Jeffrey Becker v. Dane County

2022 WI 63SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1343 & 2021AP1382
COMPLETE TITLE: Jeffrey Becker, Andrea Klein and
A Leap Above Dance, LLC,
Plaintiffs-Appellants,
v.
Dane County, Janel Heinrich and
Public Health of Madison & Dane County,
Defendants-Respondents.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: July 8, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 8, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Jacob B. Frost
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court with
respect to ¶¶1-28 and 44-45, in which ANN WALSH BRADLEY, DALLET,
and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶29-
43, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J.,
and ROGGENSACK, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants, there were briefs filed by
Rick Esenberg, Luke N. Berg, Anthony F. LoCoco, Daniel P.
Lennington and Wisconsin Institute for Law & Liberty, Milwaukee.
There was an oral argument by Luke N. Berg.
For the defendants-respondents, there were briefs filed by
Remzy D. Bitar, Sadie R. Zurfluh, and Municipal Law and
Litigation Group, S.C., Waukesha. There was an oral argument by
Remzy D. Bitar.
An amicus curiae brief was filed by Daniel R. Suhr and
Liberty Justice Center, Chicago, for Liberty Justice Center.
An amicus curiae brief was filed by Terman Spencer, city
attorney, Gregory P. Kruse, assistant city attorney, Claire
Silverman, and Maria Davis for The City of Milwaukee and League
of Wisconsin Municipalities.
An amicus curiae brief was filed by Jessica L. Thompson,
Matthew Fernholz, and Pacific Legal Foundation, Arlington, and
Cramer, Multhauf & Hammes, LLP, Racine, for the Pacific Legal
Foundation and National Federation of Independent Business Small
Business Legal Center.
An amicus curiae brief was filed by Brian P. Keenan,
assistant attorney general, with whom on the brief was Joshua L.
Kaul, attorney general, for Governor Tony Evers and Attorney
General Josh Kaul.
An amicus curiae brief was filed by patricia Epstein
Putney, Melita M. Mullen, Jeffrey B. Dubner, Jessica Anne
Morton, and Bell, Moore & Richter, S.C., Madison, and Democracy
Forward Foundation, Washington, D.C., for the American Medical
Association and Wisconsin Medical Society.
An amicus curiae brief was filed by Allison W. Boldt and
the University of Wisconsin Law School State Democracy Research
Initiative, Madison, for Legal Scholars.
An amicus curiae brief was filed by Jeffrey A. Mandell,
Douglas M. Poland, Colin T. Roth, Daniel Lenz, Elizabeth B.
2
Wydra, Brianne J. Gorod, Brian R. Frazelle, Miriam Becker-Cohen,
and Stafford Rosenbaum LLP, Madison, Law Forward, Inc., Madison,
and Constitutional Accountability Center, Washington, D.C., for
Julian Davis Mortenson, Professor of Constitutional History.
3
2022 WI 63NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1343 & 2021AP1382
(L.C. No. 2021CV143)
STATE OF WISCONSIN : IN SUPREME COURT
Jeffrey Becker, Andrea Klein and
A Leap Above Dance, LLC,
Plaintiffs-Appellants,
FILED
v. JUL 8, 2022
Dane County, Janel Heinrich and Sheila T. Reiff
Clerk of Supreme Court
Public Health of Madison & Dane County,
Defendants-Respondents.
KAROFSKY, J., delivered the majority opinion of the Court with
respect to ¶¶1-28 and 44-45, in which ANN WALSH BRADLEY, DALLET,
and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶29-
43, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J.,
and ROGGENSACK, J., joined.
APPEAL from a judgment and an order of the Circuit Court
for Dane County, Jacob B. Frost, Judge. Affirmed and cause
remanded.
¶1 JILL J. KAROFSKY, J. We resolve whether local health
officers may lawfully issue public health orders. This suit
Nos. 2021AP1343 & 2021AP1382
arises from a challenge to a local health officer's issuance of
public health orders to prevent, suppress, and control a
communicable coronavirus disease commonly referred to as
COVID-19. The case before us does not challenge the wisdom or
legality of any particular measure taken in these orders. The
challenge instead raises more general statutory and
constitutional questions about the local health officer's
authority to issue an order at all, regardless of the measures
it promulgates. Specifically, we address three issues:
(1) whether Wis. Stat. § 252.03 (2019-20)1 authorizes local
health officers to issue public health orders; (2) whether Dane
County Ordinance § 46.40 (December 2020),2 which makes such
public health orders enforceable by a civil citation, is
preempted by state law; and (3) whether either of these
provisions constitute an unconstitutional delegation of
legislative power.
¶2 On the statutory question, we hold that Wis. Stat.
§ 252.03 grants local health officers the authority to issue
orders. As for preemption, we hold that no state law preempts
Dane County Ordinance § 46.40. Finally, on the constitutional
question, we hold that a local health officer's authority to
issue enforceable public health orders pursuant to Wis. Stat.
§ 252.03 and Dane County Ordinance § 46.40 does not run afoul of
1 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
2 All subsequent references to Chapter 46 of the Dane County
Ordinances are to the December 2020 version.
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Nos. 2021AP1343 & 2021AP1382
our constitutional separation of powers. Accordingly, we affirm
the circuit court's judgment and order and remand to the circuit
court for further proceedings.
I. BACKGROUND
¶3 Since March 2020, Wisconsin's state and local public
health officials have issued public health orders aimed at
curbing the spread of the communicable COVID-19 disease caused
by the SARS-CoV-2 virus and its variants. This includes Janel
Heinrich, the local health officer and director of Public Health
Madison & Dane County ("Health Department"), a joint health
department created by an intergovernmental agreement between the
governing bodies of Dane County (the "County") and the City of
Madison (the "City"). Per their agreement, the local health
officer is jointly appointed by both local governments' elected
chief executive officers (the County's executive and the City's
mayor), subject to confirmation by both local governments'
elected legislative bodies (the County's board and the City's
common council). The agreement charges the Health Department
and its director with the duty to implement public health
policies adopted by the County and City through local
ordinances, budgets, and the agreement itself. The agreement
also establishes the Board of Health for Madison and Dane County
("Board of Health"), comprising of one County board supervisor,
one City common council member, three County residents, and
three City residents. Under the agreement, the Board of Health
governs the Health Department's administration and supervises
its director.
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Nos. 2021AP1343 & 2021AP1382
¶4 Heinrich responded to the appearance of the
communicable COVID-19 disease in her territory by issuing a
series of orders from May 2020 until March 2022 that implemented
measures to prevent, suppress, and control the disease's spread.
She did so pursuant to her authority under state law that
directs a local health officer to "promptly take all measures
necessary to prevent, suppress and control communicable
diseases," "do what is reasonable and necessary for the
prevention and suppression of disease," and "forbid public
gatherings when deemed necessary to control outbreaks or
epidemics." Wis. Stat. § 252.03(1)-(2). Because COVID-19
spreads predominantly via respiratory droplets——released when an
infected person breaths, coughs, sneezes, sings, or talks——that
then contact the mouth, nose, or eyes of nearby persons,
Heinrich's orders implemented measures that affected many
aspects of daily life where people come in close proximity with
others. These measures included requiring face coverings,
limiting or forbidding gatherings, requiring sanitation
protocols for particular facilities, limiting or forbidding
certain sport activities, limiting businesses' allowable indoor
capacity, and requiring physical distancing between individuals.
¶5 Around the time of Heinrich's fourth such public
health order in June 2020, the County duly enacted Dane County
Ordinance § 46.40 regarding the prevention, suppression, and
control of communicable diseases. Relevant here, Dane County
Ordinance § 46.40(2) makes it "a violation of [Dane County
Ordinance ch. 46] to refuse to obey an Order of the Director of
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Nos. 2021AP1343 & 2021AP1382
Public Health Madison and Dane County entered to prevent,
suppress or control communicable disease pursuant to Wis. Stat
s. 252.03." A violation of ch. 46 could result in a civil
forfeiture of between $50 and $200 "for each day that a
violation exists." Dane County Ordinance § 46.27(1).3
¶6 Jeffrey Becker and Andrea Klein are two County
residents impacted by the Health Department's COVID-19-related
orders. In January 2021, they filed this lawsuit against the
County as well as the Health Department and its director,
Heinrich, challenging their legal authority to issue and enforce
such orders. Several days later, the Health Department
separately filed an enforcement action against A Leap Above
Dance, LLC ("A Leap Above") alleging that A Leap Above disobeyed
a public health order. Raising similar challenges as Becker and
Klein against the Health Department's enforcement authority, A
Leap Above joined Becker and Klein's suit as the third plaintiff
(collectively "Plaintiffs"). The Health Department then
dismissed its separate enforcement action, re-filing it as
counterclaims in this suit.
¶7 Plaintiffs moved the circuit court to temporarily
enjoin any enforcement of current and future public health
orders while the case was pending.4 The circuit court declined
to grant the temporary injunction. Because its rationale for
Separately, one's failure to pay an assessed civil
3
forfeiture could result in up to 30 days in county jail. Dane
County Ordinance § 46.27(3).
The Honorable Jacob B. Frost of the Dane County Circuit
4
Court presiding.
5
Nos. 2021AP1343 & 2021AP1382
denying Plaintiffs' motion included a determination that
Plaintiffs' arguments lacked a likelihood of success on the
merits, Plaintiffs asked the circuit court to enter summary
judgment against them so they could appeal. The circuit court
granted Plaintiffs' request and entered summary judgment against
their claims but acknowledged that the Health Department's
counterclaims against A Leap Above remain unresolved.
¶8 Plaintiffs appealed the summary-judgment decision;
Becker and Klein as of right and A Leap Above with the court of
appeals' permission.5 Following consolidation of the appeals and
completion of the briefing, Plaintiffs petitioned to bypass the
court of appeals. We granted Plaintiffs' bypass petition and
further ordered supplemental briefing on our jurisprudence
regarding the delegation of constitutional powers.
II. ANALYSIS
¶9 This case requires us to interpret Wis. Stat.
§ 252.03, determine whether state law preempts Dane County
Ordinance § 46.40, and assess both provisions' constitutionality
with respect to separation-of-powers principles. Each presents
a question of law that we review de novo. See, e.g., Legue v.
City of Racine, 2014 WI 92, ¶60, 357 Wis. 2d 250, 849 N.W.2d 837(statutory interpretation); DeRosso Landfill Co. v. City of Oak
Creek, 200 Wis. 2d 642, 652, 547 N.W.2d 770 (1996) (preemption);
5 Because the Health Department's counterclaims against A
Leap Above remain pending despite the summary-judgment decision,
A Leap Above required the court of appeals' leave to file its
appeal. See Wis. Stat. § 808.03(1)-(2).
6
Nos. 2021AP1343 & 2021AP1382
State v. Horn, 226 Wis. 2d 637, 642, 594 N.W.2d 772 (1999) (a
law's constitutionality).
A. Wisconsin Stat. § 252.03
¶10 The first two subsections of Wis. Stat. § 252.03empower local health officers to take certain actions in
specific circumstances:
(1) Every local health officer, upon the appearance of
any communicable disease in his or her territory,
shall immediately investigate all the circumstances
and make a full report to the appropriate governing
body and also to the department. The local health
officer shall promptly take all measures necessary to
prevent, suppress and control communicable diseases,
and shall report to the appropriate governing body the
progress of the communicable diseases and the measures
used against them, as needed to keep the appropriate
governing body fully informed, or at such intervals as
the secretary may direct. The local health officer
may inspect schools and other public buildings within
his or her jurisdiction as needed to determine whether
the buildings are kept in a sanitary condition.
(2) Local health officers may do what is reasonable
and necessary for the prevention and suppression of
disease; may forbid public gatherings when deemed
necessary to control outbreaks or epidemics and shall
advise the department of measures taken.[6]
We conclude the authority granted by these provisions includes
the authority to act via order. We reach that conclusion based
6 Subsections (3) and (4) do not provide any additional
authority. They instead direct the Department of Health
Services (DHS) to "take charge" if "the local authorities fail
to enforce the communicable disease statutes and rules" and
prohibit persons from "interfere[ing] with an
investigation . . . of any place or its occupants by local
health officers or their assistants," respectively. As such,
those subsections are not at issue here.
7
Nos. 2021AP1343 & 2021AP1382
on the common and approved meaning of the operative language,
the context in which it appears, and the statutory history.
¶11 We begin by examining the words in these two
subsections. Because Plaintiffs challenge not the measures
taken but rather the form in which those measures were
promulgated, our interpretive focus is on the operative verbs
"take," "do," and "forbid." At the top, we accept Plaintiffs
concession that the local health officer's authority to "forbid
public gatherings" must include the authority to do so by order.
Indeed, how else would a local health officer forbid a public
gathering if not through an order? Thus, to give any effect to
this provision of § 252.03(2), we must read it to authorize
action by order. See, e.g., Legue, 357 Wis. 2d 250, ¶61
(explaining that we interpret statutes "to give effect to every
word and to avoid surplusage").
¶12 Notwithstanding this concession, Plaintiffs maintain
the clauses in § 252.03 using the verbs "take" or "do" fail to
grant the authority to act by order. We observe that the
"common and approved" meaning of the language used in these
clauses——"take all measures necessary to prevent, suppress and
control communicable diseases" and "do what is reasonable and
necessary for the prevention and suppression of disease"——
plainly support acting by order. See Wis. Stat. § 990.01(1)
(instructing that words neither technical nor statutorily
defined "shall be construed according to common and approved
usage"); see also Legue, 357 Wis. 2d 250, ¶61. That is to say
the common and approved meanings of "take" and "do" prescribe no
8
Nos. 2021AP1343 & 2021AP1382
particular mechanism by which to act; they do not exclude acting
by order.7 Therefore, the legislature's words alone would grant
sufficiently broad authority for a local health officer to act
via an order.
¶13 Despite this ordinary reading of § 252.03(1)-(2),
Plaintiffs contend that the language in surrounding and closely
related statutes indicates that § 252.03 does not authorize
action by order. According to Plaintiffs, that is because these
other statutes explicitly reference the authority to "issue
7 Dictionary definitions confirm this common reading of
"take" and "do." See, e.g., Stroede v. Soc'y Ins., 2021 WI 43,
¶12, 397 Wis. 2d 17, 959 N.W.2d 305 ("[W]e often consult a
dictionary in order to guide our interpretation of the common,
ordinary meanings of words."). As it is used here, "take"
broadly entails "[t]o make, do, perform (an act, action,
movement, etc.); to carry out." Take, Oxford English Dictionary
(3d ed. 2014). The verb "do" is similarly broad, commonly
meaning "[t]o perform, execute, achieve, carry out, effect, [or]
bring to pass." Do, Oxford English Dictionary (3d ed. 2014).
9
Nos. 2021AP1343 & 2021AP1382
orders" or to "order" specific measures.8 Because § 252.03 lacks
similar language, the argument goes, § 252.03 does not authorize
local health officers to issue orders.
¶14 While we agree with Plaintiffs that context is
important, see, e.g., Legue, 357 Wis. 2d 250, ¶61 & n.30,
Plaintiffs' contextual evidence provides an incomplete picture.
A fuller examination of the contextual evidence undermines
Plaintiffs' interpretation. As Plaintiffs acknowledged in
briefing and at oral argument, the legislature uses language
other than "issue orders" or "order" that nonetheless authorizes
local health officers to act via order. Wisconsin Stat.
§ 252.06(1), for example, authorizes a local health officer to
"require" isolation of a person, quarantines, and disinfections,
which would require an order. The next subsection, § 252.06(2),
authorizes local health officers "to quarantine, isolate,
8See Wis. Stat. § 252.02(4) (authorizing the Department of
Health Services (DHS) to "issue orders" for the prevention of or
the control and suppression of communicable disease, among other
actions, and to "issue orders for any city, village or county by
service upon the local health officer"); Wis. Stat. § 323.14(authorizing a local government's governing body——or chief
executive under certain conditions——"to order, by ordinance or
resolution, whatever is necessary and expedient for the health,
safety, protection, and welfare of persons and property within"
its jurisdiction during an emergency); Wis. Stat. § 252.25(penalizing the willful violation or obstruction of a
"departmental [DHS] order" relating to public health); Wis.
Stat. § 251.06 (authorizing a local health officer to "[e]nforce
state public health statutes and rules," "any regulations"
adopted by the local board of health, and "any ordinances"
enacted by the relevant local government, but not referencing a
local health officer's order); Wis. Stat. § 254.59 (authorizing
the local health officer to "order the abatement or removal" of
a human health hazard on private property and providing civil
enforcement mechanisms).
10
Nos. 2021AP1343 & 2021AP1382
require restrictions or take other communicable disease control
measures" under specified circumstances, all of which would
require an order. A related subsection, § 252.06(5), confirms
that the local health officer has the power to take these
measures by order. Subsection (5) permits the local health
officer to both "employ as many persons as are necessary to
execute his or her orders" and "use all necessary means to
enforce" not only state laws and DHS orders but also "the
orders . . . of . . . any local health officer." § 252.06(5)
(emphases added). Even within the statute at issue here,
§ 252.03, Plaintiffs concede the language "forbid public
gatherings" authorizes local health officers to issue orders.
Given the additional contextual evidence, we are not persuaded
that the power to act via an order depends solely on the words
"issue orders" or "order."
¶15 Finally, statutory history further supports the
conclusion that § 252.03 grants local health officials the
authority to issue orders. See, e.g., Legue, 357
Wis. 2d 250, ¶61 & n.36. Dating back to Wisconsin's territorial
days, public health laws authorized local officials to issue
enforceable public health orders using language such as "[t]o
take such measures." Specifically, the territorial law
authorized "the local board of health of any city, town or
village" "[t]o take such measures as they may deem effectual for
the preservation of the public health in said city, town,
village or township," among other powers. See Statutes of the
Territory of Wisconsin, Passed by the Legislative Assembly
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Nos. 2021AP1343 & 2021AP1382
Thereof, at a Session Commencing in November 1838, at 125
(1839). Critically, none of the listed powers used the language
"issue orders" or "order"; yet the statute still criminalized
the violation of "any order, or rule, or regulation, made in
pursuance of the powers granted to said board of health." See
id. (emphasis added).
¶16 Similarly, Wisconsin's first state legislature granted
the local power to "take" measures "deem[ed] most effectual for
the preservation of the public health." Importantly, this law
distinguished the power to "take such measures" for the
preservation of public health from the power to "make such rules
and regulations" for the same purpose. See Wis. Stat. ch. 26,
§ 2 (1849). That distinction indicates that "take such
measures" included action not by rule or regulation but by
order, as subsequent sections of that same law recognized. See
Wis. Stat. ch. 26, §§ 3-4 (1849) (differentiating between an
"order" and a "regulation").
¶17 Later, following the 1918 Spanish Flu, Wisconsin's
legislature enacted a local public health law that read:
The local board of health . . . shall have power to
establish quarantine and to order and execute what is
reasonable and necessary for the prevention and
suppression of disease; to forbid public gatherings
when deemed necessary to control epidemics . . . .
§ 1, ch. 159, Laws of 1919 (emphasis added). A few years later,
the legislature revised the public health laws including the
provision related to a local board of health's authority, which
then read:
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Nos. 2021AP1343 & 2021AP1382
Local boards of health may do what is reasonable and
necessary for the prevention and suppression of
disease; may forbid public gatherings when deemed
necessary to control epidemics . . . .
§ 2, ch. 448, Laws of 1922 (emphasis added). The interpretive
question raised by this revision is whether the switch from "to
order and execute" to "do" effectuated a substantive change in a
local board of health's power.
¶18 The legislature instructs that we understand the
revised statute "in the same sense as the original unless the
change in language indicates a different meaning so clearly as
to preclude judicial construction." Wis. Stat. § 990.001(7).
We conclude that the change in language here does not "so
clearly" indicate a different meaning that precludes issuing
orders for two reasons. First, as explained previously, nothing
about the common and approved meaning of "do" precludes acting
via order; its broad definition prescribes no particular
mechanism by which a local health officer might act. Do, Oxford
English Dictionary (3d ed., 2014) ("To perform, execute,
achieve, carry out, effect, [or] bring to pass"). It is
therefore natural to read "may do what is reasonable and
necessary for the prevention and suppression of disease" as
granting permission to order private action deemed reasonable
and necessary for the prevention and suppression of disease. In
short, "do" is not at all inconsistent with acting via order.
¶19 Second, contemporaneous interpretations of the revised
"may do what is reasonable and necessary" language understood it
to continue to authorize action by order. A 1923 attorney
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Nos. 2021AP1343 & 2021AP1382
general opinion concluded that the 1922 revisions continued to
authorize the same powers the prior version of the public health
statutes provided. 12 Wis. Op. Att'y Gen. 646 (1923). Two
years later, another attorney general opinion concluded that,
under the "may do what is reasonable and necessary" provision,
"the local health department may issue an order to all employers
of labor prohibiting such employers from continuing in their
employment persons who are unvaccinated or who fail to show a
certificate of recent vaccination." 14 Wis. Op. Att'y
Gen. 300-01 (1925) (emphasis added). Far from "so clearly"
indicating a different meaning, these contemporaneous
interpretations of "may do what is reasonable and necessary" and
that language's common and approved meaning lead us to follow
§ 990.001(7)'s directive and read the revised "do" in the "same
sense as the original," which was "to order and execute."
¶20 The same interpretation of "do" holds for the 1981
amendment of this law. That amendment made two changes relevant
here: (1) it shifted the authority to "do what is reasonable
and necessary for the prevention and suppression of disease"
from "local boards of health" to "local health officers"; and
(2) it authorized local health officers to "take all measures
necessary to prevent, suppress and control communicable
diseases." See § 23, ch. 291, Laws of 1981. The first change
retained the same "may do what is reasonable and necessary for
the prevention and suppression of disease" language and thus
shifted to local health officers the same authority to act by
order.
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Nos. 2021AP1343 & 2021AP1382
¶21 As for the second change, the language "take all
measures necessary to prevent, suppress and control communicable
diseases" also authorized action via public health order. As
set out above, the verb "take," a synonym of the verb "do" in
this context, is broad and contains no definitional proscription
against acting via order. See Take, Oxford English Dictionary
(3d ed. 2014) ("To make, do, perform (an act, action, movement,
etc.); to carry out." (emphasis added)). Moreover, the "take
all measures" language chosen for this added authority harkens
back to the earliest local public health statutes that, as
explained above, used the same language to authorize action via
order. See supra, ¶¶15-16. As such, the most reasonable
reading of "take all measures necessary" includes taking
necessary public health measures by order.
¶22 In light of the broad common and approved meaning of
§ 252.03's language, the full context in which it appears, and
that provision's statutory history, we hold that the authority
to "do what is reasonable and necessary for the prevention and
suppression of disease" and "take all measures necessary to
prevent, suppress and control communicable diseases" both
authorize acting via order.
B. Preemption
¶23 We next address whether state law preempts Dane County
Ordinance § 46.40. State law preempts a local ordinance
when: (1) the state legislature has expressly withdrawn the
power of municipalities to act; (2) the ordinance logically
conflicts with state legislation; (3) the ordinance defeats the
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Nos. 2021AP1343 & 2021AP1382
purpose of state legislation; or (4) the ordinance violates the
spirit of state legislation. See, e.g., DeRosso Landfill, 200
Wis. 2d at 651-52. Absent these circumstances, the County may
enact ordinances in the same field and on the same subject as
that covered by state legislation. See id. at 651 (citing Fox
v. Racine, 225 Wis. 542, 546, 275 N.W. 513 (1937)); Wis. Stat.
§ 59.03(2)(a) (providing that a county board "is vested with all
powers of a local, legislative and administrative character"
including on the subject matter of "health").
¶24 Dane County Ordinance § 46.40, in relevant part,
provides:
(1) Duty of Director, Public Health Madison and Dane
County. Pursuant to Wis. Stat. ss. 252.03(1) & (2)
the Director of Public Health Madison and Dane County
shall promptly take all measures necessary to prevent,
suppress and control communicable diseases within Dane
County, including forbidding public gatherings when
deemed necessary to control outbreaks or epidemics.
(2) Public Health Orders. It shall be a violation of
this chapter to refuse to obey an Order of the
Director of Public Health Madison and Dane County
entered to prevent, suppress or control communicable
disease pursuant to Wis. Stat s. 252.03.
Dane County Ordinance § 46.40(1)-(2). Plaintiffs argue that the
ordinance may not lawfully authorize the local health officer to
either issue orders or enforce those orders because such
authority is "intentionally withheld" by state law. As for the
power to act via order, Plaintiffs rely on the same argument
addressed above——that Wis. Stat. § 252.03 does not authorize a
local health officer to issue orders because the statute lacks
the exact "issue orders" or "order" language used in related
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Nos. 2021AP1343 & 2021AP1382
statutes such as Wis. Stat. §§ 252.02 and 323.14. Again, we
disagree that Wis. Stat. § 252.03 "intentionally withheld" the
power to act via order. Accordingly, Dane County Ordinance §
46.40(1) is not preempted because the ordinance permissibly
grants authority redundant to that already authorized by state
statute. See Wis. Stat. § 59.03(2)(a); DeRosso Landfill, 200
Wis. 2d at 651.
¶25 As for the enforcement authority, Plaintiffs cite
three state laws that touch on enforcement of public health
measures. The first state law is a catchall penalty provision
that makes the willful violation or obstruction of a
"departmental [DHS] order" relating to public health punishable
by "imprison[ment] for not more than 30 days" or a "fine[] not
more than $500 or both." See Wis. Stat. § 252.25. This
provision contains no express withdrawal of municipal authority.
Moreover, an ordinance allowing civil citations for violations
of local health orders presents no logical conflict with DHS's
public health orders also carrying penalties. Finally, the fact
that Wis. Stat. § 252.25 creates a strong enforcement mechanism
for public health orders confirms that Dane County Ordinance
§ 46.40(2)'s civil penalties are entirely in line with the
purpose and spirit of the state's public health laws.
¶26 The second law regarding enforcement that Plaintiffs
rely on requires a local health officer to "[e]nforce state
public health statutes and rules," "any regulations" adopted by
the local board of health, and "any ordinances" enacted by the
relevant local government. Wis. Stat. § 251.06(3). This
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Nos. 2021AP1343 & 2021AP1382
statutory list of a local health officer's mandatory enforcement
duties tell us little about a county's authority to permit its
health department to enforce public health orders by civil
citation. It certainly does not expressly withdraw that
authority. Nor do Plaintiffs identify how the enforcement of
local public health orders would conflict with the duty to
similarly enforce state statutes and rules as well as local
regulations and ordinances. Again, the fact that state law
recognizes a local health officer's duty to secure public health
via enforcement measures indicates that the enforcement
mechanism supplied by Dane County Ordinance § 46.40(2) comports
with our state public health laws' purpose and spirit.
¶27 Finally, Plaintiffs contend Dane County Ordinance
§ 46.40(2) exceeds the County's statutory authority under Wis.
Stat. § 66.0113. Section 66.0113(1)(a) permits a county to
adopt an ordinance that authorizes the issuance of civil
citations for "violations of ordinances, including ordinances
for which a statutory counterpart exists." According to
Plaintiffs, Dane County Ordinance § 46.40(2) authorizes
citations for violations not of an ordinance but of a public
health order, contrary to Wis. Stat. § 66.0113(1)(a).
¶28 We disagree. Dane County Ordinance § 46.40(2) says
that refusal to obey a local public health order is "a violation
of this chapter," meaning Chapter 46 of the Dane County
Ordinances. See also Dane County Ordinance § 46.25(1) (making
it "a violation of this chapter" to "neglect to obey any lawful
order" of the Health Department). Any order issued pursuant to
18
Nos. 2021AP1343 & 2021AP1382
Dane County Ordinance § 46.40 is legally rooted in that
ordinance's grant of authority. Accordingly, disobeying the
order is a violation of the underlying ordinance. As a result,
Dane County Ordinance § 46.40(2) operates consistently with the
County's authority under Wis. Stat. § 66.0113(1)(a). There is,
therefore, no conflict——express, implicit, logically, or
otherwise——between Dane County Ordinance § 46.40 and any state
law. See DeRosso Landfill, 200 Wis. 2d at 651-52.
C. Constitutional Separation of Powers
¶29 Finally, we turn to whether a local health officer's
authority to issue public health orders under Wis. Stat.
§ 252.03——either by itself or in tandem with the enforcement
mechanism supplied by Dane County Ordinance § 46.40(2)——is an
unconstitutional delegation of legislative power. Before
reaching that question, though, Plaintiffs ask that we revisit
our jurisprudence on the constitutional bounds of permissible
legislative grants of authority. We therefore begin by
addressing the proper framework in which to assess a legislative
grant of power to local officials and then apply that framework
to Wis. Stat. § 252.03 and Dane County Ordinance § 46.40.
¶30 Article IV, Section 1 of the Wisconsin Constitution
declares that the "legislative power shall be vested in a senate
and assembly." This court has never interpreted these words in
a literal sense to bar the delegation of any legislative power
outside the senate and assembly. See Klisurich v. DHSS, 98
Wis. 2d 274, 279, 296 N.W.2d 742 (1980) ("The Wisconsin
Constitution does not require that the legislative power be
19
Nos. 2021AP1343 & 2021AP1382
exclusively vested in a bicameral legislature."). Still, we
have inferred from our constitution's tripartite structure that
none of the three governmental powers——executive, legislative,
or judicial——can be entirely delegated away from the branch to
which the constitution vests it. See In re Constitutionality of
§ 251.18, Wis. Statutes, 204 Wis. 501, 503, 236 N.W. 717 (1931)
("[N]o one of the three branches of government can effectively
delegate any of the powers which peculiarly and intrinsically
belong to that branch.").
¶31 In determining whether a legislative grant of
authority transgresses this inferred constitutional limitation,
our cases examine both the substantive nature of the granted
power and the adequacy of attending procedural safeguards
against arbitrary exercise of that power. See Klisurich, 98
Wis. 2d at 279–80. So long as the legislative grant contains an
"ascertainable" purpose and "procedural safeguards" exist to
ensure conformity with that legislative purpose, the grant of
authority is constitutional. Id. at 280. The greater the
procedural safeguards, the less critical we are toward the
substantive nature of the granted power. See Panzer v. Doyle,
2004 WI 52, ¶55, 271 Wis. 2d 295, 680 N.W.2d 666, abrogated in
other respects by Dairyland Greyhound Park, Inc. v. Doyle, 2006
WI 107, 295 Wis. 2d 1, 719 N.W.2d 408.
¶32 Plaintiffs suggest our current jurisprudence regarding
the delegation of legislative authority has lost touch with the
original understanding of the constitution's separation of
powers. Plaintiffs advocate greater emphasis on the substantive
20
Nos. 2021AP1343 & 2021AP1382
nature of the authority granted, regardless of the procedural
safeguards present. They argue that the grant of power to
formulate generally applicable rules of private conduct is
constitutional only if the legislature has "laid down the
fundamentals of the law," leaving the recipient of the power to
merely "fill up the details." See State v. Whitman, 196
Wis. 472, 505-06, 220 N.W. 929 (1928). Accordingly, they invite
us to overrule our precedent in favor of their proffered
interpretation of the constitution.
¶33 We decline Plaintiffs' invitation. This case presents
the wrong vehicle to revisit our separation-of-powers
jurisprudence. As an initial matter, the principles regarding
state-level delegations differ from the principles regarding
local delegations. After all, the constitution defines the
state legislature's relationship with the other two state-level
branches differently than both the state legislature's
relationship to local governments and a local legislative body's
relationship with its local executive and judicial counterparts.
Case in point, the state legislature constitutionally may——and
does——delegate to local municipalities complete legislative
authority over local affairs, subject only to the constitution
and preemptive state statutes.9 Consequently, the constitution
See, e.g., Wis. Const. art. IV, § 22 (permitting the state
9
legislature to delegate to county boards "powers of a local,
legislative and administrative character" (emphasis added));
Wis. Const. art. IV, § 23; Wis. Const. art. XI, § 3(1); Wis.
Stat. § 59.03(2) (vesting county boards "with all powers of a
local, legislative and administrative character" (emphasis
added)).
21
Nos. 2021AP1343 & 2021AP1382
applies differently with respect to state-level delegations than
to local delegations.
¶34 That said, we need not define what those different
principles are here. That is because both Wis. Stat. § 252.03and Dane County Ordinance § 46.40 would pass constitutional
muster even if we assume that: (1) state-level principles apply
to local governments; and (2) Plaintiffs' proposed analysis
emphasizing the substantive nature of the granted authority was
the correct framework. Applying, then, Plaintiffs' proposed
analysis, Wis. Stat. § 252.03 and Dane County Ordinance § 46.40
are sufficient in terms of both their substantive nature and
their procedural safeguards, and we address each in turn.
1. Substantive Nature
¶35 We begin by assessing whether the laws at issue
contain an ascertainable purpose. As is often the case with
legal interpretation, context can provide even seemingly broad
enabling language meaningful content. See Legue, 357
Wis. 2d 250, ¶61 & n.30; see also Am. Power & Light Co. v.
Sec. & Exch. Comm'n, 329 U.S. 90, 104 (1946) (explaining that
enabling language derives "much meaningful content" from its
"factual background and the [legal] context in which [it]
appear[s]"). That is certainly true for Wis. Stat. § 252.03 and
Dane County Ordinance § 46.40.
¶36 Importantly, these provisions "la[y] down the
fundamentals of the law"——the who, what, when, where, why, and
how. See Whitman, 196 Wis. at 505-06. The who is the local
health officer. The what is the power to "take all measures
22
Nos. 2021AP1343 & 2021AP1382
necessary," to "do what is reasonable and necessary," and to
"forbid public gatherings." The when is "upon the appearance of
any communicable disease." The where is within the local health
officer's "territory" or "jurisdiction." The why is "to
prevent, suppress and control communicable disease," "the
prevention and suppression of disease," or "to control outbreaks
or epidemics." And the how is via actions including orders.
See supra, ¶22. Moreover, each law appears in its respective
code's public health chapter.
¶37 These textual limitations, read in their public health
context, establish an ascertainable "general policy": disrupt
the transmission pathways of contagious diseases. See Olson v.
State Conservation Comm'n, 235 Wis. 473, 482, 293 N.W. 262(1940). These textual limitations also substantively restrict a
local health officer's pursuit of that general policy, allowing
only public health measures reasonable and necessary to hinder
the particular disease's transmission. See id.; Am. Power &
Light, 329 U.S. at 105. In other words, all that remains for
the local health officer is to "fill up the details" with the
particular public health measures that will be responsive to the
unique features of the particular contagious disease. See
Whitman, 196 Wis. at 505-06.
¶38 Bolstering our conclusion that the substantive nature
of Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 do not
upset our constitutional separation of powers is founding-era
grants of similar public health authority to local governments.
Wisconsin's first state legislature saw no conflict between the
23
Nos. 2021AP1343 & 2021AP1382
constitution's separation of powers and the grant of broad
public health authority to local governments. The first state
code enacted just months after our constitution's ratification
authorized local boards of health the authority to "take such
measures, and make such rules and regulations, as they may deem
most effectual for the preservation of the public health." Wis.
Stat. ch. 26, § 2 (1849). A violation of board of health "order
or regulation" constituted a criminal misdemeanor punishable by
up to $100 (over $3,000 in 2022 dollars) or three months in
prison. Wis. Stat. ch. 26, § 3 (1849).
¶39 We see two upshots from this original grant of public
health authority to local governments. First, the original
understanding of our constitution's separation of powers was
that the constitution allows grants of broad public health
authority to local governments substantively similar to that
delineated in Wis. Stat. § 252.03. And second, our
constitution's separation of powers also allows public health
orders enforceable by criminal penalties that far exceed the
civil citations authorized by Dane County Ordinance § 46.40.10
As such, Wis. Stat. § 252.03 and Dane County Ordinance § 46.40
do not substantively offend our constitution's separation of
powers.
Because Dane County Ordinance § 46.40 does not impose
10
criminal penalties, we do not address in this case the potential
tension between these historical grants of public health
authority and our decision in Wisconsin Legislature v. Palm,
which did not analyze this historical evidence. 2020 WI 42,
¶¶36-40, 391 Wis. 2d 497, 942 N.W.2d 900.
24
Nos. 2021AP1343 & 2021AP1382
2. Procedural Safeguards
¶40 The procedural safeguards attendant to Wis. Stat.
§ 252.03 and Dane County Ordinance § 46.40 are particularly
strong. That is because a local health officer's discretion is
subject to both state and local controls. As with any
legislative authority, the state legislature may curb exercises
of granted power it deems excessive by amending Wis. Stat.
§ 252.03 or repealing the statute entirely. As Plaintiffs
acknowledge, our state legislature can react much more quickly
to perceived excesses than the federal Congress, making this
safeguard more robust than it might be for federal legislation.
Moreover, state courts may review an order issued pursuant to
Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 and ensure
its measures conform to the laws' substantive limitations. For
example, the subject of an enforcement action could argue the
measure at issue is either not reasonable or not necessary for
preventing the spread of a contagious disease, as Wis. Stat.
§ 252.03(2) requires.
¶41 On top of those state-level procedural safeguards are
several local controls. First, the Health Board can exert its
supervisory and policy-making control over the local health
officer. See Wis. Stat. § 251.04(1)-(3). Second, elected
officials in both the County and the City possess the power to
remove the local health officer. See Wis. Stat.
§§ 17.10 & 17.12(c); see also Wis. Stat. § 17.13(1) (removal of
village and town appointive officers). The removal powers
entrusted to local elected officials is a strong procedural
25
Nos. 2021AP1343 & 2021AP1382
safeguard because such officials are often more knowledgeable
about and responsive to local preferences.11 Local officials can
act decisively if a local health officer acts contrary to the
preferred public health policy of the constituency. And third,
the County's board and the City's common council control the
Health Department's annual budget and thus may leverage
appropriations to affect a local health officer's actions. See
Wis. Stat. § 251.11.
¶42 In sum, the ascertainable purpose evident in both Wis.
Stat. § 252.03 and Dane County Ordinance § 46.40's text and
surrounding context, the history of substantively similar grants
dating back to Wisconsin's first legislative code, and the
substantial state and local procedural safeguards against
arbitrary exercises of a local health officer's granted
authority all lead us to conclude Wis. Stat. § 252.03 and Dane
County Ordinance § 46.40 constitute constitutional grants of
authority.
***
¶43 Before concluding, we stress three critical points.
First, our holding addresses only a public health officer's
authority to issue public health orders; the validity of
specific measures appearing in those orders is not before us.
Second, nothing in this opinion should be read as departing from
our existing precedent on separation-of-power principles. It
11 See Lawrence Rosenthal, Romer v. Evans As the
Transformation of Local Government Law, 31 Urb. Law. 257, 274-75
(1999).
26
Nos. 2021AP1343 & 2021AP1382
remains the law that courts must review "the nature of delegated
power and the presence of adequate procedural safeguards, giving
less emphasis to the former when the latter is present," Panzer,
271 Wis. 2d 295, ¶55, and we break no new ground regarding the
limitations on delegations to or within local governments.
¶44 Finally, and most importantly, the dissent's resort to
disparaging a public servant——who has no opportunity to defend
herself——is a poor substitute for legal argument. Such personal
aspersions have no place in a judicial opinion. While the
direct and implied contentions that a local health official is a
tyrant, an autocrat, a dictator, and a despot are fantastical,
they do real damage to the public's perception of this court's
work. We must aspire to be better models of respectful dialogue
to preserve the public's confidence on which this court's
legitimacy relies.
III. CONCLUSION
¶45 Wisconsin Stat. § 252.03 grants local health officers
the authority to issue public health orders. Dane County
Ordinance § 46.40, which makes such orders enforceable by civil
citations, is not preempted by state law. And neither laws'
grant of authority runs afoul of our constitution's separation
of powers. Accordingly, we affirm the circuit court's grant of
summary judgment in favor of the defendants. Though this
resolves all of Becker and Klein's claims, the Health
Department's counterclaims against A Leap Above remain pending.
Therefore, we remand back to the circuit court to resolve the
remaining counterclaims.
27
Nos. 2021AP1343 & 2021AP1382
By the Court.—The order of the circuit court is affirmed,
and the cause remanded for further proceedings consistent with
this opinion.
28
No. 2021AP1343 & 2021AP1382.bh
¶46 BRIAN HAGEDORN, J. (concurring). In response to the
COVID-19 pandemic, some local health officers, including Dane
County's Janel Heinrich, issued various orders to combat the
spread of COVID-19. The petitioners in this case do not
challenge the legality of any specific order Heinrich issued.
Such orders can be challenged on statutory or constitutional
grounds; indeed, we previously concluded one order Heinrich
issued was partially invalid for both statutory and
constitutional reasons.1 Rather, this case presents a challenge
to local health officers' ability to issue any orders——without
care for any particular order's content or effect. The
arguments the petitioners bring apply equally to orders issued
during the present pandemic, as well as to future health scares
large and small. So while litigants could raise challenges to
specific orders issued during the COVID-19 pandemic, today's
case does not.
¶47 The majority/lead opinion aptly addresses the
petitioners' statutory arguments.2 I write separately to discuss
the petitioners' request that we revisit our precedents and
revitalize a more robust, judicially-enforced nondelegation
doctrine at both the state and local levels. Rooted in our
constitution's separation of powers, the basic idea behind the
nondelegation doctrine is that the assignment of distinct powers
into separate branches——legislative, executive, and judicial——
See James v. Heinrich, 2021 WI 58, 397 Wis. 2d 517, 960
1
N.W.2d 350.
2 I join ¶¶1-28 and 44-45 of the majority/lead opinion.
1
No. 2021AP1343 & 2021AP1382.bh
means the branch of government assigned certain powers may not
delegate its core powers to another.3 This case asks whether the
legislature impermissibly delegated legislative power to local
health officers across the state and whether the Board of
Supervisors impermissibly delegated legislative power to Dane
County's local health officer.
¶48 Properly analyzing these claims requires a resort to
first principles. When interpreting the Wisconsin Constitution,
our obligation is to discern the meaning of the words adopted by
the people and faithfully apply them to the facts before us.4
The constitution is a written document with terms that had
specific meaning when adopted. The Wisconsin Constitution
"means what it says, not what federal cases say, and not what we
might want it to say."5 Faithful constitutional interpretation
requires that "we focus on the language of the adopted text" as
that language was originally understood.6 Part of this analysis
may require resort to "historical evidence including 'the
practices at the time the constitution was adopted, debates over
adoption of a given provision, and early legislative
3Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶31-
35, 393 Wis. 2d 38, 946 N.W.2d 35.
4State v. Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 953
N.W.2d 847; James, 397 Wis. 2d 517, ¶61 (Hagedorn, J.,
concurring).
5 James, 397 Wis. 2d 517, ¶61 (Hagedorn, J., concurring).
6Halverson, 395 Wis. 2d 385, ¶22; see also James, 397
Wis. 2d 517, ¶62 (Hagedorn, J., concurring).
2
No. 2021AP1343 & 2021AP1382.bh
interpretation as evidenced by the first laws passed following
the adoption.'"7
¶49 Unfortunately, however, the petitioners in this case
do not offer this type of evidence or analysis. Instead, they
largely recite general theories of government power and
selective quotes from federal and state cases. Certainly
Montesquieu and Madison inform the meaning of Wisconsin's
constitution, but they cannot serve as substitutes for a
faithful originalist analysis of our constitution's text and
history. They are helpful, but not sufficient. Where we are
asked to disavow nearly 100 years of precedent and institute
something new, an honest examination of the original
understanding of the Wisconsin Constitution is never more
necessary.
¶50 The constitutional claims raised by the petitioners do
not succeed because the historical evidence weighs against the
petitioners' arguments under the unique facts of this case.
Alternative evidence of the original understanding may exist for
this type of claim, but if it does, the petitioners have failed
to present it. I remain open to more broadly reconsidering our
approach to the nondelegation doctrine in future cases. But we
should begin with a careful analysis of the original
understanding of the Wisconsin Constitution. As it does here, a
text-and-history inquiry may resolve many nondelegation claims
without resort to a judicially-designed implementing doctrine.
7 Halverson, 395 Wis. 2d 385, ¶22 (quoting Vos, 393
Wis. 2d 38, ¶28 n.10).
3
No. 2021AP1343 & 2021AP1382.bh
I. LEGAL PRINCIPLES
¶51 Before discussing the merits of the petitioners'
nondelegation claims, we must first address the legal principles
and methodology that guide our analysis of such challenges.
¶52 Like the federal Constitution, our state constitution
separates government power into three branches: legislative,
executive, and judicial.8 Then it "vests" discrete powers in
each corresponding branch——legislative power, executive power,
and judicial power.9 Although these powers overlap to a limited
extent, they are in most respects separate and distinct from one
another.10 Accordingly, since the constitution says the
legislature is vested with legislative power, the inference is
that core legislative power may not be placed elsewhere, by the
legislature or otherwise.11 The same goes for the other branches
of government. This principle is easy enough to understand in
concept, but it is far more difficult to apply in practice.
¶53 For nearly 100 years, this court has mostly taken a
hands-off approach to claims of impermissible delegation of
legislative power.12 We have upheld laws that assign
8 Vos, 393 Wis. 2d 38, ¶31.
9 Wis. Const. art. IV, § 1; id. art. V, § 1; id. art. VII,
§ 2; see also Vos, 393 Wis. 2d 38, ¶31.
10 Vos, 393 Wis. 2d 38, ¶¶32-34.
11In re Constitutionality of Section 251.18, Wis. Statutes,
204 Wis. 501, 503, 236 N.W. 717 (1931).
12State ex rel. Wis. Inspection Bureau v. Whitman, 196
Wis. 472, 504-06, 220 N.W. 929 (1928); Watchmaking Examining Bd.
v. Husar, 49 Wis. 2d 526, 533-34, 182 N.W.2d 257 (1971);
Westring v. James, 71 Wis. 2d 462, 468, 238 N.W.2d 695 (1976).
4
No. 2021AP1343 & 2021AP1382.bh
policymaking to executive bodies based primarily on whether the
law contains sufficient procedural protections to curb abuses of
delegated power.13 While not without some substantive limits, we
have generally looked the other way if procedural protections
"will adequately assure that discretionary power is not
exercised unnecessarily or indiscriminately."14
¶54 This has not always been our practice.15 Between 1896
and 1927, we were more exacting regarding the substance of
delegated authority.16 During that time, we said certain policy
decisions could not be farmed out to the executive branch.
Although agencies could be left to fill up rather technical
details, the overall policy choices needed to come directly from
Panzer v. Doyle, 2004 WI 52, ¶55, 271 Wis. 2d 295, 680
13
N.W.2d 666, abrogated on other grounds by Dairyland Greyhound
Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408.
Id. (noting that the nondelegation doctrine "is now
14
primarily concerned with the presence of procedural
safeguards"); id., ¶79 n.29 (but observing that "there may be
certain powers that are so fundamentally 'legislative' that the
legislature may never transfer those powers to another branch of
government").
See generally Joseph A. Ranney, Trusting Nothing to
15
Providence: A History of Wisconsin's Legal System 377-88 (1999)
(surveying the development of the nondelegation doctrine in
Wisconsin).
See Dowling v. Lancashire Ins. Co., 92 Wis. 63, 70-72, 65
16
N.W.2d 738 (1896); State ex rel. Adams v. Burdge, 95 Wis. 390,
401-04, 70 N.W. 347 (1897); see also Joseph A. Ranney, Wisconsin
and the Shaping of American Law 82 (2017) (explaining that the
court took a "new tack" in Dowling and Adams). But see State ex
rel. Baltzell v. Stewart, 74 Wis. 620, 631-32, 43 N.W. 947(1889) (upholding a statute that empowered a commission to
create and define drainage districts in Dane County).
5
No. 2021AP1343 & 2021AP1382.bh
the legislature.17 We closed this chapter, however, and have
since declined to fastidiously police the line between
permissible legislative grants of power and impermissible
delegations of legislative power.18
¶55 The petitioners urge us to return to a more robust
judicial enforcement of the nondelegation doctrine akin to our
1896-1927 decisions, asking that we articulate general
principles to govern nondelegation challenges. Specifically,
relying on the separate writings of two United States Supreme
Court justices proposing tests under the federal Constitution,
17Burdge, 95 Wis. at 402 ("[T]here must first be some
substantive provision of law to be administered and carried into
effect."). Even during this era, however, state agencies were
permitted some hand in state government decision-making.
Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. R.R. Comm'n
of Wis., 136 Wis. 146, 116 N.W. 905 (1908) (upholding a law that
directed the Railroad Commission to set railroad rates); State
ex rel. Buell v. Frear, 146 Wis. 291, 306, 131 N.W. 832 (1911)
(upholding a civil service law on the grounds that it simply
directed the agency to "ascertain the facts and to apply the
rules of law thereto under the prescribed terms and
conditions"); State v. Lange Canning Co., 164 Wis. 228, 241, 160
N.W. 57 (1916) (upholding a labor law that directed the
Industrial Commission to determine "what class or classes of
employment are dangerous or prejudicial to the life, health,
safety, or welfare of females" and regulate "the time which
females may labor therein").
18See Whitman, 196 Wis. at 505-06. Yet, it has not been
unfettered deference. We have continued to strike down laws
that delegate too much authority to executive officials. E.g.,
Gibson Auto Co. v. Finnegan, 217 Wis. 401, 407, 259 N.W. 420(1935) (striking down a depression era recovery act that
authorized the governor to establish fair competition codes,
noting it was "difficult to conceive of a more complete
abdication of legislative power than is involved in this act");
State ex rel. Zimmerman v. Dammann, 229 Wis. 570, 575-76, 283
N.W. 52 (1938) (striking down a law that delegated to an
emergency board the power to appropriate money).
6
No. 2021AP1343 & 2021AP1382.bh
they advance a two-question framework that asks (1) whether the
delegated power involves "the formulation of generally
applicable rules of private conduct,"19 and (2) whether the
executive branch, rather than the legislature, is left to make
policy judgments.20 The petitioners also urge us to maintain the
current requirement for procedural safeguards.
¶56 The major difficulty with the petitioners' plea is
they make little effort to ground either their claims or their
proposed framework in the original understanding of the
Wisconsin Constitution. Instead, they point to language in our
1896-1927 cases and offer theories about nondelegation under the
federal Constitution. But an originalist analysis of the
Wisconsin Constitution requires examining how the nondelegation
doctrine was understood in 1848 when our constitution was
ratified.21
¶57 The petitioners' effort to compose a new, broadly
applicable legal test misses the key point in the analysis. We
must begin with constitutional text and history, and measure any
proposed test against that. "A proper legal test must implement
and effectuate" the original understanding of the law; that is,
it "must be a faithful extension of the lines ascertainable in
19See Dep't of Transp. v. Ass'n of Am. R.R.s, 575 U.S. 43,
70 (2015) (Thomas, J., concurring); see also Gundy v. United
States, 139 S. Ct. 2116, 2133 (Gorsuch, J., dissenting).
20See Gundy, 139 S. Ct. at 2136, 2141 (Gorsuch, J.,
dissenting).
21 James, 397 Wis. 2d 517, ¶62 (Hagedorn, J., concurring).
7
No. 2021AP1343 & 2021AP1382.bh
the provision's text and history."22 In that light, the
questions proposed by petitioners are less helpful to this
nascent inquiry into the how the separation of powers should be
enforced by the judiciary today. A better approach is first to
examine the allegedly improper delegation based on what the text
and history reveal.23
II. APPLICATION
¶58 The petitioners in this case offer two distinct
nondelegation claims. First, they contend that Wis. Stat.
§ 252.03 impermissibly delegates legislative power to local
health officers. Second, the petitioners assert that Dane
County Ordinance § 46.40(2) unlawfully transfers local
State v. Roundtree, 2021 WI 1, ¶116, 395 Wis. 2d 94, 952
22
N.W.2d 765 (Hagedorn, J., dissenting).
The United States Supreme Court recently endorsed a
23
similar approach in two federal constitutional contexts. The
proper analytical framework for Second Amendment questions has
lingered in lower courts for over a decade. The Court has now
answered that question, at least preliminarily. It articulated
a test that "requires courts to assess whether modern firearms
regulations are consistent with the Second Amendment's text and
historical understanding." New York State Rifle & Pistol Ass'n,
Inc. v. Bruen, S. Ct. , 2022 WL 2251305, at *12 (2022).
The Court explicitly rejected a generally applicable tiers of
scrutiny framework. Id. at *9. Similarly, the Court recently
instructed the "that the Establishment Clause must be
interpreted by reference to historical practices and
understandings." Kennedy v. Bremerton Sch.
Dist., S. Ct. , 2022 WL 2295034, at *3 (2022) (internal
quotation marks omitted). These cases are instructive of the
type of analysis that can inform the meaning of the Wisconsin
Constitution as well.
8
No. 2021AP1343 & 2021AP1382.bh
legislative authority to Dane County's local health officer.
Both claims fall short, though for different reasons.
A. Wisconsin Stat. § 252.03
¶59 In the challenged statute, the legislature directs
local health officers to "take all measures necessary to
prevent, suppress and control communicable diseases" and
instructs that they "may do what is reasonable and necessary for
the prevention and suppression of disease," including forbidding
public gatherings.24 The petitioners contend that in enacting
this law, the legislature violated the constitution by
impermissibly delegating legislative power to local health
officers.
¶60 This claim rests upon the constitutional vesting of
legislative power "in a senate and assembly."25 While this
textual grant informs our analysis, we must conduct a historical
inquiry to determine how this was understood in practice,
keeping our eye out for on-point historical analogues.
¶61 We applied this approach recently in State ex rel.
Kaul v. Prehn.26 There, we analyzed the available historical
evidence to determine whether the original understanding of the
Wisconsin Constitution conferred broad removal powers on the
governor.27 Looking to the historical record, we rejected the
24 Wis. Stat. § 252.03(1) & (2).
25 Wis. Const. art. IV, § 1.
26 2022 WI 50, ¶42-51, Wis. 2d , N.W.2d .
27 Id.9
No. 2021AP1343 & 2021AP1382.bh
attorney general's argument, rooted in political theory and
federal law, that this sort of control over appointment and
removal was a core executive power.28 Instead, our research
revealed that the original understanding of the removal power in
Wisconsin was different, and suggested that the legislature was
understood to have more of these powers under Wisconsin's
constitutional design.29 That form of analysis——looking to
history to illuminate the understanding of imprecise
constitutional text——is appropriate in this case as well.
¶62 Our earliest statutes provide particularly important
evidence of how the Wisconsin Constitution was originally
understood.30 The Revised Statutes of 1849 were written and
adopted by legislators who observed or participated in the
constitutional convention first hand.31 Shortly after it
convened, Wisconsin's first state legislature quickly created a
commission to assist in drafting our first statutes.32 The
commission's task was to compile and recommend an initial set of
laws based upon territorial rules and practice, omitting those
28 Id., ¶¶43, 44-50.
29 Id., ¶45.
30See Vos, 393 Wis. 2d 38, ¶64 ("Early enactments following
the adoption of the constitution are appropriately given special
weight."); see also NLRB v. Canning, 573 U.S. 513, 572 (2014)
(Scalia, J., concurring) ("Of course, where a governmental
practice has been open, widespread, and unchallenged since the
early days of the Republic, the practice should guide our
interpretation of an ambiguous constitutional provision.").
31 See Ranney, supra n.17, at 76.
32 Id.
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that were obsolete, as well as those repugnant to the newly
drafted constitution.33 The commission's recommendations were
then debated and voted on by the legislature, ultimately
creating the Revised Statutes of 1849.34
¶63 These laws therefore have unique relevance to an
analysis focused on the original understanding of the
constitutional text.35 This is particularly true when we find
laws on the books today that either descended from these early
statutes or do similar things. When the constitutionality of
such a law is challenged, the historical context provided by
those early laws must weigh heavily in the analysis. Does this
mean these 1849 laws represent the final word on a statute's
constitutionality? No. But unquestionably, they provide very
strong evidence of the constitution's original understanding.36
33 Id.
34 Id. at 76-77.
State v. Beno, 116 Wis. 2d 122, 138, 341 N.W.2d 66835
(1984) ("[B]ecause the Revised Statutes of 1849 are the first of
our statutes to be enacted following the constitution, it is
reasonable to rely on those statutes as reflecting the practice
when the constitution was adopted to assist our interpretation
of a word used by the authors of the constitution in 1848."
(quoting another source)).
We have long employed this interpretive technique in
36
constitution interpretation. See State ex rel. Pluntz v.
Johnson, 176 Wis. 107, 114-15, 186 N.W. 729 (1922) (noting that
a statute "first appeared in the . . . Revised Statutes of 1849"
and concluding that it "amounts to contemporaneous legislative
construction of this constitutional provision, which
construction is entitled to great deference"); Payne v. City of
Racine, 217 Wis. 550, 558, 259 N.W. 437 (1935) (same); Buse v.
Smith, 74 Wis. 2d 550, 572, 247 N.W.2d 141 (1976) (noting the
persuasive force of "the contemporaneous construction evidenced"
a provision of the "Revised statutes of 1849").
11
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¶64 One such 1849 statute is especially on-point in this
case. Chapter 26 in the Revised Statutes of 1849 was entitled
"Of the Preservation of the Public Health."37 That statute is
significant for our purposes because it established local boards
of health and gave them duties and responsibilities quite
similar to the statutes challenged in this case.38 In relevant
part, the statute provided: "Every board of health may take
such measures, and make such rules and regulations, as they may
deem most effectual for the preservation of the public health."39
It then provided that "every person who shall violate any order
or regulation, made by any board of health . . . shall be deemed
guilty of a misdemeanor, and punished by a fine not exceeding
one hundred dollars, or by imprisonment in the county jail not
exceeding three months."40 In other words, not only did
Wisconsin's first state government authorize local health
authorities to issue orders, it criminalized the failure to
follow those orders.
¶65 These 1849 statutes offer significant evidence of
original understanding in this case. When the Wisconsin
Constitution was ratified, those participating in state
government did not appear to understand the constitution to
forbid giving local officials charged with protecting public
37 Wis. Stat. ch. 26 (1849).
38 Id.39 Wis. Stat. ch. 26, § 2 (1849).
40 Wis. Stat. ch. 26, § 3 (1849).
12
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health the authority to issue at least some orders of
indeterminate character. Nor was it understood to be
problematic if those orders were enforceable. That same general
statutory authority has been amended and modified many times,
but it continues in today's Wis. Stat. § 252.03.41 If this
arrangement on its face did not run afoul of the constitutional
separation of powers in 1849, it is hard to see why it would
today. Whatever theoretical nondelegation framework may be
found in the Wisconsin Constitution, this kind of empowerment of
local health officials does not appear to violate it.
¶66 I stress that this conclusion does not mean that
orders issued by local health officers are immune from
challenge. In State ex rel. Adams v. Burdge, for example,
following a challenge by an affected parent, this court struck
down a rule adopted by the state board of health mandating
smallpox vaccines as a condition of attending school.42 The
court found this to be in conflict with the law mandating school
attendance, and explained that permitting the state board of
health to adopt this type of rule would be an impermissible
delegation of legislative power.43 The court further concluded
the rule would be "void as unreasonable and unnecessary,"
See Wis. Stat. ch. 26, §§ 2, 3 (1849); Wis. Stat. ch. 32
41
§§ 2, 3 (1858); Wis. Stat. ch. 57, §§ 1412, 1413 (1878); Wis.
Stat. ch. 76e § 1412 (1921); Wis. Stat. § 143.03 (1923-24); Wis.
Stat. § 252.03 (1993-94).
42 95 Wis. 390; see also James, 397 Wis. 2d 517.
43 Burdge, 95 Wis. at 399-404.
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calling it "a sweeping and far–reaching exercise of the power."44
But Burdge itself affirmed that the legislature could authorize
health officials to issue orders in some circumstances:
It cannot be doubted but that, under appropriate
general provisions of law in relation to the
prevention and suppression of dangerous and contagious
diseases, authority may be conferred by the
legislature upon the state board of health or local
boards to make reasonable rules and regulations for
carrying into effect such general provisions, which
will be valid, and may be enforced accordingly.[45]
Unlike in Burdge, the question in this case is not whether a
particular order was out of bounds, but whether the statute may
authorize public health orders at all. Justice Pinney's opinion
in Burdge supports the conclusion that the authority to issue
local health orders may be conferred by the legislature on local
health officials, but specific orders may be challenged on
constitutional grounds or on the basis that they are not
reasonable and necessary, among other claims.46
¶67 Perhaps historical evidence specific to the Wisconsin
Constitution weighs the other way, but it has not been presented
to us nor has my research uncovered it. My conclusion is based
44 Id. at 405.
45 Id. at 401.
46 The dissent misses this point in our cases and
misunderstands the claim before us. It spends considerable time
criticizing the fines levied against A Leap Above Dance, LLC;
the decision to classify a dance class as a high risk sport; the
multiple orders it describes as "oppressive"; and the banning of
gatherings in private homes before Thanksgiving. But again,
whether those particular choices were unlawful or
unconstitutional is not before this court; the petitioners
challenged only whether any orders can be issued at all.
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on the historical evidence available to me and the unique claims
before us.47 And because this claim can be resolved on the basis
of this historical evidence, it is unnecessary at this time to
adopt a new nondelegation framework to analyze future claims.
B. Dane County Ordinance § 46.40(2)
¶68 The petitioners' second nondelegation claim is
different. They contend Dane County Ordinance § 46.40(2)
unlawfully delegates local legislative power vested in the
county board to the local health officer. The challenged
ordinance provides: "It shall be a violation of this chapter to
refuse to obey an Order of the Director of Public Health Madison
and Dane County entered to prevent, suppress or control
communicable disease pursuant to Wis. Stat. [§] 252.03."48 The
penalty for noncompliance is a forfeiture "not less than $50 nor
more than $200 for each day that a violation exists."49 Refusal
to pay the forfeiture, when one has the ability to pay, may
result in confinement not to exceed 30 days.50
¶69 The dissent contains a thorough overview of the cases
interpreting Article IV, Section 22 of the Wisconsin
Constitution, on which the petitioners' claim is based. But we
Prehn,
47 Wis. 2d , ¶44 (explaining that it falls to
the parties to "construct a historical record in support of"
their constitutional claims).
48 Dane County Ordinance § 46.40(2).
49 Dane County Ordinance § 46.27(1).
50 Dane County Ordinance § 46.27(3).
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No. 2021AP1343 & 2021AP1382.bh
need not analyze that provision because Dane County Ordinance
§ 46.40(2) does not even trigger it. The ordinance is limited.
It penalizes those who refuse to obey an order issued "pursuant
to Wis. Stat. [§] 252.03." The authority to issue an order
punishable under this ordinance is therefore confined to the
powers conferred by § 252.03. The ordinance on its face simply
does not give the county's legislative power to the local health
officer; it does not independently authorize local health
officers to issue orders at all. The legislature——not the
county board——granted that power to local health officers in
§ 252.03, which is all the ordinance appeals to. The ordinance
makes it a violation subject to penalty to disobey a lawful
order authorized by § 252.03.51 Just as the legislature can, and
does, penalize the violation of lawful public health orders,52 I
see no reason why a duly enacted county ordinance making it a
violation to disobey lawful local public health orders would be
considered an impermissible delegation of power.
¶70 The petitioners offer no meaningful counterargument
for this understanding of what the ordinance does, asserting
only that if the power to issue orders comes from Wis. Stat.
§ 252.03 rather than the ordinance, "it just means the
nondelegation problem lies in § 252.03." But as we have
explained, § 252.03 does authorize local health officers to
issue orders, and it does not violate the nondelegation
doctrine. Nothing in the text of Dane County Ordinance
51 See also Wis. Stat. § 66.0113.
52 See Wis. Stat. § 252.25.
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§ 46.40(2) suggests it separately authorizes local health
orders. Without that, there is no plausible delegation of
legislative power to evaluate.
III. CONCLUSION
¶71 The petitioners bring us two nondelegation claims
supported by a proposal for how we should analyze nondelegation
questions going forward. I do not endorse a broader
nondelegation framework at this time because doing so is
unnecessary to resolve the claims before us. Based on the
historical record, I conclude the legislature did not
impermissibly delegate legislative power to local health
officers by authorizing them to issue orders under Wis. Stat.
§ 252.03. I also conclude the petitioners' claim that Dane
County Ordinance § 46.40(2) violates local nondelegation
principles fails because the ordinance does not delegate, or
redelegate as the dissent frames it, legislative power at all.
¶72 I close with a word to litigants. Regardless of
judicial philosophy, every member of this court is interested in
what the text says and what the historical evidence reveals
about the text.53 Therefore, parties who come to us advancing
legal theories grounded in the Wisconsin Constitution should
make every effort to present arguments focused on the original
understanding of our constitution.54 While such briefing is
53 See majority/lead op., ¶¶38-39 (relying on historical
evidence from Wisconsin's founding era).
54 See Halverson, 395 Wis. 2d 385, ¶¶22, 24.
17
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always welcome, arguments of this type are especially helpful
when analyzing novel claims or considering challenges to our
precedent. This is not a new invitation; it is made in
earnest.55
55 James, 397 Wis. 2d 517, ¶62 (Hagedorn, J., concurring).
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¶73 REBECCA GRASSL BRADLEY, J. (dissenting).
"'Law is the ultimate science,'" Paul quoted. "Thus
it reads above the Emperor's door. I propose to show
him law."
Frank Herbert, Dune 284 (Penguin Books 2016) (1965).
¶74 Our republic and our state were founded on the
fundamental idea that the people possess inherent rights, they
form governments for the primary purpose of protecting those
rights, and governments may exercise only those powers the
people consent to give them.1 Under our state constitution, the
people of Wisconsin authorized particular elected officials to
exercise power over them. But the people never consented to
that power being given away.
¶75 This case involves the power to make the rules by
which the people will be bound, a power the people have
entrusted to state and local legislatures alone. Not
surprisingly, when the people consented to submitting to the
rules that will govern society, they carefully confined the
exercise of such awesome power to those whom they elect. Should
others attempt to rule over the people, their actions are beyond
the law, even if they bear the imprimatur of a legislative body.
Legislators have no power to anoint legislators; only the people
do.
1Echoing the Declaration of Independence, the people of
Wisconsin enshrined these first principles in the first section
of the first article of our state constitution: "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 rights, governments are instituted,
deriving their just powers from the consent of the governed."
Wis. Const. art. I, § 1.
1
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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. . . . And when the people have said,
We will submit to rules, and be governed by laws made
by such men, and in such forms, no body 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 authorized to make laws for
them. The power of the legislative, being derived
from the people by a positive voluntary grant and
institution, can be no other than what that positive
grant conveyed, which being only to make laws, and not
to make legislators, the legislative can have no power
to transfer their authority of making laws, and place
it in other hands.
. . . .
The legislative neither must nor can transfer the
power of making laws to any body else, or place it any
where, but where the people have.
John Locke, Second Treatise of Government §§ 141–42 (C.B.
McPherson ed. 1980) (1690).
¶76 The majority misunderstands first principles and
ignores the plaintiffs' principal and most persuasive argument.
In Article IV, Section 22 of the Wisconsin Constitution, a
section the majority/lead opinion2 and the concurrence both cite
but once in passing references,3 the people of Wisconsin
Wis.
2 Sup. Ct. IOP III.G.5 ("If . . . the opinion
originally circulated as the majority opinion does not garner
the vote of a majority of the court, it shall be referred to in
separate writings as the 'lead opinion[.]'").
The plaintiffs' main brief cites Article IV, Section 22 of
3
the Wisconsin Constitution so many times, the table of
authorities does not provide specific page numbers for each
instance in which it is cited, instead using the phrase,
"passim." The majority/lead opinion instead focuses on Article
IV, Section 1 (which vests all legislative power in the senate
and assembly). The plaintiffs' main brief cites that clause on
a single page. Justice Brian Hagedorn complains the petitioners
do not analyze the original meaning of this provision but he
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authorized the state legislature to delegate certain powers to
county boards. That section states, "[t]he legislature may
confer upon the boards of supervisors of the several counties of
the state such powers of a local, legislative and administrative
character as they shall from time to time prescribe." Wis.
Const. art. IV, § 22. The original public meaning of this text,
as confirmed by the historical record, reflects the founders'
recognition of the non-delegation principle, on which the
constitutional framers' vesting of separate powers in each
branch was based. Because the people decide who may create the
laws that will bind them, those to whom power has been delegated
may not give it away. The people adopted an exception
permitting the legislature to delegate lawmaking power to county
boards (the members of which are elected), but those local
governmental entities may not give the power to anyone else.
See infra Part II.
¶77 This court has long held the Wisconsin Constitution
does not permit county boards of supervisors to subdelegate
lawmaking power. Although Article IV, Section 22 authorizes the
initial delegation from the legislature to the county boards,
the constitution does not authorize any subdelegation.
Accordingly, this court has declared unconstitutional a statute
enacted by the legislature authorizing "a county board to
delegate to the electors of the county a power by the
Constitution expressly delegated to the county board itself."
fails to undertake the analysis at all. Discerning original
meaning requires hard work but is an essential element of our
job as justices.
3
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See Marshall v. Dane Cnty. Bd. of Supervisors, 236 Wis. 57, 59,
294 N.W. 496 (1940). The constitution does not give the Dane
County Board of Supervisors any authority to empower a single,
unelected bureaucrat to restrict the liberty of the people of
Dane County.4
¶78 Dane County Ordinance § 46.40 (Dec. 2020) violates the
Wisconsin Constitution because it transfers lawmaking power
delegated to the Dane County Board of Supervisors. Enforcing
the non-delegation principle is vital to the maintenance of free
government but the majority eviscerates it. Violating its oath
to uphold the Wisconsin Constitution, the majority disturbs the
people's constitutional choices of who may exercise power over
them, eroding the people's fundamental freedoms. I dissent.
I. BACKGROUND
A. Dane County Ordinance § 46.40
¶79 The outbreak of COVID-19 spawned an unprecedented
exercise of extraordinary power over the people by many
governmental entities. See generally Samuel Alito, United
States Supreme Court Justice, Address at the Federalist Society
National Convention (Nov. 12, 2020) ("The pandemic has resulted
in previously unimaginable restrictions on individual
liberty."). This case concerns the actions of one particular
official, Janel Heinrich, the Public Health Officer and Director
of Public Health of Madison and Dane County ("PHMDC").
4 As explained in Part II, a county board of supervisors can
pass an ordinance that takes effect only if it is approved by a
vote of the people; however, it cannot make referendum votes to
pass ordinances by direct democracy binding on itself.
4
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¶80 For nearly two years, Heinrich has been creating law,
interpreting it, and then enforcing it against the people of
Dane County. In late May 2020, the Dane County Board of
Supervisors passed Dane County Ordinance § 46.40, purportedly
granting Heinrich unilateral rulemaking authority effectively
identical (although on a smaller geographical scale) to the very
powers this court held only weeks earlier could not be lawfully
exercised by a state official. See generally Wis. Legislature
v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900; Wis. Cnty.
Ass'n, Guidance in Implementing Regulations Surrounding
Communicable Diseases 37 (2020) ("Even though the decision
applied only to [the Department of Health Services ('DHS')], the
Palm Court's reasoning suggests that legislative body oversight
may be a prerequisite to an unelected official's (e.g., a local
health officer) authority to enforce a public health order
applicable to the public at large without raising significant
constitutional concerns surrounding separation of powers.").
¶81 Dane County Ordinance § 46.40 provides, in relevant
part:
(1) Duty of Director, Public Health Madison and Dane
County. Pursuant to Wis. Stat. ss. 252.03(1) & (2)
the Director of Public Health Madison and Dane
County shall promptly take all measures necessary
to prevent, suppress and control communicable
diseases within Dane County, including forbidding
public gatherings when deemed necessary to control
outbreaks or epidemics.
(2) Public Health Orders. It shall be a violation of
this chapter to refuse to obey an Order of the
Director of Public Health Madison and Dane County
entered to prevent, suppress or control
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communicable diseases pursuant to Wis. Stat.
s. 252.03.
§ 46.40(1)–(2). A violation of an "order" issued pursuant to
this ordinance exposes a person to a civil forfeiture of $50 to
$200 for each day the violation exists. Dane County Ordinance
§ 46.27(1). If a person does not pay, the person can be jailed.
§ 46.27(3) ("Any person who has the ability to pay any
forfeiture against him or her under this chapter but who refuses
to do so may be confined in the county jail until such
forfeiture is paid, but in no event to exceed thirty (30)
days.").
¶82 The ordinance creates an enforcement mechanism non-
existent in Wisconsin statutes. For context, Wis. Stat.
§ 252.25 (2019–20)5 states:
Any person who willfully violates or obstructs the
execution of any state statute or rule, county, city
or village ordinance or [DHS] 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.
While § 252.25 declares a violation of a DHS order punishable by
jail and a fine, it does not provide a penalty or other
enforcement mechanism for "orders" issued by local health
officers. See Wis. Cnty. Ass'n, Guidance in Implementing
Regulations, at 32 ("Neither the statutes nor the administrative
code provide for a detailed enforcement mechanism of a local
health officer's general order. It is important to understand
that a local health officer's order, standing alone, may not be
All subsequent references to the Wisconsin Statutes are to
5
the 2019–20 version unless otherwise indicated.
6
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'enforced' – make a violator subject to civil forfeiture –
absent a local ordinance allowing for such enforcement."). Dane
County's prayer for relief effectively concedes this point,
citing Dane County Ordinance § 46.27(1)——not any statute——as a
justification for the fine.
¶83 The question in this case is not whether any statute
has delegated lawmaking power to Heinrich (lawfully or
otherwise) but whether the county ordinance has lawfully
delegated this power to her. See Dane County Ordinance
§ 46.40(2) ("It shall be a violation of this chapter . . . .").
Because the county board empowered Heinrich to define what
constitutes a violation of the ordinance, and only a violation
of the ordinance can trigger a penalty, the issue in this case
does not rest on any statute purporting to directly grant her
authority. To the extent the majority suggests otherwise, it
misdirects the analysis.
B. Heinrich's Tyranny
¶84 Heinrich has exercised dictatorial powers for nearly
two years, in contrast with her peers in other counties.6 In
this very case, Dane County fully admits Heinrich issued an
6Dane County's COVID-19 response is atypical. According to
the complaint, "[o]nly three counties that plaintiffs are aware
of (Dane, Door, and Pierce) have adopted ordinances preemptively
making any order of the local health officer enforceable without
limits or oversight by the county board." Additionally, "only
Dane County's local health officer has issued orders in reliance
on such an ordinance, that Plaintiffs are aware of." The
majority insinuates the mandates imposed by Heinrich's orders
were necessary, but the COVID-19 response by the remaining 71
counties in the state belies the majority's misperception of
reality. See Majority/lead op., ¶4.
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"emergency order." PHMDC then posted "guidance" on its website
explaining how Heinrich defined certain key terms in that order.
PHMDC later filed an enforcement action against A Leap Above
Dance, LLC ("Dance Studio") seeking nearly $24,000 in fines.7
¶85 According to Dane County, around Christmas 2020
(nearly a year after the outbreak of COVID-19), the Dance Studio
held a performance of the Nutcracker ballet. Dane County
mislabeled this performance a "high risk sport" as defined on
its webpage——not in Heinrich's order.8 For the apparent purpose
of maximizing penalties, it declared that each of the eight
segments of the ballet constituted a different event. The Dance
Studio pointed out that the order's terms permitted "unregulated
youth programs," an undefined phrase in the order. In its
Orwellian doublethink,9 Dane County absurdly says ballet is a
sport and not a youth program.
¶86 After the Dance Studio joined this lawsuit, PHMDC
dismissed the enforcement action and filed two counterclaims in
Although Dane County uses the term civil forfeiture, a
7
$24,000 penalty could cripple a small business.
Shockingly, Dane County's second counterclaim begins,
8
"[g]roup dance was classified as a COVID-19 high risk sport in
Sports Guidance issued by the PHMDC[.]"
9"To know and not to know, to be conscious of complete
truthfulness while telling carefully constructed lies, to hold
simultaneously two opinions which cancelled out, knowing them to
be contradictory and believing in both of them, to use logic
against logic, to repudiate morality while laying claim to it,
to believe that democracy was impossible and that the Party was
the guardian of democracy . . . . Even to understand the word
'doublethink' involved the use of doublethink." George Orwell,
Nineteen Eight-Four 36 (Plume | Harcourt Brace Book 2003)
(1949).
8
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this case. Although Dane County now seeks less than $24,000, it
still alleges sixteen separate violations——eight for each
counterclaim——for a single ballet performance. Specifically,
Dane County asserts the Dance Studio committed eight separate
violations of the "mass gathering" prohibition declared in
Heinrich's emergency order. In a second counterclaim, Dane
County asserts eight separate violations of a "physical
distancing" mandate declared in an amendment to the order.
¶87 At oral argument, plaintiffs' counsel claimed Heinrich
had issued twenty-three different emergency orders. I take
judicial notice that PHMDC's website confirms the accuracy of
this statement.10 For the better part of two years, the people
of Dane County have been subjected to a constantly shifting
regulatory regime, rendering compliance illusory and objections
futile. As even the majority acknowledges, Heinrich's orders
have "requir[ed] face coverings, limit[ed] or forbid[den]
gatherings, require[ed] sanitation protocols for particular
facilities, limit[ed] or forbid[den] certain sport activities,
limit[ed] businesses' allowable indoor capacity, and requir[ed]
physical distancing between individuals."11 In abstract terms,
these measures may not seem particularly burdensome; in reality
they were oppressive. As but one representative example,
Heinrich banned small gatherings in private homes over
Current Orders, PHMDC (last visited June 2,
10 2022),
https://publichealthmdc.com/coronavirus/current-order.
11 Majority/lead op., ¶4.
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Thanksgiving, giving a mere week's notice of this diktat.12 She
threatened $1000 fines for violations.
¶88 Rather than respond to any of the legal analysis in
this dissent, the majority instead castigates its author for
characterizing Heinrich's actions in terms of tyranny,
autocracy, dictatorship, and despotism. There are no more
fitting words to describe the arrogation of power Heinrich
wields. James Madison forewarned that "[t]he accumulation of
all powers, legislative, executive, and judiciary, in the same
hands, whether of one, a few, or many, and whether hereditary,
self-appointed, or elective, may justly be pronounced the very
definition of tyranny." The Federalist No. 47, at 373–74 (James
Madison) (John C. Hamilton ed., 1882) (emphasis added).
¶89 Because his legal analysis of the non-delegation
doctrine collapses under the weight of founding principles and
more than 100 years of Wisconsin precedent applying them,
Justice Brian Hagedorn attempts to marginalize this opinion as
Demonstrating that judicial review is an inadequate
12
procedural safeguard, this court denied an original action
challenging this particular order brought by two of the
plaintiffs in the present case, over the strong dissent of three
justices. Gymfinity v. Dane County, No. 2020AP1927-OA,
unpublished order, at 3 (Wis. Dec. 21, 2020) (Roggensack, C.J.,
dissenting) ("While this court has recently received a barrage
of petitions to commence original actions, when it is presented
to us that fundamental personal liberty is suppressed by an
unelected official, we must act. Waiting until the matter
proceeds through a circuit court and the court of appeals will
be justice denied."). The petition was filed on November 23,
2020——this court did not act until December 21 of that year, by
which time, the Thanksgiving turkey was definitely cold. The
plaintiffs inform us they waited four months for a temporary
injunction decision from the circuit court.
10
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"miss[ing] th[e] point" by spending "considerable time"
"criticizing" Heinrich's "choices."13 It is, of course,
customary for any judicial opinion to relay the facts of the
case; this 53-page opinion spends four paragraphs reciting them
while the remaining 72 paragraphs expound the law. Justice
Hagedorn simultaneously suggests the facts are irrelevant to the
legal issues before us while rejecting "the petitioners'
arguments under the unique facts of this case."14 The facts
illustrate the raison d'être for the non-delegation principle:
protecting the people from governmental encroachments on their
liberty. Like the Wizard of Oz, Justice Hagedorn says, "[p]ay
no attention to that man behind the curtain!" The Wizard of Oz
(1939). But the public has a "right to know" the truth. See
Hawkins v. Wis. Elections Comm'n, 2020 WI 75, ¶14, 393
Wis. 2d 629, 948 N.W.2d 877 (Roggensack, C.J., dissenting).
¶90 A "public servant" who exceeded her lawful authority
has no ground to argue she was "merely doing her job[.]"15 As a
government official, Heinrich has an obligation to perform her
duties within constitutional confines even if a majority of this
court is not willing to enforce those boundaries. History is
replete with examples of abuses by public officials who
rationalized their actions as "just doing their jobs."
13 Concurrence, ¶66 n.46.
14 Id., ¶50 (emphasis added).
15 Teigen v. Wis. Elections Comm'n, 2022 WI __, ¶247 n.17,
__ Wis. 2d __, __ N.W.2d __ (Ann Walsh Bradley, J., dissenting).
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¶91 Heinrich is a powerful government official, not a
powerless victim who has been dragged to court, as the majority
insinuates. Heinrich is a named party in this case——she has had
every "opportunity to defend herself"16 (and to prosecute her own
counterclaims, for that matter). In contrast, defending
government overreach is difficult, as evidenced by the majority
glossing over the facts of this case and refusing to apply
governing law.
¶92 Instead of defending liberty, the majority tries to
conceal tyranny with benevolent motives. "[T]he greatest
threats to our system of constitutional liberties may arise when
the ends are laudable, and the intent is good——especially in an
emergency." County of Butler v. Wolf, 486 F. Supp. 883, 890
(W.D. Penn. 2020). However well-intentioned, a government
official who employs her powers to prohibit families from
enjoying Thanksgiving dinner together and who threatens hefty
financial sanctions for noncompliance has become the people's
master rather than their servant. "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.'" Palm, 391
Wis. 2d 497, ¶82 (Rebecca Grassl Bradley, J., concurring)
(quoting 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
16 Majority/lead op., ¶44.
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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) (modification in the original).
"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.'" Id. (quoting Jefferson, Notes on the State of
Virginia). The majority stands by while unlimited powers are
abused, and does nothing to guard against the tyranny that has
already gotten hold of the people of Dane County.
II. ANALYSIS
A. The Non-Delegation Principle
¶93 Evidence of the non-delegation principle underlying
the separation of powers in the Wisconsin Constitution has been
well-documented by Wisconsin's seminal source for originalist
constitutional interpretation:
In the formation of a state constitution it would be
well to keep in view the principles upon which
republican governments profess to be established. All
legitimate power proceeds from the people. This could
not be denied, even among men who wished to frame a
monarchy. . . . [W]e sometimes find men, nominally
liberal, practical tyrants. The governed should
beware of transferring too much authority into the
hands of rulers; for, forgetting that they are
servants, they too often become masters of the people.
Individuals are more ambitious and more tenacious of
power than the mass, and all history has proved that
in times of peace and quiet the former are apt to make
inroads and aggressions upon the latter. . . . Under
the head of implied and constructive powers, tyranny
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may find a plausible pretext to stamp his foot, rough-
shod, upon the neck of the American eagle.
A Convention Editorial (1846), reprinted in The Movement for
Statehood, 1845–46, at 309, 310–11 (Milo M. Quaife ed., Wis.
Hist. Soc'y 1918).
¶94 The people of Wisconsin are the ultimate sovereign.
Id. at 312 ("The persons that constitute the nation are the
source of all delegated power."); Taxation——Borrowing Money
(1846), reprinted in The Movement for Statehood, 1845–46, at
177, 179 ("There is no sovereign and independent power except in
the people."). "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
rights, governments are instituted, deriving their just powers
from the consent of the governed." Wis. Const. art. I, § 1.
"Under the Wisconsin Constitution, government officials, whether
elected or appointed, are servants of the citizens, not their
masters." Palm, 391 Wis. 2d 497, ¶68.
¶95 The people have delegated to state government, subject
to limits specified in the state constitution, powers they would
otherwise inherently retain. In a sense, each branch of
government is an "agent" of the people, capable of legitimately
exercising only those powers the people have delegated to them.
Philip Hamburger, Is Administrative Law Unlawful? 377 (2014);
see also Taxation——Borrowing Money, at 179 ("The members of the
legislature are the agents of the people. They act for the
people by power of attorney."). Embodying this agency
relationship, the constitution commands that "'[a]ll laws'
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enacted pursuant to the Wisconsin Constitution begin with the
phrase, '[t]he people of the state of Wisconsin, represented in
the senate and assembly, do enact as follows.'" In re Amending
Wis. Stat. §§ 48.299 & 938.299 Regulating the Use of Restraints
on Child. in Juv. Ct. (Juv. Ct.), 2022 WI 26, ¶55 n.11, __
Wis. 2d __, __ N.W.2d __ (Rebecca Grassl Bradley, J.,
dissenting) (quoting Wis. Const. art. IV, § 17(1)). As our
state's founders understood, "'[l]aw is an expression of the
legislative will'——that is, an embodiment of the people's
wishes, expressed by delegated authority." Legal Absurdities——
Pleadings (1846), reprinted in The Movement for Statehood, 1845–
46, at 467, 470 (quoting the Livingston Code).
¶96 Under the common law of agency, "the agent ordinarily
cannot subdelegate the power to a sub-agent, as this runs
counter to the apparent intent of the principal." Koschkee v.
Taylor, 2019 WI 76, ¶54 n.5, 387 Wis. 2d 552, 929 N.W.2d 600(Rebecca Grassl Bradley, J., concurring) (quoting Hamburger, Is
Administrative Law Unlawful?, at 380); see also Lang v. Lions
Club of Cudahy Wis., Inc., 2020 WI 25, ¶40, 390 Wis. 2d 627, 939
N.W.2d 582 (lead op.) ("An agent may appoint a subagent only if
the agent has actual or apparent authority to do so." (quoting
Restatement (Third) of Agency § 3.15(2))). "In individual
circumstances, this is a matter of personal freedom; in
politics, it is a foundation of constitutional liberty."
Hamburger, Is Administrative Law Unlawful?, at 380. Delegata
potestas non potest delegari: no delegated powers can be
further delegated. The non-delegation principle ensures only
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the entity the people chose to entrust with power may exercise
it, subject to limitations specified by the people.
¶97 The non-delegation principle traces its origins to
English law. See Jarkesy v. Sec. & Exch. Comm'n, 34 F.4th 446,
460 n.12 (5th Cir. 2022) ("Principles of non-delegation had even
taken hold in England before the American Founding." (citing
Hamburger, Is Administrative Law Unlawful?, at 381)). Even the
king of England, following the rise of popular sovereignty, was
not permitted to transfer certain powers vested in him by
Parliament. Sir Edward Coke explained:
That the prosecution and execution of any penal
statute cannot be granted to any, for that the act
being made by the policy and wisdom of the parliament
for the general good of the whole realm, and of trust
committed to the King as to the head of the justice
and of the weal public, the same cannot by law be
transferred to any subject.
Penal Statutes (1605), Coke, Reports, 7:36b–37a; see also
Hamburger, Is Administrative Law Unlawful?, at 381
("[P]arliamentary subdelegations were widely understood to be
unlawful. Englishmen of whiggish views tended to argue that
legislative power came from the people and that the legislature
therefore could not subdelegate its power to others.").
¶98 The United States adopted from England a similar
understanding of the non-transferability of the people's grant
of legislative power. Recent scholarship has explored this
concept in detail. See Ilan Wurman, Nondelegation at the
Founding, 130 Yale L.J. 1490 (2021); Philip Hamburger,
Delegating or Divesting?, 115 Nw. U. L. Rev. Online 88 (2020).
But see Nicholas Bagley, Delegation at the Founding, 121 Colum.
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L. Rev. 277 (2021). The early nineteenth century debates and
proceedings in the Congress of the United States document
Congress' understanding of the non-delegation principle as a
limit on transferring their authority:
 1808: "[T]o suspend or repeal a law is a Legislative
act, and we cannot transfer the power of legislating from
ourselves to the President." 18 Annals of Cong. 2125
(1808).
 1810: "It seems to me with equal constitutionality we
might refer to the President the authority of declaring
war, levying taxes, or of doing everything which the
Constitution points out as the duty of Congress. All
legislative power is by the Constitution vested in
Congress. They cannot transfer it." 21 Annals of
Cong. 2022 (1810).
 1818: "Legislative power, when granted, is not
transferable; nor can it be exercised by substitute; nor
in any other manner than according to the constitution
granting it." 31 Annals of Cong. 1144 (1818).
¶99 Wisconsin's founders adopted a system of government
similar in structure to the government designed under the United
States Constitution. "Like its federal counterpart, '[o]ur
state constitution . . . created three branches of government,
each with distinct functions and powers,' and '[t]he separation
of powers . . . is implicit in this tripartite division.'"
Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶11, 376
Wis. 2d 147, 897 N.W.2d 384 (quoted source omitted; alternations
in original). "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
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power . . . shall be vested in a unified court system')." Id.(citation omitted). As a general rule, "[o]ur constitutional
structure confers no authority on any branch to subdelegate any
powers the sovereign people themselves delegated to particular
government actors." Fabick v. Evers, 2021 WI 28, ¶56, 396
Wis. 2d 231, 956 N.W.2d 856 (Rebecca Grassl Bradley, J.,
concurring). "A strict accountability from public officers will
be required, and the will of the people be the great governing
voice . . . . [The people] will not permit their popular
sovereignty to be delegated to others who now, because dressed
'in a little brief authority' arrogate to themselves the
authority of being thinkers for the people, and 'the tongues o'
the common mouth.' To us such considerations are more weighty
than gold." State Government——No. 1, reprinted in The Movement
for Statehood, 1845–46, at 372, 375–76.
¶100 As is self-evident from the three vesting clauses,
"[t]he people vested the [lawmaking] power in the legislature——
not the executive and certainly not the judiciary." Johnson v.
Wis. Elections Comm'n, 2021 WI 87, ¶69, 399 Wis. 2d 623, 967
N.W.2d 469 (citing Fabick, 396 Wis. 2d 231, ¶55). This power
includes the authority to: (1) "declare whether or not there
shall be a law"; (2) "determine the general purpose or policy to
be achieved by the law"; and (3) "fix the limits within which
the law shall operate." Koschkee, 387 Wis. 2d 552, ¶11
(majority op.) (quoting Schmidt v. Dep't of Res. Dev., 39
Wis. 2d 46, 59, 158 N.W.2d 306 (1968)).
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¶101 "The legislative power is 'the supreme power' because
of its extraordinary reach[.]" Juv. Ct., __ Wis. 2d __, ¶44
(quoting Locke, Second Treatise of Government, § 134).
Therefore, "[l]aw-making is the platonic ideal of a '[c]ore
power[],' which is 'not for sharing.'" Id., ¶46 (quoting
Fabick, 396 Wis. 2d 231, ¶58). The people granted the lawmaking
power to the legislature subject to many conditions designed to
inhibit most ideas from ever becoming law. "Bicameralism and
presentment are the crucible bills must overcome to become law.
By design, it is much more difficult than rule by dictatorship."
Id., ¶55 n.11; see also Gundy v. United States, 585 U.S. __, 139
S. Ct. 2116, 2134 (2019) (Gorsuch, J., dissenting) ("An 'excess
of law-making' was, in [the framers'] words, one of 'the
diseases to which our governments are most liable.' To address
that tendency, the framers went to great lengths to make
lawmaking difficult."17 (quoting The Federalist No. 62, at 378
Justice Hagedorn discounts "Montesquieu and Madison" as
17
"helpful, but not sufficient" in construing the Wisconsin
Constitution. Concurrence, ¶49. Our constitution was modeled
after the United States Constitution——Wisconsin's founders were
not working from a blank slate. The early debates at the time
of Wisconsin's founding rely explicitly on The Federalist.
E.g., An Abolitionist Subscriber's View (1847), reprinted in The
Struggle over Ratification, at 639, 642 (Milo M. Quaife ed.,
Wis. Hist. Soc'y 1920) (citing The Federalist No. 39 (James
Madison)). Our early decisions followed suit. E.g., Walker v.
Rogan, 1 Wis. 511 (*597), 527 (*616) (1853). Evidencing the
enduring recognition of the Framers' influence over the writing
of our state constitution, over the last 50 years The Federalist
has been cited in nearly 50 Wisconsin appellate opinions. The
father of the United States Constitution and those who
influenced the founders' views on governance obviously "inform
our understanding of the separation of powers under the
Wisconsin Constitution." Gabler v. Crime Victims Rts. Bd., 2017
WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384.
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(Alexander Hamilton) (C. Rossiter ed. 1961))). "Because the
people gave the legislature its power to make laws, the
legislature alone must exercise it." Johnson, 399 Wis. 2d 623,
¶69 (quoting Fabick, 396 Wis. 2d 231, ¶56). "Safeguarding" the
legislature's exclusive domain "is particularly important in
light of its awesome sweep." Id. (quoting Fabick, 396
Wis. 2d 231, ¶55).
¶102 "In the early years of Wisconsin's statehood, this
court understood that the three branches of government could not
delegate their vested powers, imposing substantive limitations
on the legislature's assignment of authority to the executive to
carry out the legislature's policies." Fabick, 396 Wis. 2d 231,
¶64; see also Joseph A. Ranney, Trusting Nothing to Providence:
A History of Wisconsin's Legal System 377 (1999) ("Beginning
with the controversy over municipal financing of railroads in
the 1850s, the issue of what powers the legislature could confer
on subordinate units of government arose regularly in Wisconsin.
The Wisconsin Supreme Court adopted the . . . doctrine followed
in most American states as a partial answer to the problem. The
doctrine stated in essence that the legislature could grant
power to subordinate units to implement its policies but not to
make their own."). For example, in Dowling v. Lancashire Ins.
Co., this court held "a law must be complete, in all its terms
and provisions, when it leaves the legislative branch of the
government, and nothing must be left to the judgment of the
electors or other appointee or delegate of the legislature." 92
Wis. 63, 74, 65 N.W. 738 (1896) (emphasis added).
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¶103 The majority/lead opinion dedicates much ink to
statutory history in an effort to establish the legitimacy of
delegations in the context of boards of health; however, it
ignores one of this court's leading cases, State v. Burdge,
(which was cited by the plaintiffs). 95 Wis. 390, 70 N.W. 347(1897). In that case, this court examined a statute authorizing
the state board of health "to make such rules and regulations
and to take such measures as may, in its judgment, be necessary
for the protection of the people from Asiatic cholera, or other
dangerous disease[s]." Id. at 398. The act noted it was to "be
construed and understood" to cover "such diseases as the state
board of health shall designate as contagious and dangerous to
the public health." Id. at 401. Purporting to act in accord
with these statutes, the state board of health implemented a
vaccination requirement in schools in response to Smallpox
cases. Id. at 405. Through a "single stroke of the pen" and
without any input from the legislature, the board of health
"excluded from the common schools" "every child of school age,
throughout the entire state, that had not been vaccinated." Id.
No statute explicitly permitted the exclusion of students based
on vaccination status. Id. at 399.
¶104 After discussing Dowling, this court noted, "[t]he
provisions of the statute import and include an absolute
delegation of the legislative power over the entire subject here
involved[.]" Id. at 401. The court recognized, however, that
the board was a mere "administrative body[.]" Id. at 400. It
had no "legislative power" and "no part of the legislative power
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c[ould] be delegated by the legislature to [it]" or "any other
department or body[.]" Id.
¶105 For the state board of health to act upon its
administrative powers, it had to act pursuant to "some
substantive provision of law to be administered and carried into
effect." Id. at 402. Because no law explicitly permitted the
exclusion of unvaccinated students, this court held the state
board of health acted without authority notwithstanding its
ostensible statutory powers "to take such measures as may, in
its judgment, be necessary." Id. at 403. That statute was
"quite general" and therefore not a source of rulemaking
authority. Id. at 400. Extending its holding to both the
"state board of health" and "local boards," the court emphasized
that rulemaking by such bodies could be done only if the
authorizing statute was sufficiently complete in and of itself
that rulemaking did not "involve[] a discretion as to what [the
law] shall be" but merely "discretion as to its execution[.]"18
Id. at 401–02.
The majority seems to believe the ultimate sources of the
18
constitution's original meaning are early statutory enactments.
Not so. Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶256
n.64, 400 Wis. 2d 626, 971 N.W.2d 402 (Rebecca Grassl Bradley,
J., dissenting), rev'd sub nom. Wis. Legislature v. Wis.
Elections Comm'n, 595 U.S. __, 142 S. Ct. 1245 (2022) (per
curiam) ("The Legislative and Executive branches cannot, through
tacit understanding, change the constitutional allocation of
powers." (citing Bartlett v. Evers, 2020 WI 68, ¶210, 393
Wis. 2d 172, 945 N.W.2d 685 (Kelly, J.,
concurring/dissenting))).
"We may look to 'three primary sources in determining the
meaning of a constitution provision: [1] the plain meaning, [2]
the constitutional debates and practices of the time, and [3]
the earliest interpretations of the provision by the
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¶106 Justice Hagedorn trivializes Burdge because the case
was decided in 1897, a few decades after the state's founding.
Concurrence, ¶11 ("The major difficulty with the petitioners'
plea is they make little effort to ground either their claims or
their proposed framework in the original understanding of the
Wisconsin Constitution. Instead, they point to our 1896–1927
cases and offer theories about nondelegation under the federal
constitution.").
legislature, as manifested through the first legislative action
following adoption.'" Black v. City of Milwaukee, 2016 WI 47,
¶54, 369 Wis. 2d 272, 882 N.W.2d 333 (Rebecca Grassl Bradley,
J., concurring) (quoting Diaryland Greyhound Park, Inc. v.
Doyle, 2006 WI 107, ¶19, 295 Wis. 2d 1, 719 N.W.2d 408)
(modifications in the original). The ordering of these sources
reflect their legal weight, i.e., plain meaning is most
important while early statutory enactments are least indicative.
Id. & n.2. "In the performance of assigned constitutional
duties each branch of the Government must initially interpret
the Constitution, and the interpretation of its powers by any
branch is due great respect from the others. . . . Many
decisions of this Court, however, have unequivocally reaffirmed
the holding of Marbury v. Madison that '(i)t is emphatically the
province and duty of the judicial department to say what the law
is.'" Id., ¶54 n.2 (quoting United States v. Nixon, 418
U.S. 683, 703 (1974) (modification in the original)).
As the United States Supreme Court recently reiterated,
"post-ratification adoption or acceptance of laws that are
inconsistent with the original meaning of the constitutional
text obviously cannot overcome or alter that text." N.Y. State
Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. __, No. 20-843,
slip op. at 27–28 (June 23, 2022) (quoting District of Columbia
v. Heller, 670 F.3d 1244, 1274 n.6 (D.C. Cir. 2011) (Kavanaugh,
J., dissenting)). Under the majority's logic, the Alien &
Sedition Acts are proof positive of the First Amendment's
meaning. Legislatures often adopt laws without a full
appreciation of the relevant constitutional implications;
judicial review exists for a reason.
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¶107 Burdge undoubtedly stands as evidence of original
meaning. The opinion was authored by Justice Silas U. Pinney,
who was born in 1833. Former Justices: Justice Silas U.
Pinney, Wis. Ct. Sys. (last visited June 27, 2022),
https://www.wicourts.gov/courts/supreme/justices/retired/pinney.
htm. "Upon his death in 1899, it was believed that he had
argued more cases before the Wisconsin Supreme Court than any
other lawyer in the state. In the 100 volumes of the Wisconsin
Reports printed by the time of his death, his name appeared as
either counsel or justice in all but the first two volumes."
Id. Justice Pinney was also one of this state's first judicial
opinion reporters. "In 1872, [Justice] Pinney gathered the
opinions of the territorial Supreme Court and the original state
Supreme Court and published them in three volumes called
Pinney's Wisconsin Reports. The first volume includes [Justice]
Pinney's written history of the Wisconsin Territory." Id. He
also served as a state legislator and the mayor of Madison prior
to his election to the state supreme court. Id. A respected
jurist, Justice Pinney wrote a unanimous decision in Burdge, and
given his background, the fact that he wrote it in 1897 instead
of 1857 (or whatever arbitrary date Justice Hagedorn has in
mind) does not impair its persuasive value.
¶108 On the merits, Justice Hagedorn fundamentally
mischaracterizes Burdge, block quoting a single sentence from
the opinion completely out of context in order to suggest Burdge
says the exact opposite of its actual holding. Justice Hagedorn
truncates Burdge to the following passage:
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It cannot be doubted but that under appropriate
general provisions of law, in relation to the
prevention and suppression of dangerous and contagious
diseases, authority may be conferred by the
legislature upon the state board of health or local
boards to make reasonable rules and regulations for
carrying into effect such general provisions, which
will be valid, and may be enforced accordingly.
In the sentences immediately following, Burdge goes on to
explain the authority the legislature may confer on local boards
(not unelected bureaucrats) to make "reasonable rules and
regulations" does not include discretionary decisions about what
the law itself may be; rather, the authority conferred is
limited to how the law may be executed:
The making of such rules and regulations is an
administrative function, and not a legislative power,
but there must first be some substantive provision of
law to be administered and carried into effect. The
true test and distinction whether a power is strictly
legislative, or whether it is administrative, and
merely relates to the execution of the statute law,
'is between the delegation of power to make the law,
which necessarily involves a discretion as to what it
shall be, and conferring authority or discretion as to
its execution, to be exercised under and in pursuance
of the law.' The first cannot be done. To the latter,
no valid objection can be made. . . . Where an act is
clothed with all the forms of law, and is complete in
and of itself, it may be provided that it shall become
operative only upon some certain act or event, or, in
like manner, that its operation shall be suspended;
and the fact of such act or event, in either case, may
be made to depend upon the ascertainment of it by some
other department, body, or officer, which is
essentially an administrative act.
95. Wis. at 401-02 (emphasis added). Applying these principles,
the court in Burdge concluded "the rule under consideration
could be made operative only as an act of legislative power,
and it does not come within the domain of the power to make
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rules and regulations in aid or execution of some general
statutory provision." Id. at 403.
¶109 Justice Hagedorn also misconstrues Burdge as endorsing
the legislature's authority to delegate its lawmaking powers to
local health officials. It doesn't say that. The case
considered only whether "authority may be conferred by the
legislature upon the state board of health or local boards."
Id. at 401. The court emphasized "the importance and necessity
of a strict adherence to the constitutional rule, that the power
to make the law cannot be delegated to any board or body not
directly responsible to the people." Id. at 404 (emphasis
added). If, as Burdge concluded, the power to make the law
cannot be delegated to a state or local board of health, it
certainly may not be delegated to a local health officer who is
undisputedly "not directly responsible to the people." Burdge's
conclusion faithfully follows the Wisconsin Constitution, under
which "[t]he legislature may confer upon the boards of
supervisors of the several counties of the state such powers of
a local, legislative and administrative character as they shall
from time to time prescribe." Wis. Const. art. IV, § 22
(emphasis added). Justice Hagedorn's conclusion does not.
¶110 "[I]n the wake of the Progressive era, this court
began to uproot substantive limits on the legislature's
delegation of its constitutionally-conferred powers, thereby
damaging the 'foundation of American representative government'
that is the separation of powers." Fabick, 396 Wis. 2d 231, ¶64
(quoting Gary Lawson, Delegation and Original Meaning, 88 Va. L.
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Rev. 327, 332 (2002)); see also Ranney, Trusting Nothing to
Providence, at 377 ("The line between making and implementing
policy blurred substantially during the Progressive era as large
administrative agencies came into operation for the first time.
During the 1920s and 1930s, the supreme court, urged on by Chief
Justice Rosenberry, was one of the first in the nation to
acknowledge that the traditional delegation doctrine was dead
and that henceforth, administrative agencies must effectively be
treated as a separate branch of government.").
¶111 Although on paper this court claims to require some
substantive limits on delegated legislative power, it has
heavily preferred "procedural safeguards." Fabick, 396
Wis. 2d 231, ¶66 ("More accurately, the constitution's
substantive limitations on delegating authority are all but
dead. In their place survives judicial complacence with
transfers of legislative power, '[s]o long as there are adequate
procedural safeguards' in place to limit executive overreach."
(quoting Gilbert v. State, Med. Examining Bd., 119 Wis. 2d 168,
186, 349 N.W.2d 68 (1984))). Such complacence does not comport
with the original meaning of the vesting clauses, which the
court has an obligation to restore. Id., ¶68.
B. The Non-Re-Delegation Doctrine
¶112 The history of the non-delegation doctrine provides
helpful context for understanding the illegitimacy of delegating
already-delegated legislative power. County boards of
supervisors have no inherent power.19 Town of Vernon v. Waukesha
19 Unlike municipalities, counties lack constitutional home
rule. See Wis. Const. art. XI, § 3(1) ("Cities and villages
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County, 102 Wis. 2d 686, 689, 307 N.W.2d 227 (1981) ("[A] county
board has only such powers as are expressly conferred upon it or
necessarily implied from the powers expressly given or from the
nature of the grant of power."). They have only those powers
the legislature decides to confer upon them. This is a
subdelegation of power actually authorized by the people under
Article IV, Section 22 of the Wisconsin Constitution.
¶113 Absent the people's express consent to confer on
county boards of supervisors some limited lawmaking power, the
non-delegation principle would otherwise prohibit the
legislature from transferring even a small portion of its power
to any other entity. Under Article IV, Section 1 of the
Wisconsin Constitution, "[t]he legislative power shall be vested
in a senate and assembly." This vesting clause prohibits the
legislature from giving away its lawmaking power. Fabick, 396
Wis. 2d 231, ¶55. It was based on the United States
Constitution's legislative vesting clause, in which "the 'people
had vested the power to prescribe rules limiting their liberties
in Congress alone'——not the executive." Id. (quoting Gundy, 139
S. Ct. at 2133). Article IV, Section 22 was created as a carve
out to this rule. As one scholar noted, Section 22 "seems
puzzling" if it was not "drafted to forestall an objection based
on the non-delegation doctrine." Michael E. Libonati, "Neither
organized pursuant to state law may determine their local
affairs and government, subject only to this constitution and to
such enactments of the legislature of statewide concern as with
uniformity shall affect every city or every village. The method
of such determination shall be prescribed by the legislature.").
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Peace Nor Uniformity": Local Government in the Wisconsin
Constitution, 90 Marq. L. Rev. 596, 598 (2007).
¶114 The history of Article IV, Section 22 of the Wisconsin
Constitution confirms it creates an exception to the non-
delegation principle. The language of this section was taken
from the 1846 New York Constitution. Id.; see also The
Constitution——No. 6 (1847), reprinted in The Struggle over
Ratification, at 474, 482 (Milo M. Quaife ed., Wis. Hist. Soc'y
1920) ("The nearer home all legislation is brought, the better
and safer it is: that problem was well settled by the admirable
town governments in New England."). The New York representative
who introduced the language at that state's convention
explained:
Sir, the first section of the article to which this is
offered as an amendment, provides that the entire
legislative power of the state shall be vested in the
Senate and Assembly. It is therefore my opinion that
powers of local legislation cannot be conferred upon
the several boards of supervisors, without a
constitutional section permitting the state
legislature to delegate such power.
Report of the Debates and Proceedings of the Convention for the
Revision of the Constitution of the State of New-York 1070
(1846) (statement of R. Campbell, Jr.).
¶115 Article IV, Section 22 of the Wisconsin Constitution
was an "experiment" and this state's founders accordingly
proceeded with great caution. The Constitution——No. 6, at 482.
In theory, "[i]f each state can legislate better for itself than
Congress could, each county in the state can for itself better
than can the state at large[.]" Id. Nevertheless, local
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legislative control needed to be cabined because it was
"untried, and the details full of difficulty." Id. The author
of The Constitution——No. 6, a source for the original meaning of
Article IV, Section 22, explained that "it will take some time
and some experience to settle well and finally the bounds of
local legislation. Accordingly this constitution simply
provides that the legislature shall establish . . . county
government and may confer upon the county boards of supervisors
such powers of local legislation and administration as they
shall from time to time prescribe." Id. The author predicted
"the seed is sown, and the harvest will ripen in due time and
after due development." Id. Article IV, Section 22 has never
been amended. The founders' "experiment," reflecting a cautious
view of delegated county power, continues in its original form.
Our founders did not envision this "experiment" with
subdelegation being corrupted by further levels of delegation to
which the people never consented.
¶116 Article IV, Section 22 of the Wisconsin Constitution
would be pure surplusage, its historical purpose contravened,
and its existence utterly unnecessary if county boards of
supervisors could subdelegate their lawmaking power. See
Appling v. Walker, 2014 WI 96, ¶23, 358 Wis. 2d 132, 853
N.W.2d 888 (explaining constitutional language should be read to
"give reasonable effect to every word," so as to "avoid
surplusage" (quoting C. Coakley Relocation Sys. Inc. v. City of
Milwaukee, 2008 WI 68, ¶17, 310 Wis. 2d 456, 750 N.W.2d 900));
see also Antonin Scalia & Bryan A. Garner, Reading Law: The
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Interpretation of Legal Texts 174 (2012) ("If possible, every
word and every provision is to be given effect (verba cum
effectu sunt accipienda). None should be ignored. None should
needlessly be given an interpretation that causes it to
duplicate another provision or to have no consequence.").
Because an express grant of authority was necessary for the
legislature to delegate its power to the county boards of
supervisors for the purpose of experimentation, the absence of
an equally express authorization of subdelegation confirms the
people withheld their consent to subdelegations by the county
boards. Nothing in the constitutional text, its structure, or
its history establishes any exception, nor does an emergency
such as the COVID-19 pandemic. See Palm, 391 Wis. 2d 497, ¶53
(majority op.) ("There is no pandemic exception . . . to the
fundamental liberties the Constitution safeguards." (citation
omitted) (ellipsis in the original)); Fabick, 396 Wis. 2d 231,
¶50 ("Even in a pandemic, the government 'cannot be allowed to
obscure the limitations of the authority to delegate, if our
constitutional system is to be maintained.'" (quoting A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S. 495, 530
(1935))).
¶117 More than a century of precedent uniformly preserved
the non-re-delegation principle as applied to county boards of
supervisors. Consistent with the original meaning of Article
IV, Section 22, the Wisconsin Supreme Court invariably enforced
the prohibition on re-delegation of the supreme power——
irrespective of substantive or procedural safeguards. Although
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this court has corrupted the non-delegation principle, its non-
re-delegation jurisprudence faithfully followed the constitution
until its debasement in this case.20
¶118 In French v. Dunn County, the Dunn County Board of
Supervisors decided to purchase land for a "poor-farm"21 via a
committee of three supervisors. 58 Wis. 402, 404, 17 N.W. 1(1883). This court determined "[t]here can be no just claim
that the committee did not act strictly within the scope of the
authority conferred by the resolution." Id. at 405. For this
reason, it upheld the purchase, which the court emphasized was
not an act of lawmaking power. Id. at 408. Its holding was
limited: "There are, doubtless, powers vested in the county
board which could not be delegated to any committee. Powers
which are legislative in their character . . . must be exercised
under the immediate authority of the board." Id. at 406.
¶119 The next relevant case chronologically remains the
seminal decision interpreting Article IV, Section 22 of the
Wisconsin Constitution. See Meade v. Dane County, 155 Wis. 632,
145 N.W. 239 (1914). The Dane County Board of Supervisors
20Justice Hagedorn conflates the non-delegation principle
with the non-re-delegation doctrine. Regardless, he too
acknowledges that in regard to the former, this court long ago
"closed this chapter" and has "declined to fastidiously police
the line between a permissible legislative grant of power and an
impermissible delegation of legislative power." Concurrence,
¶54. Just because prior courts failed to uphold our
constitution does not give this court license to perpetuate its
dereliction of duty.
See
21 generally poor farm, Shorter Oxford English
Dictionary (6th ed. 2007) ("A farm run at public expense to
house and support the poor.").
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approved the purchase of farmland for $24,200 and directed the
chairman of the board, the county clerk, and the district
attorney to complete the purchase. Importantly, the board
intended to add the land to the existing county poor farm.
¶120 This proposed purchase generated significant
controversy. Dane County residents filed three petitions under
Wis. Stat. § 39j (1911) challenging the plan. That statute
stated, in relevant part:
(1) . . . [N]o ordinance or resolution of any county
board shall go into effect within twenty days from
the time of its passage[.] . . .
(2) An emergency ordinance or resolution shall be any
ordinance or resolution . . . making any
appropriation for maintaining the . . . county
government or maintaining or aiding any public
institution. . . .
(3) If within twenty days after the passage and
publication of any ordinance or resolution, a
petition, signed by qualified electors of the city
or county equal in number to at least twenty per
cent. of all the votes cast for Governor in
such . . . county at the last preceding regular
election, shall be filed with the . . . county
clerk and certified by him to the . . . county
board, praying that the operation of such
ordinance or resolution be suspended, the
operation of such ordinance or resolution, unless
the same shall be an emergency ordinance or
resolution, shall be suspended. At its next
regular meeting, . . . the . . . county board
shall consider such ordinance or resolution, and
either repeal it or submit it to the electors of
the . . . county at the next regular election or
at a special election, to be called for that
purpose . . . . If any such ordinance or
resolution shall be approved by a majority of the
electors voting thereon, it shall take effect and
be in force from and after twenty days from the
date of the election.
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(4) An emergency ordinance or resolution shall remain
in force notwithstanding any petition filed upon
it, but such ordinance or resolution shall stand
repealed from and after twenty days after being
rejected by a majority of the qualified electors
voting thereon.
§ 39j. When the petitions were presented to the Dane County
Board of Supervisors, it refused to act. It neither repealed
its plan nor provided for its submission to a vote of the
people, as purportedly required by § 39j. Instead, the board
proceeded to pay $1000 of the $24,200 but was enjoined from
paying the remainder following the filing of a lawsuit by a Dane
County resident and taxpayer. The circuit court ruled in favor
of the plaintiff.
¶121 On appeal, this court reversed and remanded with
directions to dismiss the complaint. Meade, Wis. at 645. When
a county board of supervisors enacts ordinances and resolutions,
the court recognized "the county acts by delegated authority,
and the state Constitution (section 22, art. 4) expressly
authorizes the Legislature to confer upon the boards of
supervisors of the several counties 'such powers of a local,
legislative, and administrative character.'" Id. at 642–43. It
then noted the plan of the Dane County Board of Supervisors was
an "emergency order or resolution" because it was intended to
benefit the poor farm. Id. at 643. Accordingly, "by
subdivision 4 [of Wis. Stat. § 39j] the action of the county
board [wa]s not merely to go into effect upon the contingency
that a majority of the electors declare[d] it, but, on the
contrary, t[ook] effect from the time of its passage[.]" Id.
The statute purported to authorize the voters not just to
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approve a law before it went into effect but to "repeal[]" a law
already in effect. Id. This court concluded the legislature
could not create a statute "delegating to the electors the
legislative power of repeal" because such a statute "vest[ed] in
the electors of the county the powers which the Constitution
says may be vested in the county board." Id. "The Constitution
provides for and authorizes a delegation of such powers to a
specified body. Expressio unius est exclusio alterius. In that
section 39j conflicts with the Constitution." Id.
¶122 This court held Wis. Stat. § 39j conflicted with the
Constitution in at least two respects: "(1) Because it violates
section 22 of article 4 in attempting to delegate to the
electors powers which that section, interpreted by the regular
rules of interpretation . . . requires to be otherwise
delegated. (2) Because, as regards emergency resolutions there
defined, which includes the resolutions in question here, the
statute is an attempted delegation of the legislative power of
repeal." Id. at 644. This court rebuked the enactment of
statute with decidedly strong language: "The statute in
question seems to have been framed in entire unconsciousness of
fundamental principles, and we have no reasonable doubt of its
invalidity." Id. at 645. It reiterated its concern multiple
times, even declaring ordinances in force pending possible
repeal unconstitutional. Id. at 644 ("As to all ordinances, and
as to those resolutions which are in effect ordinances, declared
by said section to be in force and effect until repealed by the
electors, this is a delegation of legislative power and
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forbidden by constitutional law."); id. at 645 ("As to all other
resolutions of the county board, this is a delegation of
administrative power, and this class of powers the Constitution
(Section 22, art. 4) permits to be delegated only to the county
board.").
¶123 Meade was followed a few months later by State ex rel.
Carey v. Ballard, 158 Wis. 251, 148 N.W. 1090 (1914). In that
case, this court reviewed the constitutionality of a statute
delegating the legislative power "to levy a tax" to a group of
freeholders within a county. Id. at 256. While that case
concerned whether the statute violated the legislative vesting
clause, not Article IV, Section 22 of the Wisconsin
Constitution, its reasoning is nevertheless relevant. This
court recognized then (as it should now) "[u]nder our
constitutional form of government the Legislature cannot
delegate legislative power to any officer or to any body of
persons, individual or corporate, aside from the power to confer
local legislative and administrative powers on county boards and
municipal corporations." Id. at 257 (citations omitted); see
also In re Village of N. Milwaukee, 93 Wis. 616, 621, 67
N.W. 1033 (1896) ("[T]he legislature may delegate local
legislative and administrative powers to county boards of
supervisors, and to no other officer or body, save in so far as
it may delegate powers of local self-government to municipal
corporations." (emphasis added)); 1 County Government in
Wisconsin 7 (Univ. of Wis. & Wis. Hist. Soc'y 1942) ("At its
first session, the State Legislature provided for the
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establishment in each county of a board of
supervisors, . . . which was to be the only body competent to
exercise the powers of the county as a body politic."). "In
conferring the taxing power on these local governments the
legislature must provide for its exercise by the proper
legislative authority of the local government." Carey, 158
Wis. at 257 (citation omitted). The court explained that local
legislative power had to be "exerted . . . either directly [by
the senate and assembly] or through the officers of a political
subdivision who act in their capacity of legislative
representatives of the people[.]" Id. at 258. It declared the
statute unconstitutional because "the Legislature acted in
excess of its power in attempting to vest authority for the
imposition of a tax for improving highways in a body of
freeholders who are not elected by the people as their
representatives, nor in any way responsible to them on account
of the tax burdens they imposed." Id. at 260. Again, this
court used unequivocal language: "[The statute]
delegates . . . power to a group of persons in their individual
capacity, which is condemned as contrary to the principles of
representative government under our Constitution." Id. at 261.
¶124 Two years later, this court decided State ex rel.
Nehbass v. Harper, 162 Wis. 589, 156 N.W. 961 (1916). That case
examined subdelegation by a village board, not a county board of
supervisors, and therefore did not directly concern Article IV,
Section 22 of the Wisconsin Constitution. Nonetheless, it
elucidates the non-re-delegation principle, specifically as
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applied to local governments, analogizing to decisions such as
Ballard involving county boards. See id. at 593 (citing
Ballard, 158 Wis. at 257).
¶125 In Nehbass, the City of Milwaukee enacted an ordinance
that required a person desiring to erect, remodel, or maintain
certain types of buildings to first obtain "the written consent
of two-thirds of all the real estate owners within three hundred
feet of the space[.]" Id. at 590. This court struck the
ordinance as a violation of the non-re-delegation principle. In
supporting its decision, the court summarized its prior
holdings:
 "A legislative body cannot delegate to a mere
administrative officer power to make a law . . . . In the
present cast the ordinance by its terms gives power to the
president to decide arbitrarily and in the exercise of his
own discretion when a saloon shall close. This is an
attempt to vest legislative discretion in him, and cannot
be sustained."22 Id. at 593 (quoting Village of Little
Chute v. Van Camp, 136 Wis. 526, 527, 117 N.W. 1012(1908)).
 "A county board cannot delegate to one not a member of the
board the power and authority to act as a member of the
committee of the board." Id. (citing Forest County v.
Shaw, 150 Wis. 294, 136 N.W. 642 (1912)).23
 "Under our constitutional form of government the
Legislature cannot delegate legislative powers to any
officer or to any body of persons, individual or corporate,
aside from the power to confer local legislative and
The ordinance read:
22 "All saloons in said village shall
be closed at 11 o'clock p. m. each day and remain closed until 5
o'clock on the following morning, unless by special permission
of the president."
Shaw appears to have been grounded in statutory law more
23
than constitutional principles.
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administrative powers on county boards and municipal
corporations." Id. (quoting Ballard, 158 Wis. at 257).
 "[In State v. O'Neill a statute] provided that a certain
act should be void unless accepted by a majority of the
legal voters of the city of Milwaukee . . . . This was
held not to be a delegation of legislative power
[because] the law was . . . '[a] complete enactment in
itself; contains an entire and perfect declaration of
legislative will; requires nothing to perfect it as a law;
while it is only left to the people to be affected by it to
determine whether they will avail themselves of its
provisions." Id. at 594 (quoting O'Neill, 24 Wis. 149(1869)).
Synthesizing these authorities, the court reasoned, "[i]f the
state [by statute] cannot delegate [lawmaking power] certainly a
common council cannot redelegate legislative power properly
delegated to it." Id. at 593. Critically, "[t]he ordinance in
question [unlike O'Neill] [wa]s not one left to take
effect . . . upon the ascertainment of some prescribed
fact . . . but attempt[ed] to delegate to property owners the
right to say how a particular person shall use a particular
piece of property[.]" Id. "[I]t is plain that the question of
whether or not a garage shall be erected in a particular place
is determined, not by the common council, but by the property
owners." Id. at 594.
¶126 A few decades later, Marshall v. Dane County Board of
Supervisors rehashed Meade. See 236 Wis. 57. The case
considered a different, but analogous referendum statute. A
petition was presented to the Dane County Board of Supervisors
demanding the adoption of "a complete civil service
ordinance[.]" Id. at 58. The relevant statute purported to
require a county board presented with such a petition to pass
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the proposed ordinance or submit it to a vote of the people.
Id. As in Meade, the board refused to act; it neither voted to
adopt an ordinance nor submitted it for a vote. Id.¶127 This court concluded the case was governed by Meade.
It reiterated the statute in Meade "was held unconstitutional by
the court because the legislature could not empower a county
board to delegate to the electors of the county a power by the
Constitution expressly delegated to the county board itself."
Id. at 59. The statute required county boards of supervisors
presented with a proper petition to: (1) repeal the ordinance;
or (2) submit the question of repeal to the people. That choice
could not be forced upon the boards; the constitution prohibits
boards from transferring their lawmaking power, even to the
people, if the boards were unwilling to repeal the ordinance.
¶128 After summarizing Meade, this court held "[t]he power
to enact such an ordinance must, under the constitutional
provision cited, be vested by the legislature in the county
board itself; the legislature cannot authorize the county board
to delegate the power to enact an ordinance of such a character
to the electors." Id. at 59. The decision was unanimous. If
the lawmakers may not re-delegate their delegated power even to
the people, it is logically impossible for county boards to
redelegate their delegated power to an unelected bureaucrat.
¶129 Multiple Wisconsin Attorney General opinions interpret
Article IV, Section 22 of the Wisconsin Constitution in
accordance with this court's understanding of the text. On at
least five occasions, the attorney general has concluded the
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legislative powers of county boards of supervisors cannot be
exercised by the electors of the county without violating the
non-re-delegation principle.24
24 27 Wis. Att'y Gen. 161, 161 (1938) ("[D]irect legislation
in counties by the electors is not permitted by the
constitution. . . . [A]rt. IV, sec. 22[] . . . empower[s] the
legislature to confer upon the county boards the legislative
power for the county and . . . therefore a statute providing for
direct legislation in counties [i]s unconstitutional because it
attempt[s] to confer legislative power upon the electors."); 22
Wis. Att'y Gen. 785, 785–86 (1933) ("The determination by a
referendum vote to build a new courthouse would constitute
direct legislation. This department in a previous
opinion . . . . held that sec. 59.02 was unconstitutional in so
far as it authorized referendum on legislative and
administrative matters in counties. . . . Since the question of
building a new courthouse rests with the county board, its clerk
has no authority to call a special meeting of the county board
or file presentation of a referendum petition."); 21 Wis. Att'y
Gen. 207, 208 (1932) ("The board must decide the question and
such decision cannot be delegated to the electors."); 11 Wis.
Att'y Gen. 106, 106–07 (1922) ("The case seems to me to fall
within the language of the supreme court in Meade . . . where a
similar referendum law was said to apply to any and every kind
of action that might be taken by a county board. The supreme
court also held, however, in the Meade case that a statute of
this kind is unconstitutional as applied to counties, for the
reason that it violates sec. 22, art. IV . . . . There is no
question in my mind but that sec. 59.02, in so far as it
provides for a referendum, is subject to all the infirmities
pointed out by the supreme court in the statute involved in the
Meade case. I, therefore, conclude . . . that the question of
employing a county agent cannot be lawfully determined by a
referendum among the voters of the county."); 9 Wis. Att'y
Gen. 66, 67–68 (1920) ("If the constitution does not permit
direct legislation of the voters of the county on purchasing a
poor farm, it does not permit such legislation on the subject of
public schools. . . . It seems to me that the decision in the
Meade case completely rules this question. . . . The Meade case
was an effort to kill a resolution by having it referred to the
electors. This case is an effort to defeat an ordinance by
enacting a repealing ordinance. If one is legislation, so is
the other, and legislation by direct action of the electors of
counties is declared to be prohibited by the constitution and
beyond the power of the legislature to confer.").
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¶130 In at least one opinion, the attorney general
concluded county boards of supervisors could not delegate
lawmaking power to committees of the board. In 1972, the
corporation counsel for Dane County requested an opinion on
"whether a county board can delegate to a committee of the board
the authority to make all appointments to county board
committees created under sec. 59.06, Stats., without necessity
of further action or confirmation by the board." 61 Wis. Att'y
Gen. 214, 215 (1972). The attorney general responded, "[i]t is
my opinion that the board is without such authority[.]" Id.Referencing Article IV, Section 22 of the Wisconsin
Constitution, he reasoned, "[t]he board can exercise the
legislative and administrative powers delegated to it by the
legislature as a collective body." Id. (emphasis added).
Because "[t]he power to create a committee and to provide for
its scope and purposes is legislative in nature," he concluded
it "could not be delegated to a committee." Id. at 216.
¶131 Treatises on municipal law similarly describe the
non-re-delegation principle and acknowledge its present
vitality. Constitutionally-ensconced since ratification and
upheld by this court for nearly 140 years, it is black-letter
law. See 2 Local Government Law § 13:13 (updated May 2022)
("[T]he doctrine that a legislative body cannot delegate its
legislative powers applies to local governments."); 2A McQuillin
Mun. Corp. § 10:45 (3d ed. updated Sept. 2021) ("So far as the
powers of a municipal corporation are legislative they rest in
the discretion and judgment of the municipal body entrusted with
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them, and the general rule is that that body cannot delegate or
refer the exercise of such powers to the judgment of a committee
of the council, or to an administrative board or officer of the
city, or to arbitrators under an agreement for binding
arbitration. If the legislature confers powers on a municipal
corporation, the exercise of discretion by the governing body of
the municipality cannot be delegated to a municipal officer or
other person of body.").
¶132 The collective thrust of these binding decisions is
relatively straightforward: (1) Article IV, Section 22 of the
Wisconsin Constitution does not allow the legislature to vest
lawmaking power in a municipal officer or body other than the
county boards of supervisors; (2) the non-re-delegation
principle prohibits a county board of supervisors from giving
any of its delegated lawmaking power to any person or other
body——the power must be exercised by the whole board,
collectively; (3) lawmaking means discretionary decisions that
bind the public with the force of law; and (4) for an ordinance
to be constitutionally valid, it must be complete and whole,
requiring no further discretionary decisions of a substantive
nature to carry its purpose into effect. This court has
consistently struck down subdelegations that caused
substantially less intrusive infringements on fundamental
liberties, e.g., invalidating a village ordinance that granted
the village president the power to allow saloons to stay open
late on a case-by-case basis. Van Camp, 136 Wis. at 527. The
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majority refuses to apply Article IV, Section 22, but there is
no statutory end-run around the constitution.
C. The Unconstitutionality of Dane County's Ordinance &
Heinrich's Orders
¶133 Having sworn oaths to support the Wisconsin
Constitution, this court must assiduously protect the people's
prerogative to decide who may govern them by enforcing the
constitutional limitations on the exercise of power the people
gave to particular public servants. Although Justice Hagedorn
dismisses this principle as nothing more than "general theories
of government power,"25 "[p]reserving the perimeters of power
constitutionally conferred on each branch of government is
essential for securing the liberty of the people." Palm, 391
Wis. 2d 900, ¶70 (Rebecca Grassl Bradley, J., concurring). This
duty becomes imperative when governmental actors conspire to
collapse the carefully calibrated separation of powers among
three branches in favor of consolidating power in a single,
unelected bureaucrat.
¶134 "The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of one, a
few, or many, and whether hereditary, self-appointed, or
elective, may justly be pronounced the very definition of
tyranny." The Federalist No. 47, at 373–74. The Dane County
Board bestowed on Heinrich "the three great powers of
government," even though our constitutional order is founded on
the axiom that they should be "ever . . . kept separate and
distinct." Serv. Emps. Int'l Union, Local 1 v. Vos, 2020 WI 67,
25 Concurrence, ¶49.
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¶87, 393 Wis. 2d 38, 946 N.W.2d 35 (Kelly, J., majority op.)
(quoting 2 Joseph Story, Commentaries on the Constitution of the
United States § 519, at 2–3 (Boston, Hilliard, Gray, & Co.
1833)). "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 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." Palm, 391 Wis. 2d 900, ¶70. "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., ¶72 (quoting Stephen
Dycus, Requiem for Korematsu, 10 J. Nat'l Sec. L. & Pol'y 237,
246 (2019)).
¶135 The facts of this case demonstrate the danger.
Heinrich prosecuted a local business for allegedly violating her
vague order. The County Board unlawfully gave her powers that
no elected official in this state possesses: the power to write
the rules, interpret their meaning, and impose punishments of
her choosing for violations only she may declare. The ordinance
by which the Board created this autocrat contains no legitimate
limiting directives, instead incorporating by reference statutes
similarly lacking any meaningful substantive constraints on her
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power. See Wis. Stat. § 252.03(1) ("The local health officer
shall promptly take all measures necessary to prevent, suppress
and control communicable diseases, and shall report to the
appropriate governing body the progress of the communicable
diseases and the measures used against them, as needed to keep
the appropriate governing body fully informed, or at such
intervals as the secretary may direct.").
¶136 As interpreted by the majority, this statute violates
the constitution as interpreted in Ballard, which held: "Under
our constitutional form of government the Legislature cannot
delegate legislative powers to any officer or to any body of
persons, individual or corporate, aside from the power to confer
local legislative and administrative powers on county boards and
municipal corporations." 158 Wis. at 257. It is a
substantially more open-ended grant of power than those this
court has struck in previous cases, e.g., the grant in Van Camp.
It mirrors the "take such measures as may, in its judgment, be
necessary" language construed in Burdge, which this court held
granted no rulemaking authority at all. See 95 Wis. at 398. It
is also indistinguishable from the power this court held a state
official could not exercise in Wisconsin Legislature v. Palm,
391 Wis. 2d 497 (majority op.). The majority silently overrules
Palm, a decision from which three members of the majority in
this case sharply dissented. Only a change in court membership
enables the current majority to discard this quite recent
precedent.
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¶137 Such a broad grant, particularly without procedural
safeguards, is patently unconstitutional. Id., ¶¶79–80 (Rebecca
Grassl Bradley, J., concurring). Heinrich has been permitted to
exercise "the supreme [lawmaking] power," with no pre-issuance
procedural safeguards to limit the power from being applied
arbitrarily and capaciously. See Juv. Ct., __ Wis. 2d __, ¶55
n.11 (quoting Locke, Second Treatise of Government, § 134);
Palm, 391 Wis. 2d 497, ¶35 (majority op.) (explaining a
procedural safeguard is inadequate if it can be applied only to
undo an unlawful rule). Renouncing multiple precedents spanning
more than a century, the majority accedes to Heinrich's
arrogation of breathtaking power.
¶138 The majority's decimation of the non-delegation
principle ignores controlling precedent on "procedural
safeguards." Tellingly, in the majority/lead opinion's three
paragraphs discussing procedural safeguards, it does not cite a
single case; the precedent overlooked by the majority explicitly
rebuts the majority's analysis. E.g., compare majority/lead
op., ¶40 ("[S]tate courts may review an order issued pursuant to
Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 and ensure
its measures conform to the laws' substantive limitations."),
with Palm, 391 Wis. 2d 497, ¶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. . . . Rulemaking
provides the ascertainable standards that hinder arbitrary or
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oppressive conduct by an agency. Judicial review does not
prevent oppressive conduct from initially occurring."). In
Palm, this court held procedural safeguards must resemble
chapter 227's rulemaking procedures; nothing comparable inhibits
Heinrich's exercise of unilateral power. Palm, 391 Wis. 2d 497,
¶34 ("Procedural safeguards, generally, are those requirements
imposed by the Administrative Procedures Act, codified at ch.
227." (citation omitted)).
¶139 The majority claims it is merely applying existing
precedent on the non-delegation principle; if the majority is
sincere, its efforts betray a startling ignorance of a
fundamental first principle. While ignoring the non-re-
delegation principle entirely, the majority implicitly abrogates
the non-delegation principle, facilitating unlimited future acts
of tyranny akin to Heinrich's. The majority/lead opinion says,
"[a]s with any legislative authority, the state legislature may
curb exercises of granted power it deems excessive[.]"26 The
legislature always has such power (as even the majority
acknowledges). The majority entirely misses the rationale
underlying the non-delegation principle: if the people did not
authorize the legislature to give its power away, its exercise
by anyone other than the legislature is unlawful, and the
legislature's ability to "curb" excess cannot cure the
subdelegation's constitutional infirmity.
¶140 The Dane County Board of Supervisors exceeded its
constitutional authority by assigning Heinrich such far-reaching
26 Majority/lead op., ¶40.
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powers. This subdelegation was substantively defective, even
under a liberal reading of the long line of governing precedent.
The Board's re-delegation imposed no meaningful procedural
restraints on Heinrich's power. By judicial fiat, the majority
endorses executive fiat, and the people's liberty languishes.
¶141 "Frequently 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 v. Olson, 487 U.S. 654, 699 (1988)
(Scalia, J., dissenting).
III. THE MAJORITY/LEAD OPINION'S FLAWED STATUTORY ANALYSIS
¶142 In James v. Heinrich——a recent case challenging the
exercise of power over the people by the same Dane County health
officer named in this case——this court held that "if 'the
legislature did not specifically confer a power,' the exercise
of that power is not authorized." 2021 WI 58, ¶18, 397
Wis. 2d 516, 960 N.W.2d 350 (quoting State ex rel. Harris v.
Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974)); see also
Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs., 594
U.S. __, 141 S. Ct. 2485 (2021) (per curiam) ("We expect
Congress to speak clearly when authorizing an agency to exercise
powers of vast economic and political significance." (citation
omitted)). This court held Wis. Stat. § 252.03's "reasonable
and necessary" provisions did not grant Heinrich the power to
"close schools." Among other reasons, such a generic
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authorization "cannot be reasonably read to encompass anything
and everything"; otherwise, it would swallow the rest of the
statute, creating substantial redundancy. James, 397
Wis. 2d 516, ¶¶22–23. Additionally, Wis. Stat. § 252.02specifically authorized DHS to "close schools," while a similar
grant of authority was conspicuously absent from § 252.03. Id.,
¶¶19–20.
¶143 Ignoring James allows the majority to avoid grappling
with a fundamental flaw in its reasoning. Conspicuously absent
from Wis. Stat. § 252.03 is any language granting local health
officers the power to issue orders, a power Wis. Stat. § 252.02explicitly grants to DHS. Under James, "if 'the legislature did
not specifically confer a power,' the exercise of that power is
not authorized." Id., ¶18 (quoting Harris, 64 Wis. 2d at 527).
¶144 Similarly, in Palm (another case ignored by the
majority), this court held Wis. Stat. § 252.02's authorization
to take "all emergency measures necessary" did not permit DHS to
"confin[e] people to their homes, forbid[] travel [or] clos[e]
businesses." 391 Wis. 2d 497, ¶¶45–59. "We cannot expansively
read statutes with imprecise terminology that purport to
delegate lawmaking authority to an administrative agency." Id.,
¶55; see also id., ¶24 (noting skepticism toward an
interpretation of a statute that would allow a single "unelected
official[ to] create law applicable to all people during the
course of COVID-19 and subject people to imprisonment when they
disobeyed her order").
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¶145 The majority's conclusions in this case cannot be
reconciled with James or Palm, so the majority ignores those
cases. Wisconsin Stat. § 252.03 cannot be read to give local
health officers greater power to rule over the people than their
state counterpart possesses. And a statute cannot override the
constitutional constraints on the delegation of lawmaking
power.27
IV. CONCLUSION
¶146 [L]ocal assemblies of citizens constitute the
strength of free nations. Town-meetings are to
liberty what primary schools are to science; they
bring it within the people's reach, they teach man how
to use and how to enjoy it. A nation may establish a
system of free government, but without the spirit of
municipal institutions it cannot have the spirit of
liberty.
1 Alexis Tocqueville, Democracy in America ch. V, Part I (1835).
¶147 Today's majority insulates local government from the
oversight of the town hall meeting——a beacon of representative
democracy——subjecting the people to the whims of an
unaccountable overlord. The majority displaces the
constitutional design for the exercise of lawmaking power with a
"technocracy"28 the majority favors. As Justice Patience Drake
27 Justice Hagedorn apparently believes statutes take
precedence over the constitution. Ignoring the glaring absence
of any constitutional authority, Justice Hagedorn says
penalizing the people for disobeying any order decreed by "local
health authorities" is perfectly acceptable if the legislature
says so, even though the people never consented. Concurrence,
¶64.
28Technocracy, The American Heritage Dictionary (5th ed.
2011) ("A government or social system controlled by technicians,
especially scientists and technical experts.").
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Roggensack described during oral argument in this case:
"Counsel, I give you that a dictatorship which is what Heinrich
exercised for about two years is the most efficient manner of
handling a problem you're focusing on, but it is not necessarily
a democratic manner." Efficiency bears a heavy price. A
"technocratic" approach to government "drains public discourse
of substantive moral argument and treats ideologically
contestable questions as if they were matters of economic
efficiency, the province of experts." See Michael J. Sandel,
The Tyranny of Merit: What's Become of the Common Good 20
(2020). It tells the common citizen he has no right to
participate in government, for he is not a "technical expert"
and the complexities of modern life are "beyond the reach" of
his feeble understanding. Id. "This narrow[ing]" of
"democratic government" "hollow[s] out the terms of public
discourse, and produce[s] a growing sense of disempowerment."
Id.
¶148 In declaring independence from the crown, the Founders
sought to escape despotism: "when a long train of abuses and
usurpations, pursuing invariably the same Object evinces a
design to reduce them under absolute Despotism, it is their
right, it is their duty, to throw off such Government, and to
provide new Guards for their future security." The Declaration
of Independence para. 2 (U.S. 1776). Not only is it our
constitutional duty to apply the original meaning of the
Wisconsin Constitution's structural safeguards, it is essential
to preventing the collapse of representative democracy. The
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people of this state constitutionally constrained the exercise
of power over them, but the majority refuses to enforce those
limits, opting instead to "look[] the other way"29 as unelected
bureaucrats run roughshod over the people's liberty. For two
years, "[s]eas would rise when [Heinrich] gave the word"; she
"held the key" to power. ColdPlay, Viva La Vida (2008).
Lacking any constitutional foundation, her usurped authority
"stand[s] upon pillars of salt and pillars of sand" and nothing
the majority says can fortify it. Id. The majority abandons
its station as a bulwark of liberty. I dissent.
¶149 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join
this dissent.
29 Concurrence, ¶53.
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