Becker v. Dane County
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Wisconsin Supreme Court?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Wisconsin Supreme Court. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
The Supreme Court affirmed the order and judgment of the circuit court in this case concerning whether local health officers may lawfully issue public health orders, holding that local health officers have statutory authority to issue orders and that no state law preempted the local health ordinance in question.
At issue was Dane County Ordinance 46.40 regarding the prevention, suppression, and control of communicable diseases. Plaintiffs bought this action against the County and the Health Department and its director challenging their authority to issue and enforce such orders. The circuit court granted summary judgment against Plaintiffs' claims. The Supreme Court affirmed, holding (1) Wis. Stat. 252.03 grants local health officers the authority to issue public health orders; (2) the ordinance at issue, which makes such orders enforceable by civil citations, was not preempted by state law; and (3) a local health officer's authority to issue enforceable public health orders pursuant to section section 252.03 and ordinance 46.40 does not run afoul of constitutional separation of powers principles.
Download PDF
2022 WI 63 SUPREME COURT OF WISCONSIN CASE NO.: 2021AP1343 & 2021AP1382 COMPLETE TITLE: Jeffrey Becker, Andrea Klein and A Leap Above Dance, LLC, Plaintiffs-Appellants, v. Dane County, Janel Heinrich and Public Health of Madison & Dane County, Defendants-Respondents. ON BYPASS FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: July 8, 2022 March 8, 2022 Circuit Dane Jacob B. Frost JUSTICES: KAROFSKY, J., delivered the majority opinion of the Court with respect to ¶¶1-28 and 44-45, in which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶2943, in which ANN WALSH BRADLEY and DALLET, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants, there were briefs filed by Rick Esenberg, Luke N. Berg, Anthony F. LoCoco, Daniel P. Lennington and Wisconsin Institute for Law & Liberty, Milwaukee. There was an oral argument by Luke N. Berg. For the defendants-respondents, there were briefs filed by Remzy D. Bitar, Sadie R. Zurfluh, and Municipal Law and Litigation Group, S.C., Waukesha. There was an oral argument by Remzy D. Bitar. An amicus curiae brief was filed by Daniel R. Suhr and Liberty Justice Center, Chicago, for Liberty Justice Center. An amicus curiae brief was filed by Terman Spencer, city attorney, Gregory P. Kruse, assistant city attorney, Claire Silverman, and Maria Davis for The City of Milwaukee and League of Wisconsin Municipalities. An amicus curiae brief was filed by Jessica L. Thompson, Matthew Fernholz, and Pacific Legal Foundation, Arlington, and Cramer, Multhauf & Hammes, LLP, Racine, for the Pacific Legal Foundation and National Federation of Independent Business Small Business Legal Center. An amicus curiae brief was filed by Brian P. Keenan, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general, for Governor Tony Evers and Attorney General Josh Kaul. An amicus curiae Putney, Melita M. brief Mullen, was filed Jeffrey B. by patricia Dubner, Epstein Jessica Anne Morton, and Bell, Moore & Richter, S.C., Madison, and Democracy Forward Foundation, Washington, D.C., for the American Medical Association and Wisconsin Medical Society. An amicus curiae brief was filed by Allison W. Boldt and the University of Wisconsin Law School State Democracy Research Initiative, Madison, for Legal Scholars. An amicus curiae brief was filed by Jeffrey A. Mandell, Douglas M. Poland, Colin T. Roth, Daniel Lenz, Elizabeth B. 2 Wydra, Brianne J. Gorod, Brian R. Frazelle, Miriam Becker-Cohen, and Stafford Rosenbaum LLP, Madison, Law Forward, Inc., Madison, and Constitutional Accountability Center, Washington, D.C., for Julian Davis Mortenson, Professor of Constitutional History. 3 2022 WI 63 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2021AP1343 & 2021AP1382 (L.C. No. 2021CV143) STATE OF WISCONSIN : IN SUPREME COURT Jeffrey Becker, Andrea Klein and A Leap Above Dance, LLC, FILED Plaintiffs-Appellants, JUL 8, 2022 v. Dane County, Janel Heinrich and Sheila T. Reiff Clerk of Supreme Court Public Health of Madison & Dane County, Defendants-Respondents. KAROFSKY, J., delivered the majority opinion of the Court with respect to ¶¶1-28 and 44-45, in which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶2943, in which ANN WALSH BRADLEY and DALLET, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. APPEAL from a judgment and an order of the Circuit Court for Dane County, Jacob B. Frost, Judge. Affirmed and cause remanded. ¶1 JILL J. KAROFSKY, J. We resolve whether local health officers may lawfully issue public health orders. This suit Nos. 2021AP1343 & 2021AP1382 arises from a challenge to a local health officer's issuance of public health communicable COVID-19. orders to coronavirus prevent, suppress, disease commonly and control referred to a as The case before us does not challenge the wisdom or legality of any particular measure taken in these orders. The challenge and instead constitutional raises questions more about general the local statutory health officer's authority to issue an order at all, regardless of the measures it promulgates. (1) whether Wis. Specifically, Stat. § 252.03 we address (2019-20)1 three issues: authorizes local health officers to issue public health orders; (2) whether Dane County Ordinance public health preempted by provisions § 46.40 orders state (December enforceable law; constitute an and 2020),2 by a which civil (3) whether unconstitutional makes such citation, either of delegation is these of legislative power. ¶2 On the statutory question, we hold that Wis. Stat. § 252.03 grants local health officers the authority to issue orders. As for preemption, we hold that no state law preempts Dane County Ordinance § 46.40. Finally, on the constitutional question, we hold that a local health officer's authority to issue enforceable public health orders pursuant to Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 does not run afoul of All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated. 1 All subsequent references to Chapter 46 of the Dane County Ordinances are to the December 2020 version. 2 2 Nos. our constitutional separation of powers. 2021AP1343 & 2021AP1382 Accordingly, we affirm the circuit court's judgment and order and remand to the circuit court for further proceedings. I. ¶3 health BACKGROUND Since March 2020, Wisconsin's state and local public officials have issued public health orders aimed at curbing the spread of the communicable COVID-19 disease caused by the SARS-CoV-2 virus and its variants. This includes Janel Heinrich, the local health officer and director of Public Health Madison & Dane County ("Health Department"), a joint health department created by an intergovernmental agreement between the governing bodies of Dane County (the "County") and the City of Madison (the "City"). Per their agreement, the local health officer is jointly appointed by both local governments' elected chief executive officers (the County's executive and the City's mayor), subject to confirmation by both local governments' elected legislative bodies (the County's board and the City's common council). The agreement charges the Health Department and with its director policies adopted by the the duty to County implement and City ordinances, budgets, and the agreement itself. public health through local The agreement also establishes the Board of Health for Madison and Dane County ("Board of Health"), comprising of one County board supervisor, one City common council three City residents. member, three County residents, and Under the agreement, the Board of Health governs the Health Department's administration and supervises its director. 3 Nos. ¶4 Heinrich communicable responded COVID-19 to disease the in her 2021AP1343 & 2021AP1382 appearance territory of by the issuing a series of orders from May 2020 until March 2022 that implemented measures to prevent, suppress, and control the disease's spread. She did so pursuant to her authority under state law that directs a local health officer to "promptly take all measures necessary to prevent, diseases," "do prevention and gatherings when epidemics." what suppress is reasonable suppression deemed Wis. and of and disease," necessary Stat. control to communicable necessary and "forbid control § 252.03(1)-(2). for public outbreaks Because the or COVID-19 spreads predominantly via respiratory droplets——released when an infected person breaths, coughs, sneezes, sings, or talks——that then contact Heinrich's the mouth, orders nose, implemented or eyes measures of nearby that persons, affected many aspects of daily life where people come in close proximity with others. These measures limiting or forbidding protocols for particular included requiring gatherings, facilities, face requiring limiting coverings, sanitation or forbidding certain sport activities, limiting businesses' allowable indoor capacity, and requiring physical distancing between individuals. ¶5 Around the time of Heinrich's fourth such public health order in June 2020, the County duly enacted Dane County Ordinance § 46.40 regarding the prevention, suppression, and control of communicable diseases. Relevant here, Dane County Ordinance violation § 46.40(2) makes it "a of [Dane County Ordinance ch. 46] to refuse to obey an Order of the Director of 4 Nos. Public Health Madison and Dane County 2021AP1343 & 2021AP1382 entered to prevent, suppress or control communicable disease pursuant to Wis. Stat s. 252.03." forfeiture A violation of ch. 46 could result in a civil of between violation exists." ¶6 Jeffrey $50 and $200 "for each day that a Dane County Ordinance § 46.27(1).3 Becker and Andrea Klein are two County residents impacted by the Health Department's COVID-19-related orders. County In January 2021, they filed this lawsuit against the as well as the Health Department and its director, Heinrich, challenging their legal authority to issue and enforce such orders. separately Several filed an days later, enforcement the action Health against A Department Leap Above Dance, LLC ("A Leap Above") alleging that A Leap Above disobeyed a public health order. Raising similar challenges as Becker and Klein against the Health Department's enforcement authority, A Leap Above joined Becker and Klein's suit as the third plaintiff (collectively "Plaintiffs"). dismissed separate its The Health enforcement action, Department re-filing then it as counterclaims in this suit. ¶7 enjoin Plaintiffs any moved enforcement of the circuit current and court future to temporarily public health orders while the case was pending.4 The circuit court declined to grant the temporary injunction. Because its rationale for Separately, one's failure to pay an assessed civil forfeiture could result in up to 30 days in county jail. Dane County Ordinance § 46.27(3). 3 The Honorable Jacob B. Frost of the Dane County Circuit Court presiding. 4 5 Nos. denying Plaintiffs' Plaintiffs' merits, arguments Plaintiffs motion included lacked a asked the a 2021AP1343 & 2021AP1382 determination likelihood circuit of court judgment against them so they could appeal. success to enter that on the summary The circuit court granted Plaintiffs' request and entered summary judgment against their claims but acknowledged that the Health Department's counterclaims against A Leap Above remain unresolved. ¶8 Plaintiffs appealed the summary-judgment decision; Becker and Klein as of right and A Leap Above with the court of appeals' permission.5 Following consolidation of the appeals and completion of the briefing, Plaintiffs petitioned to bypass the court of appeals. further ordered We granted Plaintiffs' bypass petition and supplemental briefing on our jurisprudence regarding the delegation of constitutional powers. II. ¶9 § 252.03, This case determine ANALYSIS requires whether us state to interpret law preempts Wis. Dane Stat. County Ordinance § 46.40, and assess both provisions' constitutionality with respect to separation-of-powers principles. a question of law that we review de novo. Each presents See, e.g., Legue v. City of Racine, 2014 WI 92, ¶60, 357 Wis. 2d 250, 849 N.W.2d 837 (statutory interpretation); DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 652, 547 N.W.2d 770 (1996) (preemption); Because the Health Department's counterclaims against A Leap Above remain pending despite the summary-judgment decision, A Leap Above required the court of appeals' leave to file its appeal. See Wis. Stat. § 808.03(1)-(2). 5 6 Nos. 2021AP1343 & 2021AP1382 State v. Horn, 226 Wis. 2d 637, 642, 594 N.W.2d 772 (1999) (a law's constitutionality). A. ¶10 empower The local first Wisconsin Stat. § 252.03 two health subsections officers to of take Wis. Stat. certain § 252.03 actions in specific circumstances: (1) Every local health officer, upon the appearance of any communicable disease in his or her territory, shall immediately investigate all the circumstances and make a full report to the appropriate governing body and also to the department. The local health officer shall promptly take all measures necessary to prevent, suppress and control communicable diseases, and shall report to the appropriate governing body the progress of the communicable diseases and the measures used against them, as needed to keep the appropriate governing body fully informed, or at such intervals as the secretary may direct. The local health officer may inspect schools and other public buildings within his or her jurisdiction as needed to determine whether the buildings are kept in a sanitary condition. (2) Local health officers may do what is reasonable and necessary for the prevention and suppression of disease; may forbid public gatherings when deemed necessary to control outbreaks or epidemics and shall advise the department of measures taken.[6] We conclude the authority granted by these provisions includes the authority to act via order. We reach that conclusion based Subsections (3) and (4) do not provide any additional authority. They instead direct the Department of Health Services (DHS) to "take charge" if "the local authorities fail to enforce the communicable disease statutes and rules" and prohibit persons from "interfere[ing] with an investigation . . . of any place or its occupants by local health officers or their assistants," respectively. As such, those subsections are not at issue here. 6 7 Nos. 2021AP1343 & 2021AP1382 on the common and approved meaning of the operative language, the context in which it appears, and the statutory history. ¶11 We begin subsections. taken but by Because rather examining Plaintiffs the form in the words challenge which in not these the those two measures measures were promulgated, our interpretive focus is on the operative verbs "take," "do," and "forbid." At the top, we accept Plaintiffs concession that the local health officer's authority to "forbid public gatherings" must include the authority to do so by order. Indeed, how else would a local health officer forbid a public gathering if not through an order? this provision of action by Thus, to give any effect to § 252.03(2), we must read it to authorize order. See, e.g., Legue, 357 Wis. 2d 250, ¶61 (explaining that we interpret statutes "to give effect to every word and to avoid surplusage"). ¶12 Notwithstanding this concession, Plaintiffs maintain the clauses in § 252.03 using the verbs "take" or "do" fail to grant the authority to act by order. We observe that the "common and approved" meaning of the language used in these clauses——"take all measures necessary to prevent, suppress and control communicable diseases" and "do what is reasonable and necessary for the prevention and suppression of disease"—— plainly support acting by order. See Wis. Stat. § 990.01(1) (instructing technical that words neither nor statutorily defined "shall be construed according to common and approved usage"); see also Legue, 357 Wis. 2d 250, ¶61. That is to say the common and approved meanings of "take" and "do" prescribe no 8 Nos. 2021AP1343 & 2021AP1382 particular mechanism by which to act; they do not exclude acting by order.7 Therefore, the legislature's words alone would grant sufficiently broad authority for a local health officer to act via an order. ¶13 Despite this ordinary reading of § 252.03(1)-(2), Plaintiffs contend that the language in surrounding and closely related statutes action by order. other statutes indicates that § 252.03 does not authorize According to Plaintiffs, that is because these explicitly reference the authority to "issue Dictionary definitions confirm this common reading of "take" and "do." See, e.g., Stroede v. Soc'y Ins., 2021 WI 43, ¶12, 397 Wis. 2d 17, 959 N.W.2d 305 ("[W]e often consult a dictionary in order to guide our interpretation of the common, ordinary meanings of words."). As it is used here, "take" broadly entails "[t]o make, do, perform (an act, action, movement, etc.); to carry out." Take, Oxford English Dictionary (3d ed. 2014). The verb "do" is similarly broad, commonly meaning "[t]o perform, execute, achieve, carry out, effect, [or] bring to pass." Do, Oxford English Dictionary (3d ed. 2014). 7 9 Nos. orders" or to "order" specific measures.8 2021AP1343 & 2021AP1382 Because § 252.03 lacks similar language, the argument goes, § 252.03 does not authorize local health officers to issue orders. ¶14 While important, we see, agree e.g., with Legue, Plaintiffs 357 that Wis. 2d 250, context ¶61 & is n.30, Plaintiffs' contextual evidence provides an incomplete picture. A fuller examination Plaintiffs' of the contextual interpretation. As evidence Plaintiffs undermines acknowledged in briefing and at oral argument, the legislature uses language other than "issue orders" or "order" that nonetheless authorizes local health officers to act via order. Wisconsin Stat. § 252.06(1), for example, authorizes a local health officer to "require" isolation of a person, quarantines, and disinfections, which would require an order. authorizes local health The next subsection, § 252.06(2), officers "to quarantine, isolate, See Wis. Stat. § 252.02(4) (authorizing the Department of Health Services (DHS) to "issue orders" for the prevention of or the control and suppression of communicable disease, among other actions, and to "issue orders for any city, village or county by service upon the local health officer"); Wis. Stat. § 323.14 (authorizing a local government's governing body——or chief executive under certain conditions——"to order, by ordinance or resolution, whatever is necessary and expedient for the health, safety, protection, and welfare of persons and property within" its jurisdiction during an emergency); Wis. Stat. § 252.25 (penalizing the willful violation or obstruction of a "departmental [DHS] order" relating to public health); Wis. Stat. § 251.06 (authorizing a local health officer to "[e]nforce state public health statutes and rules," "any regulations" adopted by the local board of health, and "any ordinances" enacted by the relevant local government, but not referencing a local health officer's order); Wis. Stat. § 254.59 (authorizing the local health officer to "order the abatement or removal" of a human health hazard on private property and providing civil enforcement mechanisms). 8 10 Nos. 2021AP1343 & 2021AP1382 require restrictions or take other communicable disease control measures" under specified require an order. that the local circumstances, all of which would A related subsection, § 252.06(5), confirms health measures by order. officer has the power to take these Subsection (5) permits the local health officer to both "employ as many persons as are necessary to execute his enforce" or not her only orders" state orders . . . of . . . any (emphases added). § 252.03, Even Plaintiffs and laws "use and local all DHS health within concede the the necessary orders but officer." statute also to "the § 252.06(5) at language means issue "forbid here, public gatherings" authorizes local health officers to issue orders. Given the additional contextual evidence, we are not persuaded that the power to act via an order depends solely on the words "issue orders" or "order." ¶15 Finally, conclusion that authority to statutory § 252.03 issue history grants local orders. Wis. 2d 250, ¶61 & n.36. further health See, supports the officials the e.g., Legue, 357 Dating back to Wisconsin's territorial days, public health laws authorized local officials to issue enforceable public health orders using language such as "[t]o take such authorized measures." "the local Specifically, board of health the of territorial any city, law town or village" "[t]o take such measures as they may deem effectual for the preservation of the public health village or township," among other powers. Territory of Wisconsin, Passed 11 by the in said city, town, See Statutes of the Legislative Assembly Nos. Thereof, (1839). at a Session Commencing in 2021AP1343 & 2021AP1382 November 1838, at 125 Critically, none of the listed powers used the language "issue orders" or "order"; yet the statute still criminalized the violation of "any order, or rule, or regulation, made in pursuance of the powers granted to said board of health." See id. (emphasis added). ¶16 Similarly, Wisconsin's first state legislature granted the local power to "take" measures "deem[ed] most effectual for the preservation of the public health." distinguished the power to "take Importantly, this law such measures" for the preservation of public health from the power to "make such rules and regulations" for the same purpose. § 2 (1849). measures" That included distinction action not by See Wis. Stat. ch. 26, indicates rule or that "take regulation such but order, as subsequent sections of that same law recognized. by See Wis. Stat. ch. 26, §§ 3-4 (1849) (differentiating between an "order" and a "regulation"). ¶17 Later, following the 1918 Spanish Flu, Wisconsin's legislature enacted a local public health law that read: The local board of health . . . shall have power to establish quarantine and to order and execute what is reasonable and necessary for the prevention and suppression of disease; to forbid public gatherings when deemed necessary to control epidemics . . . . § 1, ch. 159, Laws of 1919 (emphasis added). A few years later, the legislature revised the public health laws including the provision related to a local board of health's authority, which then read: 12 Nos. 2021AP1343 & 2021AP1382 Local boards of health may do what is reasonable and necessary for the prevention and suppression of disease; may forbid public gatherings when deemed necessary to control epidemics . . . . § 2, ch. 448, Laws of 1922 (emphasis added). The interpretive question raised by this revision is whether the switch from "to order and execute" to "do" effectuated a substantive change in a local board of health's power. ¶18 The legislature instructs that we understand the revised statute "in the same sense as the original unless the change in language indicates a different meaning so clearly as to preclude judicial construction." We conclude clearly" that the indicate a change different orders for two reasons. in Wis. Stat. § 990.001(7). language meaning here that does precludes not "so issuing First, as explained previously, nothing about the common and approved meaning of "do" precludes acting via order; no particular mechanism by which a local health officer might act. Do, Oxford English achieve, its broad Dictionary carry definition (3d out, ed., effect, 2014) [or] therefore natural to necessary for prevention the read prescribes "may and ("To bring do perform, to what pass"). is suppression execute, It reasonable of disease" is and as granting permission to order private action deemed reasonable and necessary for the prevention and suppression of disease. In short, "do" is not at all inconsistent with acting via order. ¶19 Second, contemporaneous interpretations of the revised "may do what is reasonable and necessary" language understood it to continue to authorize action 13 by order. A 1923 attorney Nos. 2021AP1343 & 2021AP1382 general opinion concluded that the 1922 revisions continued to authorize the same powers the prior version of the public health statutes provided. 12 Wis. Op. Att'y Gen. 646 (1923). Two years later, another attorney general opinion concluded that, under the "may do what is reasonable and necessary" provision, "the local health department may issue an order to all employers of labor prohibiting such employers from continuing in their employment persons who are unvaccinated or who fail to show a certificate Gen. 300-01 indicating of recent (1925) a vaccination." (emphasis different added). meaning, 14 Far Wis. from these Op. "so Att'y clearly" contemporaneous interpretations of "may do what is reasonable and necessary" and that language's common and approved meaning lead us to follow § 990.001(7)'s directive and read the revised "do" in the "same sense as the original," which was "to order and execute." ¶20 The same interpretation of "do" holds for the 1981 amendment of this law. here: That amendment made two changes relevant (1) it shifted the authority to "do what is reasonable and necessary for the prevention and suppression of disease" from "local boards of health" to "local health officers"; and (2) it authorized local health officers to "take all measures necessary diseases." to prevent, suppress and control See § 23, ch. 291, Laws of 1981. communicable The first change retained the same "may do what is reasonable and necessary for the prevention and suppression of disease" language and thus shifted to local health officers the same authority to act by order. 14 Nos. ¶21 As for the second change, 2021AP1343 & 2021AP1382 the language "take all measures necessary to prevent, suppress and control communicable diseases" also authorized action via public health order. As set out above, the verb "take," a synonym of the verb "do" in this context, is broad and contains no definitional proscription against acting via order. See Take, Oxford English Dictionary (3d ed. 2014) ("To make, do, perform (an act, action, movement, etc.); to carry out." (emphasis added)). Moreover, the "take all measures" language chosen for this added authority harkens back to the earliest local public health statutes that, as explained above, used the same language to authorize action via order. See reading of supra, ¶¶15-16. "take all As measures such, the necessary" most reasonable includes taking necessary public health measures by order. ¶22 In light of the broad common and approved meaning of § 252.03's language, the full context in which it appears, and that provision's statutory history, we hold that the authority to "do what is reasonable and necessary for the prevention and suppression prevent, of disease" suppress and and "take control all measures communicable necessary diseases" to both authorize acting via order. B. ¶23 Ordinance Preemption We next address whether state law preempts Dane County § 46.40. when: (1) the power of state State law legislature municipalities to act; preempts has a local expressly (2) the ordinance withdrawn ordinance the logically conflicts with state legislation; (3) the ordinance defeats the 15 Nos. 2021AP1343 & 2021AP1382 purpose of state legislation; or (4) the ordinance violates the spirit of state legislation. Wis. 2d at 651-52. See, e.g., DeRosso Landfill, 200 Absent these circumstances, the County may enact ordinances in the same field and on the same subject as that covered by state legislation. See id. at 651 (citing Fox v. Racine, 225 Wis. 542, 546, 275 N.W. 513 (1937)); Wis. Stat. § 59.03(2)(a) (providing that a county board "is vested with all powers of a local, legislative and administrative character" including on the subject matter of "health"). ¶24 Dane County Ordinance § 46.40, in relevant part, provides: (1) Duty of Director, Public Health Madison and Dane County. Pursuant to Wis. Stat. ss. 252.03(1) & (2) the Director of Public Health Madison and Dane County shall promptly take all measures necessary to prevent, suppress and control communicable diseases within Dane County, including forbidding public gatherings when deemed necessary to control outbreaks or epidemics. (2) Public Health Orders. It shall be a violation of this chapter to refuse to obey an Order of the Director of Public Health Madison and Dane County entered to prevent, suppress or control communicable disease pursuant to Wis. Stat s. 252.03. Dane County Ordinance § 46.40(1)-(2). Plaintiffs argue that the ordinance may not lawfully authorize the local health officer to either issue orders or enforce those orders because authority is "intentionally withheld" by state law. such As for the power to act via order, Plaintiffs rely on the same argument addressed above——that Wis. Stat. § 252.03 does not authorize a local health officer to issue orders because the statute lacks the exact "issue orders" or "order" language used in related 16 Nos. 2021AP1343 & 2021AP1382 statutes such as Wis. Stat. §§ 252.02 and 323.14. Again, we disagree that Wis. Stat. § 252.03 "intentionally withheld" the power to act via order. 46.40(1) is not Accordingly, Dane County Ordinance § preempted because the ordinance permissibly grants authority redundant to that already authorized by state statute. See Wis. Stat. § 59.03(2)(a); DeRosso Landfill, 200 Wis. 2d at 651. ¶25 As for the enforcement three state laws that touch on measures. that authority, Plaintiffs cite enforcement of public health The first state law is a catchall penalty provision makes the willful violation or obstruction of a "departmental [DHS] order" relating to public health punishable by "imprison[ment] for not more than 30 days" or a "fine[] not more than $500 or both." See Wis. Stat. § 252.25. This provision contains no express withdrawal of municipal authority. Moreover, an ordinance allowing civil citations for violations of local health orders presents no logical conflict with DHS's public health orders also carrying penalties. Finally, the fact that Wis. Stat. § 252.25 creates a strong enforcement mechanism for public health orders confirms that Dane County Ordinance § 46.40(2)'s civil penalties are entirely in line with the purpose and spirit of the state's public health laws. ¶26 The second law regarding enforcement that Plaintiffs rely on requires a local health officer to "[e]nforce state public health statutes and rules," "any regulations" adopted by the local board of health, and "any ordinances" enacted by the relevant local government. Wis. 17 Stat. § 251.06(3). This Nos. 2021AP1343 & 2021AP1382 statutory list of a local health officer's mandatory enforcement duties tell us little about a county's authority to permit its health department to enforce civil Nor do Plaintiffs identify how the enforcement of orders would expressly by authority. health not orders It public does health citation. local certainly public conflict withdraw with the that duty to similarly enforce state statutes and rules as well as local regulations and ordinances. Again, the fact that state law recognizes a local health officer's duty to secure public health via enforcement measures indicates that the enforcement mechanism supplied by Dane County Ordinance § 46.40(2) comports with our state public health laws' purpose and spirit. ¶27 Finally, Plaintiffs contend Dane County Ordinance § 46.40(2) exceeds the County's statutory authority under Wis. Stat. § 66.0113. adopt an ordinance Section that 66.0113(1)(a) authorizes permits the a issuance county of to civil citations for "violations of ordinances, including ordinances for which a Plaintiffs, statutory Dane counterpart County exists." Ordinance According § 46.40(2) to authorizes citations for violations not of an ordinance but of a public health order, contrary to Wis. Stat. § 66.0113(1)(a). ¶28 We disagree. Dane County Ordinance § 46.40(2) says that refusal to obey a local public health order is "a violation of this chapter," Ordinances. meaning Chapter 46 of the Dane County See also Dane County Ordinance § 46.25(1) (making it "a violation of this chapter" to "neglect to obey any lawful order" of the Health Department). 18 Any order issued pursuant to Nos. Dane County ordinance's Ordinance grant of § 46.40 is authority. 2021AP1343 & 2021AP1382 legally rooted Accordingly, in that disobeying order is a violation of the underlying ordinance. the As a result, Dane County Ordinance § 46.40(2) operates consistently with the County's authority under Wis. Stat. § 66.0113(1)(a). therefore, no conflict——express, implicit, There is, logically, or otherwise——between Dane County Ordinance § 46.40 and any state law. See DeRosso Landfill, 200 Wis. 2d at 651-52. C. ¶29 Constitutional Separation of Powers Finally, we turn to whether a local health officer's authority to issue public health orders under Wis. Stat. § 252.03——either by itself or in tandem with the enforcement mechanism supplied by Dane County Ordinance § 46.40(2)——is an unconstitutional delegation of legislative power. Before reaching that question, though, Plaintiffs ask that we revisit our jurisprudence on the constitutional bounds of permissible legislative grants of authority. We therefore begin by addressing the proper framework in which to assess a legislative grant of power to local officials and then apply that framework to Wis. Stat. § 252.03 and Dane County Ordinance § 46.40. ¶30 Article IV, Section 1 of the Wisconsin Constitution declares that the "legislative power shall be vested in a senate and assembly." This court has never interpreted these words in a literal sense to bar the delegation of any legislative power outside the senate and assembly. Wis. 2d 274, Constitution 279, does 296 not N.W.2d require See Klisurich v. DHSS, 98 742 that 19 (1980) the ("The legislative Wisconsin power be Nos. 2021AP1343 & 2021AP1382 exclusively vested in a bicameral legislature."). Still, we have inferred from our constitution's tripartite structure that none of the three governmental powers——executive, legislative, or judicial——can be entirely delegated away from the branch to which the constitution vests it. See In re Constitutionality of § 251.18, Wis. Statutes, 204 Wis. 501, 503, 236 N.W. 717 (1931) ("[N]o one of the three branches of government can effectively delegate any of the powers which peculiarly and intrinsically belong to that branch."). ¶31 In determining whether a legislative grant of authority transgresses this inferred constitutional limitation, our cases examine both the substantive nature of the granted power and the adequacy of attending procedural against arbitrary exercise of that power. Wis. 2d at 279–80. "ascertainable" safeguards See Klisurich, 98 So long as the legislative grant contains an purpose and "procedural safeguards" exist to ensure conformity with that legislative purpose, the grant of authority is procedural constitutional. safeguards, the Id. less at 280. critical substantive nature of the granted power. The we are greater the toward the See Panzer v. Doyle, 2004 WI 52, ¶55, 271 Wis. 2d 295, 680 N.W.2d 666, abrogated in other respects by Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408. ¶32 Plaintiffs suggest our current jurisprudence regarding the delegation of legislative authority has lost touch with the original powers. understanding of the constitution's separation of Plaintiffs advocate greater emphasis on the substantive 20 Nos. 2021AP1343 & 2021AP1382 nature of the authority granted, regardless of the procedural safeguards present. formulate They generally constitutional argue applicable only if the that rules the of legislature grant of private has power to conduct is "laid down the fundamentals of the law," leaving the recipient of the power to merely "fill up the details." See Wis. 472, 505-06, 220 N.W. 929 (1928). us to overrule our precedent in State v. Whitman, 196 Accordingly, they invite favor of their proffered interpretation of the constitution. ¶33 the We decline Plaintiffs' invitation. wrong vehicle jurisprudence. state-level local to revisit our This case presents separation-of-powers As an initial matter, the principles regarding delegations delegations. differ After from all, the the principles constitution regarding defines the state legislature's relationship with the other two state-level branches differently than both the state legislature's relationship to local governments and a local legislative body's relationship with its local executive and judicial counterparts. Case in point, the state legislature constitutionally may——and does——delegate to local municipalities complete legislative authority over local affairs, subject only to the constitution and preemptive state statutes.9 Consequently, the constitution See, e.g., Wis. Const. art. IV, § 22 (permitting the state legislature to delegate to county boards "powers of a local, legislative and administrative character" (emphasis added)); Wis. Const. art. IV, § 23; Wis. Const. art. XI, § 3(1); Wis. Stat. § 59.03(2) (vesting county boards "with all powers of a local, legislative and administrative character" (emphasis added)). 9 21 Nos. 2021AP1343 & 2021AP1382 applies differently with respect to state-level delegations than to local delegations. ¶34 That said, we need not define what those different principles are here. and Dane County That is because both Wis. Stat. § 252.03 Ordinance § 46.40 muster even if we assume that: to local governments; and would pass constitutional (1) state-level principles apply (2) Plaintiffs' proposed analysis emphasizing the substantive nature of the granted authority was the correct framework. Applying, then, Plaintiffs' proposed analysis, Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 are sufficient in terms of both their substantive nature and their procedural safeguards, and we address each in turn. 1. ¶35 We begin by Substantive Nature assessing whether contain an ascertainable purpose. the laws at issue As is often the case with legal interpretation, context can provide even seemingly broad enabling language meaningful content. See Legue, 357 Wis. 2d 250, ¶61 & n.30; see also Am. Power & Light Co. v. Sec. & Exch. Comm'n, 329 U.S. 90, 104 (1946) (explaining that enabling language "factual background appear[s]"). derives and "much the meaningful [legal] content" context in from which its [it] That is certainly true for Wis. Stat. § 252.03 and Dane County Ordinance § 46.40. ¶36 Importantly, these provisions "la[y] down the fundamentals of the law"——the who, what, when, where, why, and how. See Whitman, 196 Wis. at 505-06. health officer. The who is the local The what is the power to "take all measures 22 Nos. 2021AP1343 & 2021AP1382 necessary," to "do what is reasonable and necessary," and to "forbid public gatherings." The when is "upon the appearance of any communicable disease." The where is within the local health officer's "jurisdiction." prevent, "territory" suppress or and control The communicable why is disease," "to "the prevention and suppression of disease," or "to control outbreaks or epidemics." See supra, ¶22. And the how is via actions including orders. Moreover, each law appears in its respective code's public health chapter. ¶37 These textual limitations, read in their public health context, establish an ascertainable "general policy": the transmission pathways of contagious diseases. State Conservation (1940). Comm'n, 235 Wis. 473, 482, disrupt See Olson v. 293 N.W. 262 These textual limitations also substantively restrict a local health officer's pursuit of that general policy, allowing only public health measures reasonable and necessary to hinder the particular disease's transmission. Light, 329 U.S. at 105. See id.; Am. Power & In other words, all that remains for the local health officer is to "fill up the details" with the particular public health measures that will be responsive to the unique features of the particular contagious disease. See Whitman, 196 Wis. at 505-06. ¶38 Bolstering our conclusion that the substantive nature of Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 do not upset our constitutional separation of powers is founding-era grants of similar public health authority to local governments. Wisconsin's first state legislature saw no conflict between the 23 Nos. constitution's separation of powers and 2021AP1343 & 2021AP1382 the grant public health authority to local governments. of broad 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." Stat. ch. 26, § 2 (1849). Wis. A violation of board of health "order or regulation" constituted a criminal misdemeanor punishable by up to $100 (over $3,000 in 2022 dollars) or three months in prison. Wis. Stat. ch. 26, § 3 (1849). ¶39 health We see two upshots from this original grant of public authority understanding that the authority delineated of to local our constitution to local in governments. constitution's allows grants governments Wis. Stat. First, separation of broad substantively § 252.03. the of powers public similar And original was health to that second, our constitution's separation of powers also allows public health orders enforceable by criminal penalties that far exceed the civil citations authorized by Dane County Ordinance § 46.40.10 As such, Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 do not substantively offend our constitution's separation of powers. Because Dane County Ordinance § 46.40 does not impose criminal penalties, we do not address in this case the potential tension between these historical grants of public health authority and our decision in Wisconsin Legislature v. Palm, which did not analyze this historical evidence. 2020 WI 42, ¶¶36-40, 391 Wis. 2d 497, 942 N.W.2d 900. 10 24 Nos. 2. 2021AP1343 & 2021AP1382 Procedural Safeguards ¶40 The procedural § 252.03 and Dane strong. That is because a local health officer's discretion is subject to both safeguards County state attendant Ordinance and local § 46.40 to Wis. are controls. Stat. particularly As with any legislative authority, the state legislature may curb exercises of granted § 252.03 power or it deems repealing the excessive statute by amending entirely. Wis. As Stat. Plaintiffs acknowledge, our state legislature can react much more quickly to perceived excesses than the federal Congress, making this safeguard more robust than it might be for federal legislation. Moreover, state courts may review an order issued pursuant to Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 and ensure its measures conform to the laws' substantive limitations. For example, the subject of an enforcement action could argue the measure at issue is either not reasonable or not necessary for preventing the spread of a contagious disease, as Wis. Stat. § 252.03(2) requires. ¶41 On top of those state-level procedural safeguards are several local controls. supervisory officer. and See First, the Health Board can exert its policy-making Wis. Stat. control over the § 251.04(1)-(3). local Second, health elected officials in both the County and the City possess the power to remove the local health officer. See Wis. Stat. §§ 17.10 & 17.12(c); see also Wis. Stat. § 17.13(1) (removal of village and entrusted to town local appointive elected officers). officials 25 is The a removal strong powers procedural Nos. 2021AP1343 & 2021AP1382 safeguard because such officials are often more knowledgeable about and responsive to local preferences.11 Local officials can act decisively if a local health officer acts contrary to the preferred public health policy of the constituency. And third, the County's board and the City's common council control the Health Department's annual budget and thus may leverage appropriations to affect a local health officer's actions. See Wis. Stat. § 251.11. ¶42 In sum, the ascertainable purpose evident in both Wis. Stat. § 252.03 and Dane County Ordinance § 46.40's text and surrounding context, the history of substantively similar grants dating back to substantial arbitrary Wisconsin's state and exercises of first local a legislative procedural local code, and the safeguards against officer's granted health authority all lead us to conclude Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 constitute constitutional grants of authority. *** ¶43 First, Before concluding, we stress three critical points. our authority holding to issue addresses public only health a public orders; health the officer's validity of specific measures appearing in those orders is not before us. Second, nothing in this opinion should be read as departing from our existing precedent on separation-of-power principles. It See Lawrence Rosenthal, Romer v. Evans As the Transformation of Local Government Law, 31 Urb. Law. 257, 274-75 (1999). 11 26 Nos. 2021AP1343 & 2021AP1382 remains the law that courts must review "the nature of delegated power and the presence of adequate procedural safeguards, giving less emphasis to the former when the latter is present," Panzer, 271 Wis. 2d 295, ¶55, and we break no new ground regarding the limitations on delegations to or within local governments. ¶44 Finally, and most importantly, the dissent's resort to disparaging a public servant——who has no opportunity to defend herself——is a poor substitute for legal argument. aspersions have no place in a judicial Such personal opinion. While the direct and implied contentions that a local health official is a tyrant, an autocrat, a dictator, and a despot are fantastical, they do real damage to the public's perception of this court's work. to We must aspire to be better models of respectful dialogue preserve the public's confidence on which this court's legitimacy relies. III. ¶45 the CONCLUSION Wisconsin Stat. § 252.03 grants local health officers authority to issue public health orders. Dane County Ordinance § 46.40, which makes such orders enforceable by civil citations, is not preempted by state law. And neither laws' grant of authority runs afoul of our constitution's separation of powers. summary resolves Accordingly, we affirm the circuit court's grant of judgment all of in favor Becker of the and defendants. Klein's claims, Though the this Health Department's counterclaims against A Leap Above remain pending. Therefore, we remand back to the circuit court to resolve the remaining counterclaims. 27 Nos. 2021AP1343 & 2021AP1382 By the Court.—The order of the circuit court is affirmed, and the cause remanded for further proceedings consistent with this opinion. 28 No. ¶46 BRIAN HAGEDORN, J. 2021AP1343 & 2021AP1382.bh (concurring). In response to the COVID-19 pandemic, some local health officers, including Dane County's Janel Heinrich, issued various orders to combat the spread of COVID-19. The petitioners in this case do not challenge the legality of any specific order Heinrich issued. Such orders can be challenged on statutory or constitutional grounds; issued indeed, was we previously partially concluded invalid constitutional reasons.1 for one both order Heinrich statutory and Rather, this case presents a challenge to local health officers' ability to issue any orders——without care for any particular order's content or effect. The arguments the petitioners bring apply equally to orders issued during the present pandemic, as well as to future health scares large and small. specific orders So while litigants could raise challenges to issued during the COVID-19 pandemic, today's case does not. ¶47 The majority/lead opinion petitioners' statutory arguments.2 the petitioners' revitalize a request more that robust, we aptly addresses the I write separately to discuss revisit our judicially-enforced doctrine at both the state and local levels. precedents and nondelegation Rooted in our constitution's separation of powers, the basic idea behind the nondelegation doctrine is that the assignment of distinct powers into separate branches——legislative, executive, and judicial—— See James v. Heinrich, 2021 WI 58, 397 Wis. 2d 517, 960 N.W.2d 350. 1 2 I join ¶¶1-28 and 44-45 of the majority/lead opinion. 1 No. 2021AP1343 & 2021AP1382.bh means the branch of government assigned certain powers may not delegate its core powers to another.3 This case asks whether the legislature impermissibly delegated legislative power to local health officers across the state and whether the Board of Supervisors impermissibly delegated legislative power to Dane County's local health officer. ¶48 Properly analyzing these claims requires a resort to first principles. When interpreting the Wisconsin Constitution, our obligation is to discern the meaning of the words adopted by the people and faithfully apply them to the facts before us.4 The constitution specific meaning is a when written adopted. document The with terms Wisconsin that had Constitution "means what it says, not what federal cases say, and not what we might want it to say."5 Faithful constitutional interpretation requires that "we focus on the language of the adopted text" as that language was originally understood.6 may require resort to "historical Part of this analysis evidence including 'the practices at the time the constitution was adopted, debates over adoption of a given provision, and early legislative Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶3135, 393 Wis. 2d 38, 946 N.W.2d 35. 3 State v. Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 953 N.W.2d 847; James, 397 Wis. 2d 517, ¶61 (Hagedorn, J., concurring). 4 5 James, 397 Wis. 2d 517, ¶61 (Hagedorn, J., concurring). Halverson, 395 Wis. 2d 385, ¶22; see Wis. 2d 517, ¶62 (Hagedorn, J., concurring). 6 2 also James, 397 No. 2021AP1343 & 2021AP1382.bh interpretation as evidenced by the first laws passed following the adoption.'"7 ¶49 Unfortunately, however, the petitioners in this case do not offer this type of evidence or analysis. largely recite selective quotes Montesquieu and constitution, faithful general from federal Madison but they originalist history. theories and inform cannot analysis of our as power cases. meaning serve of government state the Instead, they Certainly of Wisconsin's substitutes constitution's They are helpful, but not sufficient. and for a text and Where we are asked to disavow nearly 100 years of precedent and institute something new, understanding an of honest the examination Wisconsin of Constitution the is original never more necessary. ¶50 The constitutional claims raised by the petitioners do not succeed because the historical evidence weighs against the petitioners' arguments under the unique facts of this case. Alternative evidence of the original understanding may exist for this type of claim, but if it does, the petitioners have failed to present it. I remain open to more broadly reconsidering our approach to the nondelegation doctrine in future cases. should begin with a careful analysis understanding of the Wisconsin Constitution. of the But we original As it does here, a text-and-history inquiry may resolve many nondelegation claims without resort to a judicially-designed implementing doctrine. Halverson, 395 Wis. 2d 38, ¶28 n.10). 7 Wis. 2d 385, 3 ¶22 (quoting Vos, 393 No. I. ¶51 Before 2021AP1343 & 2021AP1382.bh LEGAL PRINCIPLES discussing the merits of the petitioners' nondelegation claims, we must first address the legal principles and methodology that guide our analysis of such challenges. ¶52 Like the federal Constitution, our state constitution separates government power into three branches: executive, and judicial.8 legislative, Then it "vests" discrete powers in each corresponding branch——legislative power, executive power, and judicial power.9 Although these powers overlap to a limited extent, they are in most respects separate and distinct from one another.10 Accordingly, since the constitution says the legislature is vested with legislative power, the inference is that core legislative power may not be placed elsewhere, by the legislature or otherwise.11 of government. The same goes for the other branches This principle is easy enough to understand in concept, but it is far more difficult to apply in practice. ¶53 hands-off For nearly 100 years, this court has mostly taken a approach legislative 8 to power.12 claims We of impermissible have upheld laws delegation that of assign Vos, 393 Wis. 2d 38, ¶31. Wis. Const. art. IV, § 1; id. art. V, § 1; id. art. VII, § 2; see also Vos, 393 Wis. 2d 38, ¶31. 9 10 Vos, 393 Wis. 2d 38, ¶¶32-34. In re Constitutionality of Section 251.18, Wis. Statutes, 204 Wis. 501, 503, 236 N.W. 717 (1931). 11 State ex rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 472, 504-06, 220 N.W. 929 (1928); Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526, 533-34, 182 N.W.2d 257 (1971); Westring v. James, 71 Wis. 2d 462, 468, 238 N.W.2d 695 (1976). 12 4 No. 2021AP1343 & 2021AP1382.bh policymaking to executive bodies based primarily on whether the law contains sufficient procedural protections to curb abuses of delegated power.13 While not without some substantive limits, we have generally looked the other way if procedural protections "will adequately assure that discretionary power is not exercised unnecessarily or indiscriminately."14 ¶54 and 1927, This has not always been our practice.15 we were more delegated authority.16 decisions could not exacting regarding the Between 1896 substance of During that time, we said certain policy be farmed out to the executive branch. Although agencies could be left to fill up rather technical details, the overall policy choices needed to come directly from Panzer v. Doyle, 2004 WI 52, ¶55, 271 Wis. 2d 295, 680 N.W.2d 666, abrogated on other grounds by Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408. 13 Id. (noting that the nondelegation doctrine "is now primarily concerned with the presence of procedural safeguards"); id., ¶79 n.29 (but observing that "there may be certain powers that are so fundamentally 'legislative' that the legislature may never transfer those powers to another branch of government"). 14 See generally Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin's Legal System 377-88 (1999) (surveying the development of the nondelegation doctrine in Wisconsin). 15 See Dowling v. Lancashire Ins. Co., 92 Wis. 63, 70-72, 65 N.W.2d 738 (1896); State ex rel. Adams v. Burdge, 95 Wis. 390, 401-04, 70 N.W. 347 (1897); see also Joseph A. Ranney, Wisconsin and the Shaping of American Law 82 (2017) (explaining that the court took a "new tack" in Dowling and Adams). But see State ex rel. Baltzell v. Stewart, 74 Wis. 620, 631-32, 43 N.W. 947 (1889) (upholding a statute that empowered a commission to create and define drainage districts in Dane County). 16 5 No. the legislature.17 since declined permissible 2021AP1343 & 2021AP1382.bh We closed this chapter, however, and have to fastidiously legislative grants police of power the and line between impermissible delegations of legislative power.18 ¶55 The petitioners urge us to return to a more robust judicial enforcement of the nondelegation doctrine akin to our 1896-1927 decisions, asking that we articulate principles to govern nondelegation challenges. general Specifically, relying on the separate writings of two United States Supreme Court justices proposing tests under the federal Constitution, Burdge, 95 Wis. at 402 ("[T]here must first be some substantive provision of law to be administered and carried into effect."). Even during this era, however, state agencies were permitted some hand in state government decision-making. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. R.R. Comm'n of Wis., 136 Wis. 146, 116 N.W. 905 (1908) (upholding a law that directed the Railroad Commission to set railroad rates); State ex rel. Buell v. Frear, 146 Wis. 291, 306, 131 N.W. 832 (1911) (upholding a civil service law on the grounds that it simply directed the agency to "ascertain the facts and to apply the rules of law thereto under the prescribed terms and conditions"); State v. Lange Canning Co., 164 Wis. 228, 241, 160 N.W. 57 (1916) (upholding a labor law that directed the Industrial Commission to determine "what class or classes of employment are dangerous or prejudicial to the life, health, safety, or welfare of females" and regulate "the time which females may labor therein"). 17 See Whitman, 196 Wis. at 505-06. Yet, it has not been unfettered deference. We have continued to strike down laws that delegate too much authority to executive officials. E.g., Gibson Auto Co. v. Finnegan, 217 Wis. 401, 407, 259 N.W. 420 (1935) (striking down a depression era recovery act that authorized the governor to establish fair competition codes, noting it was "difficult to conceive of a more complete abdication of legislative power than is involved in this act"); State ex rel. Zimmerman v. Dammann, 229 Wis. 570, 575-76, 283 N.W. 52 (1938) (striking down a law that delegated to an emergency board the power to appropriate money). 18 6 No. 2021AP1343 & 2021AP1382.bh they advance a two-question framework that asks (1) whether the delegated power applicable rules involves of "the private formulation conduct,"19 and of (2) generally whether the executive branch, rather than the legislature, is left to make policy judgments.20 The petitioners also urge us to maintain the current requirement for procedural safeguards. ¶56 The major difficulty with the petitioners' plea is they make little effort to ground either their claims or their proposed framework in Wisconsin Constitution. the original understanding of the Instead, they point to language in our 1896-1927 cases and offer theories about nondelegation under the federal Constitution. But an originalist analysis of the Wisconsin Constitution requires examining how the nondelegation doctrine was understood in 1848 when our constitution was ratified.21 ¶57 The petitioners' effort to compose a new, broadly applicable legal test misses the key point in the analysis. We must begin with constitutional text and history, and measure any proposed test against that. "A proper legal test must implement and effectuate" the original understanding of the law; that is, it "must be a faithful extension of the lines ascertainable in See Dep't of Transp. v. Ass'n of Am. R.R.s, 575 U.S. 43, 70 (2015) (Thomas, J., concurring); see also Gundy v. United States, 139 S. Ct. 2116, 2133 (Gorsuch, J., dissenting). 19 See Gundy, dissenting). 20 21 139 S. Ct. at 2136, 2141 (Gorsuch, J., James, 397 Wis. 2d 517, ¶62 (Hagedorn, J., concurring). 7 No. the provision's questions text proposed by and 2021AP1343 & 2021AP1382.bh history."22 petitioners are In less that light, helpful to the this nascent inquiry into the how the separation of powers should be enforced by the judiciary today. A better approach is first to examine the allegedly improper delegation based on what the text and history reveal.23 II. ¶58 The nondelegation § 252.03 health County petitioners claims. impermissibly officers. Ordinance APPLICATION in this First, they delegates Second, the § 46.40(2) case offer contend legislative petitioners unlawfully two that power assert distinct Wis. Stat. to local that Dane transfers local State v. Roundtree, 2021 WI 1, ¶116, 395 Wis. 2d 94, 952 N.W.2d 765 (Hagedorn, J., dissenting). 22 The United States Supreme Court recently endorsed a similar approach in two federal constitutional contexts. The proper analytical framework for Second Amendment questions has lingered in lower courts for over a decade. The Court has now answered that question, at least preliminarily. It articulated a test that "requires courts to assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding." New York State Rifle & Pistol Ass'n, Inc. v. Bruen, S. Ct. , 2022 WL 2251305, at *12 (2022). The Court explicitly rejected a generally applicable tiers of scrutiny framework. Id. at *9. Similarly, the Court recently instructed the "that the Establishment Clause must be interpreted by reference to historical practices and understandings." Kennedy v. Bremerton Sch. Dist., S. Ct. , 2022 WL 2295034, at *3 (2022) (internal quotation marks omitted). These cases are instructive of the type of analysis that can inform the meaning of the Wisconsin Constitution as well. 23 8 No. legislative authority to Dane County's 2021AP1343 & 2021AP1382.bh local health officer. Both claims fall short, though for different reasons. A. ¶59 local In the health prevent, Wisconsin Stat. § 252.03 challenged officers suppress to and statute, "take control the all legislature measures communicable directs necessary diseases" to and instructs that they "may do what is reasonable and necessary for the prevention and suppression of disease," including forbidding public gatherings.24 this law, the impermissibly The petitioners contend that in enacting legislature delegating violated legislative the power constitution to local by health officers. ¶60 This claim rests upon the constitutional vesting of legislative power "in a senate and assembly."25 While this textual grant informs our analysis, we must conduct a historical inquiry to determine how this was understood in practice, keeping our eye out for on-point historical analogues. ¶61 We applied this approach recently in State ex rel. Kaul v. Prehn.26 There, we analyzed the available historical evidence to determine whether the original understanding of the Wisconsin governor.27 Constitution conferred broad removal powers on the Looking to the historical record, we rejected the 24 Wis. Stat. § 252.03(1) & (2). 25 Wis. Const. art. IV, § 1. 26 2022 WI 50, ¶42-51, 27 Id. Wis. 2d 9 , N.W.2d . attorney general's argument, rooted No. 2021AP1343 & 2021AP1382.bh in political theory and federal law, that this sort of control over appointment and removal was a core executive power.28 Instead, our research revealed that the original understanding of the removal power in Wisconsin was different, and suggested that the legislature was understood to constitutional history to have more of these design.29 That illuminate the powers form of under Wisconsin's analysis——looking understanding of to imprecise constitutional text——is appropriate in this case as well. ¶62 Our earliest statutes provide particularly important evidence of how understood.30 adopted by the Wisconsin Constitution was originally The Revised Statutes of 1849 were written and legislators constitutional who convention observed first or participated hand.31 Shortly in after the it convened, Wisconsin's first state legislature quickly created a commission to assist in drafting our first statutes.32 The commission's task was to compile and recommend an initial set of laws based upon territorial rules and practice, omitting those 28 Id., ¶¶43, 44-50. 29 Id., ¶45. See Vos, 393 Wis. 2d 38, ¶64 ("Early enactments following the adoption of the constitution are appropriately given special weight."); see also NLRB v. Canning, 573 U.S. 513, 572 (2014) (Scalia, J., concurring) ("Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision."). 30 31 See Ranney, supra n.17, at 76. 32 Id. 10 No. 2021AP1343 & 2021AP1382.bh that were obsolete, as well as those repugnant to the newly drafted constitution.33 then debated and The commission's recommendations were voted on by the legislature, ultimately creating the Revised Statutes of 1849.34 ¶63 These analysis laws focused therefore on constitutional text.35 the have original unique relevance understanding to of an the This is particularly true when we find laws on the books today that either descended from these early statutes or do similar things. When the constitutionality of such a law is challenged, the historical context provided by those early laws must weigh heavily in the analysis. Does this mean these 1849 laws represent the final word on a statute's constitutionality? No. But unquestionably, they provide very strong evidence of the constitution's original understanding.36 33 Id. 34 Id. at 76-77. State v. Beno, 116 Wis. 2d 122, 138, 341 N.W.2d 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)). 35 We have long employed this interpretive technique in constitution interpretation. See State ex rel. Pluntz v. Johnson, 176 Wis. 107, 114-15, 186 N.W. 729 (1922) (noting that a statute "first appeared in the . . . Revised Statutes of 1849" and concluding that it "amounts to contemporaneous legislative construction of this constitutional provision, which construction is entitled to great deference"); Payne v. City of Racine, 217 Wis. 550, 558, 259 N.W. 437 (1935) (same); Buse v. Smith, 74 Wis. 2d 550, 572, 247 N.W.2d 141 (1976) (noting the persuasive force of "the contemporaneous construction evidenced" a provision of the "Revised statutes of 1849"). 36 11 No. ¶64 case. 2021AP1343 & 2021AP1382.bh One such 1849 statute is especially on-point in this Chapter 26 in the Revised Statutes of 1849 was entitled "Of the Preservation of the Public Health."37 That statute is significant for our purposes because it established local boards of health and gave them duties and responsibilities similar to the statutes challenged in this case.38 part, the statute provided: quite In relevant "Every board of health may take such measures, and make such rules and regulations, as they may deem most effectual for the preservation of the public health."39 It then provided that "every person who shall violate any order or regulation, made by any board of health . . . shall be deemed guilty of a misdemeanor, and punished by a fine not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three Wisconsin's months."40 first authorities to state issue In other government orders, it words, not authorize criminalized only local the did health failure to evidence of follow those orders. ¶65 These original statutes understanding Constitution government forbid 1849 was did giving in this ratified, not local appear offer case. those to significant When participating understand officials charged 37 Wis. Stat. ch. 26 (1849). 38 Id. 39 Wis. Stat. ch. 26, § 2 (1849). 40 Wis. Stat. ch. 26, § 3 (1849). 12 the the with Wisconsin in state constitution protecting to public No. health the authority indeterminate to issue at Nor was character. 2021AP1343 & 2021AP1382.bh least it some orders understood problematic if those orders were enforceable. of to be That same general statutory authority has been amended and modified many times, but it continues in today's Wis. Stat. § 252.03.41 If this arrangement on its face did not run afoul of the constitutional separation of powers in 1849, it is hard to see why it would today. Whatever theoretical nondelegation framework may be found in the Wisconsin Constitution, this kind of empowerment of local health officials does not appear to violate it. ¶66 orders I stress issued challenge. In that by this local State conclusion health ex rel. does officers Adams v. not are Burdge, mean immune for that from example, following a challenge by an affected parent, this court struck down a rule adopted by the state board of health mandating smallpox vaccines as a condition of attending school.42 The court found this to be in conflict with the law mandating school attendance, and explained that permitting the state board of health to adopt this type of rule would be an impermissible delegation of legislative power.43 the rule would be "void as The court further concluded unreasonable and unnecessary," See Wis. Stat. ch. 26, §§ 2, 3 (1849); Wis. 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). 41 42 95 Wis. 390; see also James, 397 Wis. 2d 517. 43 Burdge, 95 Wis. at 399-404. 13 No. 2021AP1343 & 2021AP1382.bh calling it "a sweeping and far–reaching exercise of the power."44 But Burdge itself affirmed that the legislature could authorize health officials to issue orders in some circumstances: It cannot be doubted but that, under appropriate general provisions of law in relation to the prevention and suppression of dangerous and contagious diseases, authority may be conferred by the legislature upon the state board of health or local boards to make reasonable rules and regulations for carrying into effect such general provisions, which will be valid, and may be enforced accordingly.[45] Unlike in Burdge, the question in this case is not whether a particular order was out of bounds, but whether the statute may authorize public health orders at all. Justice Pinney's opinion in Burdge supports the conclusion that the authority to issue local health orders may be conferred by the legislature on local health officials, constitutional but grounds specific or on orders the may basis be that challenged they are on not reasonable and necessary, among other claims.46 ¶67 Perhaps historical evidence specific to the Wisconsin Constitution weighs the other way, but it has not been presented to us nor has my research uncovered it. 44 Id. at 405. 45 Id. at 401. My conclusion is based The dissent misses this point in our cases and misunderstands the claim before us. It spends considerable time criticizing the fines levied against A Leap Above Dance, LLC; the decision to classify a dance class as a high risk sport; the multiple orders it describes as "oppressive"; and the banning of gatherings in private homes before Thanksgiving. But again, whether those particular choices were unlawful or unconstitutional is not before this court; the petitioners challenged only whether any orders can be issued at all. 46 14 No. 2021AP1343 & 2021AP1382.bh on the historical evidence available to me and the unique claims before us.47 And because this claim can be resolved on the basis of this historical evidence, it is unnecessary at this time to adopt a new nondelegation framework to analyze future claims. B. ¶68 The Dane County Ordinance § 46.40(2) petitioners' different. They unlawfully delegates county board to contend local the ordinance provides: local second Dane nondelegation County legislative health Ordinance power officer. claim § 46.40(2) vested The is in the challenged "It shall be a violation of this chapter to refuse to obey an Order of the Director of Public Health Madison and Dane County entered to prevent, suppress or control communicable disease pursuant to Wis. Stat. [§] 252.03."48 The penalty for noncompliance is a forfeiture "not less than $50 nor more than $200 for each day that a violation exists."49 Refusal to pay the forfeiture, when one has the ability to pay, may result in confinement not to exceed 30 days.50 ¶69 The dissent contains a thorough overview of the cases interpreting Article IV, Section 22 of the Wisconsin Constitution, on which the petitioners' claim is based. But we Prehn, Wis. 2d , ¶44 (explaining that it falls to the parties to "construct a historical record in support of" their constitutional claims). 47 48 Dane County Ordinance § 46.40(2). 49 Dane County Ordinance § 46.27(1). 50 Dane County Ordinance § 46.27(3). 15 No. 2021AP1343 & 2021AP1382.bh need not analyze that provision because Dane County Ordinance § 46.40(2) does not even trigger it. The ordinance is limited. It penalizes those who refuse to obey an order issued "pursuant to Wis. Stat. [§] 252.03." The authority to issue an order punishable under this ordinance is therefore confined to the powers conferred by § 252.03. The ordinance on its face simply does not give the county's legislative power to the local health officer; it does officers to issue not independently orders at all. authorize The local health legislature——not the county board——granted that power to local health officers in § 252.03, which is all the ordinance appeals to. The ordinance makes it a violation subject to penalty to disobey a lawful order authorized by § 252.03.51 Just as the legislature can, and does, penalize the violation of lawful public health orders,52 I see no reason why a duly enacted county ordinance making it a violation to disobey lawful local public health orders would be considered an impermissible delegation of power. ¶70 The petitioners offer no meaningful counterargument for this understanding of what the ordinance does, asserting only that if the power to issue orders comes from Wis. Stat. § 252.03 rather nondelegation explained, issue problem § 252.03 orders, doctrine. than and Nothing the lies does it in ordinance, in "it § 252.03." authorize does not the text 51 See also Wis. Stat. § 66.0113. 52 See Wis. Stat. § 252.25. 16 just But local health violate the of Dane means as we the have officers to nondelegation County Ordinance No. § 46.40(2) orders. suggests Without it separately that, there is 2021AP1343 & 2021AP1382.bh authorizes no plausible local health delegation of legislative power to evaluate. III. ¶71 The petitioners CONCLUSION bring us two nondelegation claims supported by a proposal for how we should analyze nondelegation questions going nondelegation forward. framework unnecessary to resolve historical record, impermissibly I delegate I at the do this not time claims conclude endorse because before the legislative a doing us. Based legislature power to broader so on is the did local not health officers by authorizing them to issue orders under Wis. Stat. § 252.03. County I also conclude the petitioners' claim that Dane Ordinance § 46.40(2) violates local nondelegation principles fails because the ordinance does not delegate, or redelegate as the dissent frames it, legislative power at all. ¶72 I close with a word to litigants. Regardless of judicial philosophy, every member of this court is interested in what the text says and what the historical evidence reveals about the text.53 legal theories Therefore, parties who come to us advancing grounded in the Wisconsin Constitution should make every effort to present arguments focused on the original understanding of our constitution.54 While such See majority/lead op., ¶¶38-39 (relying evidence from Wisconsin's founding era). 53 54 See Halverson, 395 Wis. 2d 385, ¶¶22, 24. 17 on briefing is historical No. 2021AP1343 & 2021AP1382.bh 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 earnest.55 55 James, 397 Wis. 2d 517, ¶62 (Hagedorn, J., concurring). 18 in Nos. ¶73 REBECCA GRASSL BRADLEY, J. 2021AP1343 & 2021AP1382.rgb (dissenting). "'Law is the ultimate science,'" Paul quoted. "Thus it reads above the Emperor's door. I propose to show him law." Frank Herbert, Dune 284 (Penguin Books 2016) (1965). ¶74 Our republic and our state were founded on the fundamental idea that the people possess inherent rights, they form governments for the primary purpose of protecting those rights, and governments may people consent to give them.1 exercise only those powers the Under our state constitution, the people of Wisconsin authorized particular elected officials to exercise power over them. But the people never consented to that power being given away. ¶75 which This case involves the power to make the rules by the entrusted people to will state be and bound, local a power the legislatures people alone. have Not surprisingly, when the people consented to submitting to the rules that will govern society, they carefully confined exercise of such awesome power to those whom they elect. the 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. Echoing the Declaration of Independence, the people of Wisconsin enshrined these first principles in the first section of the first article of our state constitution: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." Wis. Const. art. I, § 1. 1 1 Nos. 2021AP1343 & 2021AP1382.rgb The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be governed by laws made by such men, and in such forms, no body else can say other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen, and authorized to make laws for them. The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands. . . . . The legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have. John Locke, Second Treatise of Government §§ 141–42 (C.B. McPherson ed. 1980) (1690). ¶76 The majority misunderstands first principles and ignores the plaintiffs' principal and most persuasive argument. In Article IV, Section 22 of the Wisconsin Constitution, a section the majority/lead opinion2 and the concurrence both cite but once in passing references,3 Wis. Sup. Ct. IOP originally circulated as the the vote of a majority of the separate writings as the 'lead 2 the people of Wisconsin III.G.5 ("If . . . the opinion majority opinion does not garner court, it shall be referred to in opinion[.]'"). The plaintiffs' main brief cites Article IV, Section 22 of the Wisconsin Constitution so many times, the table of authorities does not provide specific page numbers for each instance in which it is cited, instead using the phrase, "passim." The majority/lead opinion instead focuses on Article IV, Section 1 (which vests all legislative power in the senate and assembly). The plaintiffs' main brief cites that clause on a single page. Justice Brian Hagedorn complains the petitioners do not analyze the original meaning of this provision but he 2 3 Nos. 2021AP1343 & 2021AP1382.rgb authorized the state legislature to delegate certain powers to county boards. That section states, "[t]he legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe." Const. art. IV, § 22. Wis. The original public meaning of this text, as confirmed by the historical record, reflects the founders' recognition of constitutional the non-delegation framers' branch was based. vesting of principle, separate on which powers the in each Because the people decide who may create the laws that will bind them, those to whom power has been delegated may not give it away. The people adopted an exception permitting the legislature to delegate lawmaking power to county boards (the members of which are elected), but those local governmental entities may not give the power to anyone else. See infra Part II. ¶77 does not This court has long held the Wisconsin Constitution permit lawmaking power. county boards of supervisors to subdelegate Although Article IV, Section 22 authorizes the initial delegation from the legislature to the county boards, the constitution does not authorize any subdelegation. Accordingly, this court has declared unconstitutional a statute enacted delegate by to the the legislature electors authorizing of the "a county county a power board by to the Constitution expressly delegated to the county board itself." fails to undertake the analysis at all. Discerning original meaning requires hard work but is an essential element of our job as justices. 3 Nos. 2021AP1343 & 2021AP1382.rgb See Marshall v. Dane Cnty. Bd. of Supervisors, 236 Wis. 57, 59, 294 N.W. 496 (1940). The constitution does not give the Dane County Board of Supervisors any authority to empower a single, unelected bureaucrat to restrict the liberty of the people of Dane County.4 ¶78 Wisconsin Dane County Ordinance § 46.40 (Dec. 2020) violates the Constitution because it transfers lawmaking delegated to the Dane County Board of Supervisors. power Enforcing the non-delegation principle is vital to the maintenance of free government but the majority eviscerates it. Violating its oath to uphold the Wisconsin Constitution, the majority disturbs the people's constitutional choices of who may exercise power over them, eroding the people's fundamental freedoms. I. A. ¶79 exercise The of governmental I dissent. BACKGROUND Dane County Ordinance § 46.40 outbreak of COVID-19 extraordinary entities. power See spawned over generally the an unprecedented people Samuel by Alito, many United States Supreme Court Justice, Address at the Federalist Society National Convention (Nov. 12, 2020) ("The pandemic has resulted in previously liberty."). unimaginable restrictions on individual This case concerns the actions of one particular official, Janel Heinrich, the Public Health Officer and Director of Public Health of Madison and Dane County ("PHMDC"). As explained in Part II, a county board of supervisors can pass an ordinance that takes effect only if it is approved by a vote of the people; however, it cannot make referendum votes to pass ordinances by direct democracy binding on itself. 4 4 Nos. ¶80 2021AP1343 & 2021AP1382.rgb For nearly two years, Heinrich has been creating law, interpreting it, and then enforcing it against the people of Dane County. In late May 2020, the Dane County Board of Supervisors passed Dane County Ordinance § 46.40, purportedly granting Heinrich unilateral rulemaking authority effectively identical (although on a smaller geographical scale) to the very powers this court held only weeks earlier could not be lawfully exercised by a state official. See generally Wis. Legislature v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900; Wis. Cnty. Ass'n, Guidance Communicable in Diseases Implementing 37 (2020) Regulations ("Even though Surrounding the decision applied only to [the Department of Health Services ('DHS')], the Palm Court's reasoning suggests that legislative body oversight may be a prerequisite to an unelected official's (e.g., a local health officer) authority to enforce a public health order applicable to the public at large without raising significant constitutional concerns surrounding separation of powers."). ¶81 Dane County Ordinance § 46.40 provides, in relevant part: (1) Duty of Director, Public Health Madison and Dane County. Pursuant to Wis. Stat. ss. 252.03(1) & (2) the Director of Public Health Madison and Dane County shall promptly take all measures necessary to prevent, suppress and control communicable diseases within Dane County, including forbidding public gatherings when deemed necessary to control outbreaks or epidemics. (2) Public Health Orders. It shall be a violation of this chapter to refuse to obey an Order of the Director of Public Health Madison and Dane County entered to prevent, suppress or control 5 Nos. communicable s. 252.03. § 46.40(1)–(2). diseases 2021AP1343 & 2021AP1382.rgb pursuant to Wis. Stat. A violation of an "order" issued pursuant to this ordinance exposes a person to a civil forfeiture of $50 to $200 for each day the violation exists. § 46.27(1). Dane County Ordinance If a person does not pay, the person can be jailed. § 46.27(3) ("Any person who has the ability to pay any forfeiture against him or her under this chapter but who refuses to do so may forfeiture is be confined paid, but in in the county no event to jail exceed until such thirty (30) days."). ¶82 existent The ordinance creates an enforcement mechanism nonin Wisconsin statutes. For context, Wis. Stat. § 252.25 (2019–20)5 states: Any person who willfully violates or obstructs the execution of any state statute or rule, county, city or village ordinance or [DHS] order under this chapter and relating to the public health, for which no other penalty is prescribed, shall be imprisoned for not more than 30 days or fined not more than $500 or both. While § 252.25 declares a violation of a DHS order punishable by jail and a fine, it does enforcement mechanism for officers. See Cnty. Wis. not provide "orders" Ass'n, a issued Guidance penalty by in or local other health Implementing Regulations, at 32 ("Neither the statutes nor the administrative code provide for a detailed enforcement mechanism of a local health officer's general order. It is important to understand that a local health officer's order, standing alone, may not be All subsequent references to the Wisconsin Statutes are to the 2019–20 version unless otherwise indicated. 5 6 Nos. 'enforced' – make a violator 2021AP1343 & 2021AP1382.rgb subject to civil forfeiture absent a local ordinance allowing for such enforcement."). County's prayer for relief effectively concedes this – Dane point, citing Dane County Ordinance § 46.27(1)——not any statute——as a justification for the fine. ¶83 has The question in this case is not whether any statute delegated otherwise) delegated but this lawmaking whether power power the to to county her. See Heinrich (lawfully ordinance has Dane County or lawfully Ordinance § 46.40(2) ("It shall be a violation of this chapter . . . ."). Because the county board empowered Heinrich to define what constitutes a violation of the ordinance, and only a violation of the ordinance can trigger a penalty, the issue in this case does not rest on any statute purporting to directly grant her authority. To the extent the majority suggests otherwise, it misdirects the analysis. B. ¶84 Heinrich's Tyranny Heinrich has exercised dictatorial powers for nearly two years, in contrast with her peers in other counties.6 In this very case, Dane County fully admits Heinrich issued an Dane County's COVID-19 response is atypical. According to the complaint, "[o]nly three counties that plaintiffs are aware of (Dane, Door, and Pierce) have adopted ordinances preemptively making any order of the local health officer enforceable without limits or oversight by the county board." Additionally, "only Dane County's local health officer has issued orders in reliance on such an ordinance, that Plaintiffs are aware of." The majority insinuates the mandates imposed by Heinrich's orders were necessary, but the COVID-19 response by the remaining 71 counties in the state belies the majority's misperception of reality. See Majority/lead op., ¶4. 6 7 Nos. "emergency order." 2021AP1343 & 2021AP1382.rgb PHMDC then posted "guidance" on its website explaining how Heinrich defined certain key terms in that order. PHMDC later filed an enforcement action against A Leap Above Dance, LLC ("Dance Studio") seeking nearly $24,000 in fines.7 ¶85 According to Dane County, around Christmas 2020 (nearly a year after the outbreak of COVID-19), the Dance Studio held a performance of the Nutcracker ballet. Dane County mislabeled this performance a "high risk sport" as defined on its webpage——not in Heinrich's order.8 For the apparent purpose of maximizing penalties, it declared that each of the eight segments of the ballet constituted a different event. The Dance Studio pointed out that the order's terms permitted "unregulated youth programs," an undefined phrase in the order. In its Orwellian doublethink,9 Dane County absurdly says ballet is a sport and not a youth program. ¶86 After the Dance Studio joined this lawsuit, PHMDC dismissed the enforcement action and filed two counterclaims in Although Dane County uses the term civil forfeiture, a $24,000 penalty could cripple a small business. 7 Shockingly, Dane County's second counterclaim begins, "[g]roup dance was classified as a COVID-19 high risk sport in Sports Guidance issued by the PHMDC[.]" 8 "To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, to believe that democracy was impossible and that the Party was the guardian of democracy . . . . Even to understand the word 'doublethink' involved the use of doublethink." George Orwell, Nineteen Eight-Four 36 (Plume | Harcourt Brace Book 2003) (1949). 9 8 Nos. this case. still 2021AP1343 & 2021AP1382.rgb Although Dane County now seeks less than $24,000, it alleges sixteen separate violations——eight counterclaim——for a single ballet performance. for each Specifically, Dane County asserts the Dance Studio committed eight separate violations of Heinrich's emergency County the asserts "mass gathering" order. eight In separate a prohibition second declared counterclaim, violations of a in Dane "physical distancing" mandate declared in an amendment to the order. ¶87 had At oral argument, plaintiffs' counsel claimed Heinrich issued twenty-three different emergency orders. I take judicial notice that PHMDC's website confirms the accuracy of this statement.10 For the better part of two years, the people of Dane County have been subjected to a constantly shifting regulatory regime, rendering compliance illusory and objections futile. have As even the majority acknowledges, Heinrich's orders "requir[ed] gatherings, face require[ed] coverings, limit[ed] or sanitation protocols for forbid[den] particular facilities, limit[ed] or forbid[den] certain sport activities, limit[ed] businesses' allowable indoor capacity, and requir[ed] physical distancing between individuals."11 In abstract terms, these measures may not seem particularly burdensome; in reality they were Heinrich oppressive. banned small As but one gatherings representative in private homes Current Orders, PHMDC (last visited June 2, https://publichealthmdc.com/coronavirus/current-order. 10 11 Majority/lead op., ¶4. 9 example, over 2022), Nos. 2021AP1343 & 2021AP1382.rgb Thanksgiving, giving a mere week's notice of this diktat.12 She threatened $1000 fines for violations. ¶88 Rather than respond to any of the legal analysis in this dissent, the majority instead castigates its author for characterizing autocracy, fitting dictatorship, words wields. Heinrich's to actions and describe in terms despotism. the There arrogation of of tyranny, are no power more Heinrich James Madison forewarned that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 47, at 373–74 (James Madison) (John C. Hamilton ed., 1882) (emphasis added). ¶89 Because his legal analysis of the non-delegation doctrine collapses under the weight of founding principles and more than 100 years of Wisconsin precedent applying them, Justice Brian Hagedorn attempts to marginalize this opinion as Demonstrating that judicial review is an inadequate procedural safeguard, this court denied an original action challenging this particular order brought by two of the plaintiffs in the present case, over the strong dissent of three justices. Gymfinity v. Dane County, No. 2020AP1927-OA, unpublished order, at 3 (Wis. Dec. 21, 2020) (Roggensack, C.J., dissenting) ("While this court has recently received a barrage of petitions to commence original actions, when it is presented to us that fundamental personal liberty is suppressed by an unelected official, we must act. Waiting until the matter proceeds through a circuit court and the court of appeals will be justice denied."). The petition was filed on November 23, 2020——this court did not act until December 21 of that year, by which time, the Thanksgiving turkey was definitely cold. The plaintiffs inform us they waited four months for a temporary injunction decision from the circuit court. 12 10 Nos. "miss[ing] th[e] "criticizing" point" Heinrich's by 2021AP1343 & 2021AP1382.rgb spending "choices."13 "considerable It is, of time" course, customary for any judicial opinion to relay the facts of the case; this 55-page opinion spends four paragraphs reciting them while the remaining 72 paragraphs expound the law. Justice Hagedorn simultaneously suggests the facts are irrelevant to the legal issues before us while rejecting "the petitioners' arguments under the unique facts of this case."14 The facts illustrate the raison d'être for the non-delegation principle: protecting the people from governmental encroachments on their liberty. Like the Wizard of Oz, Justice Hagedorn says, "[p]ay no attention to that man behind the curtain!" The Wizard of Oz (1939). But the public has a "right to know" the truth. See Hawkins v. 393 Wis. Elections Comm'n, 2020 WI 75, ¶14, Wis. 2d 629, 948 N.W.2d 877 (Roggensack, C.J., dissenting). ¶90 A "public servant" who exceeded her lawful authority has no ground to argue she was "merely doing her job[.]"15 As a government official, Heinrich has an obligation to perform her duties within constitutional confines even if a majority of this court is not willing to enforce those boundaries. replete with examples of abuses by public History is officials who rationalized their actions as "just doing their jobs." 13 Concurrence, ¶66 n.46. 14 Id., ¶50 (emphasis added). Teigen v. Wis. Elections Comm'n, 2022 WI __, ¶247 n.17, __ Wis. 2d __, __ N.W.2d __ (Ann Walsh Bradley, J., dissenting). 15 11 Nos. ¶91 Heinrich is a powerful 2021AP1343 & 2021AP1382.rgb government official, not a powerless victim who has been dragged to court, as the majority insinuates. Heinrich is a named party in this case——she has had every "opportunity to defend herself"16 (and to prosecute her own counterclaims, for that matter). In contrast, defending government overreach is difficult, as evidenced by the majority glossing over the facts of this case and refusing to apply governing law. ¶92 conceal Instead of defending liberty, the majority tries to tyranny with benevolent motives. "[T]he greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good——especially in an emergency." County of Butler v. Wolf, 486 F. Supp. 883, 890 (W.D. 2020). Penn. official who However employs her well-intentioned, powers to prohibit a government families from enjoying Thanksgiving dinner together and who threatens hefty financial sanctions for noncompliance has become the people's master rather than their servant. "Thomas Jefferson advised against being 'deluded by the integrity of' governmental actors' 'purposes' and cautioned against 'conclud[ing] that these unlimited powers will never be abused' merely because current office holders 'are not Wis. 2d 497, (quoting Edited by ¶82 Thomas disposed to abuse them.'" (Rebecca Jefferson, William Peden. Grassl Notes Chapel Bradley, on the Hill: J., State Palm, 391 concurring) of University Virginia. of North Carolina Press for the Institute of Early American History and 16 Majority/lead op., ¶44. 12 Nos. Culture, Williamsburg, Virginia, 2021AP1343 & 2021AP1382.rgb 1954. The Founders' Constitution, Volume 1, Chapter 10, Document 9, http://presspubs.uchicago.edu/founders/documents/v1ch10s9.html. University "Jefferson of Chicago forewarned Press) that (modification '[t]he time The in the original). to guard against corruption and tyranny, is before they shall have gotten hold on us. It is better to keep the wolf out of the fold, than to trust to drawing entered.'" Virginia). Id. his teeth (quoting and talons Jefferson, after Notes on he shall the have State of The majority stands by while unlimited powers are abused, and does nothing to guard against the tyranny that has already gotten hold of the people of Dane County. II. A. ¶93 Evidence ANALYSIS The Non-Delegation Principle of the non-delegation principle underlying the separation of powers in the Wisconsin Constitution has been well-documented by Wisconsin's seminal source for originalist constitutional interpretation: In the formation of a state constitution it would be well to keep in view the principles upon which republican governments profess to be established. All legitimate power proceeds from the people. This could not be denied, even among men who wished to frame a monarchy. . . . [W]e sometimes find men, nominally liberal, practical tyrants. The governed should beware of transferring too much authority into the hands of rulers; for, forgetting that they are servants, they too often become masters of the people. Individuals are more ambitious and more tenacious of power than the mass, and all history has proved that in times of peace and quiet the former are apt to make inroads and aggressions upon the latter. . . . Under the head of implied and constructive powers, tyranny 13 Nos. 2021AP1343 & 2021AP1382.rgb may find a plausible pretext to stamp his foot, roughshod, upon the neck of the American eagle. A Convention Editorial (1846), reprinted in The Movement for Statehood, 1845–46, at 309, 310–11 (Milo M. Quaife ed., Wis. Hist. Soc'y 1918). ¶94 The people of Wisconsin are the ultimate sovereign. Id. at 312 ("The persons that constitute the nation are the source of all delegated power."); Taxation——Borrowing Money (1846), reprinted in The Movement for Statehood, 1845–46, at 177, 179 ("There is no sovereign and independent power except in the people."). "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." Wis. Const. art. I, § 1. "Under the Wisconsin Constitution, government officials, whether elected or appointed, are servants of the citizens, not their masters." ¶95 Palm, 391 Wis. 2d 497, ¶68. The people have delegated to state government, subject to limits specified in the state constitution, powers they would otherwise inherently retain. In a sense, each branch of government is an "agent" of the people, capable of legitimately exercising only those powers the people have delegated to them. Philip Hamburger, Is Administrative Law Unlawful? 377 (2014); see also Taxation——Borrowing Money, at 179 ("The members of the legislature are the agents of the people. people by power relationship, the of attorney."). constitution 14 They act for the Embodying commands that this "'[a]ll agency laws' Nos. 2021AP1343 & 2021AP1382.rgb enacted pursuant to the Wisconsin Constitution begin with the phrase, '[t]he people of the state of Wisconsin, represented in the senate and assembly, do enact as follows.'" In re Amending Wis. Stat. §§ 48.299 & 938.299 Regulating the Use of Restraints on Child. in Juv. Ct. (Juv. Ct.), 2022 WI 26, ¶55 n.11, __ Wis. 2d __, __ N.W.2d __ (Rebecca Grassl dissenting) (quoting Wis. Const. art. IV, Bradley, § 17(1)). J., As our state's founders understood, "'[l]aw is an expression of the legislative will'——that is, an embodiment wishes, expressed by delegated authority." of the people's Legal Absurdities—— Pleadings (1846), reprinted in The Movement for Statehood, 1845– 46, at 467, 470 (quoting the Livingston Code). ¶96 cannot Under the common law of agency, "the agent ordinarily subdelegate the power to a sub-agent, as counter to the apparent intent of the principal." this runs Koschkee v. Taylor, 2019 WI 76, ¶54 n.5, 387 Wis. 2d 552, 929 N.W.2d 600 (Rebecca Grassl Bradley, J., concurring) (quoting Hamburger, Is Administrative Law Unlawful?, at 380); see also Lang v. Lions Club of Cudahy Wis., Inc., 2020 WI 25, ¶40, 390 Wis. 2d 627, 939 N.W.2d 582 (lead op.) ("An agent may appoint a subagent only if the agent has actual or apparent authority to do so." Restatement (Third) circumstances, politics, a a § 3.15(2))). matter freedom; in Delegata further delegated. delegari: of personal individual Hamburger, Is Administrative Law Unlawful?, at 380. potest foundation of "In liberty." non is is Agency constitutional potestas it this of (quoting no delegated powers can be The non-delegation principle ensures only 15 Nos. 2021AP1343 & 2021AP1382.rgb the entity the people chose to entrust with power may exercise it, subject to limitations specified by the people. ¶97 The non-delegation English law. principle traces its origins to See Jarkesy v. Sec. & Exch. Comm'n, 34 F.4th 446, 460 n.12 (5th Cir. 2022) ("Principles of non-delegation had even taken hold in England before the American Founding." (citing Hamburger, Is Administrative Law Unlawful?, at 381)). Even the king of England, following the rise of popular sovereignty, was not permitted Parliament. to transfer certain powers vested in him by Sir Edward Coke explained: That the prosecution and execution of any penal statute cannot be granted to any, for that the act being made by the policy and wisdom of the parliament for the general good of the whole realm, and of trust committed to the King as to the head of the justice and of the weal public, the same cannot by law be transferred to any subject. Penal Statutes Hamburger, Is (1605), Coke, Reports, Administrative Law 7:36b–37a; see also at 381 Unlawful?, ("[P]arliamentary subdelegations were widely understood to be unlawful. Englishmen of whiggish views tended to argue that legislative power came from the people and that the legislature therefore could not subdelegate its power to others."). ¶98 The United States adopted from England a similar understanding of the non-transferability of the people's grant of legislative concept in Founding, power. detail. 130 Yale Recent See Ilan L.J. 1490 scholarship Wurman, has explored Nondelegation (2021); Philip at this the Hamburger, Delegating or Divesting?, 115 Nw. U. L. Rev. Online 88 (2020). But see Nicholas Bagley, Delegation at the Founding, 121 Colum. 16 Nos. L. Rev. 277 (2021). proceedings Congress' in the 2021AP1343 & 2021AP1382.rgb The early nineteenth century debates and Congress understanding of of the the United States non-delegation document principle as a limit on transferring their authority: 1808: "[T]o suspend or repeal a law is a Legislative act, and we cannot transfer the power of legislating from ourselves to the President." 18 Annals of Cong. 2125 (1808). 1810: "It seems to me with equal constitutionality we might refer to the President the authority of declaring war, levying taxes, or of doing everything which the Constitution points out as the duty of Congress. All legislative power is by the Constitution vested in Congress. They cannot transfer it." 21 Annals of Cong. 2022 (1810). 1818: "Legislative power, when granted, is not transferable; nor can it be exercised by substitute; nor in any other manner than according to the constitution granting it." 31 Annals of Cong. 1144 (1818). ¶99 Wisconsin's founders adopted a system of government similar in structure to the government designed under the United States Constitution. "Like its federal counterpart, '[o]ur state constitution . . . created three branches of government, each with distinct functions and powers,' and '[t]he separation of powers . . . is Gabler v. Crime implicit Victims in this Rts. tripartite Bd., 2017 division.'" WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384 (quoted source omitted; alternations in original). embody this "Three clauses separation: of the Article Wisconsin IV, Section Constitution 1 ('[t]he legislative power shall be vested in a senate and assembly'); Article V, Section 1 ('[t]he executive power shall be vested in a governor'); and Article VII, 17 Section 2 ('[t]he judicial Nos. 2021AP1343 & 2021AP1382.rgb power . . . shall be vested in a unified court system')." (citation omitted). Id. As a general rule, "[o]ur constitutional structure confers no authority on any branch to subdelegate any powers the sovereign people themselves delegated to particular government actors." Fabick N.W.2d 856 v. Evers, (Rebecca 2021 WI 28, Grassl ¶56, Bradley, 396 Wis. 2d 231, 956 J., concurring). "A strict accountability from public officers will be required, and the will of the people be the great governing voice . . . . [The people] will not permit their popular sovereignty to be delegated to others who now, because dressed 'in a little brief authority' arrogate to themselves the authority of being thinkers for the people, and 'the tongues o' the common mouth.' than gold." To us such considerations are more weighty State Government——No. 1, reprinted in The Movement for Statehood, 1845–46, at 372, 375–76. ¶100 As is self-evident from the three vesting clauses, "[t]he people vested the [lawmaking] power in the legislature—— not the executive and certainly not the judiciary." Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶69, 399 Wis. 2d 623, 967 N.W.2d 469 (citing Fabick, 396 Wis. 2d 231, ¶55). includes the authority to: This power (1) "declare whether or not there shall be a law"; (2) "determine the general purpose or policy to be achieved by the law"; and (3) "fix the limits within which the law (majority shall op.) operate." (quoting Koschkee, Schmidt v. Wis. 2d 46, 59, 158 N.W.2d 306 (1968)). 18 387 Dep't Wis. 2d 552, of Res. Dev., ¶11 39 Nos. 2021AP1343 & 2021AP1382.rgb ¶101 "The legislative power is 'the supreme power' because of its extraordinary reach[.]" (quoting Therefore, power[],' Locke, Second "[l]aw-making which is Treatise is 'not Juv. Ct., __ Wis. 2d __, ¶44 the for of Government, platonic ideal sharing.'" Fabick, 396 Wis. 2d 231, ¶58). Id., of § 134). a ¶46 '[c]ore (quoting The people granted the lawmaking power to the legislature subject to many conditions designed to inhibit most ideas from ever becoming law. "Bicameralism and presentment are the crucible bills must overcome to become law. By design, it is much more difficult than rule by dictatorship." Id., ¶55 n.11; see also Gundy v. United States, 585 U.S. __, 139 S. Ct. 2116, 2134 (2019) (Gorsuch, J., dissenting) ("An 'excess of law-making' was, in [the framers'] words, one diseases to which our governments are most liable.' that tendency, the framers lawmaking difficult."17 went to great of 'the To address lengths to make (quoting The Federalist No. 62, at 378 Justice Hagedorn discounts "Montesquieu and Madison" as "helpful, but not sufficient" in construing the Wisconsin Constitution. Concurrence, ¶49. Our constitution was modeled after the United States Constitution——Wisconsin's founders were not working from a blank slate. The early debates at the time of Wisconsin's founding rely explicitly on The Federalist. E.g., An Abolitionist Subscriber's View (1847), reprinted in The Struggle over Ratification, at 639, 642 (Milo M. Quaife ed., Wis. Hist. Soc'y 1920) (citing The Federalist No. 39 (James Madison)). Our early decisions followed suit. E.g., Walker v. Rogan, 1 Wis. 511 (*597), 527 (*616) (1853). Evidencing the enduring recognition of the Framers' influence over the writing of our state constitution, over the last 50 years The Federalist has been cited in nearly 50 Wisconsin appellate opinions. The father of the United States Constitution and those who influenced the founders' views on governance obviously "inform our understanding of the separation of powers under the Wisconsin Constitution." Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384. 17 19 Nos. 2021AP1343 & 2021AP1382.rgb (Alexander Hamilton) (C. Rossiter ed. 1961))). people gave the legislature its power legislature alone must exercise it." light of exclusive its awesome domain "is sweep." make laws, the Johnson, 399 Wis. 2d 623, ¶69 (quoting Fabick, 396 Wis. 2d 231, ¶56). legislature's to "Because the "Safeguarding" the particularly Id. important in Fabick, 396 statehood, this (quoting Wis. 2d 231, ¶55). ¶102 "In the early years of Wisconsin's court understood that the three branches of government could not delegate their vested powers, imposing substantive limitations on the legislature's assignment of authority to the executive to carry out the legislature's policies." Fabick, 396 Wis. 2d 231, ¶64; see also Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin's Legal System 377 (1999) ("Beginning with the controversy over municipal financing of railroads in the 1850s, the issue of what powers the legislature could confer on subordinate units of government arose regularly in Wisconsin. The Wisconsin Supreme Court adopted the . . . doctrine followed in most American states as a partial answer to the problem. doctrine stated in essence that the legislature could The grant power to subordinate units to implement its policies but not to make their own."). For example, in Dowling v. Lancashire Ins. Co., this court held "a law must be complete, in all its terms and provisions, when it leaves the legislative branch of the government, and nothing must be left to the judgment of the electors or other appointee or delegate of the legislature." Wis. 63, 74, 65 N.W. 738 (1896) (emphasis added). 20 92 Nos. ¶103 The majority/lead opinion 2021AP1343 & 2021AP1382.rgb dedicates much ink to statutory history in an effort to establish the legitimacy of delegations in the context of boards of health; however, it ignores one of this court's leading cases, (which was cited by the plaintiffs). (1897). State v. Burdge, 95 Wis. 390, 70 N.W. 347 In that case, this court examined a statute authorizing the state board of health "to make such rules and regulations and to take such measures as may, in its judgment, be necessary for the protection of the people from Asiatic cholera, or other dangerous disease[s]." Id. at 398. The act noted it was to "be construed and understood" to cover "such diseases as the state board of health shall designate as contagious and dangerous to the public health." Id. at 401. Purporting to act in accord with these statutes, the state board of health implemented a vaccination cases. requirement Id. at 405. without any input in schools in response to Smallpox Through a "single stroke of the pen" and from the legislature, the board of health "excluded from the common schools" "every child of school age, throughout the entire state, that had not been vaccinated." Id. No statute explicitly permitted the exclusion of students based on vaccination status. ¶104 After provisions of Id. at 399. discussing the statute Dowling, import this court noted, and include an "[t]he absolute delegation of the legislative power over the entire subject here involved[.]" Id. at 401. The court recognized, however, that the board was a mere "administrative body[.]" Id. at 400. It had no "legislative power" and "no part of the legislative power 21 Nos. 2021AP1343 & 2021AP1382.rgb c[ould] be delegated by the legislature to [it]" or "any other department or body[.]" ¶105 For the administrative Id. state board powers, it of had to health act to act pursuant upon to its "some substantive provision of law to be administered and carried into effect." Id. at 402. Because no law explicitly permitted the exclusion of unvaccinated students, this court held the state board of health acted without authority notwithstanding its ostensible statutory powers "to take such measures as may, in its judgment, be necessary." "quite general" authority. and Id. at 403. therefore Id. at 400. not a That statute was source of rulemaking Extending its holding to both the "state board of health" and "local boards," the court emphasized that rulemaking by such bodies could be done only if the authorizing statute was sufficiently complete in and of itself that rulemaking did not "involve[] a discretion as to what [the law] shall be" but merely "discretion as to its execution[.]"18 Id. at 401–02. The majority seems to believe the ultimate sources of the constitution's original meaning are early statutory enactments. Not so. Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶256 n.64, 400 Wis. 2d 626, 971 N.W.2d 402 (Rebecca Grassl Bradley, J., dissenting), rev'd sub nom. Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. __, 142 S. Ct. 1245 (2022) (per curiam) ("The Legislative and Executive branches cannot, through tacit understanding, change the constitutional allocation of powers." (citing Bartlett v. Evers, 2020 WI 68, ¶210, 393 Wis. 2d 172, 945 N.W.2d 685 (Kelly, J., concurring/dissenting))). 18 "We may look to 'three primary sources in determining meaning of a constitution provision: [1] the plain meaning, the constitutional debates and practices of the time, and the earliest interpretations of the provision by 22 the [2] [3] the Nos. 2021AP1343 & 2021AP1382.rgb ¶106 Justice Hagedorn trivializes Burdge because the case was decided in 1897, a few decades after the state's founding. Concurrence, ¶11 ("The major difficulty with the petitioners' plea is they make little effort to ground either their claims or their proposed framework in the original understanding of the Wisconsin Constitution. Instead, they point to our 1896–1927 cases and offer theories about nondelegation under the federal constitution."). legislature, as manifested through the first legislative action following adoption.'" Black v. City of Milwaukee, 2016 WI 47, ¶54, 369 Wis. 2d 272, 882 N.W.2d 333 (Rebecca Grassl Bradley, J., concurring) (quoting Diaryland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶19, 295 Wis. 2d 1, 719 N.W.2d 408) (modifications in the original). The ordering of these sources reflect their legal weight, i.e., plain meaning is most important while early statutory enactments are least indicative. Id. & n.2. "In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. . . . Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison that '(i)t is emphatically the province and duty of the judicial department to say what the law is.'" Id., ¶54 n.2 (quoting United States v. Nixon, 418 U.S. 683, 703 (1974) (modification in the original)). As the United States Supreme Court recently reiterated, "post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text." N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. __, No. 20-843, slip op. at 27–28 (June 23, 2022) (quoting District of Columbia v. Heller, 670 F.3d 1244, 1274 n.6 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)). Under the majority's logic, the Alien & Sedition Acts are proof positive of the First Amendment's meaning. Legislatures often adopt laws without a full appreciation of the relevant constitutional implications; judicial review exists for a reason. 23 Nos. ¶107 Burdge meaning. who was Pinney, undoubtedly stands 2021AP1343 & 2021AP1382.rgb as evidence of original The opinion was authored by Justice Silas U. Pinney, born Wis. in 1833. Ct. Former Sys. Justices: (last Justice visited June Silas 27, U. 2022), https://www.wicourts.gov/courts/supreme/justices/retired/pinney. htm. "Upon his death in 1899, it was believed that he had argued more cases before the Wisconsin Supreme Court than any other lawyer in the state. In the 100 volumes of the Wisconsin Reports printed by the time of his death, his name appeared as either counsel or justice in all but the first two volumes." Id. Justice Pinney was also one of this state's first judicial opinion reporters. "In 1872, [Justice] Pinney gathered the opinions of the territorial Supreme Court and the original state Supreme Court and published Pinney's Wisconsin Reports. them in three volumes called The first volume includes [Justice] Pinney's written history of the Wisconsin Territory." Id. He also served as a state legislator and the mayor of Madison prior to his election to the state supreme court. Id. A respected jurist, Justice Pinney wrote a unanimous decision in Burdge, and given his background, the fact that he wrote it in 1897 instead of 1857 (or whatever arbitrary date Justice Hagedorn has in mind) does not impair its persuasive value. ¶108 On the merits, Justice Hagedorn fundamentally mischaracterizes Burdge, block quoting a single sentence from the opinion completely out of context in order to suggest Burdge says the exact opposite of its actual holding. truncates Burdge to the following passage: 24 Justice Hagedorn Nos. 2021AP1343 & 2021AP1382.rgb It cannot be doubted but that under appropriate general provisions of law, in relation to the prevention and suppression of dangerous and contagious diseases, authority may be conferred by the legislature upon the state board of health or local boards to make reasonable rules and regulations for carrying into effect such general provisions, which will be valid, and may be enforced accordingly. In the sentences immediately following, Burdge goes on to explain the authority the legislature may confer on local boards (not unelected bureaucrats) to make "reasonable rules and regulations" does not include discretionary decisions about what the law itself may be; rather, the authority conferred is limited to how the law may be executed: The making of such rules and regulations is an administrative function, and not a legislative power, but there must first be some substantive provision of law to be administered and carried into effect. The true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, 'is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.' The first cannot be done. To the latter, no valid objection can be made. . . . Where an act is clothed with all the forms of law, and is complete in and of itself, it may be provided that it shall become operative only upon some certain act or event, or, in like manner, that its operation shall be suspended; and the fact of such act or event, in either case, may be made to depend upon the ascertainment of it by some other department, body, or officer, which is essentially an administrative act. 95. Wis. at 401-02 (emphasis added). Applying these principles, the rule court in Burdge concluded "the under consideration could be made operative only as an act of legislative power, and it does not come within the domain of the power to make 25 Nos. rules and regulations statutory provision." in aid or 2021AP1343 & 2021AP1382.rgb execution of some general Id. at 403. ¶109 Justice Hagedorn also misconstrues Burdge as endorsing the legislature's authority to delegate its lawmaking powers to local health considered officials. only whether It doesn't "authority may say that. be The conferred case by the legislature upon the state board of health or local boards." Id. at 401. The court emphasized "the importance and necessity of a strict adherence to the constitutional rule, that the power to make the law cannot be delegated to any board or body not directly responsible to the people." Id. at 404 (emphasis added). If, as Burdge concluded, the power to make the law cannot be delegated to a state or local board of health, it certainly may not be delegated to a local health officer who is undisputedly "not directly responsible to the people." Burdge's conclusion faithfully follows the Wisconsin Constitution, under which "[t]he legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time (emphasis added). ¶110 "[I]n began to delegation of its Wis. Const. art. IV, § 22 Justice Hagedorn's conclusion does not. the uproot prescribe." wake of the substantive Progressive limits on era, the constitutionally-conferred this court legislature's powers, thereby damaging the 'foundation of American representative government' that is the separation of powers." Fabick, 396 Wis. 2d 231, ¶64 (quoting Gary Lawson, Delegation and Original Meaning, 88 Va. L. 26 Nos. Rev. 327, 332 (2002)); see also 2021AP1343 & 2021AP1382.rgb Ranney, Trusting Nothing to Providence, at 377 ("The line between making and implementing policy blurred substantially during the Progressive era as large administrative agencies came into operation for the first time. During the 1920s and 1930s, the supreme court, urged on by Chief Justice Rosenberry, was one of the first in the nation to acknowledge that the traditional delegation doctrine was dead and that henceforth, administrative agencies must effectively be treated as a separate branch of government."). ¶111 Although on paper this court claims to require some substantive heavily limits preferred Wis. 2d 231, ¶66 on "procedural ("More substantive limitations dead. their In delegated place legislative safeguards." accurately, on power, delegating survives Fabick, the has 396 constitution's authority judicial it are all complacence but with transfers of legislative power, '[s]o long as there are adequate procedural safeguards' in place to limit executive overreach." (quoting Gilbert v. State, Med. Examining Bd., 119 Wis. 2d 168, 186, 349 N.W.2d 68 (1984))). Such complacence does not comport with the original meaning of the vesting clauses, which the court has an obligation to restore. B. Id., ¶68. The Non-Re-Delegation Doctrine ¶112 The history of the non-delegation doctrine provides helpful context for understanding the illegitimacy of delegating already-delegated legislative power. supervisors have no inherent power.19 19 rule. County boards of Town of Vernon v. Waukesha Unlike municipalities, counties lack constitutional home See Wis. Const. art. XI, § 3(1) ("Cities and villages 27 Nos. 2021AP1343 & 2021AP1382.rgb County, 102 Wis. 2d 686, 689, 307 N.W.2d 227 (1981) ("[A] county board has only such powers as are expressly conferred upon it or necessarily implied from the powers expressly given or from the nature of the grant of power."). the legislature decides to They have only those powers confer upon them. This is a subdelegation of power actually authorized by the people under Article IV, Section 22 of the Wisconsin Constitution. ¶113 Absent the people's express consent to confer on county boards of supervisors some limited lawmaking power, the non-delegation principle would otherwise prohibit the legislature from transferring even a small portion of its power to any other entity. Under Article IV, Section 1 of the Wisconsin Constitution, "[t]he legislative power shall be vested in a senate and assembly." This vesting clause prohibits the legislature from giving away its lawmaking power. Wis. 2d 231, ¶55. It was based on the Fabick, 396 United States Constitution's legislative vesting clause, in which "the 'people had vested the power to prescribe rules limiting their liberties in Congress alone'——not the executive." S. Ct. at 2133). Id. (quoting Gundy, 139 Article IV, Section 22 was created as a carve out to this rule. As one scholar noted, Section 22 "seems puzzling" if it was not "drafted to forestall an objection based on the non-delegation doctrine." Michael E. Libonati, "Neither organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature."). 28 Nos. Peace Nor Uniformity": Local 2021AP1343 & 2021AP1382.rgb Government in the Wisconsin Constitution, 90 Marq. L. Rev. 596, 598 (2007). ¶114 The history of Article IV, Section 22 of the Wisconsin Constitution confirms it delegation principle. from the 1846 New Constitution——No. 6 creates an exception to the non- The language of this section was taken York Constitution. (1847), reprinted Id.; in The see also The Struggle over Ratification, at 474, 482 (Milo M. Quaife ed., Wis. Hist. Soc'y 1920) ("The nearer home all legislation is brought, the better and safer it is: that problem was well settled by the admirable town governments in New England."). who introduced the language The New York representative at that state's convention explained: Sir, the first section of the article to which this is offered as an amendment, provides that the entire legislative power of the state shall be vested in the Senate and Assembly. It is therefore my opinion that powers of local legislation cannot be conferred upon the several boards of supervisors, without a constitutional section permitting the state legislature to delegate such power. Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of New-York 1070 (1846) (statement of R. Campbell, Jr.). ¶115 Article IV, Section 22 of the Wisconsin Constitution was an "experiment" and this proceeded with great caution. state's founders accordingly The Constitution——No. 6, at 482. In theory, "[i]f each state can legislate better for itself than Congress could, each county in the state can for itself better than can the state at large[.]" 29 Id. Nevertheless, local Nos. legislative control needed to be 2021AP1343 & 2021AP1382.rgb cabined because "untried, and the details full of difficulty." Id. it was The author of The Constitution——No. 6, a source for the original meaning of Article IV, Section 22, explained that "it will take some time and some experience to settle well and finally the bounds of local legislation. provides that the Accordingly legislature this shall constitution simply establish . . . county government and may confer upon the county boards of supervisors such powers of local legislation and shall from time to time prescribe." administration Id. as they The author predicted "the seed is sown, and the harvest will ripen in due time and after due development." been amended. Id. Article IV, Section 22 has never The founders' "experiment," reflecting a cautious view of delegated county power, continues in its original form. Our founders did not envision this "experiment" with subdelegation being corrupted by further levels of delegation to which the people never consented. ¶116 Article IV, Section 22 of the Wisconsin Constitution would be pure surplusage, its historical purpose contravened, and its existence utterly supervisors could Appling Walker, v. unnecessary subdelegate 2014 their WI 96, if county lawmaking ¶23, 358 boards power. of See Wis. 2d 132, 853 N.W.2d 888 (explaining constitutional language should be read to "give reasonable surplusage" effect to every word," so as to "avoid (quoting C. Coakley Relocation Sys. Inc. v. City of Milwaukee, 2008 WI 68, ¶17, 310 Wis. 2d 456, 750 N.W.2d 900)); see also Antonin Scalia & Bryan A. Garner, Reading Law: 30 The Nos. 2021AP1343 & 2021AP1382.rgb Interpretation of Legal Texts 174 (2012) ("If possible, every word and every provision is to be given effect effectu sunt accipienda). None should be ignored. needlessly interpretation be duplicate given another an provision or to that have (verba None should causes no cum it to consequence."). Because an express grant of authority was necessary for the legislature to delegate its power to the county boards of supervisors for the purpose of experimentation, the absence of an equally express authorization of subdelegation confirms the people withheld their consent to subdelegations by the county boards. Nothing in the constitutional text, its structure, or its history establishes any exception, nor does an emergency such as the COVID-19 pandemic. (majority op.) ("There is no See Palm, 391 Wis. 2d 497, ¶53 pandemic exception . . . to fundamental liberties the Constitution safeguards." the (citation omitted) (ellipsis in the original)); Fabick, 396 Wis. 2d 231, ¶50 ("Even in a pandemic, the government 'cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained.'" Schechter Poultry Corp. v. United States, (quoting A.L.A. 295 U.S. 495, 530 (1935))). ¶117 More than a century of precedent uniformly preserved the non-re-delegation principle as applied to county boards of supervisors. Consistent with the original meaning of Article IV, Section 22, the Wisconsin Supreme Court invariably enforced the prohibition on re-delegation of the supreme irrespective of substantive or procedural safeguards. 31 power—— Although Nos. 2021AP1343 & 2021AP1382.rgb this court has corrupted the non-delegation principle, its nonre-delegation jurisprudence faithfully followed the constitution until its debasement in this case.20 ¶118 In French v. Dunn County, the Dunn County Board of Supervisors decided to purchase land for a "poor-farm"21 via a committee of three supervisors. (1883). 58 Wis. 402, 404, 17 N.W. 1 This court determined "[t]here can be no just claim that the committee did not act strictly within the scope of the authority conferred by the resolution." Id. at 405. For this reason, it upheld the purchase, which the court emphasized was not an act of lawmaking power. limited: Id. at 408. Its holding was "There are, doubtless, powers vested in the county board which could not be delegated to any committee. Powers which are legislative in their character . . . must be exercised under the immediate authority of the board." ¶119 The seminal next decision relevant case interpreting Id. at 406. chronologically Article IV, Section remains 22 of the the Wisconsin Constitution. See Meade v. Dane County, 155 Wis. 632, 145 The N.W. 239 (1914). Dane County Board of Supervisors Justice Hagedorn conflates the non-delegation principle with the non-re-delegation doctrine. Regardless, he too acknowledges that in regard to the former, this court long ago "closed this chapter" and has "declined to fastidiously police the line between a permissible legislative grant of power and an impermissible delegation of legislative power." Concurrence, ¶54. Just because prior courts failed to uphold our constitution does not give this court license to perpetuate its dereliction of duty. 20 See generally poor farm, Shorter Oxford English Dictionary (6th ed. 2007) ("A farm run at public expense to house and support the poor."). 21 32 Nos. 2021AP1343 & 2021AP1382.rgb approved the purchase of farmland for $24,200 and directed the chairman of the board, attorney to complete the the county purchase. clerk, and the Importantly, district the board intended to add the land to the existing county poor farm. ¶120 This controversy. Wis. Stat. proposed purchase generated significant Dane County residents filed three petitions under § 39j (1911) challenging the plan. That statute stated, in relevant part: (1) . . . [N]o ordinance or resolution of any county board shall go into effect within twenty days from the time of its passage[.] . . . (2) An emergency ordinance or resolution shall be any ordinance or resolution . . . making any appropriation for maintaining the . . . county government or maintaining or aiding any public institution. . . . (3) If within twenty days after the passage and publication of any ordinance or resolution, a petition, signed by qualified electors of the city or county equal in number to at least twenty per cent. of all the votes cast for Governor in such . . . county at the last preceding regular election, shall be filed with the . . . county clerk and certified by him to the . . . county board, praying that the operation of such ordinance or resolution be suspended, the operation of such ordinance or resolution, unless the same shall be an emergency ordinance or resolution, shall be suspended. At its next regular meeting, . . . the . . . county board shall consider such ordinance or resolution, and either repeal it or submit it to the electors of the . . . county at the next regular election or at a special election, to be called for that purpose . . . . If any such ordinance or resolution shall be approved by a majority of the electors voting thereon, it shall take effect and be in force from and after twenty days from the date of the election. 33 Nos. 2021AP1343 & 2021AP1382.rgb (4) An emergency ordinance or resolution shall remain in force notwithstanding any petition filed upon it, but such ordinance or resolution shall stand repealed from and after twenty days after being rejected by a majority of the qualified electors voting thereon. § 39j. When the petitions were presented to the Dane County Board of Supervisors, it refused to act. its plan nor provided for its It neither repealed submission people, as purportedly required by § 39j. to a vote of the Instead, the board proceeded to pay $1000 of the $24,200 but was enjoined from paying the remainder following the filing of a lawsuit by a Dane County resident and taxpayer. The circuit court ruled in favor of the plaintiff. ¶121 On appeal, this court reversed directions to dismiss the complaint. and remanded with Meade, Wis. at 645. When a county board of supervisors enacts ordinances and resolutions, the court recognized "the county acts by delegated authority, and the state authorizes the Constitution Legislature (section to 22, confer art. upon 4) the expressly boards of supervisors of the several counties 'such powers of a local, legislative, and administrative character.'" Id. at 642–43. It then noted the plan of the Dane County Board of Supervisors was an "emergency order or resolution" because it was intended to benefit the poor farm. Id. at 643. Accordingly, "by subdivision 4 [of Wis. Stat. § 39j] the action of the county board [wa]s not merely to go into effect upon the contingency that a majority of the electors declare[d] it, but, on contrary, t[ook] effect from the time of its passage[.]" The statute purported to authorize 34 the voters not just the Id. to Nos. 2021AP1343 & 2021AP1382.rgb approve a law before it went into effect but to "repeal[]" a law already in effect. could not create Id. a This court concluded the legislature statute "delegating to the electors the legislative power of repeal" because such a statute "vest[ed] in the electors of the county the powers which the Constitution says may be vested in the county board." Id. "The Constitution provides for and authorizes a delegation of such powers to a specified body. Expressio unius est exclusio alterius. section 39j conflicts with the Constitution." In that Id. ¶122 This court held Wis. Stat. § 39j conflicted with the Constitution in at least two respects: section 22 of article 4 in "(1) Because it violates attempting to delegate to the electors powers which that section, interpreted by the regular rules of interpretation . . . requires delegated. to be otherwise (2) Because, as regards emergency resolutions there defined, which includes the resolutions in question here, the statute is an attempted delegation of the legislative power of repeal." statute Id. at 644. with decidedly This court rebuked the enactment of strong language: "The statute in question seems to have been framed in entire unconsciousness of fundamental principles, and we have no reasonable doubt of its invalidity." times, even Id. at 645. declaring repeal unconstitutional. It reiterated its concern multiple ordinances in force pending possible Id. at 644 ("As to all ordinances, and as to those resolutions which are in effect ordinances, declared by said section to be in force and effect until repealed by the electors, this is a delegation 35 of legislative power and Nos. 2021AP1343 & 2021AP1382.rgb forbidden by constitutional law."); id. at 645 ("As to all other resolutions of the county board, this is a delegation of administrative power, and this class of powers the Constitution (Section 22, art. 4) permits to be delegated only to the county board."). ¶123 Meade was followed a few months later by State ex rel. Carey v. Ballard, 158 Wis. 251, 148 N.W. 1090 (1914). In that case, this court reviewed the constitutionality of a statute delegating the legislative power "to levy a tax" to a group of freeholders within a county. Id. at 256. While that case concerned whether the statute violated the legislative vesting clause, not Article Constitution, court its recognized constitutional IV, Section reasoning then form is (as of it 22 of nevertheless should government the relevant. now) the Wisconsin This "[u]nder Legislature our cannot delegate legislative power to any officer or to any body of persons, individual or corporate, aside from the power to confer local legislative and administrative powers on county boards and municipal corporations." also In re N.W. 1033 legislative Village (1896) and of Id. at 257 (citations omitted); see N. ("[T]he Milwaukee, 93 legislature administrative powers Wis. 616, may to 621, delegate county 67 local boards of supervisors, and to no other officer or body, save in so far as it may delegate powers of local self-government to municipal corporations." (emphasis added)); 1 County Government in Wisconsin 7 (Univ. of Wis. & Wis. Hist. Soc'y 1942) ("At its first session, the State Legislature 36 provided for the Nos. establishment in each county 2021AP1343 & 2021AP1382.rgb of a board of supervisors, . . . which was to be the only body competent to exercise the powers of the county as a body politic."). "In conferring the the taxing legislature must legislative authority power provide of on for the these its local Wis. at 257 (citation omitted). local governments exercise by the government." proper Carey, 158 The court explained that local legislative power had to be "exerted . . . either directly [by the senate and assembly] or through the officers of a political subdivision who act in their representatives of the people[.]" statute unconstitutional capacity of Id. at 258. because "the legislative It declared the Legislature acted in excess of its power in attempting to vest authority for the imposition of freeholders a who tax are for improving not elected highways by the in a people body as of their representatives, nor in any way responsible to them on account of the tax burdens they imposed." court used unequivocal Id. at 260. language: Again, this "[The statute] delegates . . . power to a group of persons in their individual capacity, which is condemned as contrary to the principles of representative government under our Constitution." ¶124 Two years later, this court decided Id. at 261. State Nehbass v. Harper, 162 Wis. 589, 156 N.W. 961 (1916). ex rel. That case examined subdelegation by a village board, not a county board of supervisors, and therefore did not directly concern Article IV, Section 22 elucidates of the the Wisconsin Constitution. non-re-delegation 37 principle, Nonetheless, it specifically as Nos. 2021AP1343 & 2021AP1382.rgb applied to local governments, analogizing to decisions such as Ballard involving county boards. See id. at 593 (citing Ballard, 158 Wis. at 257). ¶125 In Nehbass, the City of Milwaukee enacted an ordinance that required a person desiring to erect, remodel, or maintain certain types of buildings to first obtain "the written consent of two-thirds of all the real estate owners within three hundred feet of the space[.]" Id. at 590. This court struck the ordinance as a violation of the non-re-delegation principle. supporting its decision, the court summarized its In prior holdings: "A legislative body cannot delegate to a mere administrative officer power to make a law . . . . In the present cast the ordinance by its terms gives power to the president to decide arbitrarily and in the exercise of his own discretion when a saloon shall close. This is an attempt to vest legislative discretion in him, and cannot be sustained."22 Id. at 593 (quoting Village of Little Chute v. Van Camp, 136 Wis. 526, 527, 117 N.W. 1012 (1908)). "A county board the committee Shaw, 150 "Under our constitutional form of government the Legislature cannot delegate legislative powers to any officer or to any body of persons, individual or corporate, aside from the power to confer local legislative and board cannot delegate to one not a member of the power and authority to act as a member of the of the board." Id. (citing Forest County v. Wis. 294, 136 N.W. 642 (1912)).23 The ordinance read: "All saloons in said village shall be closed at 11 o'clock p. m. each day and remain closed until 5 o'clock on the following morning, unless by special permission of the president." 22 Shaw appears to have been grounded in statutory law more than constitutional principles. 23 38 Nos. administrative corporations." 2021AP1343 & 2021AP1382.rgb powers on county boards and municipal Id. (quoting Ballard, 158 Wis. at 257). "[In State v. O'Neill a statute] provided that a certain act should be void unless accepted by a majority of the legal voters of the city of Milwaukee . . . . This was held not to be a delegation of legislative power [because] the law was . . . '[a] complete enactment in itself; contains an entire and perfect declaration of legislative will; requires nothing to perfect it as a law; while it is only left to the people to be affected by it to determine whether they will avail themselves of its provisions." Id. at 594 (quoting O'Neill, 24 Wis. 149 (1869)). Synthesizing these authorities, the court reasoned, "[i]f the state [by statute] cannot delegate [lawmaking power] certainly a common council cannot delegated to it." question [unlike effect . . . upon redelegate Id. at 593. O'Neill] the legislative power properly Critically, "[t]he ordinance in [wa]s not ascertainment one of left some to take prescribed fact . . . but attempt[ed] to delegate to property owners the right to say how a particular person shall use a particular piece of property[.]" Id. "[I]t is plain that the question of whether or not a garage shall be erected in a particular place is determined, not by the common council, but by the property owners." Id. at 594. ¶126 A few decades later, Marshall v. Dane County Board of Supervisors rehashed Meade. See 236 Wis. 57. The considered a different, but analogous referendum statute. case A petition was presented to the Dane County Board of Supervisors demanding the ordinance[.]" adoption Id. at 58. of "a complete civil service The relevant statute purported to require a county board presented with such a petition to pass 39 Nos. 2021AP1343 & 2021AP1382.rgb the proposed ordinance or submit it to a vote of the people. Id. As in Meade, the board refused to act; it neither voted to adopt an ordinance nor submitted it for a vote. Id. ¶127 This court concluded the case was governed by Meade. It reiterated the statute in Meade "was held unconstitutional by the court because the legislature could not empower a county board to delegate to the electors of the county a power by the Constitution expressly delegated to the county board itself." Id. at 59. The statute required county boards of supervisors presented with a proper petition to: (1) repeal the ordinance; or (2) submit the question of repeal to the people. That choice could not be forced upon the boards; the constitution prohibits boards from transferring their lawmaking power, even to the people, if the boards were unwilling to repeal the ordinance. ¶128 After summarizing Meade, this court held "[t]he power to enact such an ordinance must, under the constitutional provision cited, be vested by the legislature in the county board itself; the legislature cannot authorize the county board to delegate the power to enact an ordinance of such a character to the electors." Id. at 59. The decision was unanimous. If the lawmakers may not re-delegate their delegated power even to the people, it is logically impossible for county boards to redelegate their delegated power to an unelected bureaucrat. ¶129 Multiple Wisconsin Attorney General opinions interpret Article IV, Section 22 of the Wisconsin Constitution accordance with this court's understanding of the text. in On at least five occasions, the attorney general has concluded the 40 Nos. 2021AP1343 & 2021AP1382.rgb legislative powers of county boards of supervisors cannot be exercised by the electors of the county without violating the non-re-delegation principle.24 27 Wis. Att'y Gen. 161, 161 (1938) ("[D]irect legislation in counties by the electors is not permitted by the constitution. . . . [A]rt. IV, sec. 22[] . . . empower[s] the legislature to confer upon the county boards the legislative power for the county and . . . therefore a statute providing for direct legislation in counties [i]s unconstitutional because it attempt[s] to confer legislative power upon the electors."); 22 Wis. Att'y Gen. 785, 785–86 (1933) ("The determination by a referendum vote to build a new courthouse would constitute direct legislation. This department in a previous opinion . . . . held that sec. 59.02 was unconstitutional in so far as it authorized referendum on legislative and administrative matters in counties. . . . Since the question of building a new courthouse rests with the county board, its clerk has no authority to call a special meeting of the county board or file presentation of a referendum petition."); 21 Wis. Att'y Gen. 207, 208 (1932) ("The board must decide the question and such decision cannot be delegated to the electors."); 11 Wis. Att'y Gen. 106, 106–07 (1922) ("The case seems to me to fall within the language of the supreme court in Meade . . . where a similar referendum law was said to apply to any and every kind of action that might be taken by a county board. The supreme court also held, however, in the Meade case that a statute of this kind is unconstitutional as applied to counties, for the reason that it violates sec. 22, art. IV . . . . There is no question in my mind but that sec. 59.02, in so far as it provides for a referendum, is subject to all the infirmities pointed out by the supreme court in the statute involved in the Meade case. I, therefore, conclude . . . that the question of employing a county agent cannot be lawfully determined by a referendum among the voters of the county."); 9 Wis. Att'y Gen. 66, 67–68 (1920) ("If the constitution does not permit direct legislation of the voters of the county on purchasing a poor farm, it does not permit such legislation on the subject of public schools. . . . It seems to me that the decision in the Meade case completely rules this question. . . . The Meade case was an effort to kill a resolution by having it referred to the electors. This case is an effort to defeat an ordinance by enacting a repealing ordinance. If one is legislation, so is the other, and legislation by direct action of the electors of counties is declared to be prohibited by the constitution and beyond the power of the legislature to confer."). 24 41 Nos. ¶130 In at least concluded county lawmaking power corporation one boards to opinion, of for the supervisors committees counsel 2021AP1343 & 2021AP1382.rgb Dane of the County attorney could general not board. In requested an delegate 1972, opinion the on "whether a county board can delegate to a committee of the board the authority to make all appointments to county board committees created under sec. 59.06, Stats., without necessity of further action or confirmation by the board." Gen. 214, 215 (1972). 61 Wis. Att'y The attorney general responded, "[i]t is my opinion that the board is without such authority[.]" Referencing Article Constitution, he IV, Section reasoned, 22 "[t]he of board the can Id. Wisconsin exercise the legislative and administrative powers delegated to it by the legislature as a collective body." Id. (emphasis added). Because "[t]he power to create a committee and to provide for its scope and purposes is legislative in nature," he concluded it "could not be delegated to a committee." ¶131 Treatises non-re-delegation vitality. on municipal principle and law Id. at 216. similarly acknowledge Constitutionally-ensconced since describe its the present ratification and upheld by this court for nearly 140 years, it is black-letter law. See 2 Local Government Law § 13:13 (updated May 2022) ("[T]he doctrine that a legislative body cannot delegate its legislative powers applies to local governments."); 2A McQuillin Mun. Corp. § 10:45 (3d ed. updated Sept. 2021) ("So far as the powers of a municipal corporation are legislative they rest in the discretion and judgment of the municipal body entrusted with 42 Nos. 2021AP1343 & 2021AP1382.rgb them, and the general rule is that that body cannot delegate or refer the exercise of such powers to the judgment of a committee of the council, or to an administrative board or officer of the city, or to arbitration. arbitrators under an agreement for binding If the legislature confers powers on a municipal corporation, the exercise of discretion by the governing body of the municipality cannot be delegated to a municipal officer or other person of body."). ¶132 The collective thrust of these binding decisions is relatively straightforward: (1) Article IV, Section 22 of the Wisconsin Constitution does not allow the legislature to vest lawmaking power in a municipal officer or body other than the county boards of supervisors; (2) the non-re-delegation principle prohibits a county board of supervisors from giving any of its delegated lawmaking power to any person or other body——the power must be exercised by the whole board, collectively; (3) lawmaking means discretionary decisions that bind the public with the force of law; and (4) for an ordinance to be constitutionally valid, it must be complete and whole, requiring no further discretionary decisions of a substantive nature to carry its consistently struck substantially less purpose down into effect. subdelegations intrusive infringements This court that on has caused fundamental liberties, e.g., invalidating a village ordinance that granted the village president the power to allow saloons to stay open late on a case-by-case basis. Van Camp, 136 Wis. at 527. 43 The Nos. 2021AP1343 & 2021AP1382.rgb majority refuses to apply Article IV, Section 22, but there is no statutory end-run around the constitution. C. The Unconstitutionality of Dane County's Ordinance & Heinrich's Orders ¶133 Having sworn oaths to support the Wisconsin Constitution, this court must assiduously protect the people's prerogative to decide who may govern them by enforcing the constitutional limitations on the exercise of power the people gave to particular public servants. Although Justice Hagedorn dismisses this principle as nothing more than "general theories of government power,"25 "[p]reserving the perimeters of power constitutionally conferred on each branch of government essential for securing the liberty of the people." Palm, 391 Wis. 2d 900, ¶70 (Rebecca Grassl Bradley, J., concurring). duty becomes collapse the imperative carefully when governmental calibrated actors separation of is This conspire powers to among three branches in favor of consolidating power in a single, unelected bureaucrat. ¶134 "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or elective, tyranny." Board many, may and justly whether be hereditary, pronounced the self-appointed, very The Federalist No. 47, at 373–74. bestowed on Heinrich "the three definition or of The Dane County great powers of government," even though our constitutional order is founded on the axiom distinct." 25 that they should be "ever . . . kept separate and Serv. Emps. Int'l Union, Local 1 v. Vos, 2020 WI 67, Concurrence, ¶49. 44 Nos. ¶87, 393 Wis. 2d 38, 946 N.W.2d 35 2021AP1343 & 2021AP1382.rgb (Kelly, J., majority op.) (quoting 2 Joseph Story, Commentaries on the Constitution of the United States 1833)). § 519, at 2–3 (Boston, Hilliard, Gray, & Co. "Although consolidation of power in one person may be tempting in times of exigency, for purposes of expeditiously producing like a an efficient pandemic, and history effective informs response of the to emergencies perils of the consolidation of power, and not merely through the exhortations of the Founders and philosophers. examples of judicial Regrettably, we have tangible acquiescence to unconstitutional governmental actions considered——at the time——to inure to the benefit of society, but later acknowledged to be vehicles of oppression." scrutiny is Palm, 391 Wis. 2d 900, ¶70. especially important in times "Careful judicial of stress, when Americans may find themselves 'at the mercy of wicked rulers, or the clamor of an excited people.'" Id., ¶72 (quoting Stephen Dycus, Requiem for Korematsu, 10 J. Nat'l Sec. L. & Pol'y 237, 246 (2019)). ¶135 The facts of this case demonstrate the danger. Heinrich prosecuted a local business for allegedly violating her vague order. The County Board unlawfully gave her powers that no elected official in this state possesses: the power to write the rules, interpret their meaning, and impose punishments of her choosing for violations only she may declare. The ordinance by which the Board created this autocrat contains no legitimate limiting directives, instead incorporating by reference statutes similarly lacking any meaningful substantive constraints on her 45 Nos. power. 2021AP1343 & 2021AP1382.rgb See Wis. Stat. § 252.03(1) ("The local health officer shall promptly take all measures necessary to prevent, suppress and control appropriate communicable governing diseases, body the and shall progress of report the to the communicable diseases and the measures used against them, as needed to keep the appropriate governing body fully informed, or at such intervals as the secretary may direct."). ¶136 As interpreted by the majority, this statute violates the constitution as interpreted in Ballard, which held: "Under our cannot constitutional form of government the Legislature delegate legislative powers to any officer or to any body of persons, individual or corporate, aside from the power to confer local legislative and administrative powers on county boards and municipal corporations." 158 Wis. at 257. It is a substantially more open-ended grant of power than those this court has struck in previous cases, e.g., the grant in Van Camp. It mirrors the "take such measures as may, in its judgment, be necessary" language construed in Burdge, which this court held granted no rulemaking authority at all. See 95 Wis. at 398. It is also indistinguishable from the power this court held a state official could not exercise in Wisconsin Legislature v. Palm, 391 Wis. 2d 497 (majority op.). The majority silently overrules Palm, a decision from which three members of the majority in this case sharply dissented. enables the current Only a change in court membership majority to precedent. 46 discard this quite recent Nos. 2021AP1343 & 2021AP1382.rgb ¶137 Such a broad grant, particularly without procedural safeguards, is patently unconstitutional. Grassl Bradley, J., concurring). Id., ¶¶79–80 (Rebecca Heinrich has been permitted to exercise "the supreme [lawmaking] power," with no pre-issuance procedural safeguards to limit the power from being applied arbitrarily and capaciously. See Juv. Ct., __ Wis. 2d __, ¶55 n.11 Treatise (quoting Palm, 391 Locke, Second Wis. 2d 497, ¶35 of Government, (majority op.) § 134); (explaining a procedural safeguard is inadequate if it can be applied only to undo an unlawful rule). Renouncing multiple precedents spanning more the than a century, majority accedes to Heinrich's arrogation of breathtaking power. ¶138 The principle majority's ignores safeguards." decimation controlling of the precedent non-delegation on "procedural Tellingly, in the majority/lead opinion's three paragraphs discussing procedural safeguards, it does not cite a single case; the precedent overlooked by the majority explicitly rebuts the majority's analysis. E.g., compare majority/lead op., ¶40 ("[S]tate courts may review an order issued pursuant to Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 and ensure its measures conform to the laws' substantive limitations."), with Palm, 391 procedural argument, Wis. 2d 497, safeguards she on continuously ¶35 the ("Palm power referenced cannot she point claims. judicial to At review; any oral but judicial review takes place after an allegation is made that an individual's rights have been violated. . . . Rulemaking provides the ascertainable standards that hinder arbitrary or 47 Nos. oppressive prevent Palm, conduct oppressive this court by an agency. conduct held from 2021AP1343 & 2021AP1382.rgb Judicial initially procedural review does occurring."). safeguards must not In resemble chapter 227's rulemaking procedures; nothing comparable inhibits Heinrich's exercise of unilateral power. Palm, 391 Wis. 2d 497, ¶34 ("Procedural safeguards, generally, are those requirements imposed by the Administrative Procedures Act, codified at ch. 227." (citation omitted)). ¶139 The majority claims it is merely applying existing precedent on the non-delegation principle; if the majority is sincere, its fundamental efforts first betray a principle. startling While ignorance ignoring the of a non-re- delegation principle entirely, the majority implicitly abrogates the non-delegation principle, facilitating unlimited future acts of tyranny akin to Heinrich's. The majority/lead opinion says, "[a]s with any legislative authority, the state legislature may curb exercises of granted power it deems excessive[.]"26 legislature always acknowledges). has The such majority power (as entirely underlying the non-delegation principle: even misses the the The majority rationale if the people did not authorize the legislature to give its power away, its exercise by anyone other legislature's than the ability to legislature "curb" is excess unlawful, cannot and cure the the subdelegation's constitutional infirmity. ¶140 The Dane County Board of Supervisors exceeded its constitutional authority by assigning Heinrich such far-reaching 26 Majority/lead op., ¶40. 48 Nos. powers. 2021AP1343 & 2021AP1382.rgb This subdelegation was substantively defective, even under a liberal reading of the long line of governing precedent. The Board's re-delegation imposed restraints on Heinrich's power. no meaningful procedural By judicial fiat, the majority endorses executive fiat, and the people's liberty languishes. ¶141 "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the asserted principle to effect the potential of important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. comes as a wolf." But this wolf Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). III. THE MAJORITY/LEAD OPINION'S FLAWED STATUTORY ANALYSIS ¶142 In James v. Heinrich——a recent case challenging the exercise of power over the people by the same Dane County health officer named in this case——this court held that "if 'the legislature did not specifically confer a power,' the exercise of that power is not authorized." 2021 WI 58, ¶18, 397 Wis. 2d 516, 960 N.W.2d 350 (quoting State ex rel. Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974)); see also Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs., 594 U.S. __, 141 S. Ct. 2485 (2021) (per curiam) ("We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance." omitted)). (citation This court held Wis. Stat. § 252.03's "reasonable and necessary" provisions did not grant Heinrich the power to "close schools." Among other 49 reasons, such a generic Nos. 2021AP1343 & 2021AP1382.rgb authorization "cannot be reasonably read to encompass anything and everything"; otherwise, it would swallow the rest of the statute, creating Wis. 2d 516, substantial ¶¶22–23. redundancy. Additionally, Wis. James, Stat. 397 § 252.02 specifically authorized DHS to "close schools," while a similar grant of authority was conspicuously absent from § 252.03. Id., ¶¶19–20. ¶143 Ignoring James allows the majority to avoid grappling with a fundamental flaw in its reasoning. Conspicuously absent from Wis. Stat. § 252.03 is any language granting local health officers the power to issue orders, a power Wis. Stat. § 252.02 explicitly grants to DHS. Under James, "if 'the legislature did not specifically confer a power,' the exercise of that power is not authorized." Id., ¶18 (quoting Harris, 64 Wis. 2d at 527). ¶144 Similarly, in Palm (another case ignored by the majority), this court held Wis. Stat. § 252.02's authorization to take "all emergency measures necessary" did not permit DHS to "confin[e] people to their homes, forbid[] travel [or] clos[e] businesses." read 391 Wis. 2d 497, ¶¶45–59. statutes with imprecise "We cannot expansively terminology that purport delegate lawmaking authority to an administrative agency." ¶55; see also id., ¶24 (noting skepticism toward to Id., an interpretation of a statute that would allow a single "unelected official[ to] create law applicable to all people during the course of COVID-19 and subject people to imprisonment when they disobeyed her order"). 50 Nos. ¶145 The majority's conclusions in 2021AP1343 & 2021AP1382.rgb this case cannot be reconciled with James or Palm, so the majority ignores those cases. Wisconsin Stat. § 252.03 cannot be read to give local health officers greater power to rule over the people than their state counterpart possesses. constitutional constraints And a statute cannot override the on the delegation of lawmaking power.27 IV. CONCLUSION ¶146 [L]ocal assemblies of citizens constitute the strength of free nations. Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach man how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty. 1 Alexis Tocqueville, Democracy in America ch. V, Part I (1835). ¶147 Today's majority insulates local government from the oversight of the town hall meeting——a beacon of representative democracy——subjecting unaccountable the overlord. people The to the majority whims of displaces an the constitutional design for the exercise of lawmaking power with a "technocracy"28 the majority favors. As Justice Patience Drake Justice Hagedorn apparently believes statutes take precedence over the constitution. Ignoring the glaring absence of any constitutional authority, Justice Hagedorn says penalizing the people for disobeying any order decreed by "local health authorities" is perfectly acceptable if the legislature says so, even though the people never consented. Concurrence, ¶64. 27 Technocracy, The American Heritage Dictionary (5th ed. 2011) ("A government or social system controlled by technicians, especially scientists and technical experts."). 28 51 Nos. Roggensack described during oral 2021AP1343 & 2021AP1382.rgb argument in this case: "Counsel, I give you that a dictatorship which is what Heinrich exercised for about two years is the most efficient manner of handling a problem you're focusing on, but it is not necessarily a democratic manner." Efficiency bears a heavy price. A "technocratic" approach to government "drains public discourse of substantive contestable moral questions argument as if and they treats were efficiency, the province of experts." ideologically matters of economic See Michael J. Sandel, The Tyranny of Merit: What's Become of the Common Good 20 (2020). common It tells the citizen he has no right to participate in government, for he is not a "technical expert" and the complexities of modern life are "beyond the reach" of his feeble "democratic understanding. government" Id. "hollow[s] "This out narrow[ing]" the terms of of public discourse, and produce[s] a growing sense of disempowerment." Id. ¶148 In declaring independence from the crown, the Founders sought to escape despotism: usurpations, pursuing "when a long train of abuses and invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security." of Independence constitutional para. duty to 2 (U.S. apply 1776). the Not original The Declaration only is meaning it our of the Wisconsin Constitution's structural safeguards, it is essential to preventing the collapse of representative democracy. 52 The Nos. 2021AP1343 & 2021AP1382.rgb people of this state constitutionally constrained the exercise of power over them, but the majority refuses to enforce those limits, opting instead to "look[] the other way"29 as unelected bureaucrats run roughshod over the people's liberty. For two years, "[s]eas would rise when [Heinrich] gave the word"; she "held the Lacking key" any to power. ColdPlay, constitutional foundation, Viva her La Vida usurped (2008). authority "stand[s] upon pillars of salt and pillars of sand" and nothing the majority says can fortify it. Id. The majority abandons its station as a bulwark of liberty. I dissent. ¶149 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER and Justice PATIENCE this dissent. 29 Concurrence, ¶53. 53 DRAKE ROGGENSACK join Nos. 1 2021AP1343 & 2021AP1382.rgb
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
