Tavern League of Wisconsin, Inc. v. Andrea Palm

2021 WI 33SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1742
COMPLETE TITLE: Tavern League of Wisconsin, Inc., Sawyer County
Tavern League, Inc. and Flambeau Forest Inn LLC,
Plaintiffs,
v.
Andrea Palm and Wisconsin Department of Health
Services,
Defendants-Respondents-Petitioners,
Julia Lyons,
Defendant-Respondent,
THE MIX UP, INC (D/B/A, MIKI JO'S MIX UP), Liz
Sieben, Pro-Life Wisconsin Education Task Force,
Inc., Pro-Life Wisconsin, Inc. and Dan Miller,
Intervenors-Plaintiffs-Appellants.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: April 14, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 17, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sawyer
JUDGE: James C. Babler
JUSTICES:
ROGGENSACK, C.J., announced the mandate of the Court, and
delivered an opinion, in which ZIEGLER and REBECCA GRASSL
BRADLEY, JJ., joined. HAGEDORN, J., filed a concurring opinion.
ANN WALSH BRADLEY, J., filed a dissenting opinion, in which
DALLET and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-respondents-petitioners, there were
briefs filed by Colin A. Hector, Hannah S. Jurss, and Thomas C.
Bellavai, assistant attorneys general; with whom on the brief
was Joshua L. Kaul, attorney general. There was an oral argument
by Colin Hector.
For the intervenors-plaintiffs-appellants, there were
briefs filed by Misha Tseytlin, Kevin M. LeRoy, and Troutman
Pepper Hamilton Sanders LLP, Chicago, Illinois. Also on the
briefs were Andrew M. Bath and Thomas More Society, Chicago,
Illinois; as well as Erick Kaardal and Mohrman, Kaardal &
Erickson, P.A., Minneapolis, Minnesota. There was an oral
argument by Misha Tseytlin.
An amicus curiae brief was filed by Lucas T. Vebber,
Corydon J. Fish, and Wisconsin Manufacturers & Commerce, Inc.
2
2021 WI 33NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1742
(L.C. No. 2020CV128)
STATE OF WISCONSIN : IN SUPREME COURT
Tavern League of Wisconsin, Inc., Sawyer County
Tavern League, Inc. and Flambeau Forest Inn
LLC,
Plaintiffs,
v.
Andrea Palm and Wisconsin Department of Health FILED
Services,
Defendants-Respondents-Petitioners, APR 14, 2021
Julia Lyons, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent,
THE MIX UP, INC (D/B/A, MIKI JO'S MIX UP),
Liz Sieben, Pro-Life Wisconsin Education Task
Force, Inc., Pro-Life Wisconsin, Inc. and Dan
Miller,
Intervenors-Plaintiffs-Appellants.
ROGGENSACK, C.J., announced the mandate of the Court, and
delivered an opinion, in which ZIEGLER and REBECCA GRASSL
BRADLEY, JJ., joined. HAGEDORN, J., filed a concurring opinion.
ANN WALSH BRADLEY, J., filed a dissenting opinion, in which
DALLET and KAROFSKY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
No. 2020AP1742
¶1 PATIENCE DRAKE ROGGENSACK, C.J. The Department of
Health Services (DHS) Secretary-designee, Andrea Palm, issued
Emergency Order 3 on October 6, 2020, as a response to the
COVID-19 pandemic. Emergency Order 3 limited the size of indoor
public gatherings either to 25 percent of a facility's permitted
capacity or, if no general capacity limit was prescribed, to 10
people.
¶2 We conclude that Emergency Order 3 meets the
definition of a rule, as we recently explained in Wisconsin
Legislature v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d
900. Therefore, Emergency Order 3 should have been promulgated
according to rulemaking procedures set forth in Wis. Stat.
ch. 227. Because it was not, Emergency Order 3 was not validly
enacted and was unenforceable. Accordingly, we affirm the
decision of the court of appeals.
I. BACKGROUND
¶3 On October 6, 2020, as her second response to COVID-19
cases in Wisconsin, Palm issued Emergency Order 3. Emergency
Order 3 limited the number of people who could be present at
indoor, public gatherings.
¶4 A "public gathering" was defined as "an indoor event,
convening, or collection of individuals, whether planned or
spontaneous, that is open to the public and brings together
people who are not part of the same household in a single room."
Places open to the public were "[r]ooms within a business
location, store, or facility that allow members of the public to
enter" or "[t]icketed events where tickets are available for
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No. 2020AP1742
free or for purchase by any individual or by any individual
within a specific class of people." Finally, places not open to
the public included "[o]ffice spaces, manufacturing plant[s],
and other facilities that are accessible only by employees or
other authorized personnel," "[i]nvitation-only events that
exclude uninvited guests" and "[p]rivate residences. Except, a
[private] residence is considered open to the public during an
event that allows entrance to any individual; such public
gatherings are limited to 10 people."
¶5 Emergency Order 3 stated in part:
2. Public gatherings limited.
a. Public gatherings are limited to no more than
25% of the total occupancy limits for the room
or building, as established by the local
municipality.
b. For indoor spaces without an occupancy limit
for the room or building that is established
by the local municipality, such as a private
residence, public gatherings are limited to no
more than 10 people.
The order listed entities who were exempt from its public
gathering limits: childcare settings, schools and universities,
health care and human services operations, Tribal nations,
governmental and public infrastructure operations (including
food distributors), places of religious worship, political
rallies, and other gatherings protected by the First Amendment.
Emergency Order 3 was enforceable by civil forfeiture, and it
was to be effective until November 6, 2020.1
In her November 10, 2020 affidavit, Palm said that she had
1
prepared Emergency Order 4, which similarly restricted public
3
No. 2020AP1742
¶6 One week after DHS issued Emergency Order 3, the
Tavern League of Wisconsin, Inc., the Sawyer County Tavern
League, Inc., and the Flambeau Forest Inn, LLC (collectively the
"Tavern League plaintiffs") initiated this lawsuit in Sawyer
County circuit court. The Tavern League plaintiffs alleged that
Emergency Order 3 was "a general order of general
application . . . in other words, it is a rule." The Tavern
League plaintiffs further alleged that DHS did not undertake
proper rulemaking procedures under ch. 227 and as required by
our decision in Palm. The Tavern League plaintiffs sought a
declaration that Emergency Order 3 was unlawful and a temporary
injunction barring its enforcement.
¶7 The circuit court, the Honorable John M. Yackel
originally presiding, granted the Tavern League plaintiffs'
motion for an ex parte temporary injunction. Judge Yackel did
not provide reasoning for his decision. The Mix Up, Inc., Liz
Sieben, Pro-Life Wisconsin Education Task Force, Inc., Pro-Life
Wisconsin, Inc., and Dan Miller moved to intervene (the
intervenors-plaintiffs collectively "The Mix Up") and moved for
a temporary injunction.
¶8 The Tavern League plaintiffs and DHS each moved for
judicial substitution pursuant to Wis. Stat. § 801.58(1)
(2019-20).2 The circuit court, the Honorable James C. Babler now
gatherings. She said that Emergency Order 4 would be issued
immediately were we to reverse the court of appeals decision.
2 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
4
No. 2020AP1742
presiding, granted The Mix Up's motion to intervene but vacated
Judge Yackel's ex parte order and denied The Mix Up's motion for
temporary injunctive relief.
¶9 The circuit court held that neither the Tavern League
plaintiffs nor the Mix Up had a reasonable probability of
success on the merits, one factor courts consider in determining
whether a movant is entitled to a temporary injunction.3 The
circuit court reasoned that "this matter . . . [is] not as
clear-cut as either side would like to make it."
¶10 The circuit court noted that in Palm, we did not
address the school closure portion of Emergency Order 28. See
Palm, 391 Wis. 2d 497, ¶3 n.6 ("This decision does not apply to
Section 4.a. of Emergency Order 28," which listed school
closings). DHS alleged that its authority to limit indoor
public gatherings was based in the same statute, Wis. Stat.
§ 252.02(3), which lists schools as well as churches, and "other
places" that the department may close. The circuit court
further held that enjoining Emergency Order 3 would disrupt the
status quo and there was no proof that the plaintiffs were
harmed by the order because they offered no proof that they were
3 "A circuit court may issue a temporary injunction
if: '(1) the movant is likely to suffer irreparable harm if a
temporary injunction is not issued; (2) the movant has no other
adequate remedy at law; (3) a temporary injunction is necessary
to preserve the status quo; and (4) the movant has a reasonable
probability of success on the merits.'" Serv. Empl. Int'l
Union, Local 1 v. Vos, 2020 WI 67, ¶93, 393 Wis. 2d 38, 946
N.W.2d 35 (quoting Milwaukee Deputy Sheriffs' Ass'n v. Milwaukee
Cnty., 2016 WI App 56, ¶20, 370 Wis. 2d 644, 833 N.W.2d 154).
5
No. 2020AP1742
in compliance with it. Accordingly, the circuit court denied
injunctive relief.
¶11 The Mix Up moved for leave to appeal the circuit
court's decision. After the court of appeals granted The Mix
Up's petition for leave to appeal, DHS petitioned for bypass.
We denied that petition, and the case remained with the court of
appeals.
¶12 The court of appeals summarily reversed the circuit
court. Tavern League v. Palm, No. 2020AP1742, unpublished slip
op. (Wis. Ct. App. Nov. 6, 2020). The court of appeals held
that "under our supreme court's holding in Palm, Emergency Order
#3 is invalid and unenforceable, as a matter of law." Id. at 3.
It therefore held that The Mix Up had "a reasonable probability—
in fact, an apparent certainty——of success on the merits" and
was entitled to an injunction. DHS petitioned for review, which
we granted. The question we determine on review is whether
Emergency Order 3 is a rule. First, however, we determine
whether to dismiss this appeal as moot.
II. DISCUSSION
A. Standard of Review
¶13 Whether an issue is moot is a question of law that we
review independently. Portage Cnty. v. J.W.K., 2019 WI 54, ¶10
386 Wis. 2d 672, 927 N.W.2d 509. Additionally, whether
Emergency Order 3 was a rule is a question of law that we review
independently. Palm, 391 Wis. 2d 497, ¶14; see also Journal
Times v. City of Racine Bd. of Police & Fire Comm'rs, 2015 WI
56, ¶42, 362 Wis. 2d 577, 866 N.W.2d 563 (noting that the
6
No. 2020AP1742
interpretation of our prior cases is a question of law reviewed
independently).
B. Mootness
¶14 The Mix Up urges us to dismiss the review that we
granted to DHS because the issues are now moot. The Mix Up
argues that, because Emergency Order 3 expired on November 6,
2020, there is not a live controversy.
¶15 "An issue is moot when its resolution will have no
practical effect on the underlying controversy." J.W.K., 386
Wis. 2d 672, ¶11. Ordinarily, we refrain from deciding moot
issues. Id., ¶12. However, we have exceptions to that general
rule such as: "(1) the issues are of great public importance;
(2) the constitutionality of a statute is involved; (3) the
situation arises so often a definitive decision is essential to
guide the trial courts; (4) the issue is likely to arise again
and should be resolved by the court to avoid uncertainty; or
(5) the issue is capable and likely of repetition and yet evades
review." Id. (quoted sources and internal quotation marks
omitted).
¶16 The Mix Up is correct that the issue in this case is
moot; Emergency Order 3 expired on November 6, 2020. However,
we conclude that this case satisfies several of our mootness
exceptions set forth above, one of which we address below. We
begin by noting that "[t]he dispute in this case involves
whether the Secretary-designee of DHS issued an order in
violation of the laws of Wisconsin." See Palm, 391 Wis. 2d 497,
¶11. Similar to Emergency Order 28, Emergency Order 3 impacts
7
No. 2020AP1742
every person in Wisconsin, in one way or another, and it is open
to all who come into Wisconsin during its operation. It charts
a course that the Secretary-designee will repeat with future
orders.4 Accordingly, it is important to confirm, once again,
that Emergency Order 3 is beyond the power that the legislature
delegated to the Secretary-designee. This satisfies the great
public importance mootness exception. Accordingly, we decline
to dismiss our review; instead, we turn to the merits.
C. Parameters of a Rule
¶17 Rulemaking "ensure[s] that . . . controlling,
subjective judgment asserted by one unelected official" is not
imposed by agencies through the abandonment of rulemaking
procedures. Palm, 391 Wis. 2d 497, ¶28; NLRB v. Wyman-Gordon
Co., 394 U.S. 759, 764 (1969) (explaining that rulemaking
provisions in the law "assure fairness and mature consideration
of rules of general application"). Accordingly, agencies must
comport with rulemaking procedures set forth in ch. 227 when the
agency's proffered directive meets the definition of a "rule."
¶18 Wisconsin Stat. § 227.10(1) is the initial focus of
our review. It provides: "Each agency shall promulgate as a
rule each statement of general policy and each interpretation of
a statute which it specifically adopts to govern its enforcement
or administration of that statute." In Palm, we were asked to
interpret whether Emergency Order 28 met that statutory
definition. We concluded that it did because Emergency Order 28
4 See note 1 supra.
8
No. 2020AP1742
was "a general order of general application." Palm, 391 Wis. 2d
497, ¶42.
¶19 We further explained that agency action that exhibits
all of the following criteria meets the definition of a
rule: "'(1) a regulation, standard, statement of policy or
general order; (2) of general application; (3) having the effect
of law; (4) issued by an agency; (5) to implement, interpret or
make specific legislation enforced or administered by such
agency.'" Palm, 391 Wis. 2d 497, ¶22 (quoting Citizens for
Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 814, 280 N.W.2d
702 (1979)); see also Wis. Stat. § 227.01(13) (defining "rule").
¶20 As we concluded in Palm, an order issued by an agency
is a general order of general application if "the class of
people regulated . . . 'is described in general terms and new
members can be added to the class.'" Palm, 391 Wis. 2d 497, ¶22
(quoting Citizens for Sensible Zoning, 90 Wis. 2d at 816). The
inquiry focuses on the class of people regulated by the agency,
not on the factual context in which the agency action arose.
Palm, 391 Wis. 2d 497, ¶23. To that end, "to be of general
application, a rule need not apply to all persons within the
state" as long as the class to whom the rule applies is
described in general terms and members can be added to the
class. See Citizens for Sensible Zoning, 90 Wis. 2d at 815-16.
For example, in Palm, Emergency Order 28 was a rule because it
"regulate[d] all persons in Wisconsin at the time it was issued
and it regulate[d] all who [would] come into Wisconsin in the
future." Palm, 391 Wis. 2d 497, ¶24; see also Citizens for
9
No. 2020AP1742
Sensible Zoning, 90 Wis. 2d at 814 (concluding that a flood
plain ordinance that was limited to certain portions of a
certain county was nevertheless a rule because although the
applicable class was limited, it was open and new members could
be added).
¶21 Appellate courts have held that a general order of
general application could "have the 'effect of law' where
criminal or civil sanctions can result [from] a violation; where
licensure can be denied; and where the interest of individuals
in a class can be legally affected through enforcement of the
agency action." Cholvin v. DHFS, 2008 WI App 127, ¶26, 313
Wis. 2d 749, 758 N.W.2d 118 (collecting cases). Palm, Citizens
for Sensible Zoning and Cholvin illustrate the wide array of
agency conduct that could affect an individual group member's
legal interests.
¶22 In Palm, Emergency Order 28 provided that it was
enforceable by criminal sanction; clearly, it had the effect of
law. Palm, 391 Wis. 2d 497, ¶36. Similarly, in Citizens for
Sensible Zoning, the rule had the effect of law because it was
"'of the same effect as if adopted by the county.'" Citizens
for Sensible Zoning, 90 Wis. 2d at 816 (quoting Wis. Stat.
§ 87.30 (1973-74)). Lastly, in Cholvin, the written
instructions that the Department of Health and Family Services
utilized had the effect of law because the instructions could be
used to deny certain Medicaid benefits. Cholvin, 313 Wis. 2d
749, ¶29. These cases and those cited in Cholvin demonstrate
that a myriad of different agency actions could affect one's
10
No. 2020AP1742
legal interests and that an action having the effect of law is
not limited to criminal sanctions.
¶23 In order to constitute a rule, the directive must be
that of an agency. Palm, 391 Wis. 2d 497, ¶22. Wisconsin Stat.
§ 227.01(1) defines an "[a]gency" as "a board, commission,
committee, department or officer in the state government, except
the governor, a district attorney or military or judicial
officer." Boards, commissions, committees and departments are
defined generally in Wis. Stat. § 15.01 and other statutes
define which entity meets those descriptions as relevant to that
section or chapter. See, e.g., Wis. Stat. § 250.01(2) (defining
the "department" for purposes of chapters 250-257 as "the
department of health services"). If a general order of general
application is issued by one of these entities, it satisfies the
fourth definitional criterion of a rule.
¶24 Finally, when a general order of general application
implements, interprets or makes specific legislation or
regulates how a statute will be administered or enforced moving
forward that general order meets the fifth definitional
criterion of a rule.5 See Citizens for Sensible Zoning, 90
Wis. 2d at 816 ("[T]he DNR issued the ordinance to implement
5To "implement" is to "carry out" or "accomplish" and
"especially: to give practical effect to and ensure actual
fulfillment by concrete measures." Implement, Merriam-Webster
Third Int'l Dictionary 1134 (1986). See State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶54, 271 Wis. 2d 633,
681 N.W.2d 110 (utilizing the American Heritage Dictionary to
glean the common meaning of the word "refuse").
11
No. 2020AP1742
sec. 87.30, which it administers."); see also Wisconsin Elec.
Power Co. v. DNR, 93 Wis. 2d 222, 235, 287 N.W.2d 113 ("[T]he
DNR issued the permits containing the chlorine limitations to
implement sec. 147.02, Stats."). Similarly, emergency rules
guide the administration and enforcement of a statute under an
agency's purview when a threat to the "public peace, health,
safety, or welfare necessitates" expediency. See Wis. Stat.
§ 227.24(1). Therefore, under most circumstances, when an
agency action makes specific a statute for which the agency has
rulemaking authority that action will satisfy the fifth
criterion of a rule.
¶25 Furthermore, when an agency, in order to enforce or
administer a statute in its purview, adopts its own
understanding of that statute, it generally has interpreted the
statute thereby satisfying the "interpret" criterion of
rulemaking. See Wis. Stat. § 227.10(1); see also Frankenthal v.
Wis. Real Est. Brokers' Bd., 3 Wis. 2d 249, 253, 89 N.W.2d 825(1958) (concluding that "mimeographed instructions for renewal
of real-estate broker's licenses" was a rule of the real estate
brokers' board). In addition, where a statute's mandate is not
clear and unambiguous, an agency will need to interpret the
statute in order to take action permitted by the statute. See
Lamar Cent. Outdoor Co., Inc. v. Div. of Hearings & Appeals,
2019 WI 109, ¶38, 389 Wis. 2d 486, 936 N.W.2d 573 (concluding
that the statute at issue did not "plainly and unambiguously"
compel the agency's interpretation of the statute and therefore
12
No. 2020AP1742
rulemaking was required). In such instances, the fifth
definitional criterion of a rule is also satisfied.
D. Emergency Order 3
¶26 Having set out the definitional criteria used to
evaluate when an agency action constitutes a rule, we apply them
to determine whether Emergency Order 3 is a rule. The court of
appeals concluded that Emergency Order 3 was a rule because it
was issued by DHS purportedly pursuant to its authority under
Wis. Stat. § 252.02(3), it imposed statewide restrictions on
public gatherings and it made subjective policy decisions
regarding which entities were subject to its mandate and which
entities were exempt. Because Emergency Order 3 was not
promulgated as a rule the court of appeals concluded that it was
invalid and unenforceable. We agree. On its face, Emergency
Order 3 meets the definition of a rule and DHS was required to
comply with rulemaking procedures in ch. 227.
¶27 However, despite our decision in Palm and the court of
appeals' conclusion that this case fell squarely within Palm,
DHS argues that Emergency Order 3 is not a rule under Palm's
rubric. DHS contends that Emergency Order 3 was not a rule
because it issued Emergency Order 3 under Wis. Stat. § 252.02(3)6
rather than the more general statutory subsections discussed at
length in Palm, namely §§ 252.02(4) and (6).7 DHS supports its
Wisconsin Stat. § 252.02(3) states that "The department
6
may close schools and forbid public gatherings in schools,
churches, and other places to control outbreaks and epidemics."
In relevant part, Wis. Stat. § 252.02(4) states that
7
"[T]he department may promulgate and enforce rules or issue
13
No. 2020AP1742
argument by noting that we did not discuss the scope of
subsection (3) and that we upheld the school closure provision
of Emergency Order 28, which was based on § 252.02(3).
Additionally, DHS argues that § 252.02(3) "confer[s] well-
delineated statutory power" and therefore does not require
rulemaking to enforce.8
¶28 This argument reads Palm too narrowly and misses
Palm's overarching holding. As a preliminary matter, we note
that Palm did not bless DHS's order that closed schools. Palm
simply said that its holding "[did] not apply to Section 4.a. of
Emergency Order 28," which was limited to school closures.
Palm, 391 Wis. 2d 497, ¶3 n.6. Palm was very specific in regard
to the portion of Emergency Order 28 to which it did not apply.
It employed a subsection of Emergency Order 28, not a subsection
of Wis. Stat. § 252.02. It did not exempt all orders issued
under § 252.02(3) from the definition of a rule. Stated
otherwise, whether DHS issued Emergency Order 3 under a
different statutory subsection than those Palm focused on is of
orders . . . for the control and suppression of communicable
diseases . . . ." Similarly, subsection (6) provides that "The
department may authorize and implement all emergency measures
necessary to control communicable diseases." § 252.02(6).
8 DHS also argues that rulemaking is not needed when an
agency enforces or administers a statute that plainly authorizes
the agency to act. According to DHS, rulemaking is necessary
only when an agency "fills in the gaps" of a general statute
with forward looking policy. This argument appears to be a
reformulation of the fifth criterion of the rule definition set
forth above and does not obviate the requirement that DHS
proceed by rulemaking.
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No. 2020AP1742
no import if DHS's action meets the definition of a rule.
Accordingly, we examine Emergency Order 3 based on whether it
satisfies the five definitional criteria of a rule, which were
explained in detail in Palm.
¶29 Emergency Order 3 is a general order generally
applied, and therefore, it meets the facial definition of a rule
under Wis. Stat. § 227.01(13), explained further in Palm. We
set out at length in Palm that when a general order of general
application satisfies the five rule definitional criteria, it is
a rule for purposes of ch. 227. We now review those criteria in
light of Emergency Order 3.
¶30 First, and as with Emergency Order 28, Emergency Order
3 is a general order of general application satisfying the first
and second definitional criteria of a rule. An agency action is
a general order of general application if the class to whom it
applies is described in general terms and new members can be
added to the class. See Palm, 391 Wis. 2d 497, ¶¶22-24. By its
own terms, Emergency Order 3 defined a public gathering broadly
as any "indoor event, convening, or collection of individuals,
whether planned or spontaneous, that is open to the public and
brings together people who are not part of the same household in
a single room." "[O]pen to the public" is defined just as
expansively and "include[d], but [was] not limited
to: . . . [r]ooms within a business location, store, or facility
that allow members of the public to enter." Public gathering
also includes "[t]icketed events" where persons could obtain
tickets for free or purchase tickets. This broad and general
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No. 2020AP1742
description of the class to whom Emergency Order 3 applied
regulated a vast array of entities and people.
¶31 In addition to describing the class to which Emergency
Order 3 applied in general terms, the class it created was an
open class. New entities and new members could be added for
public gatherings. Just as people who were not regulated by
Emergency Order 28 one day "could have been regulated the next"
if they moved into Wisconsin, new entities could have opened
during Emergency Order 3 and new persons could have come into
Wisconsin. If they met the order's broad requirements, all
attendance for all people would have been regulated. See Palm,
391 Wis. 2d 497, ¶24; see also Citizens for Sensible Zoning, 90
Wis. 2d at 815.9
¶32 In regard to the third definitional criterion,
Emergency Order 3 had the effect of law. Section 6 of Emergency
Order 3 stated that the "order [was] enforceable by civil
forfeiture." Similar to Palm, DHS cited Wis. Stat. § 252.25 as
the statutory basis for its imposition of civil forfeitures on
those who would violate Emergency Order 3. See Palm, 391
Wis. 2d 497, ¶¶36-40. As Cholvin made clear, agency action that
can be enforced by civil forfeiture has the effect of law.
9It is true that Emergency Order 3 contained certain
enumerated exceptions to its definitions. However, the
exceptions did not make the class description less general nor
did the exceptions close the class in any way. See Citizens for
Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 814, 280 N.W.2d
702 (1979) (noting that the class was limited to persons who had
a legal interest in the land regulated by the ordinance but that
new people could enter that narrow class).
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No. 2020AP1742
Additionally, Emergency Order 3 was issued by DHS, which
satisfies the fourth definitional criterion of being "issued by
an agency."
¶33 Finally, Emergency Order 3 both implemented and
interpreted Wis. Stat. § 252.02(3)'s grant of authority to
"forbid public gatherings . . . to control outbreaks and
epidemics" thereby satisfying the fifth definitional criterion.10
To implement is to carry out, and without some sort of
implementing mechanism, the "forbid public gatherings" portion
of § 252.02(3) would not be carried out. Moreover, by way of
its implementation, DHS interpreted the statute. First, "public
gatherings" is not defined in the surrounding statutes and
therefore, DHS must have interpreted § 252.02(3) to come to its
definition. Moreover, DHS interpreted what it means to "forbid
public gatherings." Its interpretation is that "forbid" means
to "limit" numerically. Whether this interpretation is legally
correct is not relevant because it is nonetheless DHS's
interpretation. See Lamar Central, 389 Wis. 2d 486, ¶29 n.16.
By both implementing and interpreting § 252.02(3)'s grant of
authority, DHS satisfied the fifth definitional criterion of a
rule. Accordingly, Emergency Order 3 satisfied all five
We note that DHS's indication that it would continue to
10
issue similar orders depending on the outcome of this case poses
the question of whether the expiration date of Emergency Order 3
was a date certain. See Wisconsin Legislature v. Palm, 2020 WI
42, 391 Wis. 2d 497, ¶27, 942 N.W.2d 900 (rejecting the argument
that Emergency Order 28 was a time limited order because the
"Gating Criteria" of Emergency Order 31 extended the effect of
Emergency Order 28 beyond its purported expiration).
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No. 2020AP1742
criteria that define a rule and, because it was not promulgated
through rulemaking procedures, it was not valid or enforceable.
III. CONCLUSION
¶34 We conclude that Emergency Order 3 meets the
definition of a rule, as we recently explained in Palm, 391
Wis. 2d 497. Therefore, Emergency Order 3 should have been
promulgated according to rulemaking procedures set forth in Wis.
Stat. ch. 227. Because it was not, Emergency Order 3 was not
validly enacted and was unenforceable. Accordingly, we affirm
the decision of the court of appeals.11
By the Court.—The decision of the court of appeals is
affirmed.
11This case presents as the review of the grant of a
temporary restraining order by the court of appeals in an
interlocutory appeal. We do not address temporary restraining
order standards because our decision herein is a declaration
that permanently enjoins Executive Order 3, a rule made without
engaging in rulemaking.
18
No. 2020AP1742.bh
¶35 BRIAN HAGEDORN, J. (concurring). Last term, this
court struck down an order issued by Department of Health
Services Secretary-designee Andrea Palm that purported, in part,
to close or limit capacity at various public places throughout
Wisconsin. Wisconsin Legislature v. Palm, 2020 WI 42, 391
Wis. 2d 497, 942 N.W.2d 900. We held, among other things, that
a statewide order limiting public gatherings met the statutory
definition of an administrative rule and must be promulgated as
such. Id., ¶¶3, 7, 42, 58.
¶36 Some details have changed, but this case arises
because Palm issued another order doing exactly what this court
said she may not do: limit public gatherings by statewide order
without promulgating a rule. Palm hopes to achieve a different
outcome this time by seizing on some of the vulnerabilities in
last term's decision. To be sure, the court's rationale in Palm
was, in some respects, incomplete. My objections to the court's
legal analysis were no secret. See id., ¶¶165-263 (Hagedorn,
J., dissenting). But creative efforts to engineer a different
result from an indistinguishable set of facts would, in my view,
be a departure from basic principles of judicial decision-
making.
¶37 The reach and nature of stare decisis——a Latin phrase
that means "to stand by things decided"——is the subject of much
debate.1 But if stare decisis is to have any import at all in
our legal system, it surely must apply when a court has told a
1 Stare decisis, Black's Law Dictionary 1696 (11th ed.
2019).
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specific party that certain conduct is unlawful, and that party
does the very same thing again under the same circumstances.
That is what we have here. No further clarification of our
opinion in Palm is needed; its application is plain. We held
that Palm's statewide order limiting public gatherings (along
with a number of other restrictions) meets the statutory
definition of a rule, and must be promulgated as a rule to have
legal effect. Respect for this court and its authority compels
me to stand by that decision today.
¶38 Under different circumstances, we may need to
reconsider some of our conclusions in Palm. However, we have
not been asked to reexamine Palm here, nor is doing so necessary
to decide this case. For these reasons, while I cannot join the
Chief Justice's opinion further extending the reasoning of Palm,
I respectfully concur in the court's mandate.
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No. 2020AP1742.awb
¶39 ANN WALSH BRADLEY, J. (dissenting). At a time when
public health experts are imploring pandemic-weary Wisconsinites
to stay vigilant, a faulty statutory analysis once again leads
this court to undermine public health measures.
¶40 This time, the statute at issue is Wis. Stat.
§ 252.02(3), which states that the Department of Health Services
(DHS) has the authority to "close schools and forbid public
gatherings in schools, churches, and other places to control
outbreaks and epidemics." The court attempts to justify its
result by relying on stare decisis and statutory interpretation,
but both rationales fall flat.
¶41 Stare decisis simply does not apply. The Palm1
decision, on which the mandate of this court hinges, did not
decide the question now before us and did not even attempt to
interpret § 252.02(3). With no analysis, there is no decision
for us to follow. And even if Palm constituted precedent for
interpretation of this statute, it falls within the well-
recognized exceptions to according precedential adherence——the
Palm decision is both unsound in principle and unworkable in
practice.
¶42 The lead opinion's2 statutory interpretation fares no
better. Trying to get around the plain language of the statute,
1 Wisconsin Legislature v. Palm, 2020 WI 42, 391
Wis. 2d 497, 942 N.W.2d 900.
2 I refer to Chief Justice Roggensack's opinion as the "lead
opinion" because the opinion has not been joined by a majority
of the court. Although Justice Hagedorn concurs in the mandate,
he does not join the lead opinion's reasoning. See Justice
Hagedorn's concurrence, ¶38.
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it engages in a hocus-pocus interpretation and the plain meaning
of the statute somehow seems to vanish. In its place there
appears an interpretation of the statute, which according to the
lead opinion, means the opposite of what it says. In place of
the plain language of the statute that gives DHS the authority
to forbid public gatherings, the lead opinion interprets the
statute as not giving DHS that authority. Instead, it contrives
a roadblock that is not part of the statute, and forces DHS to
go through a cumbersome rulemaking procedure.
¶43 Contrary to the lead opinion, I conclude that the
plain language of Wis. Stat. § 252.02(3) provides DHS with the
authority to forbid public gatherings without going through
rulemaking. Contrary to the concurrence, I further conclude
that Palm does not require otherwise.
¶44 Accordingly, I respectfully dissent.
I
¶45 As has been well established at this point, we are in
the midst of a worldwide pandemic, the likes of which few have
The only reference to "lead opinions" in our Internal
Operating Procedures states that if during the process of
circulating and revising opinions, "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' unless a separate writing garners
the vote of a majority of the court." Wis. S. Ct. IOP III.G.4
(Sept. 12, 2019).
Lest the public mistakenly believe that a lead opinion
constitutes precedential authority, it does not. For further
discussion of our procedure regarding lead opinions, see Koss
Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385 Wis. 2d 261, 922
N.W.2d 20 (Ann Walsh Bradley, J., concurring).
2
No. 2020AP1742.awb
ever seen. In response, both state and local governments have
issued various public health orders in an attempt to curb the
spread of COVID-19.
¶46 At issue in this case is Emergency Order 3, an order
issued by DHS Secretary-Designee Andrea Palm. As set forth by
the lead opinion, this order was issued on October 6, 2020, and
"limited the number of people who could be present at indoor,
public gatherings." Lead op., ¶3.
¶47 What the lead opinion does not mention is the
conditions that led to the issuance of Emergency Order 3. The
Order details how "Wisconsin is now a COVID-19 hotspot[,]" home
to "rapidly accelerat[ing]" spread and a strain on hospital
capacity. It declares:
Wisconsin must use all its tools, including keeping
people physically apart and wearing face coverings, to
slow this dangerous spike. The consequences of
failing to act could be devastating and deadly.
Because of the time period between infection,
diagnosis, and the development of serious symptoms,
hospitalizations and deaths lag behind case counts.
Wisconsin is now experiencing increases in both of
these serious indicators because of the steep rise in
cases of COVID-19 over the past month.
¶48 Accordingly, Emergency Order 3 limits public
gatherings in two ways. First, "[p]ublic gatherings are limited
to no more than 25% of the total occupancy limits for the room
or building, as established by the local municipality." Second,
"[f]or indoor spaces without an occupancy limit for the room or
building that is established by the local municipality, such as
a private residence, public gatherings are limited to no more
than 10 people."
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No. 2020AP1742.awb
¶49 A "public gathering" for purposes of this order is
defined as "an indoor event, convening, or collection of
individuals, whether planned or spontaneous, that is open to the
public and brings together people who are not part of the same
household in a single room." The order specifies that places
that are open to the public include, but are not limited to:
(1) "Rooms within a business location, store, or facility that
allow members of the public to enter"; and (2) "Ticketed events
where tickets are available for free or for purchase by any
individual or by any individual within a specific class of
people."
¶50 For contrast, the order also identifies places that
are not open to the public, and as a result are not included
within the definition of a public gathering and thus are not
subject to the order's limitations. These include: (1) "Office
spaces, manufacturing plant[s], and other facilities that are
accessible only by employees or other authorized personnel"; (2)
"Invitation-only events that exclude uninvited guests"; and (3)
"Private residences. Except, a residence is considered open to
the public during an event that allows entrance to any
individual; such public gatherings are limited to 10 people."
¶51 The Tavern League and others filed suit, seeking an
injunction against the enforcement of Emergency Order 3 on the
basis that the order constitutes an unpromulgated rule
impermissible under Wis. Stat. ch. 227 and Wisconsin Legislature
v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900. The Mix
Up and others later intervened.
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No. 2020AP1742.awb
¶52 After the circuit court initially granted an ex parte
temporary injunction, a later assigned3 circuit court judge
subsequently vacated that injunction and denied The Mix Up's
motion for a temporary injunction. Lead op., ¶¶7-8. The
circuit court reasoned that "it is not clear that plaintiffs
have a reasonable probability of success on the merits,
especially when I look at Footnote 21" of Palm.
¶53 Additionally, the circuit court determined "that
there's no showing that a temporary injunction is necessary to
preserve the status quo. There is nothing in the affidavits to
show that any of the plaintiffs have complied with the order;
that complying with the order has somehow harmed them."
Finally, the circuit court concluded:
[T]here's no showing of irreparable harm. If I had a
showing for the last 40 days that businesses were
going out because they were complying with the order,
that would be a showing of irreparable harm. I merely
have the theoretical issue that if they were to
comply, they would suffer harm.
¶54 The Mix Up appealed, and the court of appeals
reversed. Over Judge Stark's dissent, a majority of the court
of appeals concluded that "under our supreme court's holding in
Palm, Emergency Order #3 is invalid and unenforceable, as a
matter of law." Tavern League of Wis., Inc. v. Palm, No.
2020AP1742, unpublished slip op. at 3 (Wis. Ct. App. Nov. 6,
2020).
¶55 This court's mandate now affirms the court of appeals,
with the lead opinion determining that the plain language of the
3 See Wis. Stat. § 801.58(1).
5
No. 2020AP1742.awb
statute does not control and that "Emergency Order 3 meets the
definition of a rule" as explained in last year's Palm decision.
Lead op., ¶2. Thus, in the lead opinion's view, "Emergency
Order 3 should have been promulgated according to rulemaking
procedures set forth in Wis. Stat. ch. 227. Because it was not,
Emergency Order 3 was not validly enacted and was
unenforceable." Id.¶56 Justice Hagedorn's concurrence arrives at the same
destination, but takes a different route. It does not join the
lead opinion, but instead concludes that the Palm court decided
the issue we consider today and that the doctrine of stare
decisis dictates that the court of appeals be affirmed. Justice
Hagedorn's concurrence, ¶¶37-38.
II
¶57 I begin with a discussion of stare decisis because
this court's mandate rests upon the application of that
principle. Although not subscribing to the lead opinion's
statutory analysis, Justice Hagedorn's concurrence would affirm
the court of appeals, but only on the basis of stare decisis.
Justice Hagedorn's concurrence, ¶37. However, a close
examination of Palm reveals that the doctrine is inapplicable in
this case.
¶58 Stare decisis refers to the principle that requires
courts to "stand by things decided." State v. Harrell,
199 Wis. 2d 654, 667, 546 N.W.2d 115 (1996) (Abrahamson, J.,
concurring). The doctrine is fundamental to the rule of law.
6
No. 2020AP1742.awb
Johnson Controls, Inc. v. Emp.'s Ins. of Wausau, 2003 WI 108,
¶94, 264 Wis. 2d 60, 665 N.W.2d 257.
¶59 But for stare decisis to dictate the outcome of the
present case, the previous case relied upon must have actually
decided the issue we now examine. Palm did not do so.
¶60 In Palm, a majority of the court struck down the DHS
secretary-designee's initial "safer at home" order (Order #28)
on the basis that the order was a rule that should have gone
through rulemaking procedures. Palm, 391 Wis. 2d 497, ¶3.
Secretary-designee Palm claimed that authority to issue Order
#28 could be found in Wis. Stat. § 252.02(3), (4) and (6).4
4 These subsections of Wis. Stat. § 252.02 provide in full:
(3) The department may close schools and forbid public
gatherings in schools, churches, and other places to
control outbreaks and epidemics.
(4) Except as provided in ss. 93.07(24)(e) and 97.59,
the department may promulgate and enforce rules or
issue orders for guarding against the introduction of
any communicable disease into the state, for the
control and suppression of communicable diseases, for
the quarantine and disinfection of persons, localities
and things infected or suspected of being infected by
a communicable disease and for the sanitary care of
jails, state prisons, mental health institutions,
schools, and public buildings and connected premises.
Any rule or order may be made applicable to the whole
or any specified part of the state, or to any vessel
or other conveyance. The department may issue orders
for any city, village or county by service upon the
local health officer. Rules that are promulgated and
orders that are issued under this subsection supersede
conflicting or less stringent local regulations,
orders or ordinances.
. . .
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No. 2020AP1742.awb
¶61 The majority in Palm stated we "do not define the
precise scope of DHS authority under Wis. Stat. § 252.02(3),
(4), and (6) because clearly Order 28 went too far." Id., ¶55.
It did, however, explicitly reject Palm's reliance on
subsections (4) and (6). With regard to subsec. (4), the
majority determined:
Order 28 goes far beyond what is authorized in Wis.
Stat. § 252.02(4). For example, Order 28 exceeds the
§ 252.02(4) authority to quarantine those infected or
suspected of being infected. Instead, Palm
quarantines '[a]ll individuals present within the
State of Wisconsin' by ordering them 'to stay at home
or at their place of residence' with exceptions she
deems appropriate.
Id., ¶49. Similarly, the majority did not accept Palm's
argument that Order #28 was authorized by subsec. (6), observing
the subsection's non-specific nature and concluding: "If Wis.
Stat. § 252.02(6) were the sole factual foundation for criminal
charges, no criminal prosecution could result because
§ 252.02(6) does not have the specificity required for fair
notice of the conduct required or prohibited. Stated otherwise,
it has no definable standards for required or prohibited
conduct." Id., ¶47.
¶62 The Palm majority opinion did not contain any analysis
whatsoever of Wis. Stat. § 252.02(3), which is the statute at
issue here. However, it left two clues hidden in footnotes that
inform our understanding of that subsection. The two clues are
actually the same clue, as the Palm majority twice repeated the
(6) The department may authorize and implement all
emergency measures necessary to control communicable
diseases.
8
No. 2020AP1742.awb
following delineated exception to its holding: "This decision
does not apply to Section 4. a. of Emergency Order 28." Id.,¶¶3 n.6, 58 n.21.
¶63 So what is section 4.a. of Emergency Order 28, which
the Palm majority left in place? This provision closed all
public and private K-12 schools for the remainder of the 2019-
2020 school year.5 The question then arises, why was this
section of Order #28 spared from the Palm majority's sword,
while the rest of the order was slashed?
¶64 The Palm majority provides no explanation for the
exception set forth in footnotes 6 and 21, but a look to Wis.
Stat. § 252.02(3) provides a probable rationale. That
subsection states: "The department may close schools and forbid
public gatherings in schools, churches, and other places to
control outbreaks and epidemics." The plain language of the
statute provides that DHS may issue orders closing schools.
Full stop. No interpretation is necessary, and thus no
rulemaking is necessary for DHS to close schools. The Palm
majority implicitly recognized this by the inclusion of
footnotes 6 and 21.
5 In full, section 4.a. of Order #28 provides:
Public and private K-12 schools shall remain closed
for pupil instruction and extracurricular activities
for the remainder of the 2019-2020 school year.
Schools may continue to facilitate distance learning
or virtual learning. Schools may continue to be used
for Essential Government Functions and food
distribution. This section does not apply to
facilities operated by the Wisconsin Department of
Corrections.
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No. 2020AP1742.awb
¶65 The lead opinion attempts to explain footnotes 6 and
21 in Palm, but its feeble "explanation" really doesn't say
anything. See lead op., ¶28. It states: "Palm was very
specific in regard to the portion of Emergency Order 28 to which
it did not apply. It employed a subsection of Emergency Order
28, not a subsection of Wis. Stat. § 252.02. It did not exempt
all orders issued under § 252.02(3) from the definition of a
rule." Id. But this non-explanation has no explanatory power
at all——it doesn't even attempt to explain why Palm carved out
the exception for closing schools, which is essential to the
determination of this case.
¶66 Far from deciding that the subject order would be
impermissible under § 252.02(3), Palm contained no analysis at
all of that subsection, and even hints that no rulemaking is
necessary to implement its clear provisions. The phrase in
subsec. (3) at issue here, "forbid public gatherings
in . . . other places," is similarly clear.6 See infra, ¶¶77-79.
¶67 In order for stare decisis to apply, the "thing" at
issue must have actually been decided. Palm did not decide
anything with regard to § 252.02(3). Where there is no analysis
at all, what precedent was created for us to follow? I
therefore determine that stare decisis does not dictate the
result of this case.
6See Palm, 391 Wis. 2d 497, ¶232 n.19 (Hagedorn, J.,
dissenting) ("To the extent section 4.a. should be treated
differently due to the explicit authority granted to DHS to
close schools in Wis. Stat. § 252.02(3), that same logic would
seem to apply to the other provisions in Order 28 that have the
same statutory support.").
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No. 2020AP1742.awb
III
¶68 Even assuming that Palm decided the issue now before
the court (it did not), stare decisis still would not dictate
the result because last term's Palm decision is unsound in
principle and unworkable in practice. In considering whether to
overturn a prior case, we consider "whether the prior decision
is unsound in principle, whether it is unworkable in practice,
and whether reliance interests are implicated." Johnson
Controls, Inc., 264 Wis. 2d 60, ¶99.
¶69 Palm is unsound in principle. It engages in a flawed
statutory interpretation that sweeps with a broad brush where
nuance is required. As Justice Hagedorn's dissent in Palm
recognized, the decision "is not grounded in the law." Palm,
391 Wis. 2d 497, ¶259 (Hagedorn, J., dissenting). It twisted
the language of Wis. Stat. § 252.02 and completely ignored the
long-standing, broad powers the Legislature granted to DHS.
Id., ¶132 (Dallet, J., dissenting). Similarly, its conclusions
regarding § 252.02 are advisory and undeveloped, and undermine
DHS's ability to apply and enforce the statute in accordance
with the authority it has been given. Id., ¶160 (Dallet, J.,
dissenting), ¶232 (Hagedorn, J., dissenting).7
7Further underscoring that Palm is unsound in principle is
its potential impact on scores of statutes and prior cases. The
Palm decision largely rests on a premise not briefed or argued
by any party, namely the proposition that "an executive branch
order may only carry criminal penalties for any violation if the
elements of a crime are first promulgated as a rule or otherwise
defined in the statutes." Id., ¶253 (Hagedorn, J., dissenting).
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No. 2020AP1742.awb
¶70 Further, the Palm majority opinion is unsound in
principle because it "morphs [rulemaking] into subjecting
executive branch enforcement of enacted laws to a legislative
veto," a conclusion "that turns our constitutional structure on
its very head." Id., ¶218 (Hagedorn, dissenting). And for
what? To "do[] the Legislature's bidding in the midst of a
pandemic" and in so doing allow the Legislature "to avoid
political fallout." Id., ¶162 (Dallet, J., dissenting).
¶71 It is also unworkable in practice. The rulemaking
process mandated by Palm is overly cumbersome in the event of a
fast-moving emergency. By design, the process includes repeated
checks, public input, and imposed waiting periods. Id., ¶228
(Hagedorn, J., dissenting). Even if an emergency rule in a best
case scenario could transpire in 12 days, as suggested by the
Legislature during oral argument in Palm, "[t]welve days is far
too long in a real emergency. Epidemics don't always give you a
two-week heads up on their next move." Id., ¶230 (Hagedorn, J.,
dissenting). The emergency rules process is thus a poor fit for
a fluid situation requiring a real-time and flexible response.
This "dramatic holding" could call into question a lengthy
list of laws. Id., ¶255 (Hagedorn, J., dissenting). Indeed,
"[o]ur statutes include numerous instances where violating an
agency's order can result in criminal penalties." Id. "If an
enactment of this sort is unlawful, then all of these statutes
would presumably be unconstitutional. The same may be true for
analogous statutes authorizing civil penalties." Id. Beyond
the plethora of statutes, Palm portends to overrule "our cases
[that] have long supported the notion that, at least in concept,
criminal penalties for violating a lawful order are
permissible." Id., ¶258 n.24 (Hagedorn, J., dissenting). The
Palm majority's rationale would thus require a different result
in an untold number of cases. Id.
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¶72 It makes no sense to cling to Palm in the name of
stare decisis when it is unsound in principle and unworkable in
practice. Such "precedent" destabilizes rather than advances
the rule of law. We are therefore not required to adhere to
decisions that are objectively wrong. See Progressive N. Ins.
Co. v. Romanshek, 2005 WI 67, ¶45, 281 Wis. 2d 300, 697
N.W.2d 417; Wenke v. Gehl Co., 2004 WI 103, ¶21, 274
Wis. 2d 220, 682 N.W.2d 405. Accordingly, I would decide this
case based on the clear statutory text of Wis. Stat.
§ 252.02(3), to which I turn next.
IV
¶73 Agencies have the authority to promulgate rules, but
they need not promulgate a rule to accomplish every task. See
Wis. Stat. § 227.11(2)(a) ("Each agency may promulgate rules
interpreting the provisions of any statute enforced or
administered by the agency, if the agency considers it necessary
to effectuate the purpose of the statute . . . .") (emphasis
added).
¶74 As defined by statute, a "rule" is "a regulation,
standard, statement of policy, or general order of general
application that has the force of law and that is issued by an
agency to implement, interpret, or make specific legislation
enforced or administered by the agency or to govern the
organization or procedure of the agency." Wis. Stat.
§ 227.01(13). When an agency acts within those powers that are
expressly conferred by statute, the agency simply "effectuates
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No. 2020AP1742.awb
the will of the legislature." Brown Cnty. v. DHSS, 103
Wis. 2d 37, 43, 307 N.W.2d 247 (1981).
¶75 Thus, if a statute is unambiguous, i.e. if no
interpretation is necessary to effectuate the purpose of the
statute, then no rulemaking is required. See Schoolway Transp.
Co. v. Div. of Motor Vehicles, DOT, 72 Wis. 2d 223, 235-36, 240
N.W.2d 403 (1976); Lamar Cent. Outdoor, LLC v. Div. of Hearings
& Appeals, 2019 WI 109, ¶24, 389 Wis. 2d 486, 936 N.W.2d 573.
The duty of the agency is to "administer the statute according
to its plain terms." Schoolway Transp. Co., 72 Wis. 2d at 236.
¶76 The lead opinion, however, does not engage with the
unambiguous language of Wis. Stat. § 252.02(3). It acknowledges
that "where a statute's mandate is not clear and unambiguous, an
agency will need to interpret the statute in order to take
action permitted by the statute," lead op., ¶25, but it does not
cite the converse: that where a statute is clear and
unambiguous, no rulemaking is required. The logical starting
point is an analysis of the plain language of § 252.02(3) to
determine if there is ambiguity, but the lead opinion simply
doesn't do that analysis.
¶77 Wisconsin Stat. § 252.02(3) provides that DHS may
"forbid public gatherings in schools, churches, and other places
to control outbreaks and epidemics." As relevant here, the
plain language allows DHS to forbid "public gatherings" in
"other places" that are not schools or churches. Emergency
Order 3 forbids "public gatherings" in "other places" that are
not schools or churches. The plain language of the statute is
14
No. 2020AP1742.awb
unambiguous. By issuing Emergency Order 3, DHS is simply
executing the clear words of the statute. No interpretation
necessary.
¶78 The lead opinion attempts to set out how DHS
"interpreted" § 252.02(3) in Emergency Order 3, making Order 3 a
rule. See lead op., ¶33. In the lead opinion's view, DHS
"interpreted" the term "public gathering" because it is not
defined in the statute, and it "interpreted" "forbid" to mean
"'limit' numerically." Id. But how are these "interpretations"
any different from following the plain language of the statute?
Although Emergency Order 3 provides a definition of "public
gathering," that definition does not deviate from the common and
ordinary meaning of the term. Similarly, "forbid" has a common
and ordinary meaning. DHS just applied those common and
ordinary meanings, no interpretation necessary.
¶79 Because no interpretation is necessary, no rulemaking
is necessary. Accordingly, I determine that Emergency Order 3
is not a rule. It is authorized by the plain language of
§ 252.02(3) and DHS need not go through the cumbersome
rulemaking process to do what the statute plainly allows.
¶80 For the foregoing reasons, I respectfully dissent.
¶81 I am authorized to state that Justice REBECCA FRANK
DALLET and Justice JILL J. KAROFSKY join this dissent.
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1