2023 WI 36
SUPREME COURT OF WISCONSIN
NOTICE
This order is subject to further
editing and modification. The
final version will appear in the
bound volume of the official
reports.
No. 2021AP1343 & 2021AP1382
Jeffrey Becker, Andrea Klein and A Leap Above
Dance, LLC,
Plaintiffs-Appellants,
FILED
v. May 2, 2023
Dane County, Janel Heinrich and Public Health Sheila T. Reiff
Clerk of Supreme Court
of Madison & Dane County, Madison, WI
Defendants-Respondents.
The Court entered the following order on this date:
¶1 The court having considered plaintiffs-appellants-
petitioners Jeffrey Becker, Andrea Klein, and A Leap Above Dance,
LLC's motion for reconsideration;
¶2 IT IS ORDERED that the motion for reconsideration is
denied without costs.
No. 2021AP1343 & 2021AP1382.bh
¶3 BRIAN HAGEDORN, J. (concurring). The motion for
reconsideration does not meet our standards; I join the court's
order denying it.1 I write separately to address the petitioners'
suggestion that my "text-and-history" approach to the
nondelegation challenge in this case was novel, and they should
have the opportunity to brief it.
The petitioners challenged a statutory scheme with roots
dating back to the first laws enacted after the adoption of the
Wisconsin Constitution. Early legislative enactments are
obviously relevant to the original understanding of the Wisconsin
Constitution.2 Indeed, scholarship surrounding the nondelegation
doctrine looks at precisely this kind of evidence to determine the
scope of judicially-enforceable nondelegation principles.3
1 The dissent spends many pages in the hopes of relitigating
this case, raising arguments new and old. It does not, however,
accurately represent the arguments I made in my concurrence in the
underlying case. But the nature of this motion does not demand a
re-airing of the legal issues; therefore, I will not do so.
2 See Serv. Emps. Int'l Union, Local 1 v. Vos, 2020 WI 67,
¶64,
393 Wis. 2d 38,
946 N.W.2d 35 ("Early enactments following
the adoption of the constitution are appropriately given special
weight . . . because these enactments are likely to reflect the
original public meaning of the constitutional text.").
3 As the movants are no doubt aware, there is a significant
scholarly debate over these matters. Some have argued that little
historical evidence supports some of the more robust theories of
nondelegation. See, e.g., Julian Davis Mortenson & Nicholas
Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277 (2021);
Nicholas R. Parrillo, A Critical Assessment of the Originalist
Case Against Administrative Regulatory Power: New Evidence from
the Federal Tax on Private Real Estate in the 1790s,
130 Yale L.J.
1288 (2021); Christine Kexel Chabot, The Lost History of Delegation
at the Founding,
56 Ga. L. Rev. 81 (2021). Other scholars have
argued that history reflects general agreement about nondelegation
2
No. 2021AP1343 & 2021AP1382.bh
It is true that some have attempted to propound a kind of
general theory to govern nondelegation challenges. But as I
explained in my concurrence, there is no need to resort to a
judicially-created all-purpose test if history provides sufficient
assistance. Analyzing the historical record to assess how specific
nondelegation claims may have been understood should be
uncontroversial. This is particularly important here because the
dangers of judicial usurpation are great. Justice Scalia has
suggested that where possible, the rule of law should be a law of
rules.4 A nondelegation framework that is ill-defined or too
abstract runs the risk of operating simply as a means by which
judges find whatever they're predisposed to find. If a general
framework is appropriate, it should offer reasonable clarity, and
always be subject to a case-specific check rooted in an honest,
faithful inquiry into the original understanding of the Wisconsin
Constitution.
In this case, the petitioners asked us to revise our approach
to nondelegation questions, but they did not present an originalist
case for their proposed rule rooted in the relevant history. That
failure is not a good reason to give them another opportunity to
do so now. I respectfully concur.
as a principle, even if its precise contours were subject to debate
and not particularly consistent. See, e.g., Ilan Wurman,
Nondelegation at the Founding, 130 Yale L.J. 1490 (2021).
4 See Antonin Scalia, The Rule of Law as a Law of Rules, 56
U. Chi. L. Rev. 1175 (1989).
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¶4 REBECCA GRASSL BRADLEY, J. (dissenting).
I like bats much better than bureaucrats. I live in the
Managerial Age, in a world of "Admin." The greatest
evil is not now done in those sordid "dens of crime"
that Dickens loved to paint. . . . [I]t is conceived
and ordered (moved, seconded, carried, and minuted) in
clean, carpeted, warmed and well-lighted offices, by
quiet men with white collars and cut fingernails and
smooth-shaven cheeks who do not need to raise their
voices. Hence, naturally enough, my symbol for Hell is
something like the bureaucracy of a police state or the
office of a thoroughly nasty business concern.
C.S. Lewis, Preface to The Screwtape Letters 3–4 (1961) (1942).
¶5 The people of Wisconsin protected themselves from the
evils of bureaucracy by ratifying a constitution under which only
elected officials, directly accountable to the voters, could
prescribe or proscribe the activities of the people. In this case,
the four members of the majority effectively amended the
constitution to ordain a fourth branch of government, although the
people never agreed to be governed by it.1 The damage done to the
constitutional separation of powers is bad enough, but in order to
rubber stamp the diktats of the bureaucrats, the majority also
bastardized history. The petitioners highlighted the error in
their motion for reconsideration, but the majority refuses to admit
its mistake, much less correct it. Such acknowledgement may
embarrass the majority, but better the majority endure some
mortification than the people suffer an affront to their liberty.
¶6 The petitioners argue two grounds for reconsideration.
First, the petitioners seek an opportunity to brief Justice Brian
1Becker v. Dane County, 2022 WI 63,
403 Wis. 2d 424,
977
N.W.2d 390.
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K. Hagedorn's novel approach to analyzing the nondelegation
doctrine. As the petitioners explain, neither this court nor the
United States Supreme Court has ever resolved a nondelegation issue
using this method, nor did any member of this court join the
concurrence proposing it. While the first basis for
reconsideration is grounded in the justices' different
philosophical approaches to constitutional law, the second basis
for reconsideration highlights a fundamental error contaminating
the majority's entire analysis. Although neither party——nor any
of the seven amici——even mentioned it, the majority heavily relied
on an 1849 statute as supposed historical evidence of the
legislature delegating extraordinarily broad rulemaking authority
to a single, unelected public-health official. The majority
omitted from its analysis the pivotal portion of that statute,
under which the legislature purported to delegate the power to
promulgate public health orders to elected officials. Nothing in
the statute authorized unelected bureaucrats to order the people
do anything. As the petitioners point out, the majority was dead
wrong.
¶7 While the majority's oversight is troubling, its current
obstinacy is unjustifiable. "To err is human, and judges are
nothing if not human[.]" Bartlett v. Evers, 2020 WI 68, ¶202,
393
Wis. 2d 172,
945 N.W.2d 685 (Kelly, J., concurring/dissenting);
see also State ex rel. Ekern v. Zimmerman,
187 Wis. 180, 196,
204
N.W. 803 (1925) ("Perfection is an attribute solely of the Supreme
Ruler of the universe[.]"). The availability of reconsideration
represents a judicial recognition of our own fallibility. By
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rejecting this motion for reconsideration, the majority does "more
damage to the rule of law" than by "admit[ting] [its] error[.]"
State v. Roberson, 2019 WI 102, ¶49,
389 Wis. 2d 190,
935
N.W.2d 813 (quoting Johnson Controls, Inc. v. Emps. Ins. of Wausau,
2003 WI 108, ¶100,
264 Wis. 2d 60,
665 N.W.2d 257). In doing so,
the majority endorses revisionist history, eroding a bedrock on
which civilized society rests——truth. I dissent.
I. THE MAJORITY'S ERROR IN BECKER
The majority's rejection of the nondelegation principle
relied heavily on its selective reading of an 1849 statute. That
statute's first section stated:
The justices of the peace of every town, the president
and trustees of every incorporated village, and the
mayor and aldermen of every incorporated city in this
state, shall be boards of health, and as such shall
exercise all the powers, and perform all the duties
provided in this chapter, within the limits of the towns,
villages, and cities respectively, of which they are
such officers.
Wis. Rev. Stat. ch. 26, § 1 (1849). Neither the majority/lead
opinion2 nor Justice Hagedorn's concurrence acknowledged this
section (i.e., they "overlooked" it), which defined the
composition of a local board of health. Critically, all members
of such local boards were elected officials, directly accountable
to the people. The reasoning of both opinions depends on other
sections of the statute, which the majority misconstrued to grant
2 Wis. S. Ct. IOP III.G.4 ("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[.]' ").
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unelected local boards significant rulemaking authority. See
infra Parts II, IV.
¶8 Because neither the majority/lead opinion nor the
concurrence seemed to notice the first section of the 1849 statute,
the majority mistakenly assumed that members of local boards of
health were unelected bureaucrats. Only by ignoring the first
section of the 1849 statute could the majority (erroneously)
conclude that broad delegations of rulemaking authority to
bureaucrats do not offend the Wisconsin Constitution, as
originally understood. The 1849 statute——to the extent it has any
relevance——actually stands for the opposite proposition: the
constitution does not permit delegations of legislative authority
to unelected bureaucrats. To the extent the statute delegated any
rulemaking authority, duly elected officials were the only
permissible delegees. The statute declared that members of local
boards "shall be" elected officials; bureaucrats could not serve
on those boards. See Wis. Rev. Stat. ch. 26, § 1 (1849).
¶9 In section 2, the 1849 statute distinguished between
local boards of health and local public health officers,
reinforcing that the powers of the two were purposefully kept
separate:
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, and
for that purpose may appoint a physician, who shall be
the health officer of the territory within the
jurisdiction of the board, and who shall hold his office
during their pleasure; they may also appoint so many
persons to aid them in the execution of their powers and
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duties, as they think proper, and shall regulate the
fees and charges of every person so employed by them.
Id. § 2. While the 1849 statute may have given rulemaking
authority to local boards, it cannot fairly be read to have granted
any such authority to health officers, who performed an executive,
not legislative, function. The legislature statutorily authorized
local boards to "make such rules and regulations, as they may deem
most effectual for the preservation of the public health[.]" Id.
The legislature did not so authorize health officers. See id.
Section 3 permitted local boards——not health officers——to
implement orders, and section 4 declared that the local boards——
not health officers——had to first publish those orders for them to
be enforceable. Id. §§ 3–4. A health officer who tried to make
law unilaterally and then enforce it acted without authority. As
the petitioners explain in their motion for reconsideration, "this
statute['s plain language] does not provide any support whatsoever
for the proposition that the power to issue enforceable
restrictions can be delegated to a single, unelected official at
the local level. If anything, it cuts the other way."
¶10 The majority misunderstood the historical context in
which the 1849 statute existed. For decades after the statute's
enactment, "local boards of health and appointment of [local
public-]health officers were optional." Wis. Legis. Council,
Staff Report to the Public Health Committee on Public Health
Services 14 (1960). Much to the medical profession's lament, local
boards were generally found only in large cities. William C.
Rives, The Importance and Essential Needs of Local Boards of
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Health, 13 JAMA 403, 403 (1889). According to an 1883 report, "in
more than one [Wisconsin] town where Small Pox made its appearance
it spread solely because there was no one authorized to take the
prompt and efficient measures that the emergency demanded[.]"
State Bd. of Health, Annual Report of 1882 102 (1883). A similar
report a few years later explained:
Local Boards . . . have long had a legal existence in
the State of Wisconsin, certain officials elected for
other purposes having by the statutes been declared to
be also Boards . . . . As a matter of fact, however,
these Boards, though invested with ample powers, have,
except in a very few of the larger cities, seldom had
more than a nominal existence, have rarely ever
met . . . , have more rarely appointed Health Officers,
and have practically almost wholly ignored their duties
as guardians of Public Health.
State Bd. of Health, Biennial Report for the Period from Nov.,
1882 to Sept. 30, 1884 27 (1885). After smallpox devastated
Wisconsin in the early 1880s, the legislature responded by enacting
a law mandating the formation of local boards. Wis. Legis.
Council, Staff Report to the Public Health Committee on Public
Health Services, at 14–15.
¶11 The legislative history of the 1883 statute reveals a
serious policy concern with unelected bureaucrats serving on local
boards of health. The 1882 report contains a copy of the bill as
first introduced; it had been prepared by the State Board of
Health. The bill stated, in relevant part:
Section 1. Every town board, village board, or common
council of every town, village or city in this state
shall hereafter, within thirty days after each annual
election, organize themselves into a Board of Health, or
shall appoint from their own members or otherwise, a
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suitable number of competent persons, who shall organize
by the election of a chairman and clerk, and exercise
all the powers and perform all the duties of a Board of
Health in and for such town, village or city: provided,
that no special health department shall have been
established or constituted by the charter or other act
of incorporation of any such town, village or city. And
every board of health organized, appointed or elected
under the provisions of this act . . . .
State Bd. of Health, Annual Report of 1882, at 104 (emphasis
added). Ostensibly, this bill would have authorized bureaucrats
to serve on local boards; however, the legislature removed the
emphasized language, maintaining the historical requirement that
all members of local boards must be elected officials. See § 1,
ch. 167, Laws of 1883.
¶12 The majority's failure to fully consider the 1849
statute is particularly striking given the central role it played
in the decision. Appendix 1 reproduces the instances in which it
was cited or discussed. Also noted are instances in which members
of the majority advanced the theory that the 1849 statutes are
especially important. Appendix 1 illustrates the significance of
the 1849 statute to the court's decision, especially for Justice
Hagedorn——whose vote was necessary to uphold the validity of orders
issued by local health officials. Also evident in Appendix 1,
despite extensive discussion of the statute by all members of the
majority, none of them mentioned the first section of the statute—
—only sections 2 through 4.
II. THE CONCURRENCE'S ANALYTICAL ERRORS
¶13 In his concurring opinion, Justice Hagedorn placed
substantial, if not controlling, emphasis on the 1849 statute. He
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wrote, "[t]hese 1849 statutes offer significant evidence of
original understanding in this case." Becker v. Dane County, 2022
WI 63, ¶65,
403 Wis. 2d 424,
977 N.W.2d 390 (Hagedorn, J.,
concurring); see also id., ¶39 (majority/lead op.) ("[T]he
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."). He continued:
Our earliest statutes provide particularly important
evidence of how the Wisconsin Constitution was
originally understood. The Revised Statutes of 1849
were written and adopted by legislators who observed or
participated in the constitutional convention first
hand. Shortly after it convened, Wisconsin's first
state legislature quickly created a commission to assist
in drafting our first statutes. The commission's task
was to compile and recommend an initial set of laws based
upon territorial rules and practice, omitting those that
were obsolete, as well as those repugnant to the newly
drafted constitution. The commission's recommendations
were then debated and voted on by the legislature,
ultimately creating the Revised Statutes of 1849.
Id., ¶62 (Hagedorn, J., concurring); see also id., ¶38
(majority/lead op.) ("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 constitution's separation of powers and the grant of
broad public health authority to local governments."). For
support, Justice Hagedorn cited a secondary source, a book on
Wisconsin legal history by Attorney Joseph A. Ranney. In addition
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to misinterpreting the statute by neglecting to consider its first
section, Justice Hagedorn also misunderstood how the revised 1849
statutes were created. Neither primary sources nor Attorney
Ranney's findings support Justice Hagedorn's analytical
foundation.
¶14 The 1849 Assembly Journal contains a report from the
committee on revision, which compiled the revised 1849 statutes.
This report chronicles the struggles of the committee, which felt
overworked. Expressing concern, it wrote:
The act authorizing the election of commissioners to
revise the laws seems to contemplate that they should
suggest in writing, by reports or notes accompanying the
acts revised, the contradictions, omissions, or
imperfections which might appear therein, and the mode
in which the same might be reconciled, supplied, or
amended, and their reasons for advising the repeal of
any act which in their judgment ought to be repealed.——
With this provision the commissioners have been wholly
unable to comply. It must be obvious that the
performance of such a labor would consume much time[.]
J. 2d Sess. Assemb. State Wis. 788–89 (1849) (emphasis added).
The early legislature was similarly overworked, so it generally
deferred to the committee. See Joseph A. Ranney, Trusting Nothing
to Providence: A History of Wisconsin's Legal System 76 (1999)
("[T]he commissioners were a legislature unto themselves: their
revisions to the laws were subject to legislative approval but
ultimately were adopted largely intact."); W. Scott Van Alstyne,
Jr., Land Transfer and Recording in Wisconsin: A Partial History—
—Part I, 1955 Wis. L. Rev. 44, 54 (explaining the committee's
drafts "met some opposition" but that "a comparison of the
legislative result with the final drafts confirms the notations in
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[a committee member]'s diary that the drafts finally passed with
amazingly few amendments of any significance").
¶15 Attorney Ranney, on the same page Justice Hagedorn
cited, explained:
The commissioners met in the late summer of 1848 and
soon realized that the task was too big for them alone.
The 1839 codification of territorial laws eased their
task somewhat, but the large body of laws enacted since
1839 had to be compiled and organized. In addition,
existing statutes failed to cover many important areas
of the law and filling in the gaps was a huge task.
The commissioners decided to concentrate first on laws
essential to the basic administration of the state. By
January of 1849, they had prepared code sections
covering the organization of state and local government,
taxes, transportation, public health, corporations, and
trade and commercial regulation. The 1849 legislature
adopted these laws largely without change and appointed
a special legislative committee to help the
commissioners with their remaining work.
Ranney, Trusting Nothing to Providence, at 76. The 1849 statute
was based primarily on a territorial law (under a system of
government with a different separation of powers) and appears to
have been adopted by the legislature prior to the formation of the
special legislative committee, which was created to assist the
committee on revision. See Wis. Stats. p. 125 (1839). Attorney
Ranney's work is hardly an endorsement of using the revised 1849
statutes as a guidepost to constructing the Wisconsin
Constitution's original meaning.
¶16 Justice Hagedorn also erred by failing to consider other
sources of original meaning. "We may look to 'three primary
sources in determining the meaning of a constitution provision:
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[1] the plain meaning, [2] the constitutional debates and practices
of the time, and [3] the earliest interpretations of the provision
by the 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 Dairyland 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[s] their
legal weight, i.e., plain meaning is most important while early
statutory enactments are least indicative." Becker,
403 Wis. 2d
424, ¶105 n.18 (Rebecca Grassl Bradley, J., dissenting) (citation
omitted). Justice Hagedorn barely considered plain meaning or the
constitutional debates, focusing almost exclusively on an early
statutory enactment while ignoring the very statutory provision
that undercuts the majority's analysis altogether.
III. RECONSIDERATION STANDARDS
¶17 To the extent this court reflexively denies this (or any
other) reconsideration motion based on its nonbinding internal
operating procedures (IOPs), the court errs. Wisconsin Stat.
§ (Rule) 809.64 (2019–20) states, "[a] party may seek
reconsideration of the judgment or opinion of the supreme court by
filing a motion under s. 809.14 for reconsideration within 20 days
after the date of the decision of the supreme court." No rule of
appellate procedure specifies the criteria this court should
consider when determining whether to grant a motion for
reconsideration. This court's IOPs provide some guidance. Part
III, Section J notes, in relevant part:
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Reconsideration, in the sense of a rehearing of the case,
is seldom granted. A change of decision on
reconsideration will ensue only when the court has
overlooked controlling legal precedent or important
policy considerations or has overlooked or misconstrued
a controlling or significant fact appearing in the
record. A motion for reconsideration may result in the
court's issuing a corrective or explanatory memorandum
to its opinion without changing the mandate.
Wis. S. Ct. IOP III.J. This statement, however, is not
controlling. The introduction to the IOPs notes the IOPs "are not
rules of appellate procedure." Id. at Intro. The introduction
also declares, "[i]t should be reemphasized that these are not
rules. They do not purport to limit or describe in binding fashion
the powers or duties of any Supreme Court personnel." Id.
(emphasis added). The IOPs do not contemplate a majority of the
court committing a serious error of the sort permeating its
analysis in this case, and the non-exhaustive examples of grounds
for reconsideration contained in non-binding IOPs do not constrain
the court from correcting its mistakes. Declaring that "policy
considerations" warrant reconsideration, but grievous errors in
pronouncing the law do not, would be an extraordinary position
indeed for the state's highest court to take. "The court should
have the courage to correct its own mistakes. The motion for
reconsideration affords the court this opportunity." Collison v.
City of Milwaukee Bd. of Rev., No. 2018AP669, unpublished order,
at 5 (Aug. 16, 2021) (Roggensack, J., dissenting from the denial
of the motion for reconsideration).
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IV. THE MAJORITY'S FOUNDATIONAL ERRORS COMPEL RECONSIDERATION
¶18 The majority's misapplication of the 1849 statute
overlooked the text's dispositive distinction between elected
officials and unelected bureaucrats, an axiom of early Wisconsin
government. To reject the distinction is to equate a technocracy
with a democratic republic. "What is a republican government?
There is or can be but one answer to the question. It is a state
in which the exercise of the sovereign power is lodged in
representatives elected by the people." J. B. Jillson, An
Abolitionist Subscriber's Views (1847), reprinted in The Struggle
over Ratification, at 639, 640 (Milo M. Quaife ed., Wis. Hist.
Soc'y 1920); see also Gundy v. United States, 588 U.S. __,
139
S. Ct. 2116, 2134 (2019) (Gorsuch, J., dissenting) ("Restricting
the task of legislating to one branch characterized by difficult
and deliberative processes was also designed to promote fair notice
and the rule of law, ensuring the people would be subject to a
relatively stable and predictable set of rules. And by directing
that legislating be done only by elected representatives in a
public process, the Constitution sought to ensure that the lines
of accountability would be clear: The sovereign people would know,
without ambiguity, whom to hold accountable for the laws they would
have to follow."). Indirect accountability (i.e., a bureaucrat's
accountability to elected officials who are in turn accountable to
the people) is no substitute for direct accountability. See Clean
Wis., Inc. v. Wis. Dep't of Nat. Res., 2021 WI 72, ¶56,
398
Wis. 2d 433,
961 N.W.2d 611 (Rebecca Grassl Bradley, J.,
dissenting) ("The people never imparted any power on
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administrative bureaucrats insulated from any democratic oversight
by the people.").
¶19 The nondelegation principle is firmly rooted in
Wisconsin's history as well as the structure of the constitution.
"The people have a right to expect and demand at the hands of their
representatives a full and fair discharge of their duties. Elected
by their votes for the attainment of specified and well-known
objects, their powers are limited and they are acting in the
capacity of agents and cannot transcend instructions." Selections
from the Milwaukee Courier: Views of a "Democrat" (1846),
reprinted in The Struggle over Ratification, at 196, 196 (Milo M.
Quaife ed., Wis. Hist. Soc'y 1920). The very process by which
bureaucrats make decisions is distinct from the approach of elected
officials (at least those who would like to continue serving). "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.' " Becker, 403 Wis. 2d 424, ¶147 (quoting
Michael J. Sandel, The Tyranny of Merit: What's Become of the
Common Good 20 (2020)).
¶20 This distinction is ingrained in the Wisconsin
Constitution, and early pronouncements of the nondelegation
principle exist in this court's precedent. Well over a century
ago, this court unequivocally stated that "the power to make the
law cannot be delegated to any board or body not directly
responsible to the people." State ex rel. Adams v. Burdge, 95
Wis. 390, 404,
70 N.W. 347 (1897) (emphasis added). The
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majority/lead opinion in Becker never addressed Burdge, and
Justice Hagedorn stated in his concurrence that "Burdge supports
the conclusion that the authority to issue local health orders may
be conferred by the legislature on local health official,"
exhibiting his failure to apprehend the distinction between
elected officials and unelected bureaucrats. See Becker, 403
Wis. 2d 424, ¶66 (Hagedorn, J., concurring).
¶21 More recently, in a case analogous to Becker, the court
thrice noted that Secretary-Designee Andrea Palm was an unelected
bureaucrat in its majority opinion striking down her safer-at-home
order as an unlawful exercise of power. Wisconsin Legislature v.
Palm, 2020 WI 42, ¶1,
391 Wis. 2d 497,
942 N.W.2d 900 ("This case
is about the assertion of power by one unelected official, Andrea
Palm, and her order to all people within Wisconsin to remain in
their homes, not to travel and to close all businesses that she
declares are not 'essential' in Emergency Order 28."); id., ¶24
("If we were to read the definition of 'Rule' as Palm suggests,
one person, Palm, an unelected official, could create law
applicable to all people during the course of COVID-19 and subject
people to imprisonment when they disobeyed her order."); id., ¶28
("Rulemaking exists precisely to ensure that kind of controlling,
subjective judgment asserted by one unelected official, Palm, is
not imposed in Wisconsin." (citation omitted)). My concurrence
in that case expounded upon this distinction: "As a general
principle, it is the duty of the legislature to create the law,
and any delegation of lawmaking responsibility to administrative
agencies . . . must be carefully circumscribed in order to avoid
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the people being governed by unelected bureaucrats." Id., ¶78
(Rebecca Grassl Bradley, J., concurring); see also Tavern League
of Wis., Inc. v. Palm, 2021 WI 33, ¶17,
396 Wis. 2d 434,
957
N.W.2d 261 (lead op.) ("Rulemaking 'ensure[s]
that . . . controlling, subjective judgment asserted by one
unelected official' is not imposed by agencies through the
abandonment of rulemaking procedures." (quoting Palm, 391
Wis. 2d 497, ¶28 (majority op.) (modifications in the original)));
Gymfinity, Ltd. v. Dane County, No. 2020AP1927-OA, unpublished
order, at 3 (Wis. Dec. 21, 2020) (Roggensack, C.J., dissenting)
("[W]hen it is presented to us that fundamental personal liberty
is suppressed by an unelected official, we must act."). The
majority in Becker never addressed Palm; not a single member of
the majority in this case joined the majority in Palm, and three
of them dissented from it. E.g., Becker, 403 Wis. 2d 424, ¶136
(Rebecca Grassl Bradley, J., dissenting) ("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.").
¶22 To the extent the 1849 statute has relevance, it lends
historical credence to the dissent I authored in Becker. See,
e.g., id., ¶74 ("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."); id., ¶75 ("Not surprisingly, when the people
consented to the rules that will govern society, they carefully
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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."); id., ¶76 ("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.");
id., ¶77 ("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.");
id., ¶108 ("Burdge goes on to explain the authority the legislature
may confer on local boards (not unelected bureaucrats)[.]"); id.,
¶128 ("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.");
id., ¶133 ("This duty becomes imperative when governmental actors
conspire to collapse the carefully calibrated separation of powers
among the three branches in favor of consolidating power in a
single, unelected bureaucrat."); id., ¶147 ("The majority
displaces the constitutional design for the exercise of lawmaking
power with a 'technocracy' the majority favors." (citation
omitted)). Substantial precedent reinforces the difference
between the constitutional exercise of power by elected officials
and the unlawful exercise of power by unelected bureaucrats. See
id., ¶¶118–32 (summarizing many cases).
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¶23 The majority owns its error; neither the parties nor any
of the seven amici briefed the statutory history on which the
majority relied. Some members of the majority have warned us of
the detrimental consequences of violating the party presentation
principle. See, e.g., Town of Wilson v. City of Sheboygan, 2020
WI 16, ¶78,
390 Wis. 2d 266,
938 N.W.2d 493 (Hagedorn, J.,
concurring) ("I believe we would be best served by adversarial
briefing and argument. A full hearing on the merits of this
important issue would help ensure that we are not missing anything
and that the consequences of our decision are fully fleshed out
beforehand."). The consequences in this case are particularly
grave because the majority tampered with the very constitutional
structure of the government. When judges conduct independent
historical research without the benefit of adversarial briefing,
they have an obligation to use the sources they find "faithfully,"
which necessarily requires judges to thoroughly review them.
Skylar Reese Croy & Alexander Lemke, An Unnatural Reading: The
Revisionist History of Abortion in Hodes v. Schmidt, 32 U. Fla. J.
L. & Pub. Pol'y 71, 81 (2021). Citing historical sources out of
context is antithetical to the originalist approach. Id.
¶24 The denial of the motion for reconsideration
demonstrates at least some members of the majority never cared
about a legitimate historical inquiry into the meaning of the
Wisconsin Constitution. Justice Hagedorn claimed in his
concurrence that "[r]egardless of judicial philosophy, every
member of this court is interested in . . . what the historical
evidence reveals about the text." Becker, 403 Wis. 2d 424, ¶72
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(Hagedorn, J., concurring). If that were true, the majority would
correct its blatant error.
V. CONCLUSION
¶25 "This Court is forever adding new stories to the temples
of constitutional law, and the temples have a way of collapsing
when one story too many is added." Douglas v. City of Jeannette,
319 U.S. 157, 181 (1943) (Jackson, J., separate op.). In Becker,
the majority added a fictional story to the already disintegrating
temple of the nondelegation principle. The majority is happy with
the result its story produced, so it denies this motion for
reconsideration without explanation. The majority's errors injure
the constitutional separation of powers as well as this court's
reputation. Although the oversight in Becker may have been an
honest mistake, today's denial is not. I dissent.3
3 The majority/lead opinion and the concurrence are replete
with other examples of poor statutory history analysis. As just
one example, the majority/lead opinion truncated a quote from a
1919 enactment. Below is the full section of the statute quoted
in paragraph 17 of the majority/lead opinion, with strikethrough
indicating the portions omitted from the quote:
SECTION 1. There is added to the statutes a new section
to read: Section 1411-5. The local board of health of
each township, incorporated village or city with the
consent of the state 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, and to condemn
and abate conditions causative of disease by means of
rules and regulations which shall be consistent with the
state law and the rules and regulations prescribed by
the state board of health.
§ 1, ch. 159, Laws of 1919. The struck-through portions of the
statute indicate local boards of health could issue orders only
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¶26 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join this
dissent.
Appendix 1: Instances in Which the Majority/Lead Opinion or the
Concurrence Cited or Discussed the 1849 Statute
Paragraph/Footnote Reference
Majority/lead op., ¶16 Similarly, Wisconsin's first state
¶164 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").
with the express approval of the state board of health, which would
seem to be a significant procedural safeguard. The petitioners
referenced the struck-through language in their reply brief, and
they complain in their motion for reconsideration that the majority
overlooked this language. See Pet'rs Reply Br. at 6 ("Respondents
cite a statute . . . which, they claim, gave local health officers
'the power to order and execute what is reasonable and necessary
for the prevention and suppression of disease.' . . . The law
they cite, however, applied to 'local board[s] of health'——not
individual health officers——and any 'orders' required the 'consent
of the state board of health.' ").
4 This paragraph was joined by four justices.
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Majority/lead op., ¶38 Bolstering our conclusion that the
¶38 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 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).
Majority/lead op., ¶39 We see two upshots from this original
¶39 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. As such, Wis. Stat. § 252.03 and
Dane County Ordinance § 46.40 do not
substantively offend our constitution's
separation of powers.
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Concurrence, ¶62 ¶62 Our earliest statutes provide
particularly important evidence of how the
Wisconsin Constitution was originally
understood. The Revised Statutes of 1849
were written and adopted by legislators who
observed or participated in the
constitutional convention first hand.
Shortly after it convened, Wisconsin's first
state legislature quickly created a
commission to assist in drafting our first
statutes. The commission's task was to
compile and recommend an initial set of laws
based upon territorial rules and practice,
omitting those that were obsolete, as well
as those repugnant to the newly drafted
constitution. The commission's
recommendations were then debated and voted
on by the legislature, ultimately creating
the Revised Statutes of 1849.
Concurrence, ¶63 ¶63 These laws therefore have unique
relevance to an analysis focused on the
original understanding of the constitutional
text. 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.
Concurrence, ¶63 State v. Beno, 116 Wis. 2d 122, 138, 341
n.
35 N.W.2d 668 (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)).
Concurrence, ¶63 We have long employed this interpretive
n.36 technique in constitution interpretation.
See State ex rel. Pluntz v. Johnson, 176
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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").
Concurrence, ¶64 ¶64 One such 1849 statute is especially onpoint in this case. Chapter 26 in the Revised
Statutes of 1849 was entitled "Of the
Preservation of the Public Health." 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. 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."
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." 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.
Concurrence, ¶64 Wis. Stat. ch. 26 (1849).
n.37
Concurrence, ¶64 Wis. Stat. ch. 26 (1849).
n.38
Concurrence, ¶64 Wis. Stat. ch. 26, § 2 (1849).
n.39
Concurrence, ¶64 Wis. Stat. ch. 26, § 3 (1849).
n.40
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Concurrence, ¶65 ¶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 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. 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.
Concurrence, ¶65 See Wis. Stat. ch. 26, §§ 2, 3 (1849); Wis.
n.41 Stat. ch. 32 §§ 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).
Concurrence, ¶71 Based on the historical record, I conclude
(third sentence) the legislature did not impermissibly
delegate legislative power to local health
officers by authorizing them to issue orders
under Wis. Stat. § 252.03.
Concurrence, ¶72 ¶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. 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. While
such briefing is 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.
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