemaking Generally
¶188 Before examining the precise arguments of the parties
regarding Order 28, it is helpful to understand the role
administrative agencies and administrative rules play within our
government.
¶189 Administrative agencies are created by the legislature.
Wis. Stat. § 15.02. The legislature has the ability to withdraw
an agency's power, dictate how any agency power is exercised, and
extinguish the agency's power entirely. Schmidt v. Dep't of Res.
Dev., 39 Wis. 2d 46, 57, 158 N.W.2d 306 (1968). Even so, agencies
12
No. 2020AP765-OA.bh
are members of the executive branch. See Wis. Stat. § 15.001(2);
Koschkee v. Taylor, 2019 WI 76, ¶14, 387 Wis. 2d 552, 929
N.W.2d 600.
¶190 The legislature created DHS as an executive branch
agency through Wis. Stat. § 15.19 and granted it a variety of
statutory powers and duties generally found in Wis. Stat. chs. 250
to 257, including authority relating to communicable diseases
under chapter 252.7 Some of these powers are triggered when the
governor declares a public health state of emergency under Wis.
Stat. § 323.10. DHS is then treated as the public health authority
and given certain powers and duties specific to that designation.
Wis. Stat. § 250.01(6g). However, chapter 252 contains separate
authority that is not, at least on its face, dependent on a
governor's emergency declaration. Secretary Palm asserts that
Order 28 is grounded in such separate statutory authority. Thus,
an emergency declaration by the governor is not relevant to
7 See also Justice Dallet's dissent, ¶¶135-38 (discussing the
historical path of Wisconsin's public health law and law
enforcement, including emergency response measures taken in
previous instances of communicable disease outbreak).
13
No. 2020AP765-OA.bh
analysis of whether Order 28 meets the statutory definition of an
administrative rule.8
¶191 At the outset, it bears mentioning that the
administrative rulemaking process itself sits a bit uneasily
within a constitutional structure that vests three different kinds
of power in three different branches. See Koschkee, 387
Wis. 2d 552, ¶¶42-57 (Rebecca Grassl Bradley, J., concurring). In
practice today, administrative rules occupy a form of shared
governance between the executive and legislative branches.
¶192 During its rise in the Progressive Era, this court had
some difficulty squaring the emerging administrative state with
the structure of the Wisconsin Constitution. But eventually, like
the U.S. Supreme Court, it acquiesced. See J.W. Hampton, Jr. &
Co. v. United States, 276 U.S. 394, 409 (1928) (upholding a
congressional delegation of authority to the executive to fix
customs duties). See generally Gundy v. United States, 139
S. Ct. 2116, 213342 (2019) (Gorsuch, J., dissenting) (criticizing
the nondelegation doctrine in federal law for its wayward departure
8If the legislature's rulemaking argument is correct, it
would appear that Secretary Palm's prior orders, including the
original "Safer at Home" order issued on March 24, would be
captured in the same net. After all, the definition of a rule, as
explained more fully below, includes something issued by an agency.
An order from Secretary Palm, even one issued at the direction of
the governor, would still be issued by the agency. In other words,
nothing in the definition of a rule suggests the governor's
declaration of an emergency gives Secretary Palm the power to issue
orders without first going through the rulemaking process. If so,
the legislature's rulemaking argument was ripe when the first
COVID-19 orders were issued in March.
14
No. 2020AP765-OA.bh
from the federal constitution and its historical embrace of a
separation-of-powers triangle).
¶193 When the administrative rules process was adopted, early
cases treated rulemaking as more of an executive power. See, e.g.,
State ex rel. Buell v. Frear, 146 Wis. 291, 30607, 131 N.W. 832(1911) (rejecting the theory that rulemaking and other related
administrative action was, in this case, a legislative power, and
explaining that such action falls within the ambit of executing
the law within legislatively set parameters). The logic is not
hard to understand. If the legislature passes a law requiring
cigarettes to be taxed, for example, it would be an executive
function to interpret and enforce the law, including determining
what constitutes a cigarette and what does not. Rulemaking over
the definition of a cigarette is, in one sense, the legislature's
attempt to add further definition to statutes that the legislature
did not provide in the first place. It is a post-enactment effort
to control and limit how the laws are executed.
¶194 But over time, this court has come to describe rulemaking
as closer to a legislative power. See, e.g., Watchmaking Examining
Bd. v. Husar, 49 Wis. 2d 526, 53334, 182 N.W.2d 257 (1971)
(characterizing rulemaking as a "delegation" of legislative power
to a subordinate administrative agency). The logic here is not
hard to understand either. As government grew into the modern
behemoth it is today, the legislature began to enact statutes that
looked more like broad, undefined goals, rather than concrete laws.
Doing so left specific policy decisions to the executive branch.
Understandably, the legislature then subjected those choices to a
15
No. 2020AP765-OA.bh
check through the rulemaking process. For example, if the
legislature passes a law empowering the Department of Revenue to
"tax products in the public interest," it has, one could argue,
made no policy judgments at all for the executive to execute. In
this view, rulemaking is the legislature's attempt to ensure it
retains the power to make policy decisions, which is consistent
with its constitutional role to say what the law should be.
¶195 Both parties invoke the separation of powers reflected
in these concepts to support their assertion that rulemaking should
or should not be required here. Regardless of how we characterize
rulemaking generally, the parties accept the constitutional status
quo, and merely ask us to enforce and apply the statutory
rulemaking prescriptions.
B. Defining the Claim
¶196 The legislature asserts that Order 28 is a rule and that
DHS's failure to comply with the rulemaking requirements in Wis.
Stat. ch. 227 leaves an invalid rule that must be enjoined from
further application. Not all agency action is rulemaking, of
course. The question is a matter of statutory interpretation,
both of the definition of a rule in Wis. Stat. § 227.01(13), and
Wis. Stat. § 252.02(4), one of the statutory bases DHS cited for
the order's authorization.
¶197 Relevant for what follows, Wis. Stat. § 252.02(4) states
in part that DHS "may promulgate and enforce rules or issue
orders," both of which may "be made applicable to the whole or any
specified part of the state," for purposes of controlling and
16
No. 2020AP765-OA.bh
suppressing any communicable disease. Secretary Palm argues the
statutory distinction between "rules" and "orders" indicates that
DHS has authority to act on a statewide basis outside of the
rulemaking processthat is, DHS can issue orders based on the
police power given to the executive through the legislatively set
parameters in § 252.02. The legislature rejects this theory,
arguing that a statewide order issued pursuant to § 252.02(4) that
has the force of law (as Order 28 does) is, by virtue of its
statewide application, required to be promulgated as a rule. With
this in mind, we must unpack what makes a rule.
C. Defining a Rule
¶198 According to Wis. Stat. § 227.01(13), a "rule" is
defined by five separate criteria. It must be "(1) a regulation,
standard, statement of policy or general order; (2) of general
application; (3) having the [force9] of law; (4) issued by an
agency; (5) to implement, interpret or make specific legislation
enforced or administered by such agency [or] to govern the
interpretation or procedure of such agency." Citizens for Sensible
Zoning, Inc. v. DNR, 90 Wis. 2d 804, 814, 280 N.W.2d 702 (1979)
(citing § 227.01(13)). Neither party disputes that Order 28 has
the force of the law and was issued by an agency, the third and
fourth requirements in the statutory definition. It was issued by
DHS, and has the force of law because it is legally enforceable
rather than just exhortatory. But the parties dispute whether DHS
9 In 2017 Wis. Act 369, § 32, the legislature changed this
portion of the definition from "effect of law" to "force of law."
17
No. 2020AP765-OA.bh
issued Order 28 "to implement, interpret or make specific"
legislation that it enforces or administers, as well as the
requirements that it be "a regulation, standard, statement of
policy, or general order" and one of "general application."
¶199 I conclude the textual evidence overwhelmingly shows
that Order 28 is a "general order" precisely because of its
statewide application. Therefore, the legislature's argument that
its statewide effect also makes it an order of "general
application" is incorrect. An order of "general application" is
one that has prospective application beyond the situation at hand.
Order 28 does not. I focus my analysis on the "general order" and
"general application" requirements because they conclusively
demonstrate that Order 28 does not meet the definition of a rule.10
10I am also skeptical that Order 28 was issued by DHS "to
implement, interpret, or make specific legislation enforced or
administered by the agency or to govern the organization or
procedure of the agency." Wis. Stat. § 227.01(13). Order 28 was
obviously not issued to govern DHS's organization or procedure,
and nothing suggests that Order 28 interprets or makes specific
any terms or requirements of Wis. Stat. § 252.02. Whether Order
28 "implements" legislation is a closer call, however.
18
No. 2020AP765-OA.bh
¶200 First, a rule must be "a regulation, standard, statement
of policy, or general order." Wis. Stat. § 227.01(13). On its
face, each of these phrases speaks of a broad and substantive
policy choice of some sort. And the chosen policy or standard
would, by implication, go beyond a one-time situation or decision.
¶201 Of particular relevance here is the "general order"
requirement. Both parties agree Order 28 is a general order, but
they are not especially precise on why that is. Note first that
a simple "order" is not enough to meet the definition. The statute
has the modifier "general"——meaning not all orders fit the bill,
only "general" ones. And we need to, where possible, "give
reasonable effect to every word." State ex rel. Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681
In context, "implement," like the rest of the rule definition
and rulemaking process, seems aimed at covering future enforcement
and application of the statutory powers and duties vested in a
respective agency. See State ex rel. Kalal v. Circuit Court for
Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110(explaining statutory language is to be interpreted "in the context
in which it is used"). A rule expresses how a statute will be
enforced going forward, and part of that can involve establishing
the specifics of a larger procedure or system for all future
applications of that statute. Accord Citizens for Sensible Zoning,
Inc. v. DNR, 90 Wis. 2d 804, 808 & n.1, 816, 280 N.W.2d 702 (1979)
(explaining that the Department of Natural Resources' adoption of
a floodplain zoning ordinance constituted implementation of a
statute pertaining to floodplain zoning that the department
administered). This is distinct from actual enforcement and
application of the law. Although the parties do not provide much
help in this analysis, Order 28 seems to be enforcing and applying
the law, rather than implementing a procedure for future
applications of Wis. Stat. § 252.02.
In any event, because Order 28 does not satisfy the "general
application" requirement in the definition of a rule, a firm
conclusion on this requirement is unnecessary.
19
No. 2020AP765-OA.bh
N.W.2d 110. Yet, Wis. Stat. ch. 227 does not tell us what makes
an ordinary order, much less a general order. So we must look for
clues in chapter 227 and the rest of our laws. See id., ¶45
("Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
meaning." (citation omitted)); Bank Mut. v. S.J. Boyer Constr.,
Inc., 2010 WI 74, ¶31, 326 Wis. 2d 521, 785 N.W.2d 462 ("When the
same term is used throughout a chapter of the statutes, it is a
reasonable deduction that the legislature intended that the term
possess an identical meaning each time it appears." (citation
omitted)).
¶202 In chapter 227, an "order" most commonly describes a
binding decision applying to a specific person or situation. For
instance, in Wis. Stat. § 227.01(3), a "contested case" is defined
as an agency proceeding that determines a party's rights; this
proceeding results in "a decision or order." This type of order
is also explicitly excluded from the definition of a rule in
§ 227.01(13)(b). Elsewhere in the administrative rules statutes,
Wis. Stat. § 227.03(6) excludes from chapter 227's reach "[o]rders
of the election commission" issued under Wis. Stat. § 5.06(6).
That section references the election commission's power to decide
"by order" certain election-related complaints against election
officials. § 5.06(6). Various other provisions in chapter 227
refer to court "orders" directed at specific parties. See, e.g.,
Wis. Stat. § 227.11(3)(b); Wis. Stat. § 227.114(6m)(d).
20
No. 2020AP765-OA.bh
¶203 The most helpful clue in chapter 227 is found in Wis.
Stat. § 227.40, which governs judicial review of the validity of
rules. Section 227.40(2)(e) states, among other things, that the
validity of a rule may be challenged in proceedings "under chapters
102, 108, or 949 for review of decisions and orders of
administrative agencies." Wisconsin Stat. chs. 108 and 949 cover
unemployment claims and crime victim compensation, respectively.
Those chapters discuss person-specific orders, again confirming
the common usage of "order" as some government decision tied to
and resulting from a specific factual situation.
¶204 But Wis. Stat. ch. 102, governing worker compensation
claims, is different. Unlike any of the foregoing, that chapter
defines both an "order" and a "general order." "'Order' means any
decision, rule, regulation, direction, requirement, or standard of
the department or the division, or any other determination arrived
at or decision made by the department or the division." Wis. Stat.
§ 102.01(2)(dm). And a "general order" is "such order as applies
generally throughout the state to all persons, employments, places
of employment or public buildings, or all persons, employments or
places of employment or public buildings of a class under the
jurisdiction of the department. All other orders of the department
shall be considered special orders." § 102.01(2)(bm) (emphasis
added). Thus, chapter 102 distinguishes between special orders,
those applying to a specific person or party, and general orders,
those applying generally to the entire state.
¶205 As it happens, this same statutory distinction between
general and special orders is found all throughout Wisconsin
21
No. 2020AP765-OA.bh
statutes governing agency action. For example, Wis. Stat. ch. 103
deals with employment regulations as overseen by the Department of
Workforce Development (DWD). In the chapter's definitions
section, which covers Wis. Stat. chs. 103 to 106, nearly identical
definitions are used, this time adding a complementary definition
of a local order as well:
(9) "General order" means such order as applies
generally throughout the state to all persons,
employments, places of employment or public buildings,
or all persons, employments or places of employment or
public buildings of a class under the jurisdiction of
the department. All other orders of the department shall
be considered special orders.
(10) "Local order" means any ordinance, order, rule or
determination of any common council, board of
alderpersons, board of trustees or the village board, of
any village or city, a regulation or order of the local
board of health, as defined in s. 250.01(3), or an order
or direction of any official of a municipality, upon any
matter over which the department has jurisdiction.
(11) "Order" means any decision, rule, regulation,
direction, requirement or standard of the department, or
any other determination arrived at or decision made by
the department.
Wis. Stat. § 103.001(9), (10), (11). Again, this understanding is
replicated throughout Wisconsin law, offering a consistent
22
No. 2020AP765-OA.bh
definition of a "general order" as an order having statewide
effect.11
¶206 This is not all. The statutes not only make clear that
a general order is one applying statewide, but also that such
statewide general orders may or may not need to be promulgated as
rules. This can be seen throughout chapters 103 to 106, where we
see that DWD has statutory authority to issue statewide orders,
which may or may not be rules falling under the scope of Wis. Stat.
ch. 227. One example is in Wis. Stat. § 106.01(9), which
authorizes DWD to issue apprenticeship-related "rules and general
The same definitions of "Order," "Local order," and "General
11
order" are found in Wis. Stat. ch. 101, which governs the
Department of Safety and Professional Services. Wis. Stat.
§ 101.01(7), (8), (9). In Wis. Stat. ch. 218, in a section
governing collection agencies, a "General order" is defined as "an
order which is not a special order," while a "'Special order' means
an order against a person." Wis. Stat. § 218.04(1)(d), (g).
Elsewhere in this section, the Department of Financial
Institutions (DFI) is authorized "To issue general or special
orders" and may require reasonable and relevant information "by
general or special order" that licensees must annually report.
§ 218.04(7)(a), (10)(a). Likewise, Wis. Stat. ch. 138 authorizes
DFI to issue "general orders or special orders" to prevent or
correct certain actions by insurance premium finance companies.
Wis. Stat. § 138.12(5m)(b). In this context, a special order is
"an order of [DFI] to or affecting a person," and a general order
is any order "other than a special order." § 138.12(5m)(a)1. & 2.
The same definitions and order-issuing authority are found in Wis.
Stat. § 138.14, which governs payday loans. See § 138.14(1)(h),
(L); § 138.14(8). We also find nearly identical language and usage
in Wis. Stat. ch. 217, which governs check sellers (Wis. Stat.
§ 217.02(3), (10); § 217.18(1)), and in Wis. Stat. ch. 93, which
describes various powers and duties of the Department of
Agriculture, Trade and Consumer Protection (DATCP) (Wis. Stat.
§ 93.06(3), (5), (6)). See also Wis. Stat. § 100.19(2) & (3)
(authorizing DATCP to issue "general orders" and "a special order
against any person" related to methods of or practices in food
products and fuel distribution).
23
No. 2020AP765-OA.bh
or special orders." Wisconsin Stat. § 106.015(1) similarly
prohibits DWD from prescribing, enforcing, or authorizing certain
requirements "whether through the promulgation of a rule [or] the
issuance of a general or special order."
¶207 The logic is plain, and of immense importance to this
case. General orders are those that apply to everyone. And some
general orders may be rules, but not all of them are. If all
general orders must be promulgated as rules, these provisions would
make no sense. They would instead say, "rules and special orders,"
not "rules and general or special orders."12 The only reasonable
reading of these statutes is that orders applying statewide are
general orders, and that these may be rules, but only if they meet
the other requirements of the rule definition.13
Or the statutes could expressly inform that orders issued
12
pursuant to these provisions will be considered rules for purposes
of chapter 227. The legislature has shown it can do precisely
that in Wis. Stat. § 87.30(1), where any order issued by the
Department of Natural Resources that fixes limits of floodplains
or enacts local floodplain zoning ordinances is subject to the
rulemaking process under Wis. Stat. § 227.19 (legislative review
before promulgation) and Wis. Stat. § 227.26 (legislative review
after promulgation), and "may be suspended by the joint committee
for review of administrative rules." § 87.30(1).
This reading is further supported by other chapters in the
13
Wisconsin Statutes. For instance, Wis. Stat. ch. 281 governs water
and sewage, which is an area generally under the purview of the
Department of Natural Resources (DNR). See Wis. Stat. § 281.01(3).
Wisconsin Stat. § 281.19, which is entitled "Orders," states:
(1) The department may issue general orders, and adopt
rules applicable throughout the state for the
construction, installation, use and operation of
practicable and available systems, methods and means for
preventing and abating pollution of the waters of the
state. Such general orders and rules shall be issued
24
No. 2020AP765-OA.bh
only after an opportunity to be heard thereon has been
afforded to interested parties.
(2) (a) The department may issue special orders
directing particular owners to remedy violations of the
safe drinking water program under s. 281.17 (8) and (9)
or to secure such operating results toward the control
of pollution of the waters of the state as the department
prescribes, within a specified time. Pending efforts to
comply with any order, the department may permit
continuance of operations on such conditions as it
prescribes. If any owner cannot comply with an order
within the time specified, the owner may, before the
date set in the order, petition the department to modify
the order. The department may modify the order,
specifying in writing the reasons therefor. If any order
is not complied with within the time period specified,
the department shall immediately notify the attorney
general of this fact. After receiving the notice, the
attorney general shall commence an action under s.
299.95.
(b) The department may issue temporary emergency orders
without prior hearing when the department determines
that the protection of the public health necessitates
such immediate action. Such emergency orders shall take
effect at such time as the department determines. As
soon as is practicable, the department shall hold a
public hearing after which it may modify or rescind the
temporary emergency order or issue a special order under
par. (a).
§ 281.19 (emphasis added).
The next subsection provides that "[t]he department shall
make investigations and inspections to insure compliance with any
general or special order or rule which it issues." Wis. Stat.
§ 281.19(3) (emphasis added). Note that elsewhere in Wis. Stat.
ch. 281 the department is directed to prescribe various performance
and certification standards, practices, and prohibitions solely by
promulgating rules. § 281.16(2), (3); § 281.165(1); § 281.17(3).
25
No. 2020AP765-OA.bh
¶208 The legislature does not address this overwhelming
textual evidence informing what "general order" means for purposes
of Wis. Stat. § 227.01(13). Rather, it looks to one of the
enumerated exclusions from the rule definition relating to orders,
and suggests this alone proves that any order applying statewide
must also be a rule.
¶209 Wisconsin Stat. § 227.01(13)(c) excludes from the
definition of "rule" any agency action or inaction that
[i]s an order directed to a specifically named person or
to a group of specifically named persons that does not
constitute a general class, and which is served on the
person or persons to whom it is directed by the
appropriate means applicable to the order. The fact
that a named person serves a group of unnamed persons
that will also be affected does not make an order a rule.
With this, the legislature maintains, by way of converse
implication, that any order applying statewide is included in the
definition of a rule. But this argument does not do the heavy
analytical lifting the legislature wishes it to do.
Section 227.01(13)(c) does not purport to define any particular
kind of order, nor does it state or imply that all orders are rules
but for those fitting this description. Instead, it clarifies
that certain person or group-specific orders served on those
The distinctions are clear. Special orders are issued to
particular persons. General orders apply to everyone "throughout
the state." And not all general orders, which again, apply to
all, are rules. Otherwise, the language in Wis. Stat. § 281.19(1)
and (3) indicating that DNR may issue general orders and adopt
rules, and ensure compliance with both, would make no sense.
26
No. 2020AP765-OA.bh
persons or groups are not rules, making it one of many belt-and-
suspenders exclusions from the definition of a rule.14
¶210 None of this overcomes or even contradicts the statutory
meaning of the phrase "general order." And although chapter 227
does not tell us what a "general order" is, the story told
throughout the rest of the Wisconsin Statutes does. A general
order is an order that applies to everyone statewide. Other
orders, often referred to as special orders, apply to specific
persons or entities only.
¶211 This reading also makes sense in the context of the other
phrases listed in the first criteria of the rule definition. A
"regulation," a "standard," and a "statement of policy" all give
the idea of a general standard applicable to everyone affected by
its subject. It would only make sense that a general order does
the same. This first requirement, at root, addresses the kind of
decree and the statewide breadth of its impact (even if only some
people are personally affected).
¶212 Importantly, however, our statutes also show that just
because something is a general order does not make it a rule.
While many general orders are rules, not all of them are. They
still must meet the other criteria to actually qualify as a rule.
¶213 With that in mind, the second requirement for any rule
is that it must have "general application." The legislature's
14Like Wis. Stat. § 227.01(13)(c), other listed exclusions
appear quite unlikely to meet the definition of a rule under even
normal circumstances. E.g., § 227.01(13)(r) (excluding a
"pamphlet or other explanatory material that is not intended or
designed as interpretation of legislation enforced or administered
by an agency, but which is merely informational in nature").
27
No. 2020AP765-OA.bh
main theory in this case is that a "general order of general
application" is an order applying statewide. Connecting the dots,
because Order 28 applies to a broad class of persons or entities
rather than a specific person or entity, it is an order of "general
application" in the legislature's telling. In other words, the
legislature maintains the temperature gauge for what constitutes
an order of general application is the breadth of the persons
subject to the order.
¶214 But for reasons that are obvious from the previous
discussion, this is plainly wrong. If a "general order" is an
order applying statewide, that cannot be what "general
application" means too. The legislature never makes any attempt
to give separate meaning to "general order," nor does it engage in
any statutory analysis regarding its interpretation. "General
application" is a second, separate statutory requirement under the
rule definition, and it must be given independent meaning. Kalal,
271 Wis. 2d 633, ¶46 ("Statutory language is read where possible
to give reasonable effect to every word, in order to avoid
surplusage."). The legislature's theory, which depends on
conflating the two, fails from the outset.
¶215 Secretary Palm argues, and I agree, that a regulation,
standard, statement of policy, or general order is one of "general
application" if it applies generally, as opposed to specifically.
That is, an application is specific if it applies to a single,
particular factual situation. Something with general application
applies to multiple, prospective factual situations. A specific
28
No. 2020AP765-OA.bh
application is focused on the present; a general application is
focused on the future.
¶216 This reading makes sense first and foremost given the
statutory text's use of the modifier "general." Just like the
modifier "general" in "general order" means an order directed to
everyone (as opposed to a specific someone), the modifier "general"
in "general application" should have the same effect——that is, an
order that applies to every situation covered by the subject matter
(as opposed to a specific situation covered by the subject matter).
¶217 This reading also makes sense because of what rules are
meant to be. Rules are designed to have enduring effect. They
are published in official registers. They require public hearings,
written input, and a series of complicated bureaucratic checks
before being implemented. And while emergency rules are an option,
they are still relatively slow and cumbersome. This is all by
design. Government orders with limited application to a particular
situation and individual circumstances warranting temporary action
are not what rulemaking is designed to address.
¶218 In some ways, Secretary Palm's interpretation of the
statutes may even be constitutionally required. To the extent
rulemaking has a justification under our state constitution, it is
because it retains the legislature's constitutional prerogative to
determine the general policies that will govern the state. But
rulemaking itself cannot tread so far as to authorize a legislative
intrusion into the core power of the executive to enforce the laws.
Our constitution's commitment to the separation of powers means
the legislature should not, as a general matter, have a say in the
29
No. 2020AP765-OA.bh
executive branch's day-to-day application and execution of the
laws. The legislature gets to make the laws, not second guess the
executive branch's judgment in the execution of those laws. If
rulemaking is understood as establishing a check on how a law is
prospectively understood, that could be justified as retaining the
legislature's constitutional prerogative to determine the state's
public policy. But if rulemaking morphs into subjecting executive
branch enforcement of enacted laws to a legislative veto, that
turns our constitutional structure on its very head.
¶219 The parties do not maintain that any cases directly
address or control the issues before us, and I agree. But two
cases that do address the meaning of "general application" support
Secretary Palm's reading, not the legislature's.
¶220 In Citizens for Sensible Zoning, Inc., this court
concluded that a Department of Natural Resources' (DNR) floodplain
zoning ordinance covering Columbia County was a regulation of
general application. We reasoned that a rule "need not apply to
all persons within the state" to have general application. 90
Wis. 2d at 815-16. The class size was small, we said, but the
class was "described in general terms and new members can be added
to the class." Id. at 816. That is consistent with Secretary
Palm's interpretation of "general application." The newly enacted
zoning ordinance was not tailored to a specific circumstance or
current dispute; rather, it was a regulation applying to the
general class of all future property owners. Id. (citing
Frankenthal v. Wis. Real Estate Brokers' Bd., 3 Wis. 2d 249, 257B,
89 N.W.2d 825 (1958), which held an instruction covering the
30
No. 2020AP765-OA.bh
license renewal procedure for real estate brokers was a policy
statement of "general application").
¶221 Similarly, in Cholvin v. DHFS, the court of appeals
explained that a written instruction used by screeners to determine
new applicants' eligibility for a certain Wisconsin Medicaid
program was of "general application." 2008 WI App 127, ¶¶2425,
313 Wis. 2d 749, 758 N.W.2d 118. As the court put it, the
instruction "does not speak to a specific case, nor is it limited
to an individual applicant. It announces the general policy and
the specific criteria to be employed when entering information on
fluctuating levels of functional ability for all applicants."
Id., ¶25. In other words, the instruction was meant for
prospective application to everyone covered by the subject matter,
namely a Medicaid program eligibility screening, not just to a
current factual situation.
¶222 Therefore, the best reading of the "general application"
requirement, as a matter of text, context, structure,
constitutional limitation, and caselaw is that a general order,
which by definition covers everyone statewide, must apply not just
to a specific circumstance, but to all circumstances present and
future that are contemplated by the scope of the order.
D. Wis. Stat. § 252.02 Does Not Require Rulemaking
¶223 Collectively, the definition of a rule reflects a
dictate with statewide effect that takes broad statutory language
and makes it specific or workable, not just to a particular
situation, but for future situations of the same kind. While
31
No. 2020AP765-OA.bh
orders certainly can be, and often are, rules, Order 28 does not
meet this definition. It is statewide in scope, and therefore it
constitutes a general order. But it does not have general
application. It is an order with only temporary effect, expiring
on May 26, 2020, and focused specifically on the control and
suppression of a particular communicable disease.
¶224 Wisconsin Stat. § 252.02 confirms this reading. Section
252.02(4), on which Order 28 is based in part, states that DHS
may promulgate and enforce rules or issue orders for
guarding against the introduction of any communicable
disease into the state, for the control and suppression
of communicable diseases, for the quarantine and
disinfection of persons, localities and things infected
or suspected of being infected by a communicable disease
and for the sanitary care of jails, state prisons, mental
health institutions, schools, and public buildings and
connected premises. Any rule or order may be made
applicable to the whole or any specified part of the
state, or to any vessel or other conveyance. The
department may issue orders for any city, village or
county by service upon the local health officer. Rules
that are promulgated and orders that are issued under
this subsection supersede conflicting or less stringent
local regulations, orders or ordinances.
§ 252.02(4) (emphasis added).
¶225 The only and unavoidable conclusion from this text is
that DHS can issue an order that applies statewide and is not a
rule. It still must meet the other criteria defining a rule in
Wis. Stat. § 227.01(13), including the "general application"
requirement. Not coincidentally, that is perfectly consistent
with the distinctions found throughout the Wisconsin Statutes
between general statewide orders and person-specific orders, and
the textual distinction in other statutes confirming that a
statewide order may or may not be a rule.
32
No. 2020AP765-OA.bh
¶226 This textual reading is also supported by statutory
history. In 1982, the statute was amended to explicitly give DHS
the power to issue orders in addition to promulgating and enforcing
rules, and to clarify that both could have statewide application.
§ 21, ch. 291, Laws of 1981. Nothing in this amendment indicated
that orders issued by DHS would be treated as rules for purposes
of Wis. Stat. ch. 227. Cf. Wis. Stat. § 87.30(1) (dictating that
orders issued by DNR under this subsection will be treated as rules
for purposes of Wis. Stat. ch. 227).
¶227 The textual evidence conclusively stands against the
legislature's position that a statewide order issued under Wis.
Stat. § 252.02(4) is necessarily a rule.15 But taking a step back
to look at the reasonableness of its interpretive approach makes
its error even more plain. Kalal, 271 Wis. 2d 633, ¶46
("[S]tatutory language is interpreted in the context in which it
is used; not in isolation but as part of a whole; in relation to
the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.").
¶228 The administrative rulemaking process is about as smooth
sailing as a canoe traversing the Atlantic Ocean. It's not
15Elsewhere in its briefing, the legislature seems to turn
its entire argument inside out by contending that Wis. Stat.
§ 252.02 is nothing more than a general powers and duties statute.
But if this were true, and § 252.02 was only a general powers and
duties statute, then DHS would have no authority to promulgate
rules under that provision because, as the legislature helpfully
explains, agencies may not rely on general powers and duties
provisions to promulgate rules. See Wis. Stat. § 227.11(2)(a)2.
Said differently, the legislature somehow suggests that rulemaking
cannot happen under the statute, notwithstanding its primary
theory that rulemaking must happen under the statute.
33
No. 2020AP765-OA.bh
impossible, but it's not a particularly fun trip. This is a
feature, by the way, not a bug. The rulemaking process is filled
with checks and double checks and public input and imposed waiting
periods to discourage some rulemaking, and to ensure a final
product that is fully vetted, sufficiently clear, statutorily
grounded, and able to guide agency action moving forward.
¶229 During oral argument, the legislature effectively
conceded that the requirements of Order 28 could have been issued
for Milwaukee County, and that it would not need to be promulgated
as a rule. But it continued to argue that the same order applying
to half the state or the whole state would need to be promulgated
as a rule. This makes no sense. Wisconsin Stat. § 252.02 on its
face gives broad authority to take statewide action to combat the
spread of communicable diseases. Under the legislature's theory,
DHS can act locally without going through the rulemaking process,
but not on a statewide basis. Presumably it could issue 72
identical orders applying to each of Wisconsin's counties, and
these would not need to be promulgated as rules. But it could not
do the same thing in one order applying statewide. Such a line is
wholly impractical and inconsistent with the broad authority and
discretion granted to DHS by the very words of the statutes the
legislature enacted. If we are truly in a public health emergency
requiring immediate state action, it would make little sense to
tie the hands of DHS from acting to protect the whole state, but
give it expansive authority to do the same exact thing through
multiple actions with a narrower geographic focus. My point is
not that we read the statute to give DHS the powers it needs, but
34
No. 2020AP765-OA.bh
rather that the legislature's position is an unreasonable way to
read these broadly worded statutes.16
¶230 The legislature suggests that the emergency rulemaking
process ameliorates some of these problems. During oral argument,
the legislature indicated that emergency rules——from concept to
legal effect——could happen in as soon as 12 days under a best-case
scenario. That's much quicker than the ordinary rulemaking
process, but it is wholly unequal to the task Wis. Stat. § 252.02seems to ask of DHS. Twelve days is far too long in a real
emergency.17 Epidemics don't always give you a two-week heads up
on their next move. In addition, emergency rules, just like
ordinary rules, require a new rule to revoke the earlier one. Wis.
Stat. § 227.265.18 If facts on the ground are different next week
16 Moreover, the legislature's line-drawing derives from no
discernable statutory text. At some undefined point, according to
the legislature, the amount of people covered by an order becomes
too large, and any such order must be promulgated as a rule. This
line, we are told, is apparently less than statewide, but larger
than Milwaukee County. Why? Who knows? This "I know it when I
see it" argument will no doubt prove to be a complicated line to
adjudicate moving forward since it has no textual foundation or
guide.
17 And as Justice Dallet correctly points out, a 12-day
turnaround time is hardly guaranteed given the number of
assumptions that are baked into the legislature's claim. Justice
Dallet's dissent, ¶150.
18Emergency rules of the kind proposed here are only effective
for 150 days after publication. Wis. Stat. § 227.24(1)(c). While
§ 227.24 provides a method to extend the effectiveness of the rule
for up to an additional 120 days, § 227.24(2)(a), it is silent
with respect to how such emergency rules would be revoked or
modified. As a new rule is required to modify or repeal an existing
rule, it stands to reason that this process would also be required
for emergency rules.
35
No. 2020AP765-OA.bh
than they are this week (and in this pandemic, we seem to be
learning new things all the time), that makes even changing short-
term policies practically impossible. The reality is, the
emergency rules process does not allow for the kind of fits and
starts and day-in, day-out modifications that would be required in
any comprehensive, real-time response to a statewide epidemic.
And again, my point is not that DHS should be granted these powers
because it needs them, but instead that the legislature's proffered
interpretation of § 252.02 in conjunction with Wis. Stat.
§ 227.01(13) is a wholly unreasonable way to read these statutes.
¶231 Rather than the game of statutory twister offered by the
legislature, the faithful judicial approach is to read these
statutes reasonably, and to construe them as they are written.
Wisconsin Stat. § 252.02(4) contemplates that orders may be issued
statewide and not be rules. The meaning of "general order" as
derived from our statutes as a whole confirms this. Section
252.02(4) seems to give DHS extraordinarily broad powers to act
and respond to public health emergencies not just county by county,
but statewide. To the extent any general orders have general,
prospective application, they may need to be promulgated as rules.
But situation-specific orders made pursuant to the authority
already outlined in the statute, whether statewide or local, are
not subject to the rulemaking requirements of chapter 227.
¶232 In sum, Order 28 is a statewide order and therefore a
general order. But it is temporary and designed to specifically
and singly address the current COVID-19 pandemic. This order does
not have general application to future DHS actions based on Wis.
36
No. 2020AP765-OA.bh
Stat. § 252.02; it has no application after May 26, 2020. Rather,
it is an effort to apply and enforce the statute pursuant to the
authority DHS has already been granted. Order 28 therefore does
not meet the definition of a rule in Wis. Stat. § 227.01(13).19
III. The Legislature Lacks Standing to Challenge DHS's
Application of the Statutes
¶233 The legislature has a fallback issue. If Order 28 is
not a rule (and it is not), they argue that its terms nonetheless
exceed the statutory authority on which it is purportedly based.
To be clear, this is not a constitutional claim; it is an executive
branch enforcement claim. That is, the legislature argues the
executive branch is imposing requirements on the people of
Wisconsin that go beyond the powers granted to DHS in Wis. Stat.
§ 252.02.
¶234 While I am not unmindful of the unusual circumstances
giving rise to this case, claims of this kind are common; they
happen all the time. Unemployment compensation claimants argue
they were illegally denied benefits to which they were statutorily
entitled. Agricultural operations claim they were asked to submit
19The majority reaches a contrary conclusion, but somehow
excepts section 4.a. from its analysis. See majority op., ¶3 n.6.
If rulemaking is required, however, then there is no good reason
to remove section 4.a. from the result of this reasoning, for it
is no less a statewide order. To the extent section 4.a. should
be treated differently due to the explicit authority granted to
DHS to close schools in Wis. Stat. § 252.02(3), that same logic
would seem to apply to the other provisions in Order 28 that have
the same statutory support. See Justice Dallet's dissent, ¶154
n.17 (discussing how section 4.c. of Order 28 closes places of
public amusement and activity, which also seemingly falls within
DHS's stated authority in § 252.02(3)).
37
No. 2020AP765-OA.bh
to permit requirements the authorities had no authority to impose.
Criminal defendants argue their convictions were secured in
violation of, for example, the expiration of a statute of
limitations. As these common claims illustrate, challenges to
executive branch enforcement are ordinarily brought by the
specific individuals and entities who are injured or otherwise
affected by the purportedly overreaching government action.
¶235 The legislature, on the other hand, is not the state's
litigator-in-chief or even the representative of the people at
large. The legislature is a constitutional creation having a
significant, but limited, role in governance——the enactment of
laws. It is the executive branch that enforces the laws pursuant
to its own constitutionally vested power. When the executive
branch enforces the law in a way that is beyond the statutory terms
or otherwise violates our constitution, it harms those who are
directly affected by that enforcement. And it is those same
individuals and entities that can challenge that enforcement.
¶236 The requirement that those challenging government action
have some cognizable harm is far more flexible in Wisconsin than
in federal courts, but there are good reasons for not dispensing
with this requirement altogether. While federal courts may only
hear "cases or controversies," "standing in Wisconsin is not a
matter of jurisdiction, but of sound judicial policy." McConkey
v. Van Hollen, 2010 WI 57, ¶15, 326 Wis. 2d 1, 783 N.W.2d 855. In
determining whether a party has standing, the overarching theme is
"whether 'a party has a sufficient stake in an otherwise
justiciable controversy to obtain judicial resolution of that
38
No. 2020AP765-OA.bh
controversy.'" State ex rel. First Nat'l Bank of Wis. Rapids v.
M & I Peoples Bank of Coloma, 95 Wis. 2d 303, 30708, 290
N.W.2d 321 (1980) (quoting Sierra Club v. Morton, 405 U.S. 727,
731 (1972)). Wisconsin courts apply a two-step analysis for
standing determinations: we ask "(1) whether the plaintiff has
suffered a threatened or actual injury, and (2) whether the
interest asserted is recognized by law." Norquist v. Zeuske, 211
Wis. 2d 241, 24748, 564 N.W.2d 748 (1997) (citations omitted).
¶237 Generally, in order to demonstrate an injury, "a
plaintiff must allege 'such a personal stake in the outcome of the
controversy,' as to insure that 'the dispute sought to be
adjudicated will be presented in an adversary context and in a
form historically viewed as capable of judicial resolution.'"
First Nat'l Bank, 95 Wis. 2d at 308-09 (quoted sources omitted).
The extent of the injury is not determinative, a mere trifle will
suffice to satisfy this requirement. Id. at 309. However, the
injury "must be actual or threatened." Norquist, 211 Wis. 2d at
249.
¶238 To satisfy the second step, courts determine "[w]hether
the injury is of a type recognized, regulated, or sought to be
protected by the challenged law." Waste Mgmt. of Wis., Inc. v.
DNR, 144 Wis. 2d 499, 506, 424 N.W.2d 685 (1988).
¶239 The legislature would no doubt like to see the laws it
has passed enforced within their limits and within constitutional
boundaries. But as an institution, the legislature suffers no
particular cognizable injury when the executive branch enforces
the law unlawfully. To accept this principle would grant the
39
No. 2020AP765-OA.bh
legislature a seat in every executive branch enforcement action,
whether public or private, in the state of Wisconsin. Can the
legislature sue over unlawful DNR permit requirements? Overbroad
criminal prosecutions? Generally not. While we have allowed the
legislature to litigate and sue the governor and other executive
branch officials in limited situations, that is not a blanket
invitation to the legislature to litigate every challenge to
executive action. See, e.g., State ex rel. Wis. Senate v.
Thompson, 144 Wis. 2d 429, 432-33, 424 N.W.2d 385 (1988)
(permitting the legislative houses, their leaders, and a joint
legislative committee to bring an original action against the
governor's use of his partial veto).
¶240 In its briefing, the only harm the legislature offers is
its right to suspend administrative rules it finds objectionable.
That's it; they allege nothing else. But this harm is wholly
inapplicable to this issue, which concerns only the execution and
enforcement of the laws. Economic harm to individual citizens and
businesses may be real, but it is not harm to the legislature as
a constitutional body. And that is the only kind of harm that can
establish the standing necessary to raise this claim. See Powers
v. Ohio, 499 U.S. 400, 410 (1991) ("[A] litigant must assert his
or her own legal rights and interests, and cannot rest a claim to
relief on the legal rights or interests of third parties."
(citation omitted)).
¶241 A sad feature of our government is that the executive
branch sometimes acts outside its administrative, statutory, and
constitutional authority. This is, of course, not a commendable
40
No. 2020AP765-OA.bh
state of affairs. Sometimes we the people respond by persuading
lawmakers to change the law. Sometimes we throw the bums out.
Sometimes we respond with protest and argument, and sometimes civil
disobedience. In extraordinary situations, even revolution may be
justified. See The Declaration of Independence (U.S. 1776). But
the ordinary legal remedy for executive branch overreach is for
someone personally harmed by that overreach to seek judicial
relief. If a business ordered closed wants to challenge the
authority of the executive branch to close its business, it may do
so. If a person wanting to travel wishes to challenge the
authority of the executive to forbid travel, she may do so. If a
church wanting to challenge the authority of the executive branch
to shut down Sunday services, it may do so. This is the way our
system works, and it ensures a careful adjudication of the issues
based on specific harms, not theoretical broadsides.
¶242 This also ensures courts enjoin only unlawful executive
action. If Order 28 does not need to be promulgated as a rule,
then presumably some of its commands are lawful. The legislature
appears to acknowledge statutory authority to close schools and
churches and forbid other "public gatherings" to control outbreaks
and epidemics. Wis. Stat. § 252.02(3). But how would this apply
to large sporting events, small coffee shops, and open-air tree
farms? These are hard questions, and having litigants who are
able to present specific harms and specific burdens ensures we
remedy only unlawful enforcement efforts and do not sweep more
broadly than is necessary.
41
No. 2020AP765-OA.bh
¶243 While interpreting statutes is a question of law,
application of statutes generally requires facts. To my mind, the
legislature's broad arguments do not sufficiently assist this
court in separating the wheat from the chaff. The legislature
cites no law in support of the notion that they are injured by
poor or even unlawful enforcement of the laws. We do not let
anyone bring any case they want, and we certainly don't let the
legislature bring any case it wants. Accord Bowsher v. Synar, 478
U.S. 714, 733-34 (1986) ("[O]nce Congress makes its choice in
enacting legislation, its participation ends. Congress can
thereafter control the execution of its enactment only
indirectlyby passing new legislation." (citation omitted)). The
legislature did not even try to assert that it is harmed by the
alleged statutory overreach. Therefore, I conclude the
legislature lacks standing to raise this issue.
¶244 Executive overreach, of course, should not be blithely
dismissed. But as a court of law, and as an appellate court of
last resort, it is essential we do not turn ourselves into a panel
that offers advisory opinions to the legislature on what the laws
it passed mean. See Broadrick v. Oklahoma, 413 U.S. 601, 610-11
(1973) ("[U]nder our constitutional system courts are not roving
commissions assigned to pass judgment on the validity of the
Nation's laws." (citation omitted)). Except in limited
situations, only those affected by executive branch enforcement
can claim injury, not the branch that drafted the law in the first
place.
42
No. 2020AP765-OA.bh
IV. Response to Other Writings
¶245 While the above analysis addresses many of the
shortcomings in the various writings of members of the majority,
several arguments deserve a more direct response.
¶246 A majority of this court suggests Order 28 should be
struck down because the statute on which it is based contains
indiscernible and therefore constitutionally problematic limits.
But this approach runs completely counter to the way we adjudicate
these kinds of questions.
¶247 At the outset, it is a misrepresentation to suggest
Secretary Palm argues her power knows no bounds. She made no such
claim. Secretary Palm acknowledged that her orders could be
challenged on the grounds that they violated provisions of the
constitution, including violation of our fundamental liberties and
basic due process protections. No party, of course, raised these
kinds of claims here. It is fair game to reject the Secretary's
proffered legal arguments; it is unfair to ascribe to her and then
reject arguments she did not make.
¶248 But suppose Wis. Stat. § 252.02 does offer Secretary
Palm too much power. The remedy for this, assuming there are some
permissible constitutional applications of the statute, would be
to entertain an as-applied constitutional challenge to the statute
by someone alleging injury from its enforcement. We do not enjoin
particular enforcement actions under a facially constitutional
statute simply because the statute could be deployed in ways that
violate the constitution.
43
No. 2020AP765-OA.bh
¶249 Some members of the majority try to get around this by
asserting that Order 28 violates the nondelegation doctrine under
a legal test raised and developed sua sponte without the benefit
of adversarial briefing. Even assuming this new legal framework
is correct and should be adopted, the rationale offered does not
support the suggested conclusion.
¶250 Under the nondelegation doctrine as traditionally
understood, it is usually the statute itself that is the basis for
any nondelegation problems, not enforcement efforts. In the recent
United States Supreme Court decision where Justice Gorsuch in
dissent called for reinvigoration of a more vigorous nondelegation
doctrine, the question was whether a law could give the executive
the discretion to decide to whom it would apply. See Gundy, 139
S. Ct. at 2121 (majority opinion) (asking whether Congress
violated the nondelegation doctrine in enacting 34 U.S.C
§ 20913(d)); see also id. at 2135 (Gorsuch, J., dissenting)
(inquiring as to whether Congress "unconstitutionally divested
itself of its legislative responsibilities"). Similarly, in early
cases challenging the emerging administrative state, the question
was whether the law itself provided enough detail. See J.W.
Hampton, Jr. & Co., 276 U.S. at 409 (explaining Congress could
statutorily delegate if it set forth an "intelligible principle"
authorizing how the delegated authority was to be exercised).
¶251 Accordingly, if Wis. Stat. § 252.02 gives too much
undefined power to Secretary Palm——and that is the argument being
made by the majority and concurrences——the remedy would be that
the statute itself should be declared unconstitutional. The
44
No. 2020AP765-OA.bh
problem under a nondelegation theory is not whether an enforcement
action is consistent with the law, but whether the underlying law
is constitutionally capable of being enforced in the first place.
But there's an obvious obstacle with deploying that approach in
this case with respect to § 252.02. Namely, it would need to be
premised on legislative standing to argue that the laws it wrote
are unconstitutional. It cannot be that the legislative branch
has standing to sue the executive branch on the grounds that the
legislature itself violated the constitution when it passed
certain laws.
¶252 Furthermore, a certain irony inheres in calls to breathe
new life into the nondelegation doctrine in this case. If we are
to return to a vision of the separation of powers that does not
allow delegation from one branch to another,20 how in the world can
we support that proposition and at the same time hold that
Secretary Palm is required to submit to rulemaking, a process that
is premised, lo and behold, on the delegation of legislative power
to the executive branch? If we are going to have a serious
discussion about the separation of powers and its relationship to
the administrative state, I welcome that conversation. But a
decision grounded in "it's good for me but not for thee" does not
inspire confidence that we are applying the same law to both
parties before us.
¶253 Finally, the majority premises much of its argument on
the notion that an executive branch order may only carry criminal
20In his separate writing, Justice Kelly argues the
legislature cannot delegate "even a sliver of its core power."
Justice Kelly's concurrence, ¶103.
45
No. 2020AP765-OA.bh
penalties for any violation if the elements of a crime are first
promulgated as a rule or otherwise defined in the statutes.
Majority op., ¶¶36-40. This argument suffers from several glaring
flaws.
¶254 First, in what is a recurring theme, this argument was
not developed by any party. This is raised sua sponte by this
court without the benefit of adversarial briefing. We risk serious
error when we issue broad rulings based on legal rationales that
have not been tested through the crucible of adversarial
litigation. When accepting an original action, this danger is
even greater.
¶255 More to the point, this is a dramatic holding that could
call into question all kinds of laws. Our statues include numerous
instances where violating an agency's order can result in criminal
46
No. 2020AP765-OA.bh
penalties.21 In each of these statutes, it is the legislature that
has defined violation of a lawful order as a criminal offense. If
an enactment of this sort is unlawful, then all of these statutes
21 See, e.g., Wis. Stat. § 26.985(2) (authorizing criminal
penalties for violation of any order issued by DNR pursuant to
protection of forest lands and forest productivity provisions);
Wis. Stat. § 93.21(3) (authorizing criminal penalties for
violation of any order issued by the Department of Agriculture,
Trade and Consumer Protection (DATCP)); § 93.21(4) (authorizing
criminal penalties for violation of any general or special order
issued by DATCP to avert, relieve, or terminate a scarcity of food
products or fuel in the state); Wis. Stat. § 94.77(1)-(2)
(authorizing criminal penalties for violation of any orders issued
by DATCP or DNR that are not the subject of a specific penalty
under chapter 94); Wis. Stat. § 95.99 (authorizing criminal
penalties for violation of any order issued by DATCP pursuant to
animal health provisions); Wis. Stat. § 126.87(2)(b) (authorizing
criminal penalties for violations of any order issued by DATCP
pursuant to agriculture producer security provisions); Wis. Stat.
§ 250.04(7) (authorizing criminal penalties for violation of any
orders issued by DHS regarding the duties of local health officers
and boards); Wis. Stat. § 254.30(2)(b) (authorizing criminal
penalties for violation of any order issued by DHS pursuant to
toxic substances provisions); Wis. Stat. § 285.87(2) (authorizing
criminal penalties for violation of any special order issued by
DNR pursuant to air pollution provisions); Wis. Stat.
§ 291.97(2)(b)2. (authorizing criminal penalties for violation of
any special order issued by DNR pursuant to hazardous waste
management provisions); Wis. Stat. § 463.18 (authorizing criminal
penalties for violation of any order issued by the Department of
Safety and Professional Services (DSPS) pursuant to body art laws
and relating to public health); Wis. Stat. § 551.508(1)
(authorizing criminal penalties for violation of any order issued
by the Department of Financial Institutions (DFI) pursuant to
securities law provisions); Wis. Stat. § 552.19(1) (authorizing
criminal penalties for violation of any order issued by DFI
directing any person to file any belated statement required under
corporate take-over provisions).
47
No. 2020AP765-OA.bh
would presumably be unconstitutional. The same may be true for
analogous statutes authorizing civil penalties.22
¶256 Wisconsin Stat. § 252.25 does the same thing here. It
defines criminal penalties for any person who violates a
"departmental order under this chapter and relating to the public
health." This applies to any DHS order, whether a statewide ban
on large public gatherings or closing Green Bay West High School
or quarantining someone in Racine. No further course of conduct
22See, e.g., Wis. Stat. § 89.079(4)(a) (authorizing penalties
for violation of any special order issued by DATCP regarding
unauthorized practice of veterinary medicine); Wis. Stat.
§ 94.73(13) (authorizing penalties for violation of any order
issued by DATCP or DNR pursuant to corrective action for discharge
of agricultural chemicals); Wis. Stat. § 168.26 (authorizing
penalties for violation of any order issued by DATCP pursuant to
storage of dangerous substances provisions); Wis. Stat.
§ 169.45(3) (authorizing penalties for violation of any order
issued by DNR requiring any captive animal licensee to comply with
promulgated rules regarding captive animals); Wis. Stat. § 194.17(authorizing penalties for violation of any order issued by the
Department of Administration (DOA) or the Secretary of
Transportation pursuant to motor vehicle provisions); Wis. Stat.
§ 218.43 (authorizing penalties for violations of any orders
issued by DOA regarding licensure for selling mopeds); Wis. Stat.
§ 254.20(11) (authorizing penalties for violation of any order
issued by DHS regarding asbestos abatement certification); Wis.
Stat. § 283.91(2) (authorizing penalties for violation of any
order issued by DNR pursuant to pollution discharge elimination
provisions); Wis. Stat. § 289.96(3)(a) (authorizing penalties for
violation of any special order issued by DNR pursuant to solid
waste facilities provisions); Wis. Stat. § 293.87(3) (authorizing
penalties for violation of any order issued by DNR pursuant to
nonferrous metallic mining provisions applicable to person holding
a prospecting or mining permit); § 293.87(4) (same but for non-
permit holders); Wis. Stat. § 295.19(3)(a)-(b) (authorizing
penalties for violation of any order issued by DNR pursuant to
nonmetallic mining reclamation provisions); § 295.37(2) (same but
oil and gas provisions); § 295.79(4)(a) (same but ferrous metallic
mining); Wis. Stat. § 440.21(4)(a) (authorizing penalties for
violation of any special order issued by DSPS regarding
uncredentialed practice or use of a title).
48
No. 2020AP765-OA.bh
needs to be articulated as the legislature has plainly stated that
violations of DHS orderswhich is exactly what Order 28 isare
conduct subject to criminal penalties.
¶257 The majority's logic is premised not on the proposition
that Order 28 violates Wis. Stat. ch. 252, but rather that the
statute authorizing criminal penalties for violation of Order 28,
Wis. Stat. § 252.25, is unconstitutional. This means all of the
public health authority granted to DHS in chapter 252 will be left
with no enforcement mechanism at all, contrary to the law as the
legislature drafted it.23
¶258 If we're going to go there, we should be clear-eyed about
where this logic takes us and what else it applies to. The
legislature cannot, as I've already stated, sue the executive
branch and argue one of its duly-enacted laws is unconstitutional.
And in fact, they did not do so. This court should not craft such
an argument for them, thereby dispensing with scores of contrary
law,24 without at least a squarely presented issue supported by
23And even if this conclusion could be reached, the majority
pays no heed to the possibility of severing the penalty provision
from Order 28, despite a severability clause being expressly
included by Secretary Palm. See also Justice Dallet's dissent,
¶154.
24Beyond the plethora of statutes that do exactly what the
majority now says cannot be done, our cases have long supported
the notion that, at least in concept, criminal penalties for
violating a lawful order are permissible.
49
No. 2020AP765-OA.bh
adversarial briefing and raised by a party with standing to bring
such a claim.
V. Conclusion
¶259 It is without doubt that the strictures of the
constitution must be diligently defended during this crisis; the
judiciary must never cast aside the law in the name of emergency.
But just as true, the judiciary must never cast aside our laws or
the constitution itself in the name of liberty. The rule of law,
and therefore the true liberty of the people, is threatened no
less by a tyrannical judiciary than by a tyrannical executive or
legislature. Today's decision may or may not be good policy, but
it is not grounded in the law.
¶260 The legislature brings two narrow claims to us, none
involving constitutional questions or a determination of how far
DHS can go in exercising its powers under Wis. Stat. § 252.02. I
would stick to the legal issues before us and go no further.
¶261 The first question is whether Order 28 was required to
be promulgated as an administrative rule. Order 28 is a general
order by virtue of having statewide effect, but it is not one of
general application. It is a temporary order issued to address
One example is Ervin v. State, a case concerning the validity
of an arrest made for violation a community-wide curfew order
issued by the Milwaukee mayor. 41 Wis. 2d 194, 163 N.W.2d 207(1968). The mayor, under the relevant Wisconsin statute, had
authority to declare a state of emergency "and do what is necessary
in such emergency." Id. at 198-99. The court upheld the temporary
curfew order as "a legitimate and proper exercise of the police
power." Id. at 201-02. The majority's logic would require a
different result in this and who knows how many other cases.
50
No. 2020AP765-OA.bh
the outbreak of a particular communicable disease. Therefore, it
does not meet the definition of a rule under Wis. Stat.
§ 227.01(13).
¶262 The legislature asks in the alternative that we address
whether Order 28 goes beyond the statutory powers DHS has been
granted in Wis. Stat. § 252.02. But the legislature has not
alleged, nor can I identify, any harm to the legislature as a
constitutional body for which this court can grant relief.
Executive branch overreach may be challenged by those who are
harmed by the executive branch action. Except in unusual cases,
the lawmaking body is not injured in its lawmaking functions by
executive branch enforcement gone awry. Therefore, the
legislature lacks standing to bring this claim, and it should be
dismissed.
¶263 For these reasons, I respectfully dissent.25
¶264 I am authorized to state that Justices ANN WALSH BRADLEY
and REBECCA FRANK DALLET join ¶¶198-258 of this dissent.
In light of my legal conclusions, and in accord with the
25
legislature's request, I would have granted a stay of the court's
decision to give the parties time to consider a replacement for
Order 28.
51
No. 2020AP765-OA.bh
1