Tavern League of Wisconsin, Inc. v. Andrea Palm

2021 WI 33, 957 N.W.2d 261, 396 Wis. 2d 434

• Court: Wisconsin Supreme Court
• Decided: April 14, 2021
• Docket: 2020AP001742
• Status: Published

Opinion

2021 WI 33

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP1742

COMPLETE TITLE: Tavern League of Wisconsin, Inc., Sawyer County Tavern League, Inc. and Flambeau Forest Inn LLC, Plaintiffs, v. Andrea Palm and Wisconsin Department of Health Services, Defendants-Respondents-Petitioners, Julia Lyons, Defendant-Respondent, THE MIX UP, INC (D/B/A, MIKI JO'S MIX UP), Liz Sieben, Pro-Life Wisconsin Education Task Force, Inc., Pro-Life Wisconsin, Inc. and Dan Miller, Intervenors-Plaintiffs-Appellants.

ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED: April 14, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: December 17, 2020

SOURCE OF APPEAL: COURT: Circuit COUNTY: Sawyer JUDGE: James C. Babler

JUSTICES: ROGGENSACK, C.J., announced the mandate of the Court, and delivered an opinion, in which ZIEGLER and REBECCA GRASSL BRADLEY, JJ., joined. HAGEDORN, J., filed a concurring opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET and KAROFSKY, JJ., joined. NOT PARTICIPATING:

ATTORNEYS:

For the defendants-respondents-petitioners, there were briefs filed by Colin A. Hector, Hannah S. Jurss, and Thomas C. Bellavai, assistant attorneys general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Colin Hector. For the intervenors-plaintiffs-appellants, there were briefs filed by Misha Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders LLP, Chicago, Illinois. Also on the briefs were Andrew M. Bath and Thomas More Society, Chicago, Illinois; as well as Erick Kaardal and Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota. There was an oral argument by Misha Tseytlin.

An amicus curiae brief was filed by Lucas T. Vebber, Corydon J. Fish, and Wisconsin Manufacturers & Commerce, Inc.

2 2021 WI 33

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP1742 (L.C. No. 2020CV128)

STATE OF WISCONSIN : IN SUPREME COURT

Tavern League of Wisconsin, Inc., Sawyer County Tavern League, Inc. and Flambeau Forest Inn LLC,

Plaintiffs,

v.

Andrea Palm and Wisconsin Department of Health FILED Services,

Defendants-Respondents-Petitioners, APR 14, 2021

Julia Lyons, Sheila T. Reiff Clerk of Supreme Court

Defendant-Respondent,

THE MIX UP, INC (D/B/A, MIKI JO'S MIX UP), Liz Sieben, Pro-Life Wisconsin Education Task Force, Inc., Pro-Life Wisconsin, Inc. and Dan Miller,

Intervenors-Plaintiffs-Appellants.

ROGGENSACK, C.J., announced the mandate of the Court, and delivered an opinion, in which ZIEGLER and REBECCA GRASSL BRADLEY, JJ., joined. HAGEDORN, J., filed a concurring opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET and KAROFSKY, JJ., joined.

REVIEW of a decision of the Court of Appeals. Affirmed. No. 2020AP1742

¶1 PATIENCE DRAKE ROGGENSACK, C.J. The Department of

Health Services (DHS) Secretary-designee, Andrea Palm, issued

Emergency Order 3 on October 6, 2020, as a response to the

COVID-19 pandemic. Emergency Order 3 limited the size of indoor

public gatherings either to 25 percent of a facility's permitted

capacity or, if no general capacity limit was prescribed, to 10

people.

¶2 We conclude that Emergency Order 3 meets the

definition of a rule, as we recently explained in Wisconsin

Legislature v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d

900. Therefore, Emergency Order 3 should have been promulgated

according to rulemaking procedures set forth in Wis. Stat.

ch. 227. Because it was not, Emergency Order 3 was not validly

enacted and was unenforceable. Accordingly, we affirm the

decision of the court of appeals.

I. BACKGROUND

¶3 On October 6, 2020, as her second response to COVID-19

cases in Wisconsin, Palm issued Emergency Order 3. Emergency Order 3 limited the number of people who could be present at

indoor, public gatherings.

¶4 A "public gathering" was defined as "an indoor event,

convening, or collection of individuals, whether planned or

spontaneous, that is open to the public and brings together

people who are not part of the same household in a single room."

Places open to the public were "[r]ooms within a business

location, store, or facility that allow members of the public to enter" or "[t]icketed events where tickets are available for 2 No. 2020AP1742

free or for purchase by any individual or by any individual

within a specific class of people." Finally, places not open to

the public included "[o]ffice spaces, manufacturing plant[s],

and other facilities that are accessible only by employees or

other authorized personnel," "[i]nvitation-only events that

exclude uninvited guests" and "[p]rivate residences. Except, a

[private] residence is considered open to the public during an

event that allows entrance to any individual; such public

gatherings are limited to 10 people."

¶5 Emergency Order 3 stated in part:

2. Public gatherings limited.

a. Public gatherings are limited to no more than 25% of the total occupancy limits for the room or building, as established by the local municipality.

b. For indoor spaces without an occupancy limit for the room or building that is established by the local municipality, such as a private residence, public gatherings are limited to no more than 10 people. The order listed entities who were exempt from its public

gathering limits: childcare settings, schools and universities,

health care and human services operations, Tribal nations,

governmental and public infrastructure operations (including

food distributors), places of religious worship, political

rallies, and other gatherings protected by the First Amendment.

Emergency Order 3 was enforceable by civil forfeiture, and it

was to be effective until November 6, 2020.1

In her November 10, 2020 affidavit, Palm said that she had 1

prepared Emergency Order 4, which similarly restricted public 3 No. 2020AP1742

¶6 One week after DHS issued Emergency Order 3, the

Tavern League of Wisconsin, Inc., the Sawyer County Tavern

League, Inc., and the Flambeau Forest Inn, LLC (collectively the

"Tavern League plaintiffs") initiated this lawsuit in Sawyer

County circuit court. The Tavern League plaintiffs alleged that

Emergency Order 3 was "a general order of general

application . . . in other words, it is a rule." The Tavern

League plaintiffs further alleged that DHS did not undertake

proper rulemaking procedures under ch. 227 and as required by

our decision in Palm. The Tavern League plaintiffs sought a

declaration that Emergency Order 3 was unlawful and a temporary

injunction barring its enforcement.

¶7 The circuit court, the Honorable John M. Yackel

originally presiding, granted the Tavern League plaintiffs'

motion for an ex parte temporary injunction. Judge Yackel did

not provide reasoning for his decision. The Mix Up, Inc., Liz

Sieben, Pro-Life Wisconsin Education Task Force, Inc., Pro-Life

Wisconsin, Inc., and Dan Miller moved to intervene (the intervenors-plaintiffs collectively "The Mix Up") and moved for

a temporary injunction.

¶8 The Tavern League plaintiffs and DHS each moved for

judicial substitution pursuant to Wis. Stat. § 801.58(1)

(2019-20).2 The circuit court, the Honorable James C. Babler now

gatherings. She said that Emergency Order 4 would be issued immediately were we to reverse the court of appeals decision. 2 All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated.

4 No. 2020AP1742

presiding, granted The Mix Up's motion to intervene but vacated

Judge Yackel's ex parte order and denied The Mix Up's motion for

temporary injunctive relief.

¶9 The circuit court held that neither the Tavern League

plaintiffs nor the Mix Up had a reasonable probability of

success on the merits, one factor courts consider in determining

whether a movant is entitled to a temporary injunction.3 The

circuit court reasoned that "this matter . . . [is] not as

clear-cut as either side would like to make it."

¶10 The circuit court noted that in Palm, we did not

address the school closure portion of Emergency Order 28. See

Palm, 391 Wis. 2d 497, ¶3 n.6 ("This decision does not apply to

Section 4.a. of Emergency Order 28," which listed school

closings). DHS alleged that its authority to limit indoor

public gatherings was based in the same statute, Wis. Stat.

§ 252.02(3), which lists schools as well as churches, and "other

places" that the department may close. The circuit court

further held that enjoining Emergency Order 3 would disrupt the status quo and there was no proof that the plaintiffs were

harmed by the order because they offered no proof that they were

3 "A circuit court may issue a temporary injunction if: '(1) the movant is likely to suffer irreparable harm if a temporary injunction is not issued; (2) the movant has no other adequate remedy at law; (3) a temporary injunction is necessary to preserve the status quo; and (4) the movant has a reasonable probability of success on the merits.'" Serv. Empl. Int'l Union, Local 1 v. Vos, 2020 WI 67, ¶93, 393 Wis. 2d 38, 946 N.W.2d 35 (quoting Milwaukee Deputy Sheriffs' Ass'n v. Milwaukee Cnty., 2016 WI App 56, ¶20, 370 Wis. 2d 644, 833 N.W.2d 154).

5 No. 2020AP1742

in compliance with it. Accordingly, the circuit court denied

injunctive relief.

¶11 The Mix Up moved for leave to appeal the circuit

court's decision. After the court of appeals granted The Mix

Up's petition for leave to appeal, DHS petitioned for bypass.

We denied that petition, and the case remained with the court of

appeals.

¶12 The court of appeals summarily reversed the circuit

court. Tavern League v. Palm, No. 2020AP1742, unpublished slip

op. (Wis. Ct. App. Nov. 6, 2020). The court of appeals held

that "under our supreme court's holding in Palm, Emergency Order

#3 is invalid and unenforceable, as a matter of law." Id. at 3.

It therefore held that The Mix Up had "a reasonable probability—

in fact, an apparent certainty——of success on the merits" and

was entitled to an injunction. DHS petitioned for review, which

we granted. The question we determine on review is whether

Emergency Order 3 is a rule. First, however, we determine

whether to dismiss this appeal as moot. II. DISCUSSION

A. Standard of Review

¶13 Whether an issue is moot is a question of law that we

review independently. Portage Cnty. v. J.W.K., 2019 WI 54, ¶10

386 Wis. 2d 672, 927 N.W.2d 509. Additionally, whether

Emergency Order 3 was a rule is a question of law that we review

independently. Palm, 391 Wis. 2d 497, ¶14; see also Journal

Times v. City of Racine Bd. of Police & Fire Comm'rs, 2015 WI 56, ¶42, 362 Wis. 2d 577, 866 N.W.2d 563 (noting that the 6 No. 2020AP1742

interpretation of our prior cases is a question of law reviewed

independently).

B. Mootness

¶14 The Mix Up urges us to dismiss the review that we

granted to DHS because the issues are now moot. The Mix Up

argues that, because Emergency Order 3 expired on November 6,

2020, there is not a live controversy.

¶15 "An issue is moot when its resolution will have no

practical effect on the underlying controversy." J.W.K., 386

Wis. 2d 672, ¶11. Ordinarily, we refrain from deciding moot

issues. Id., ¶12. However, we have exceptions to that general

rule such as: "(1) the issues are of great public importance;

(2) the constitutionality of a statute is involved; (3) the

situation arises so often a definitive decision is essential to

guide the trial courts; (4) the issue is likely to arise again

and should be resolved by the court to avoid uncertainty; or

(5) the issue is capable and likely of repetition and yet evades

review." Id. (quoted sources and internal quotation marks omitted).

¶16 The Mix Up is correct that the issue in this case is

moot; Emergency Order 3 expired on November 6, 2020. However,

we conclude that this case satisfies several of our mootness

exceptions set forth above, one of which we address below. We

begin by noting that "[t]he dispute in this case involves

whether the Secretary-designee of DHS issued an order in

violation of the laws of Wisconsin." See Palm, 391 Wis. 2d 497, ¶11. Similar to Emergency Order 28, Emergency Order 3 impacts 7 No. 2020AP1742

every person in Wisconsin, in one way or another, and it is open

to all who come into Wisconsin during its operation. It charts

a course that the Secretary-designee will repeat with future

orders.4 Accordingly, it is important to confirm, once again,

that Emergency Order 3 is beyond the power that the legislature

delegated to the Secretary-designee. This satisfies the great

public importance mootness exception. Accordingly, we decline

to dismiss our review; instead, we turn to the merits.

C. Parameters of a Rule

¶17 Rulemaking "ensure[s] that . . . controlling,

subjective judgment asserted by one unelected official" is not

imposed by agencies through the abandonment of rulemaking

procedures. Palm, 391 Wis. 2d 497, ¶28; NLRB v. Wyman-Gordon

Co., 394 U.S. 759, 764 (1969) (explaining that rulemaking

provisions in the law "assure fairness and mature consideration

of rules of general application"). Accordingly, agencies must

comport with rulemaking procedures set forth in ch. 227 when the

agency's proffered directive meets the definition of a "rule." ¶18 Wisconsin Stat. § 227.10(1) is the initial focus of

our review. It provides: "Each agency shall promulgate as a

rule each statement of general policy and each interpretation of

a statute which it specifically adopts to govern its enforcement

or administration of that statute." In Palm, we were asked to

interpret whether Emergency Order 28 met that statutory

definition. We concluded that it did because Emergency Order 28

4 See note 1 supra.

8 No. 2020AP1742

was "a general order of general application." Palm, 391 Wis. 2d

497, ¶42.

¶19 We further explained that agency action that exhibits

all of the following criteria meets the definition of a

rule: "'(1) a regulation, standard, statement of policy or

general order; (2) of general application; (3) having the effect

of law; (4) issued by an agency; (5) to implement, interpret or

make specific legislation enforced or administered by such

agency.'" Palm, 391 Wis. 2d 497, ¶22 (quoting Citizens for

Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 814, 280 N.W.2d

702 (1979)); see also Wis. Stat. § 227.01(13) (defining "rule").

¶20 As we concluded in Palm, an order issued by an agency

is a general order of general application if "the class of

people regulated . . . 'is described in general terms and new

members can be added to the class.'" Palm, 391 Wis. 2d 497, ¶22

(quoting Citizens for Sensible Zoning, 90 Wis. 2d at 816). The

inquiry focuses on the class of people regulated by the agency,

not on the factual context in which the agency action arose. Palm, 391 Wis. 2d 497, ¶23. To that end, "to be of general

application, a rule need not apply to all persons within the

state" as long as the class to whom the rule applies is

described in general terms and members can be added to the

class. See Citizens for Sensible Zoning, 90 Wis. 2d at 815-16.

For example, in Palm, Emergency Order 28 was a rule because it

"regulate[d] all persons in Wisconsin at the time it was issued

and it regulate[d] all who [would] come into Wisconsin in the future." Palm, 391 Wis. 2d 497, ¶24; see also Citizens for 9 No. 2020AP1742

Sensible Zoning, 90 Wis. 2d at 814 (concluding that a flood

plain ordinance that was limited to certain portions of a

certain county was nevertheless a rule because although the

applicable class was limited, it was open and new members could

be added).

¶21 Appellate courts have held that a general order of

general application could "have the 'effect of law' where

criminal or civil sanctions can result [from] a violation; where

licensure can be denied; and where the interest of individuals

in a class can be legally affected through enforcement of the

agency action." Cholvin v. DHFS, 2008 WI App 127, ¶26, 313

Wis. 2d 749, 758 N.W.2d 118 (collecting cases). Palm, Citizens

for Sensible Zoning and Cholvin illustrate the wide array of

agency conduct that could affect an individual group member's

legal interests.

¶22 In Palm, Emergency Order 28 provided that it was

enforceable by criminal sanction; clearly, it had the effect of

law. Palm, 391 Wis. 2d 497, ¶36. Similarly, in Citizens for Sensible Zoning, the rule had the effect of law because it was

"'of the same effect as if adopted by the county.'" Citizens

for Sensible Zoning, 90 Wis. 2d at 816 (quoting Wis. Stat.

§ 87.30 (1973-74)). Lastly, in Cholvin, the written

instructions that the Department of Health and Family Services

utilized had the effect of law because the instructions could be

used to deny certain Medicaid benefits. Cholvin, 313 Wis. 2d

749, ¶29. These cases and those cited in Cholvin demonstrate that a myriad of different agency actions could affect one's 10 No. 2020AP1742

legal interests and that an action having the effect of law is

not limited to criminal sanctions.

¶23 In order to constitute a rule, the directive must be

that of an agency. Palm, 391 Wis. 2d 497, ¶22. Wisconsin Stat.

§ 227.01(1) defines an "[a]gency" as "a board, commission,

committee, department or officer in the state government, except

the governor, a district attorney or military or judicial

officer." Boards, commissions, committees and departments are

defined generally in Wis. Stat. § 15.01 and other statutes

define which entity meets those descriptions as relevant to that

section or chapter. See, e.g., Wis. Stat. § 250.01(2) (defining

the "department" for purposes of chapters 250-257 as "the

department of health services"). If a general order of general

application is issued by one of these entities, it satisfies the

fourth definitional criterion of a rule.

¶24 Finally, when a general order of general application

implements, interprets or makes specific legislation or

regulates how a statute will be administered or enforced moving forward that general order meets the fifth definitional

criterion of a rule.5 See Citizens for Sensible Zoning, 90

Wis. 2d at 816 ("[T]he DNR issued the ordinance to implement

5To "implement" is to "carry out" or "accomplish" and "especially: to give practical effect to and ensure actual fulfillment by concrete measures." Implement, Merriam-Webster Third Int'l Dictionary 1134 (1986). See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶54, 271 Wis. 2d 633, 681 N.W.2d 110 (utilizing the American Heritage Dictionary to glean the common meaning of the word "refuse").

11 No. 2020AP1742

sec. 87.30, which it administers."); see also Wisconsin Elec.

Power Co. v. DNR, 93 Wis. 2d 222, 235, 287 N.W.2d 113 ("[T]he

DNR issued the permits containing the chlorine limitations to

implement sec. 147.02, Stats."). Similarly, emergency rules

guide the administration and enforcement of a statute under an

agency's purview when a threat to the "public peace, health,

safety, or welfare necessitates" expediency. See Wis. Stat.

§ 227.24(1). Therefore, under most circumstances, when an

agency action makes specific a statute for which the agency has

rulemaking authority that action will satisfy the fifth

criterion of a rule.

¶25 Furthermore, when an agency, in order to enforce or

administer a statute in its purview, adopts its own

understanding of that statute, it generally has interpreted the

statute thereby satisfying the "interpret" criterion of

rulemaking. See Wis. Stat. § 227.10(1); see also Frankenthal v.

Wis. Real Est. Brokers' Bd., 3 Wis. 2d 249, 253, 89 N.W.2d 825

(1958) (concluding that "mimeographed instructions for renewal of real-estate broker's licenses" was a rule of the real estate

brokers' board). In addition, where a statute's mandate is not

clear and unambiguous, an agency will need to interpret the

statute in order to take action permitted by the statute. See

Lamar Cent. Outdoor Co., Inc. v. Div. of Hearings & Appeals,

2019 WI 109, ¶38, 389 Wis. 2d 486, 936 N.W.2d 573 (concluding

that the statute at issue did not "plainly and unambiguously"

compel the agency's interpretation of the statute and therefore

12 No. 2020AP1742

rulemaking was required). In such instances, the fifth

definitional criterion of a rule is also satisfied.

D. Emergency Order 3

¶26 Having set out the definitional criteria used to

evaluate when an agency action constitutes a rule, we apply them

to determine whether Emergency Order 3 is a rule. The court of

appeals concluded that Emergency Order 3 was a rule because it

was issued by DHS purportedly pursuant to its authority under

Wis. Stat. § 252.02(3), it imposed statewide restrictions on

public gatherings and it made subjective policy decisions

regarding which entities were subject to its mandate and which

entities were exempt. Because Emergency Order 3 was not

promulgated as a rule the court of appeals concluded that it was

invalid and unenforceable. We agree. On its face, Emergency

Order 3 meets the definition of a rule and DHS was required to

comply with rulemaking procedures in ch. 227.

¶27 However, despite our decision in Palm and the court of

appeals' conclusion that this case fell squarely within Palm, DHS argues that Emergency Order 3 is not a rule under Palm's

rubric. DHS contends that Emergency Order 3 was not a rule

because it issued Emergency Order 3 under Wis. Stat. § 252.02(3)6

rather than the more general statutory subsections discussed at

length in Palm, namely §§ 252.02(4) and (6).7 DHS supports its

Wisconsin Stat. § 252.02(3) states that "The department 6

may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics."

In relevant part, Wis. Stat. § 252.02(4) states that 7

"[T]he department may promulgate and enforce rules or issue 13 No. 2020AP1742

argument by noting that we did not discuss the scope of

subsection (3) and that we upheld the school closure provision

of Emergency Order 28, which was based on § 252.02(3).

Additionally, DHS argues that § 252.02(3) "confer[s] well-

delineated statutory power" and therefore does not require

rulemaking to enforce.8

¶28 This argument reads Palm too narrowly and misses

Palm's overarching holding. As a preliminary matter, we note

that Palm did not bless DHS's order that closed schools. Palm

simply said that its holding "[did] not apply to Section 4.a. of

Emergency Order 28," which was limited to school closures.

Palm, 391 Wis. 2d 497, ¶3 n.6. Palm was very specific in regard

to the portion of Emergency Order 28 to which it did not apply.

It employed a subsection of Emergency Order 28, not a subsection

of Wis. Stat. § 252.02. It did not exempt all orders issued

under § 252.02(3) from the definition of a rule. Stated

otherwise, whether DHS issued Emergency Order 3 under a

different statutory subsection than those Palm focused on is of

orders . . . for the control and suppression of communicable diseases . . . ." Similarly, subsection (6) provides that "The department may authorize and implement all emergency measures necessary to control communicable diseases." § 252.02(6). 8 DHS also argues that rulemaking is not needed when an agency enforces or administers a statute that plainly authorizes the agency to act. According to DHS, rulemaking is necessary only when an agency "fills in the gaps" of a general statute with forward looking policy. This argument appears to be a reformulation of the fifth criterion of the rule definition set forth above and does not obviate the requirement that DHS proceed by rulemaking.

14 No. 2020AP1742

no import if DHS's action meets the definition of a rule.

Accordingly, we examine Emergency Order 3 based on whether it

satisfies the five definitional criteria of a rule, which were

explained in detail in Palm.

¶29 Emergency Order 3 is a general order generally

applied, and therefore, it meets the facial definition of a rule

under Wis. Stat. § 227.01(13), explained further in Palm. We

set out at length in Palm that when a general order of general

application satisfies the five rule definitional criteria, it is

a rule for purposes of ch. 227. We now review those criteria in

light of Emergency Order 3.

¶30 First, and as with Emergency Order 28, Emergency Order

3 is a general order of general application satisfying the first

and second definitional criteria of a rule. An agency action is

a general order of general application if the class to whom it

applies is described in general terms and new members can be

added to the class. See Palm, 391 Wis. 2d 497, ¶¶22-24. By its

own terms, Emergency Order 3 defined a public gathering broadly as any "indoor event, convening, or collection of individuals,

whether planned or spontaneous, that is open to the public and

brings together people who are not part of the same household in

a single room." "[O]pen to the public" is defined just as

expansively and "include[d], but [was] not limited

to: . . . [r]ooms within a business location, store, or facility

that allow members of the public to enter." Public gathering

also includes "[t]icketed events" where persons could obtain tickets for free or purchase tickets. This broad and general 15 No. 2020AP1742

description of the class to whom Emergency Order 3 applied

regulated a vast array of entities and people.

¶31 In addition to describing the class to which Emergency

Order 3 applied in general terms, the class it created was an

open class. New entities and new members could be added for

public gatherings. Just as people who were not regulated by

Emergency Order 28 one day "could have been regulated the next"

if they moved into Wisconsin, new entities could have opened

during Emergency Order 3 and new persons could have come into

Wisconsin. If they met the order's broad requirements, all

attendance for all people would have been regulated. See Palm,

391 Wis. 2d 497, ¶24; see also Citizens for Sensible Zoning, 90

Wis. 2d at 815.9

¶32 In regard to the third definitional criterion,

Emergency Order 3 had the effect of law. Section 6 of Emergency

Order 3 stated that the "order [was] enforceable by civil

forfeiture." Similar to Palm, DHS cited Wis. Stat. § 252.25 as

the statutory basis for its imposition of civil forfeitures on those who would violate Emergency Order 3. See Palm, 391

Wis. 2d 497, ¶¶36-40. As Cholvin made clear, agency action that

can be enforced by civil forfeiture has the effect of law.

9It is true that Emergency Order 3 contained certain enumerated exceptions to its definitions. However, the exceptions did not make the class description less general nor did the exceptions close the class in any way. See Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 814, 280 N.W.2d 702 (1979) (noting that the class was limited to persons who had a legal interest in the land regulated by the ordinance but that new people could enter that narrow class).

16 No. 2020AP1742

Additionally, Emergency Order 3 was issued by DHS, which

satisfies the fourth definitional criterion of being "issued by

an agency."

¶33 Finally, Emergency Order 3 both implemented and

interpreted Wis. Stat. § 252.02(3)'s grant of authority to

"forbid public gatherings . . . to control outbreaks and

epidemics" thereby satisfying the fifth definitional criterion.10

To implement is to carry out, and without some sort of

implementing mechanism, the "forbid public gatherings" portion

of § 252.02(3) would not be carried out. Moreover, by way of

its implementation, DHS interpreted the statute. First, "public

gatherings" is not defined in the surrounding statutes and

therefore, DHS must have interpreted § 252.02(3) to come to its

definition. Moreover, DHS interpreted what it means to "forbid

public gatherings." Its interpretation is that "forbid" means

to "limit" numerically. Whether this interpretation is legally

correct is not relevant because it is nonetheless DHS's

interpretation. See Lamar Central, 389 Wis. 2d 486, ¶29 n.16. By both implementing and interpreting § 252.02(3)'s grant of

authority, DHS satisfied the fifth definitional criterion of a

rule. Accordingly, Emergency Order 3 satisfied all five

We note that DHS's indication that it would continue to 10

issue similar orders depending on the outcome of this case poses the question of whether the expiration date of Emergency Order 3 was a date certain. See Wisconsin Legislature v. Palm, 2020 WI 42, 391 Wis. 2d 497, ¶27, 942 N.W.2d 900 (rejecting the argument that Emergency Order 28 was a time limited order because the "Gating Criteria" of Emergency Order 31 extended the effect of Emergency Order 28 beyond its purported expiration).

17 No. 2020AP1742

criteria that define a rule and, because it was not promulgated

through rulemaking procedures, it was not valid or enforceable.

III. CONCLUSION

¶34 We conclude that Emergency Order 3 meets the

definition of a rule, as we recently explained in Palm, 391

Wis. 2d 497. Therefore, Emergency Order 3 should have been

promulgated according to rulemaking procedures set forth in Wis.

Stat. ch. 227. Because it was not, Emergency Order 3 was not

validly enacted and was unenforceable. Accordingly, we affirm

the decision of the court of appeals.11

By the Court.—The decision of the court of appeals is

affirmed.

11This case presents as the review of the grant of a temporary restraining order by the court of appeals in an interlocutory appeal. We do not address temporary restraining order standards because our decision herein is a declaration that permanently enjoins Executive Order 3, a rule made without engaging in rulemaking.

18 No. 2020AP1742.bh

¶35 BRIAN HAGEDORN, J. (concurring). Last term, this

court struck down an order issued by Department of Health

Services Secretary-designee Andrea Palm that purported, in part,

to close or limit capacity at various public places throughout

Wisconsin. Wisconsin Legislature v. Palm, 2020 WI 42, 391

Wis. 2d 497, 942 N.W.2d 900. We held, among other things, that

a statewide order limiting public gatherings met the statutory

definition of an administrative rule and must be promulgated as

such. Id., ¶¶3, 7, 42, 58.

¶36 Some details have changed, but this case arises

because Palm issued another order doing exactly what this court

said she may not do: limit public gatherings by statewide order

without promulgating a rule. Palm hopes to achieve a different

outcome this time by seizing on some of the vulnerabilities in

last term's decision. To be sure, the court's rationale in Palm

was, in some respects, incomplete. My objections to the court's

legal analysis were no secret. See id., ¶¶165-263 (Hagedorn,

J., dissenting). But creative efforts to engineer a different result from an indistinguishable set of facts would, in my view,

be a departure from basic principles of judicial decision-

making.

¶37 The reach and nature of stare decisis——a Latin phrase

that means "to stand by things decided"——is the subject of much

debate.1 But if stare decisis is to have any import at all in

our legal system, it surely must apply when a court has told a

1 Stare decisis, Black's Law Dictionary 1696 (11th ed. 2019).

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specific party that certain conduct is unlawful, and that party

does the very same thing again under the same circumstances.

That is what we have here. No further clarification of our

opinion in Palm is needed; its application is plain. We held

that Palm's statewide order limiting public gatherings (along

with a number of other restrictions) meets the statutory

definition of a rule, and must be promulgated as a rule to have

legal effect. Respect for this court and its authority compels

me to stand by that decision today.

¶38 Under different circumstances, we may need to

reconsider some of our conclusions in Palm. However, we have

not been asked to reexamine Palm here, nor is doing so necessary

to decide this case. For these reasons, while I cannot join the

Chief Justice's opinion further extending the reasoning of Palm,

I respectfully concur in the court's mandate.

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¶39 ANN WALSH BRADLEY, J. (dissenting). At a time when

public health experts are imploring pandemic-weary Wisconsinites

to stay vigilant, a faulty statutory analysis once again leads

this court to undermine public health measures.

¶40 This time, the statute at issue is Wis. Stat.

§ 252.02(3), which states that the Department of Health Services

(DHS) has the authority to "close schools and forbid public

gatherings in schools, churches, and other places to control

outbreaks and epidemics." The court attempts to justify its

result by relying on stare decisis and statutory interpretation,

but both rationales fall flat.

¶41 Stare decisis simply does not apply. The Palm1

decision, on which the mandate of this court hinges, did not

decide the question now before us and did not even attempt to

interpret § 252.02(3). With no analysis, there is no decision

for us to follow. And even if Palm constituted precedent for

interpretation of this statute, it falls within the well-

recognized exceptions to according precedential adherence——the Palm decision is both unsound in principle and unworkable in

practice.

¶42 The lead opinion's2 statutory interpretation fares no

better. Trying to get around the plain language of the statute,

1 Wisconsin Legislature v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900. 2 I refer to Chief Justice Roggensack's opinion as the "lead opinion" because the opinion has not been joined by a majority of the court. Although Justice Hagedorn concurs in the mandate, he does not join the lead opinion's reasoning. See Justice Hagedorn's concurrence, ¶38.

1 No. 2020AP1742.awb

it engages in a hocus-pocus interpretation and the plain meaning

of the statute somehow seems to vanish. In its place there

appears an interpretation of the statute, which according to the

lead opinion, means the opposite of what it says. In place of

the plain language of the statute that gives DHS the authority

to forbid public gatherings, the lead opinion interprets the

statute as not giving DHS that authority. Instead, it contrives

a roadblock that is not part of the statute, and forces DHS to

go through a cumbersome rulemaking procedure.

¶43 Contrary to the lead opinion, I conclude that the

plain language of Wis. Stat. § 252.02(3) provides DHS with the

authority to forbid public gatherings without going through

rulemaking. Contrary to the concurrence, I further conclude

that Palm does not require otherwise.

¶44 Accordingly, I respectfully dissent.

I

¶45 As has been well established at this point, we are in

the midst of a worldwide pandemic, the likes of which few have

The only reference to "lead opinions" in our Internal Operating Procedures states that if during the process of circulating and revising opinions, "the opinion originally circulated as the majority opinion does not garner the vote of a majority of the court, it shall be referred to in separate writings as the 'lead opinion' unless a separate writing garners the vote of a majority of the court." Wis. S. Ct. IOP III.G.4 (Sept. 12, 2019).

Lest the public mistakenly believe that a lead opinion constitutes precedential authority, it does not. For further discussion of our procedure regarding lead opinions, see Koss Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385 Wis. 2d 261, 922 N.W.2d 20 (Ann Walsh Bradley, J., concurring).

ever seen. In response, both state and local governments have

issued various public health orders in an attempt to curb the

spread of COVID-19.

¶46 At issue in this case is Emergency Order 3, an order

issued by DHS Secretary-Designee Andrea Palm. As set forth by

the lead opinion, this order was issued on October 6, 2020, and

"limited the number of people who could be present at indoor,

public gatherings." Lead op., ¶3.

¶47 What the lead opinion does not mention is the

conditions that led to the issuance of Emergency Order 3. The

Order details how "Wisconsin is now a COVID-19 hotspot[,]" home

to "rapidly accelerat[ing]" spread and a strain on hospital

capacity. It declares:

Wisconsin must use all its tools, including keeping people physically apart and wearing face coverings, to slow this dangerous spike. The consequences of failing to act could be devastating and deadly. Because of the time period between infection, diagnosis, and the development of serious symptoms, hospitalizations and deaths lag behind case counts. Wisconsin is now experiencing increases in both of these serious indicators because of the steep rise in cases of COVID-19 over the past month. ¶48 Accordingly, Emergency Order 3 limits public

gatherings in two ways. First, "[p]ublic gatherings are limited

to no more than 25% of the total occupancy limits for the room

or building, as established by the local municipality." Second,

"[f]or indoor spaces without an occupancy limit for the room or

building that is established by the local municipality, such as

a private residence, public gatherings are limited to no more than 10 people."

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¶49 A "public gathering" for purposes of this order is

defined as "an indoor event, convening, or collection of

individuals, whether planned or spontaneous, that is open to the

public and brings together people who are not part of the same

household in a single room." The order specifies that places

that are open to the public include, but are not limited to:

(1) "Rooms within a business location, store, or facility that

allow members of the public to enter"; and (2) "Ticketed events

where tickets are available for free or for purchase by any

individual or by any individual within a specific class of

people."

¶50 For contrast, the order also identifies places that

are not open to the public, and as a result are not included

within the definition of a public gathering and thus are not

subject to the order's limitations. These include: (1) "Office

spaces, manufacturing plant[s], and other facilities that are

accessible only by employees or other authorized personnel"; (2)

"Invitation-only events that exclude uninvited guests"; and (3) "Private residences. Except, a residence is considered open to

the public during an event that allows entrance to any

individual; such public gatherings are limited to 10 people."

¶51 The Tavern League and others filed suit, seeking an

injunction against the enforcement of Emergency Order 3 on the

basis that the order constitutes an unpromulgated rule

impermissible under Wis. Stat. ch. 227 and Wisconsin Legislature

v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900. The Mix Up and others later intervened.

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¶52 After the circuit court initially granted an ex parte

temporary injunction, a later assigned3 circuit court judge

subsequently vacated that injunction and denied The Mix Up's

motion for a temporary injunction. Lead op., ¶¶7-8. The

circuit court reasoned that "it is not clear that plaintiffs

have a reasonable probability of success on the merits,

especially when I look at Footnote 21" of Palm.

¶53 Additionally, the circuit court determined "that

there's no showing that a temporary injunction is necessary to

preserve the status quo. There is nothing in the affidavits to

show that any of the plaintiffs have complied with the order;

that complying with the order has somehow harmed them."

Finally, the circuit court concluded:

[T]here's no showing of irreparable harm. If I had a showing for the last 40 days that businesses were going out because they were complying with the order, that would be a showing of irreparable harm. I merely have the theoretical issue that if they were to comply, they would suffer harm. ¶54 The Mix Up appealed, and the court of appeals

reversed. Over Judge Stark's dissent, a majority of the court

of appeals concluded that "under our supreme court's holding in

Palm, Emergency Order #3 is invalid and unenforceable, as a

matter of law." Tavern League of Wis., Inc. v. Palm, No.

2020AP1742, unpublished slip op. at 3 (Wis. Ct. App. Nov. 6,

2020).

¶55 This court's mandate now affirms the court of appeals,

with the lead opinion determining that the plain language of the

3 See Wis. Stat. § 801.58(1).

5 No. 2020AP1742.awb

statute does not control and that "Emergency Order 3 meets the

definition of a rule" as explained in last year's Palm decision.

Lead op., ¶2. Thus, in the lead opinion's view, "Emergency

Order 3 should have been promulgated according to rulemaking

procedures set forth in Wis. Stat. ch. 227. Because it was not,

Emergency Order 3 was not validly enacted and was

unenforceable." Id.

¶56 Justice Hagedorn's concurrence arrives at the same

destination, but takes a different route. It does not join the

lead opinion, but instead concludes that the Palm court decided

the issue we consider today and that the doctrine of stare

decisis dictates that the court of appeals be affirmed. Justice

Hagedorn's concurrence, ¶¶37-38.

II

¶57 I begin with a discussion of stare decisis because

this court's mandate rests upon the application of that

principle. Although not subscribing to the lead opinion's

statutory analysis, Justice Hagedorn's concurrence would affirm the court of appeals, but only on the basis of stare decisis.

Justice Hagedorn's concurrence, ¶37. However, a close

examination of Palm reveals that the doctrine is inapplicable in

this case.

¶58 Stare decisis refers to the principle that requires

courts to "stand by things decided." State v. Harrell,

199 Wis. 2d 654, 667, 546 N.W.2d 115 (1996) (Abrahamson, J.,

concurring). The doctrine is fundamental to the rule of law.

6 No. 2020AP1742.awb

Johnson Controls, Inc. v. Emp.'s Ins. of Wausau, 2003 WI 108,

¶94, 264 Wis. 2d 60, 665 N.W.2d 257.

¶59 But for stare decisis to dictate the outcome of the

present case, the previous case relied upon must have actually

decided the issue we now examine. Palm did not do so.

¶60 In Palm, a majority of the court struck down the DHS

secretary-designee's initial "safer at home" order (Order #28)

on the basis that the order was a rule that should have gone

through rulemaking procedures. Palm, 391 Wis. 2d 497, ¶3.

Secretary-designee Palm claimed that authority to issue Order

#28 could be found in Wis. Stat. § 252.02(3), (4) and (6).4

4 These subsections of Wis. Stat. § 252.02 provide in full:

(3) The department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.

(4) Except as provided in ss. 93.07(24)(e) and 97.59, the department may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease and for the sanitary care of jails, state prisons, mental health institutions, schools, and public buildings and connected premises. Any rule or order may be made applicable to the whole or any specified part of the state, or to any vessel or other conveyance. The department may issue orders for any city, village or county by service upon the local health officer. Rules that are promulgated and orders that are issued under this subsection supersede conflicting or less stringent local regulations, orders or ordinances.

. . . 7 No. 2020AP1742.awb

¶61 The majority in Palm stated we "do not define the

precise scope of DHS authority under Wis. Stat. § 252.02(3),

(4), and (6) because clearly Order 28 went too far." Id., ¶55.

It did, however, explicitly reject Palm's reliance on

subsections (4) and (6). With regard to subsec. (4), the

majority determined:

Order 28 goes far beyond what is authorized in Wis. Stat. § 252.02(4). For example, Order 28 exceeds the § 252.02(4) authority to quarantine those infected or suspected of being infected. Instead, Palm quarantines '[a]ll individuals present within the State of Wisconsin' by ordering them 'to stay at home or at their place of residence' with exceptions she deems appropriate. Id., ¶49. Similarly, the majority did not accept Palm's

argument that Order #28 was authorized by subsec. (6), observing

the subsection's non-specific nature and concluding: "If Wis.

Stat. § 252.02(6) were the sole factual foundation for criminal

charges, no criminal prosecution could result because

§ 252.02(6) does not have the specificity required for fair

notice of the conduct required or prohibited. Stated otherwise,

it has no definable standards for required or prohibited

conduct." Id., ¶47.

¶62 The Palm majority opinion did not contain any analysis

whatsoever of Wis. Stat. § 252.02(3), which is the statute at

issue here. However, it left two clues hidden in footnotes that

inform our understanding of that subsection. The two clues are

actually the same clue, as the Palm majority twice repeated the

(6) The department may authorize and implement all emergency measures necessary to control communicable diseases. 8 No. 2020AP1742.awb

following delineated exception to its holding: "This decision

does not apply to Section 4. a. of Emergency Order 28." Id.,

¶¶3 n.6, 58 n.21.

¶63 So what is section 4.a. of Emergency Order 28, which

the Palm majority left in place? This provision closed all

public and private K-12 schools for the remainder of the 2019-

2020 school year.5 The question then arises, why was this

section of Order #28 spared from the Palm majority's sword,

while the rest of the order was slashed?

¶64 The Palm majority provides no explanation for the

exception set forth in footnotes 6 and 21, but a look to Wis.

Stat. § 252.02(3) provides a probable rationale. That

subsection states: "The department may close schools and forbid

public gatherings in schools, churches, and other places to

control outbreaks and epidemics." The plain language of the

statute provides that DHS may issue orders closing schools.

Full stop. No interpretation is necessary, and thus no

rulemaking is necessary for DHS to close schools. The Palm majority implicitly recognized this by the inclusion of

footnotes 6 and 21.

5 In full, section 4.a. of Order #28 provides:

Public and private K-12 schools shall remain closed for pupil instruction and extracurricular activities for the remainder of the 2019-2020 school year. Schools may continue to facilitate distance learning or virtual learning. Schools may continue to be used for Essential Government Functions and food distribution. This section does not apply to facilities operated by the Wisconsin Department of Corrections.

9 No. 2020AP1742.awb

¶65 The lead opinion attempts to explain footnotes 6 and

21 in Palm, but its feeble "explanation" really doesn't say

anything. See lead op., ¶28. It states: "Palm was very

specific in regard to the portion of Emergency Order 28 to which

it did not apply. It employed a subsection of Emergency Order

28, not a subsection of Wis. Stat. § 252.02. It did not exempt

all orders issued under § 252.02(3) from the definition of a

rule." Id. But this non-explanation has no explanatory power

at all——it doesn't even attempt to explain why Palm carved out

the exception for closing schools, which is essential to the

determination of this case.

¶66 Far from deciding that the subject order would be

impermissible under § 252.02(3), Palm contained no analysis at

all of that subsection, and even hints that no rulemaking is

necessary to implement its clear provisions. The phrase in

subsec. (3) at issue here, "forbid public gatherings

in . . . other places," is similarly clear.6 See infra, ¶¶77-79.

¶67 In order for stare decisis to apply, the "thing" at issue must have actually been decided. Palm did not decide

anything with regard to § 252.02(3). Where there is no analysis

at all, what precedent was created for us to follow? I

therefore determine that stare decisis does not dictate the

result of this case.

6See Palm, 391 Wis. 2d 497, ¶232 n.19 (Hagedorn, J., dissenting) ("To the extent section 4.a. should be treated differently due to the explicit authority granted to DHS to close schools in Wis. Stat. § 252.02(3), that same logic would seem to apply to the other provisions in Order 28 that have the same statutory support.").

10 No. 2020AP1742.awb

III

¶68 Even assuming that Palm decided the issue now before

the court (it did not), stare decisis still would not dictate

the result because last term's Palm decision is unsound in

principle and unworkable in practice. In considering whether to

overturn a prior case, we consider "whether the prior decision

is unsound in principle, whether it is unworkable in practice,

and whether reliance interests are implicated." Johnson

Controls, Inc., 264 Wis. 2d 60, ¶99.

¶69 Palm is unsound in principle. It engages in a flawed

statutory interpretation that sweeps with a broad brush where

nuance is required. As Justice Hagedorn's dissent in Palm

recognized, the decision "is not grounded in the law." Palm,

391 Wis. 2d 497, ¶259 (Hagedorn, J., dissenting). It twisted

the language of Wis. Stat. § 252.02 and completely ignored the

long-standing, broad powers the Legislature granted to DHS.

Id., ¶132 (Dallet, J., dissenting). Similarly, its conclusions

regarding § 252.02 are advisory and undeveloped, and undermine DHS's ability to apply and enforce the statute in accordance

with the authority it has been given. Id., ¶160 (Dallet, J.,

dissenting), ¶232 (Hagedorn, J., dissenting).7

7Further underscoring that Palm is unsound in principle is its potential impact on scores of statutes and prior cases. The Palm decision largely rests on a premise not briefed or argued by any party, namely the proposition that "an executive branch order may only carry criminal penalties for any violation if the elements of a crime are first promulgated as a rule or otherwise defined in the statutes." Id., ¶253 (Hagedorn, J., dissenting).

11 No. 2020AP1742.awb

¶70 Further, the Palm majority opinion is unsound in

principle because it "morphs [rulemaking] into subjecting

executive branch enforcement of enacted laws to a legislative

veto," a conclusion "that turns our constitutional structure on

its very head." Id., ¶218 (Hagedorn, dissenting). And for

what? To "do[] the Legislature's bidding in the midst of a

pandemic" and in so doing allow the Legislature "to avoid

political fallout." Id., ¶162 (Dallet, J., dissenting).

¶71 It is also unworkable in practice. The rulemaking

process mandated by Palm is overly cumbersome in the event of a

fast-moving emergency. By design, the process includes repeated

checks, public input, and imposed waiting periods. Id., ¶228

(Hagedorn, J., dissenting). Even if an emergency rule in a best

case scenario could transpire in 12 days, as suggested by the

Legislature during oral argument in Palm, "[t]welve days is far

too long in a real emergency. Epidemics don't always give you a

two-week heads up on their next move." Id., ¶230 (Hagedorn, J.,

dissenting). The emergency rules process is thus a poor fit for a fluid situation requiring a real-time and flexible response.

This "dramatic holding" could call into question a lengthy list of laws. Id., ¶255 (Hagedorn, J., dissenting). Indeed, "[o]ur statutes include numerous instances where violating an agency's order can result in criminal penalties." Id. "If an enactment of this sort is unlawful, then all of these statutes would presumably be unconstitutional. The same may be true for analogous statutes authorizing civil penalties." Id. Beyond the plethora of statutes, Palm portends to overrule "our cases [that] have long supported the notion that, at least in concept, criminal penalties for violating a lawful order are permissible." Id., ¶258 n.24 (Hagedorn, J., dissenting). The Palm majority's rationale would thus require a different result in an untold number of cases. Id.

12 No. 2020AP1742.awb

¶72 It makes no sense to cling to Palm in the name of

stare decisis when it is unsound in principle and unworkable in

practice. Such "precedent" destabilizes rather than advances

the rule of law. We are therefore not required to adhere to

decisions that are objectively wrong. See Progressive N. Ins.

Co. v. Romanshek, 2005 WI 67, ¶45, 281 Wis. 2d 300, 697

N.W.2d 417; Wenke v. Gehl Co., 2004 WI 103, ¶21, 274

Wis. 2d 220, 682 N.W.2d 405. Accordingly, I would decide this

case based on the clear statutory text of Wis. Stat.

§ 252.02(3), to which I turn next.

IV

¶73 Agencies have the authority to promulgate rules, but

they need not promulgate a rule to accomplish every task. See

Wis. Stat. § 227.11(2)(a) ("Each agency may promulgate rules

interpreting the provisions of any statute enforced or

administered by the agency, if the agency considers it necessary

to effectuate the purpose of the statute . . . .") (emphasis

added). ¶74 As defined by statute, a "rule" is "a regulation,

standard, statement of policy, or general order of general

application that has the force of law and that is issued by an

agency to implement, interpret, or make specific legislation

enforced or administered by the agency or to govern the

organization or procedure of the agency." Wis. Stat.

§ 227.01(13). When an agency acts within those powers that are

expressly conferred by statute, the agency simply "effectuates

13 No. 2020AP1742.awb

the will of the legislature." Brown Cnty. v. DHSS, 103

Wis. 2d 37, 43, 307 N.W.2d 247 (1981).

¶75 Thus, if a statute is unambiguous, i.e. if no

interpretation is necessary to effectuate the purpose of the

statute, then no rulemaking is required. See Schoolway Transp.

Co. v. Div. of Motor Vehicles, DOT, 72 Wis. 2d 223, 235-36, 240

N.W.2d 403 (1976); Lamar Cent. Outdoor, LLC v. Div. of Hearings

& Appeals, 2019 WI 109, ¶24, 389 Wis. 2d 486, 936 N.W.2d 573.

The duty of the agency is to "administer the statute according

to its plain terms." Schoolway Transp. Co., 72 Wis. 2d at 236.

¶76 The lead opinion, however, does not engage with the

unambiguous language of Wis. Stat. § 252.02(3). It acknowledges

that "where a statute's mandate is not clear and unambiguous, an

agency will need to interpret the statute in order to take

action permitted by the statute," lead op., ¶25, but it does not

cite the converse: that where a statute is clear and

unambiguous, no rulemaking is required. The logical starting

point is an analysis of the plain language of § 252.02(3) to determine if there is ambiguity, but the lead opinion simply

doesn't do that analysis.

¶77 Wisconsin Stat. § 252.02(3) provides that DHS may

"forbid public gatherings in schools, churches, and other places

to control outbreaks and epidemics." As relevant here, the

plain language allows DHS to forbid "public gatherings" in

"other places" that are not schools or churches. Emergency

Order 3 forbids "public gatherings" in "other places" that are not schools or churches. The plain language of the statute is

14 No. 2020AP1742.awb

unambiguous. By issuing Emergency Order 3, DHS is simply

executing the clear words of the statute. No interpretation

necessary.

¶78 The lead opinion attempts to set out how DHS

"interpreted" § 252.02(3) in Emergency Order 3, making Order 3 a

rule. See lead op., ¶33. In the lead opinion's view, DHS

"interpreted" the term "public gathering" because it is not

defined in the statute, and it "interpreted" "forbid" to mean

"'limit' numerically." Id. But how are these "interpretations"

any different from following the plain language of the statute?

Although Emergency Order 3 provides a definition of "public

gathering," that definition does not deviate from the common and

ordinary meaning of the term. Similarly, "forbid" has a common

and ordinary meaning. DHS just applied those common and

ordinary meanings, no interpretation necessary.

¶79 Because no interpretation is necessary, no rulemaking

is necessary. Accordingly, I determine that Emergency Order 3

is not a rule. It is authorized by the plain language of § 252.02(3) and DHS need not go through the cumbersome

rulemaking process to do what the statute plainly allows.

¶80 For the foregoing reasons, I respectfully dissent.

¶81 I am authorized to state that Justice REBECCA FRANK

DALLET and Justice JILL J. KAROFSKY join this dissent.

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