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: July 8, 2022 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 8, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dane 

JUDGE: Jacob B. Frost 

JUSTICES:

KAROFSKY, J., delivered the majority opinion of the Court with 

respect to ¶¶1-28 and 44-45, in which ANN WALSH BRADLEY, DALLET, 

and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶29-

43, in which ANN WALSH BRADLEY and DALLET, JJ., joined. 

HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL 

BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., 

and ROGGENSACK, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiffs-appellants, there were briefs filed by 

Rick Esenberg, Luke N. Berg, Anthony F. LoCoco, Daniel P. 

Lennington and Wisconsin Institute for Law & Liberty, Milwaukee. 

There was an oral argument by Luke N. Berg. 

For the defendants-respondents, there were briefs filed by 

Remzy D. Bitar, Sadie R. Zurfluh, and Municipal Law and
2

Litigation Group, S.C., Waukesha. There was an oral argument by 

Remzy D. Bitar. 

An amicus curiae brief was filed by Daniel R. Suhr and 

Liberty Justice Center, Chicago, for Liberty Justice Center. 

An amicus curiae brief was filed by Terman Spencer, city 

attorney, Gregory P. Kruse, assistant city attorney, Claire 

Silverman, and Maria Davis for The City of Milwaukee and League 

of Wisconsin Municipalities. 

An amicus curiae brief was filed by Jessica L. Thompson, 

Matthew Fernholz, and Pacific Legal Foundation, Arlington, and 

Cramer, Multhauf & Hammes, LLP, Racine, for the Pacific Legal 

Foundation and National Federation of Independent Business Small 

Business Legal Center. 

An amicus curiae brief was filed by Brian P. Keenan, 

assistant attorney general, with whom on the brief was Joshua L. 

Kaul, attorney general, for Governor Tony Evers and Attorney 

General Josh Kaul. 

An amicus curiae brief was filed by patricia Epstein 

Putney, Melita M. Mullen, Jeffrey B. Dubner, Jessica Anne 

Morton, and Bell, Moore & Richter, S.C., Madison, and Democracy 

Forward Foundation, Washington, D.C., for the American Medical 

Association and Wisconsin Medical Society. 

An amicus curiae brief was filed by Allison W. Boldt and 

the University of Wisconsin Law School State Democracy Research 

Initiative, Madison, for Legal Scholars. 

An amicus curiae brief was filed by Jeffrey A. Mandell, 

Douglas M. Poland, Colin T. Roth, Daniel Lenz, Elizabeth B. 
3

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. 
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,

 Plaintiffs-Appellants,

 v.

Dane County, Janel Heinrich and 

Public Health of Madison & Dane County,

 Defendants-Respondents.

FILED

JUL 8, 2022

Sheila T. Reiff

Clerk of Supreme Court

KAROFSKY, J., delivered the majority opinion of the Court with 

respect to ¶¶1-28 and 44-45, in which ANN WALSH BRADLEY, DALLET, 

and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶29-

43, in which ANN WALSH BRADLEY and DALLET, JJ., joined. 

HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL 

BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., 

and ROGGENSACK, J., joined.

APPEAL from a judgment and an order of the Circuit Court 

for Dane County, Jacob B. Frost, Judge. Affirmed and cause 

remanded.

¶1 JILL J. KAROFSKY, J. We resolve whether local health 

officers may lawfully issue public health orders. This suit 
Nos. 2021AP1343 & 2021AP1382

2

arises from a challenge to a local health officer's issuance of 

public health orders to prevent, suppress, and control a 

communicable coronavirus disease commonly referred to as 

COVID-19. The case before us does not challenge the wisdom or 

legality of any particular measure taken in these orders. The 

challenge instead raises more general statutory and 

constitutional questions about the local health officer's 

authority to issue an order at all, regardless of the measures 

it promulgates. Specifically, we address three issues: 

(1) whether Wis. Stat. § 252.03 (2019-20)1 authorizes local 

health officers to issue public health orders; (2) whether Dane 

County Ordinance § 46.40 (December 2020),2 which makes such 

public health orders enforceable by a civil citation, is 

preempted by state law; and (3) whether either of these 

provisions constitute an unconstitutional delegation of 

legislative power.

¶2 On the statutory question, we hold that Wis. Stat. 

§ 252.03 grants local health officers the authority to issue 

orders. As for preemption, we hold that no state law preempts

Dane County Ordinance § 46.40. Finally, on the constitutional 

question, we hold that a local health officer's authority to 

issue enforceable public health orders pursuant to Wis. Stat. 

§ 252.03 and Dane County Ordinance § 46.40 does not run afoul of 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version unless otherwise indicated.

2 All subsequent references to Chapter 46 of the Dane County 

Ordinances are to the December 2020 version.
Nos. 2021AP1343 & 2021AP1382

3

our constitutional separation of powers. Accordingly, we affirm 

the circuit court's judgment and order and remand to the circuit 

court for further proceedings.

I. BACKGROUND

¶3 Since March 2020, Wisconsin's state and local public 

health officials have issued public health orders aimed at 

curbing the spread of the communicable COVID-19 disease caused 

by the SARS-CoV-2 virus and its variants. This includes Janel 

Heinrich, the local health officer and director of Public Health 

Madison & Dane County ("Health Department"), a joint health 

department created by an intergovernmental agreement between the 

governing bodies of Dane County (the "County") and the City of 

Madison (the "City"). Per their agreement, the local health 

officer is jointly appointed by both local governments' elected 

chief executive officers (the County's executive and the City's 

mayor), subject to confirmation by both local governments' 

elected legislative bodies (the County's board and the City's 

common council). The agreement charges the Health Department 

and its director with the duty to implement public health 

policies adopted by the County and City through local 

ordinances, budgets, and the agreement itself. The agreement 

also establishes the Board of Health for Madison and Dane County

("Board of Health"), comprising of one County board supervisor, 

one City common council member, three County residents, and 

three City residents. Under the agreement, the Board of Health 

governs the Health Department's administration and supervises 

its director.
Nos. 2021AP1343 & 2021AP1382

4

¶4 Heinrich responded to the appearance of the

communicable COVID-19 disease in her territory by issuing a 

series of orders from May 2020 until March 2022 that implemented 

measures to prevent, suppress, and control the disease's spread. 

She did so pursuant to her authority under state law that 

directs a local health officer to "promptly take all measures 

necessary to prevent, suppress and control communicable 

diseases," "do what is reasonable and necessary for the 

prevention and suppression of disease," and "forbid public 

gatherings when deemed necessary to control outbreaks or 

epidemics." Wis. Stat. § 252.03(1)-(2). Because COVID-19

spreads predominantly via respiratory droplets——released when an 

infected person breaths, coughs, sneezes, sings, or talks——that 

then contact the mouth, nose, or eyes of nearby persons, 

Heinrich's orders implemented measures that affected many 

aspects of daily life where people come in close proximity with 

others. These measures included requiring face coverings, 

limiting or forbidding gatherings, requiring sanitation 

protocols for particular facilities, limiting or forbidding 

certain sport activities, limiting businesses' allowable indoor 

capacity, and requiring physical distancing between individuals.

¶5 Around the time of Heinrich's fourth such public 

health order in June 2020, the County duly enacted Dane County 

Ordinance § 46.40 regarding the prevention, suppression, and 

control of communicable diseases. Relevant here, Dane County 

Ordinance § 46.40(2) makes it "a violation of [Dane County 

Ordinance ch. 46] to refuse to obey an Order of the Director of 
Nos. 2021AP1343 & 2021AP1382

5

Public Health Madison and Dane County entered to prevent, 

suppress or control communicable disease pursuant to Wis. Stat 

s. 252.03." A violation of ch. 46 could result in a civil 

forfeiture of between $50 and $200 "for each day that a 

violation exists." Dane County Ordinance § 46.27(1).3

¶6 Jeffrey Becker and Andrea Klein are two County 

residents impacted by the Health Department's COVID-19-related 

orders. In January 2021, they filed this lawsuit against the 

County as well as the Health Department and its director, 

Heinrich, challenging their legal authority to issue and enforce 

such orders. Several days later, the Health Department 

separately filed an enforcement action against A Leap Above 

Dance, LLC ("A Leap Above") alleging that A Leap Above disobeyed 

a public health order. Raising similar challenges as Becker and 

Klein against the Health Department's enforcement authority, A 

Leap Above joined Becker and Klein's suit as the third plaintiff 

(collectively "Plaintiffs"). The Health Department then 

dismissed its separate enforcement action, re-filing it as 

counterclaims in this suit.

¶7 Plaintiffs moved the circuit court to temporarily 

enjoin any enforcement of current and future public health 

orders while the case was pending.4 The circuit court declined 

to grant the temporary injunction. Because its rationale for 

 

3 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).

4 The Honorable Jacob B. Frost of the Dane County Circuit 

Court presiding.
Nos. 2021AP1343 & 2021AP1382

6

denying Plaintiffs' motion included a determination that 

Plaintiffs' arguments lacked a likelihood of success on the 

merits, Plaintiffs asked the circuit court to enter summary 

judgment against them so they could appeal. The circuit court 

granted Plaintiffs' request and entered summary judgment against 

their claims but acknowledged that the Health Department's 

counterclaims against A Leap Above remain unresolved.

¶8 Plaintiffs appealed the summary-judgment decision; 

Becker and Klein as of right and A Leap Above with the court of 

appeals' permission.5 Following consolidation of the appeals and 

completion of the briefing, Plaintiffs petitioned to bypass the 

court of appeals. We granted Plaintiffs' bypass petition and 

further ordered supplemental briefing on our jurisprudence 

regarding the delegation of constitutional powers.

II. ANALYSIS

¶9 This case requires us to interpret Wis. Stat. 

§ 252.03, determine whether state law preempts Dane County 

Ordinance § 46.40, and assess both provisions' constitutionality 

with respect to separation-of-powers principles. Each presents 

a question of law that we review de novo. See, e.g., Legue v. 

City of Racine, 2014 WI 92, ¶60, 357 Wis. 2d 250, 849 N.W.2d 837

(statutory interpretation); DeRosso Landfill Co. v. City of Oak 

Creek, 200 Wis. 2d 642, 652, 547 N.W.2d 770 (1996) (preemption); 

 

5 Because the Health Department's counterclaims against A 

Leap Above remain pending despite the summary-judgment decision, 

A Leap Above required the court of appeals' leave to file its 

appeal. See Wis. Stat. § 808.03(1)-(2).
Nos. 2021AP1343 & 2021AP1382

7

State v. Horn, 226 Wis. 2d 637, 642, 594 N.W.2d 772 (1999) (a 

law's constitutionality).

A. Wisconsin Stat. § 252.03

¶10 The first two subsections of Wis. Stat. § 252.03 

empower local health officers to take certain actions in 

specific circumstances:

(1) Every local health officer, upon the appearance of 

any communicable disease in his or her territory, 

shall immediately investigate all the circumstances 

and make a full report to the appropriate governing 

body and also to the department. The local health 

officer shall promptly take all measures necessary to 

prevent, suppress and control communicable diseases, 

and shall report to the appropriate governing body the 

progress of the communicable diseases and the measures 

used against them, as needed to keep the appropriate 

governing body fully informed, or at such intervals as 

the secretary may direct. The local health officer 

may inspect schools and other public buildings within 

his or her jurisdiction as needed to determine whether 

the buildings are kept in a sanitary condition.

(2) Local health officers may do what is reasonable 

and necessary for the prevention and suppression of 

disease; may forbid public gatherings when deemed 

necessary to control outbreaks or epidemics and shall 

advise the department of measures taken.[6]

We conclude the authority granted by these provisions includes 

the authority to act via order. We reach that conclusion based 

 

6 Subsections (3) and (4) do not provide any additional 

authority. They instead direct the Department of Health 

Services (DHS) to "take charge" if "the local authorities fail 

to enforce the communicable disease statutes and rules" and 

prohibit persons from "interfere[ing] with an 

investigation . . . of any place or its occupants by local 

health officers or their assistants," respectively. As such, 

those subsections are not at issue here.
Nos. 2021AP1343 & 2021AP1382

8

on the common and approved meaning of the operative language, 

the context in which it appears, and the statutory history.

¶11 We begin by examining the words in these two 

subsections. Because Plaintiffs challenge not the measures 

taken but rather the form in which those measures were 

promulgated, our interpretive focus is on the operative verbs 

"take," "do," and "forbid." At the top, we accept Plaintiffs 

concession that the local health officer's authority to "forbid 

public gatherings" must include the authority to do so by order. 

Indeed, how else would a local health officer forbid a public 

gathering if not through an order? Thus, to give any effect to 

this provision of § 252.03(2), we must read it to authorize 

action by order. See, e.g., Legue, 357 Wis. 2d 250, ¶61

(explaining that we interpret statutes "to give effect to every 

word and to avoid surplusage").

¶12 Notwithstanding this concession, Plaintiffs maintain 

the clauses in § 252.03 using the verbs "take" or "do" fail to 

grant the authority to act by order. We observe that the 

"common and approved" meaning of the language used in these 

clauses——"take all measures necessary to prevent, suppress and 

control communicable diseases" and "do what is reasonable and 

necessary for the prevention and suppression of disease"——

plainly support acting by order. See Wis. Stat. § 990.01(1) 

(instructing that words neither technical nor statutorily 

defined "shall be construed according to common and approved 

usage"); see also Legue, 357 Wis. 2d 250, ¶61. That is to say 

the common and approved meanings of "take" and "do" prescribe no
Nos. 2021AP1343 & 2021AP1382

9

particular mechanism by which to act; they do not exclude acting 

by order.7 Therefore, the legislature's words alone would grant 

sufficiently broad authority for a local health officer to act 

via an order.

¶13 Despite this ordinary reading of § 252.03(1)-(2), 

Plaintiffs contend that the language in surrounding and closely 

related statutes indicates that § 252.03 does not authorize 

action by order. According to Plaintiffs, that is because these 

other statutes explicitly reference the authority to "issue 

 

7 Dictionary definitions confirm this common reading of 

"take" and "do." See, e.g., Stroede v. Soc'y Ins., 2021 WI 43, 

¶12, 397 Wis. 2d 17, 959 N.W.2d 305 ("[W]e often consult a 

dictionary in order to guide our interpretation of the common, 

ordinary meanings of words."). As it is used here, "take" 

broadly entails "[t]o make, do, perform (an act, action, 

movement, etc.); to carry out." Take, Oxford English Dictionary 

(3d ed. 2014). The verb "do" is similarly broad, commonly 

meaning "[t]o perform, execute, achieve, carry out, effect, [or] 

bring to pass." Do, Oxford English Dictionary (3d ed. 2014).
Nos. 2021AP1343 & 2021AP1382

10

orders" or to "order" specific measures.8 Because § 252.03 lacks 

similar language, the argument goes, § 252.03 does not authorize 

local health officers to issue orders.

¶14 While we agree with Plaintiffs that context is 

important, see, e.g., Legue, 357 Wis. 2d 250, ¶61 & n.30, 

Plaintiffs' contextual evidence provides an incomplete picture. 

A fuller examination of the contextual evidence undermines 

Plaintiffs' interpretation. As Plaintiffs acknowledged in 

briefing and at oral argument, the legislature uses language 

other than "issue orders" or "order" that nonetheless authorizes 

local health officers to act via order. Wisconsin Stat. 

§ 252.06(1), for example, authorizes a local health officer to 

"require" isolation of a person, quarantines, and disinfections, 

which would require an order. The next subsection, § 252.06(2), 

authorizes local health officers "to quarantine, isolate, 

 

8 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).
Nos. 2021AP1343 & 2021AP1382

11

require restrictions or take other communicable disease control 

measures" under specified circumstances, all of which would 

require an order. A related subsection, § 252.06(5), confirms 

that the local health officer has the power to take these 

measures by order. Subsection (5) permits the local health 

officer to both "employ as many persons as are necessary to 

execute his or her orders" and "use all necessary means to 

enforce" not only state laws and DHS orders but also "the 

orders . . . of . . . any local health officer." § 252.06(5) 

(emphases added). Even within the statute at issue here, 

§ 252.03, Plaintiffs concede the language "forbid public 

gatherings" authorizes local health officers to issue orders. 

Given the additional contextual evidence, we are not persuaded 

that the power to act via an order depends solely on the words 

"issue orders" or "order."

¶15 Finally, statutory history further supports the 

conclusion that § 252.03 grants local health officials the 

authority to issue orders. See, e.g., Legue, 357 

Wis. 2d 250, ¶61 & n.36. Dating back to Wisconsin's territorial 

days, public health laws authorized local officials to issue 

enforceable public health orders using language such as "[t]o 

take such measures." Specifically, the territorial law 

authorized "the local board of health of any city, town or 

village" "[t]o take such measures as they may deem effectual for 

the preservation of the public health in said city, town, 

village or township," among other powers. See Statutes of the 

Territory of Wisconsin, Passed by the Legislative Assembly 
Nos. 2021AP1343 & 2021AP1382

12

Thereof, at a Session Commencing in November 1838, at 125

(1839). Critically, none of the listed powers used the language 

"issue orders" or "order"; yet the statute still criminalized 

the violation of "any order, or rule, or regulation, made in 

pursuance of the powers granted to said board of health." See

id. (emphasis added).

¶16 Similarly, Wisconsin's first state legislature granted 

the local power to "take" measures "deem[ed] most effectual for 

the preservation of the public health." Importantly, this law 

distinguished the power to "take such measures" for the 

preservation of public health from the power to "make such rules 

and regulations" for the same purpose. See Wis. Stat. ch. 26, 

§ 2 (1849). That distinction indicates that "take such 

measures" included action not by rule or regulation but by

order, as subsequent sections of that same law recognized. See

Wis. Stat. ch. 26, §§ 3-4 (1849) (differentiating between an 

"order" and a "regulation").

¶17 Later, following the 1918 Spanish Flu, Wisconsin's 

legislature enacted a local public health law that read:

The local board of health . . . shall have power to 

establish quarantine and to order and execute what is 

reasonable and necessary for the prevention and 

suppression of disease; to forbid public gatherings 

when deemed necessary to control epidemics . . . .

§ 1, ch. 159, Laws of 1919 (emphasis added). A few years later, 

the legislature revised the public health laws including the 

provision related to a local board of health's authority, which 

then read:
Nos. 2021AP1343 & 2021AP1382

13

Local boards of health may do what is reasonable and 

necessary for the prevention and suppression of 

disease; may forbid public gatherings when deemed 

necessary to control epidemics . . . .

§ 2, ch. 448, Laws of 1922 (emphasis added). The interpretive 

question raised by this revision is whether the switch from "to 

order and execute" to "do" effectuated a substantive change in a 

local board of health's power.

¶18 The legislature instructs that we understand the 

revised statute "in the same sense as the original unless the 

change in language indicates a different meaning so clearly as 

to preclude judicial construction." Wis. Stat. § 990.001(7). 

We conclude that the change in language here does not "so 

clearly" indicate a different meaning that precludes issuing 

orders for two reasons. First, as explained previously, nothing 

about the common and approved meaning of "do" precludes acting

via order; its broad definition prescribes no particular 

mechanism by which a local health officer might act. Do, Oxford 

English Dictionary (3d ed., 2014) ("To perform, execute, 

achieve, carry out, effect, [or] bring to pass"). It is 

therefore natural to read "may do what is reasonable and 

necessary for the prevention and suppression of disease" as 

granting permission to order private action deemed reasonable 

and necessary for the prevention and suppression of disease. In 

short, "do" is not at all inconsistent with acting via order.

¶19 Second, contemporaneous interpretations of the revised 

"may do what is reasonable and necessary" language understood it 

to continue to authorize action by order. A 1923 attorney 
Nos. 2021AP1343 & 2021AP1382

14

general opinion concluded that the 1922 revisions continued to 

authorize the same powers the prior version of the public health 

statutes provided. 12 Wis. Op. Att'y Gen. 646 (1923). Two 

years later, another attorney general opinion concluded that, 

under the "may do what is reasonable and necessary" provision, 

"the local health department may issue an order to all employers 

of labor prohibiting such employers from continuing in their 

employment persons who are unvaccinated or who fail to show a 

certificate of recent vaccination." 14 Wis. Op. Att'y 

Gen. 300-01 (1925) (emphasis added). Far from "so clearly" 

indicating a different meaning, these contemporaneous 

interpretations of "may do what is reasonable and necessary" and 

that language's common and approved meaning lead us to follow 

§ 990.001(7)'s directive and read the revised "do" in the "same 

sense as the original," which was "to order and execute."

¶20 The same interpretation of "do" holds for the 1981 

amendment of this law. That amendment made two changes relevant 

here: (1) it shifted the authority to "do what is reasonable 

and necessary for the prevention and suppression of disease" 

from "local boards of health" to "local health officers"; and 

(2) it authorized local health officers to "take all measures 

necessary to prevent, suppress and control communicable 

diseases." See § 23, ch. 291, Laws of 1981. The first change 

retained the same "may do what is reasonable and necessary for 

the prevention and suppression of disease" language and thus 

shifted to local health officers the same authority to act by 

order.
Nos. 2021AP1343 & 2021AP1382

15

¶21 As for the second change, the language "take all 

measures necessary to prevent, suppress and control communicable 

diseases" also authorized action via public health order. As 

set out above, the verb "take," a synonym of the verb "do" in 

this context, is broad and contains no definitional proscription 

against acting via order. See Take, Oxford English Dictionary 

(3d ed. 2014) ("To make, do, perform (an act, action, movement, 

etc.); to carry out." (emphasis added)). Moreover, the "take 

all measures" language chosen for this added authority harkens 

back to the earliest local public health statutes that, as 

explained above, used the same language to authorize action via 

order. See supra, ¶¶15-16. As such, the most reasonable 

reading of "take all measures necessary" includes taking 

necessary public health measures by order.

¶22 In light of the broad common and approved meaning of 

§ 252.03's language, the full context in which it appears, and 

that provision's statutory history, we hold that the authority 

to "do what is reasonable and necessary for the prevention and 

suppression of disease" and "take all measures necessary to 

prevent, suppress and control communicable diseases" both 

authorize acting via order.

B. Preemption

¶23 We next address whether state law preempts Dane County 

Ordinance § 46.40. State law preempts a local ordinance 

when: (1) the state legislature has expressly withdrawn the 

power of municipalities to act; (2) the ordinance logically 

conflicts with state legislation; (3) the ordinance defeats the 
Nos. 2021AP1343 & 2021AP1382

16

purpose of state legislation; or (4) the ordinance violates the 

spirit of state legislation. See, e.g., DeRosso Landfill, 200 

Wis. 2d at 651-52. Absent these circumstances, the County may 

enact ordinances in the same field and on the same subject as 

that covered by state legislation. See id. at 651 (citing Fox 

v. Racine, 225 Wis. 542, 546, 275 N.W. 513 (1937)); Wis. Stat. 

§ 59.03(2)(a) (providing that a county board "is vested with all 

powers of a local, legislative and administrative character" 

including on the subject matter of "health").

¶24 Dane County Ordinance § 46.40, in relevant part, 

provides:

(1) Duty of Director, Public Health Madison and Dane 

County. Pursuant to Wis. Stat. ss. 252.03(1) & (2) 

the Director of Public Health Madison and Dane County 

shall promptly take all measures necessary to prevent, 

suppress and control communicable diseases within Dane 

County, including forbidding public gatherings when 

deemed necessary to control outbreaks or epidemics.

(2) Public Health Orders. It shall be a violation of 

this chapter to refuse to obey an Order of the 

Director of Public Health Madison and Dane County 

entered to prevent, suppress or control communicable 

disease pursuant to Wis. Stat s. 252.03.

Dane County Ordinance § 46.40(1)-(2). Plaintiffs argue that the 

ordinance may not lawfully authorize the local health officer to 

either issue orders or enforce those orders because such 

authority is "intentionally withheld" by state law. As for the 

power to act via order, Plaintiffs rely on the same argument 

addressed above——that Wis. Stat. § 252.03 does not authorize a 

local health officer to issue orders because the statute lacks 

the exact "issue orders" or "order" language used in related 
Nos. 2021AP1343 & 2021AP1382

17

statutes such as Wis. Stat. §§ 252.02 and 323.14. Again, we 

disagree that Wis. Stat. § 252.03 "intentionally withheld" the 

power to act via order. Accordingly, Dane County Ordinance § 

46.40(1) is not preempted because the ordinance permissibly 

grants authority redundant to that already authorized by state 

statute. See Wis. Stat. § 59.03(2)(a); DeRosso Landfill, 200 

Wis. 2d at 651.

¶25 As for the enforcement authority, Plaintiffs cite 

three state laws that touch on enforcement of public health 

measures. The first state law is a catchall penalty provision 

that makes the willful violation or obstruction of a 

"departmental [DHS] order" relating to public health punishable 

by "imprison[ment] for not more than 30 days" or a "fine[] not 

more than $500 or both." See Wis. Stat. § 252.25. This 

provision contains no express withdrawal of municipal authority. 

Moreover, an ordinance allowing civil citations for violations 

of local health orders presents no logical conflict with DHS's 

public health orders also carrying penalties. Finally, the fact 

that Wis. Stat. § 252.25 creates a strong enforcement mechanism 

for public health orders confirms that Dane County Ordinance 

§ 46.40(2)'s civil penalties are entirely in line with the 

purpose and spirit of the state's public health laws.

¶26 The second law regarding enforcement that Plaintiffs 

rely on requires a local health officer to "[e]nforce state 

public health statutes and rules," "any regulations" adopted by 

the local board of health, and "any ordinances" enacted by the 

relevant local government. Wis. Stat. § 251.06(3). This 
Nos. 2021AP1343 & 2021AP1382

18

statutory list of a local health officer's mandatory enforcement 

duties tell us little about a county's authority to permit its 

health department to enforce public health orders by civil 

citation. It certainly does not expressly withdraw that 

authority. Nor do Plaintiffs identify how the enforcement of 

local public health orders would conflict with the duty to 

similarly enforce state statutes and rules as well as local 

regulations and ordinances. Again, the fact that state law 

recognizes a local health officer's duty to secure public health 

via enforcement measures indicates that the enforcement 

mechanism supplied by Dane County Ordinance § 46.40(2) comports 

with our state public health laws' purpose and spirit.

¶27 Finally, Plaintiffs contend Dane County Ordinance 

§ 46.40(2) exceeds the County's statutory authority under Wis. 

Stat. § 66.0113. Section 66.0113(1)(a) permits a county to 

adopt an ordinance that authorizes the issuance of civil 

citations for "violations of ordinances, including ordinances 

for which a statutory counterpart exists." According to 

Plaintiffs, Dane County Ordinance § 46.40(2) authorizes 

citations for violations not of an ordinance but of a public 

health order, contrary to Wis. Stat. § 66.0113(1)(a).

¶28 We disagree. Dane County Ordinance § 46.40(2) says 

that refusal to obey a local public health order is "a violation 

of this chapter," meaning Chapter 46 of the Dane County 

Ordinances. See also Dane County Ordinance § 46.25(1) (making 

it "a violation of this chapter" to "neglect to obey any lawful 

order" of the Health Department). Any order issued pursuant to 
Nos. 2021AP1343 & 2021AP1382

19

Dane County Ordinance § 46.40 is legally rooted in that 

ordinance's grant of authority. Accordingly, disobeying the 

order is a violation of the underlying ordinance. As a result, 

Dane County Ordinance § 46.40(2) operates consistently with the 

County's authority under Wis. Stat. § 66.0113(1)(a). There is, 

therefore, no conflict——express, implicit, logically, or 

otherwise——between Dane County Ordinance § 46.40 and any state 

law. See DeRosso Landfill, 200 Wis. 2d at 651-52.

C. Constitutional Separation of Powers

¶29 Finally, we turn to whether a local health officer's 

authority to issue public health orders under Wis. Stat. 

§ 252.03——either by itself or in tandem with the enforcement 

mechanism supplied by Dane County Ordinance § 46.40(2)——is an 

unconstitutional delegation of legislative power. Before 

reaching that question, though, Plaintiffs ask that we revisit 

our jurisprudence on the constitutional bounds of permissible 

legislative grants of authority. We therefore begin by 

addressing the proper framework in which to assess a legislative 

grant of power to local officials and then apply that framework 

to Wis. Stat. § 252.03 and Dane County Ordinance § 46.40.

¶30 Article IV, Section 1 of the Wisconsin Constitution 

declares that the "legislative power shall be vested in a senate 

and assembly." This court has never interpreted these words in 

a literal sense to bar the delegation of any legislative power 

outside the senate and assembly. See Klisurich v. DHSS, 98 

Wis. 2d 274, 279, 296 N.W.2d 742 (1980) ("The Wisconsin 

Constitution does not require that the legislative power be 
Nos. 2021AP1343 & 2021AP1382

20

exclusively vested in a bicameral legislature."). Still, we 

have inferred from our constitution's tripartite structure that 

none of the three governmental powers——executive, legislative, 

or judicial——can be entirely delegated away from the branch to 

which the constitution vests it. See In re Constitutionality of 

§ 251.18, Wis. Statutes, 204 Wis. 501, 503, 236 N.W. 717 (1931) 

("[N]o one of the three branches of government can effectively 

delegate any of the powers which peculiarly and intrinsically 

belong to that branch.").

¶31 In determining whether a legislative grant of 

authority transgresses this inferred constitutional limitation, 

our cases examine both the substantive nature of the granted 

power and the adequacy of attending procedural safeguards 

against arbitrary exercise of that power. See Klisurich, 98 

Wis. 2d at 279–80. So long as the legislative grant contains an 

"ascertainable" purpose and "procedural safeguards" exist to 

ensure conformity with that legislative purpose, the grant of 

authority is constitutional. Id. at 280. The greater the 

procedural safeguards, the less critical we are toward the 

substantive nature of the granted power. See Panzer v. Doyle, 

2004 WI 52, ¶55, 271 Wis. 2d 295, 680 N.W.2d 666, abrogated in 

other respects by Dairyland Greyhound Park, Inc. v. Doyle, 2006 

WI 107, 295 Wis. 2d 1, 719 N.W.2d 408.

¶32 Plaintiffs suggest our current jurisprudence regarding 

the delegation of legislative authority has lost touch with the 

original understanding of the constitution's separation of 

powers. Plaintiffs advocate greater emphasis on the substantive 
Nos. 2021AP1343 & 2021AP1382

21

nature of the authority granted, regardless of the procedural 

safeguards present. They argue that the grant of power to 

formulate generally applicable rules of private conduct is 

constitutional only if the legislature has "laid down the 

fundamentals of the law," leaving the recipient of the power to 

merely "fill up the details." See State v. Whitman, 196 

Wis. 472, 505-06, 220 N.W. 929 (1928). Accordingly, they invite 

us to overrule our precedent in favor of their proffered 

interpretation of the constitution.

¶33 We decline Plaintiffs' invitation. This case presents 

the wrong vehicle to revisit our separation-of-powers 

jurisprudence. As an initial matter, the principles regarding 

state-level delegations differ from the principles regarding 

local delegations. After all, the constitution defines the 

state legislature's relationship with the other two state-level 

branches differently than both the state legislature's 

relationship to local governments and a local legislative body's 

relationship with its local executive and judicial counterparts. 

Case in point, the state legislature constitutionally may——and 

does——delegate to local municipalities complete legislative 

authority over local affairs, subject only to the constitution 

and preemptive state statutes.9 Consequently, the constitution 

 

9 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)).
Nos. 2021AP1343 & 2021AP1382

22

applies differently with respect to state-level delegations than 

to local delegations.

¶34 That said, we need not define what those different 

principles are here. That is because both Wis. Stat. § 252.03 

and Dane County Ordinance § 46.40 would pass constitutional 

muster even if we assume that: (1) state-level principles apply 

to local governments; and (2) Plaintiffs' proposed analysis 

emphasizing the substantive nature of the granted authority was 

the correct framework. Applying, then, Plaintiffs' proposed 

analysis, Wis. Stat. § 252.03 and Dane County Ordinance § 46.40

are sufficient in terms of both their substantive nature and 

their procedural safeguards, and we address each in turn.

1. Substantive Nature

¶35 We begin by assessing whether the laws at issue 

contain an ascertainable purpose. As is often the case with 

legal interpretation, context can provide even seemingly broad 

enabling language meaningful content. See Legue, 357 

Wis. 2d 250, ¶61 & n.30; see also Am. Power & Light Co. v. 

Sec. & Exch. Comm'n, 329 U.S. 90, 104 (1946) (explaining that 

enabling language derives "much meaningful content" from its 

"factual background and the [legal] context in which [it] 

appear[s]"). That is certainly true for Wis. Stat. § 252.03 and 

Dane County Ordinance § 46.40.

¶36 Importantly, these provisions "la[y] down the 

fundamentals of the law"——the who, what, when, where, why, and 

how. See Whitman, 196 Wis. at 505-06. The who is the local 

health officer. The what is the power to "take all measures 
Nos. 2021AP1343 & 2021AP1382

23

necessary," to "do what is reasonable and necessary," and to 

"forbid public gatherings." The when is "upon the appearance of 

any communicable disease." The where is within the local health 

officer's "territory" or "jurisdiction." The why is "to

prevent, suppress and control communicable disease," "the 

prevention and suppression of disease," or "to control outbreaks 

or epidemics." And the how is via actions including orders. 

See supra, ¶22. Moreover, each law appears in its respective 

code's public health chapter.

¶37 These textual limitations, read in their public health 

context, establish an ascertainable "general policy": disrupt 

the transmission pathways of contagious diseases. See Olson v. 

State Conservation Comm'n, 235 Wis. 473, 482, 293 N.W. 262 

(1940). These textual limitations also substantively restrict a 

local health officer's pursuit of that general policy, allowing 

only public health measures reasonable and necessary to hinder 

the particular disease's transmission. See id.; Am. Power & 

Light, 329 U.S. at 105. In other words, all that remains for 

the local health officer is to "fill up the details" with the 

particular public health measures that will be responsive to the 

unique features of the particular contagious disease. See

Whitman, 196 Wis. at 505-06.

¶38 Bolstering our conclusion that the substantive nature 

of Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 do not 

upset our constitutional separation of powers is founding-era 

grants of similar public health authority to local governments. 

Wisconsin's first state legislature saw no conflict between the 
Nos. 2021AP1343 & 2021AP1382

24

constitution's separation of powers and the grant of broad 

public health authority to local governments. The first state 

code enacted just months after our constitution's ratification 

authorized local boards of health the authority to "take such 

measures, and make such rules and regulations, as they may deem 

most effectual for the preservation of the public health." Wis. 

Stat. ch. 26, § 2 (1849). A violation of board of health "order 

or regulation" constituted a criminal misdemeanor punishable by 

up to $100 (over $3,000 in 2022 dollars) or three months in 

prison. Wis. Stat. ch. 26, § 3 (1849).

¶39 We see two upshots from this original grant of public 

health authority to local governments. First, the original 

understanding of our constitution's separation of powers was 

that the constitution allows grants of broad public health 

authority to local governments substantively similar to that 

delineated in Wis. Stat. § 252.03. And second, our 

constitution's separation of powers also allows public health 

orders enforceable by criminal penalties that far exceed the 

civil citations authorized by Dane County Ordinance § 46.40.10 

As such, Wis. Stat. § 252.03 and Dane County Ordinance § 46.40

do not substantively offend our constitution's separation of 

powers.

 

10 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.
Nos. 2021AP1343 & 2021AP1382

25

2. Procedural Safeguards

¶40 The procedural safeguards attendant to Wis. Stat. 

§ 252.03 and Dane County Ordinance § 46.40 are particularly 

strong. That is because a local health officer's discretion is 

subject to both state and local controls. As with any 

legislative authority, the state legislature may curb exercises 

of granted power it deems excessive by amending Wis. Stat. 

§ 252.03 or repealing the statute entirely. As Plaintiffs 

acknowledge, our state legislature can react much more quickly 

to perceived excesses than the federal Congress, making this 

safeguard more robust than it might be for federal legislation. 

Moreover, state courts may review an order issued pursuant to 

Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 and ensure 

its measures conform to the laws' substantive limitations. For 

example, the subject of an enforcement action could argue the 

measure at issue is either not reasonable or not necessary for 

preventing the spread of a contagious disease, as Wis. Stat. 

§ 252.03(2) requires.

¶41 On top of those state-level procedural safeguards are 

several local controls. First, the Health Board can exert its 

supervisory and policy-making control over the local health 

officer. See Wis. Stat. § 251.04(1)-(3). Second, elected 

officials in both the County and the City possess the power to 

remove the local health officer. See Wis. Stat. 

§§ 17.10 & 17.12(c); see also Wis. Stat. § 17.13(1) (removal of 

village and town appointive officers). The removal powers 

entrusted to local elected officials is a strong procedural 
Nos. 2021AP1343 & 2021AP1382

26

safeguard because such officials are often more knowledgeable 

about and responsive to local preferences.11 Local officials can 

act decisively if a local health officer acts contrary to the 

preferred public health policy of the constituency. And third, 

the County's board and the City's common council control the 

Health Department's annual budget and thus may leverage 

appropriations to affect a local health officer's actions. See

Wis. Stat. § 251.11.

¶42 In sum, the ascertainable purpose evident in both Wis. 

Stat. § 252.03 and Dane County Ordinance § 46.40's text and 

surrounding context, the history of substantively similar grants 

dating back to Wisconsin's first legislative code, and the 

substantial state and local procedural safeguards against 

arbitrary exercises of a local health officer's granted 

authority all lead us to conclude Wis. Stat. § 252.03 and Dane 

County Ordinance § 46.40 constitute constitutional grants of 

authority.

***

¶43 Before concluding, we stress three critical points. 

First, our holding addresses only a public health officer's 

authority to issue public health orders; the validity of 

specific measures appearing in those orders is not before us. 

Second, nothing in this opinion should be read as departing from 

our existing precedent on separation-of-power principles. It 

 

11 See Lawrence Rosenthal, Romer v. Evans As the 

Transformation of Local Government Law, 31 Urb. Law. 257, 274-75

(1999).
Nos. 2021AP1343 & 2021AP1382

27

remains the law that courts must review "the nature of delegated 

power and the presence of adequate procedural safeguards, giving

less emphasis to the former when the latter is present," Panzer,

271 Wis. 2d 295, ¶55, and we break no new ground regarding the 

limitations on delegations to or within local governments.

¶44 Finally, and most importantly, the dissent's resort to 

disparaging a public servant——who has no opportunity to defend 

herself——is a poor substitute for legal argument. Such personal 

aspersions have no place in a judicial opinion. While the 

direct and implied contentions that a local health official is a 

tyrant, an autocrat, a dictator, and a despot are fantastical, 

they do real damage to the public's perception of this court's 

work. We must aspire to be better models of respectful dialogue 

to preserve the public's confidence on which this court's 

legitimacy relies.

III. CONCLUSION

¶45 Wisconsin Stat. § 252.03 grants local health officers 

the authority to issue public health orders. Dane County 

Ordinance § 46.40, which makes such orders enforceable by civil 

citations, is not preempted by state law. And neither laws' 

grant of authority runs afoul of our constitution's separation 

of powers. Accordingly, we affirm the circuit court's grant of 

summary judgment in favor of the defendants. Though this 

resolves all of Becker and Klein's claims, the Health 

Department's counterclaims against A Leap Above remain pending. 

Therefore, we remand back to the circuit court to resolve the 

remaining counterclaims.
Nos. 2021AP1343 & 2021AP1382

28

By the Court.—The order of the circuit court is affirmed, 

and the cause remanded for further proceedings consistent with 

this opinion.
No. 2021AP1343 & 2021AP1382.bh

1

¶46 BRIAN HAGEDORN, J. (concurring). In response to the 

COVID-19 pandemic, some local health officers, including Dane 

County's Janel Heinrich, issued various orders to combat the 

spread of COVID-19. The petitioners in this case do not 

challenge the legality of any specific order Heinrich issued. 

Such orders can be challenged on statutory or constitutional 

grounds; indeed, we previously concluded one order Heinrich 

issued was partially invalid for both statutory and 

constitutional reasons.1 Rather, this case presents a challenge 

to local health officers' ability to issue any orders——without 

care for any particular order's content or effect. The 

arguments the petitioners bring apply equally to orders issued 

during the present pandemic, as well as to future health scares 

large and small. So while litigants could raise challenges to 

specific orders issued during the COVID-19 pandemic, today's 

case does not.

¶47 The majority/lead opinion aptly addresses the 

petitioners' statutory arguments.2 I write separately to discuss 

the petitioners' request that we revisit our precedents and 

revitalize a more robust, judicially-enforced nondelegation 

doctrine at both the state and local levels. Rooted in our 

constitution's separation of powers, the basic idea behind the 

nondelegation doctrine is that the assignment of distinct powers 

into separate branches——legislative, executive, and judicial——

 

1 See James v. Heinrich, 2021 WI 58, 397 Wis. 2d 517, 960 

N.W.2d 350.

2 I join ¶¶1-28 and 44-45 of the majority/lead opinion.
No. 2021AP1343 & 2021AP1382.bh

2

means the branch of government assigned certain powers may not 

delegate its core powers to another.3 This case asks whether the 

legislature impermissibly delegated legislative power to local 

health officers across the state and whether the Board of 

Supervisors impermissibly delegated legislative power to Dane 

County's local health officer.

¶48 Properly analyzing these claims requires a resort to 

first principles. When interpreting the Wisconsin Constitution, 

our obligation is to discern the meaning of the words adopted by 

the people and faithfully apply them to the facts before us.4

The constitution is a written document with terms that had 

specific meaning when adopted. The Wisconsin Constitution 

"means what it says, not what federal cases say, and not what we 

might want it to say."5 Faithful constitutional interpretation 

requires that "we focus on the language of the adopted text" as 

that language was originally understood.6 Part of this analysis 

may require resort to "historical evidence including 'the 

practices at the time the constitution was adopted, debates over 

adoption of a given provision, and early legislative 

 

3 Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶31-

35, 393 Wis. 2d 38, 946 N.W.2d 35.

4 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).

5 James, 397 Wis. 2d 517, ¶61 (Hagedorn, J., concurring).

6 Halverson, 395 Wis. 2d 385, ¶22; see also James, 397 

Wis. 2d 517, ¶62 (Hagedorn, J., concurring).
No. 2021AP1343 & 2021AP1382.bh

3

interpretation as evidenced by the first laws passed following 

the adoption.'"7

¶49 Unfortunately, however, the petitioners in this case 

do not offer this type of evidence or analysis. Instead, they

largely recite general theories of government power and 

selective quotes from federal and state cases. Certainly 

Montesquieu and Madison inform the meaning of Wisconsin's 

constitution, but they cannot serve as substitutes for a 

faithful originalist analysis of our constitution's text and 

history. They are helpful, but not sufficient. Where we are 

asked to disavow nearly 100 years of precedent and institute 

something new, an honest examination of the original 

understanding of the Wisconsin Constitution is never more 

necessary.

¶50 The constitutional claims raised by the petitioners do 

not succeed because the historical evidence weighs against the 

petitioners' arguments under the unique facts of this case. 

Alternative evidence of the original understanding may exist for 

this type of claim, but if it does, the petitioners have failed 

to present it. I remain open to more broadly reconsidering our 

approach to the nondelegation doctrine in future cases. But we 

should begin with a careful analysis of the original 

understanding of the Wisconsin Constitution. As it does here, a 

text-and-history inquiry may resolve many nondelegation claims 

without resort to a judicially-designed implementing doctrine.

 

7 Halverson, 395 Wis. 2d 385, ¶22 (quoting Vos, 393 

Wis. 2d 38, ¶28 n.10).
No. 2021AP1343 & 2021AP1382.bh

4

I. LEGAL PRINCIPLES

¶51 Before discussing the merits of the petitioners' 

nondelegation claims, we must first address the legal principles 

and methodology that guide our analysis of such challenges.

¶52 Like the federal Constitution, our state constitution 

separates government power into three branches: legislative, 

executive, and judicial.8 Then it "vests" discrete powers in 

each corresponding branch——legislative power, executive power, 

and judicial power.9 Although these powers overlap to a limited 

extent, they are in most respects separate and distinct from one 

another.10 Accordingly, since the constitution says the 

legislature is vested with legislative power, the inference is 

that core legislative power may not be placed elsewhere, by the 

legislature or otherwise.11 The same goes for the other branches 

of government. This principle is easy enough to understand in 

concept, but it is far more difficult to apply in practice.

¶53 For nearly 100 years, this court has mostly taken a 

hands-off approach to claims of impermissible delegation of 

legislative power.12 We have upheld laws that assign 

 

8 Vos, 393 Wis. 2d 38, ¶31.

9 Wis. Const. art. IV, § 1; id. art. V, § 1; id. art. VII, 

§ 2; see also Vos, 393 Wis. 2d 38, ¶31.

10 Vos, 393 Wis. 2d 38, ¶¶32-34.

11 In re Constitutionality of Section 251.18, Wis. Statutes, 

204 Wis. 501, 503, 236 N.W. 717 (1931).

12 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).
No. 2021AP1343 & 2021AP1382.bh

5

policymaking to executive bodies based primarily on whether the 

law contains sufficient procedural protections to curb abuses of 

delegated power.13 While not without some substantive limits, we 

have generally looked the other way if procedural protections 

"will adequately assure that discretionary power is not 

exercised unnecessarily or indiscriminately."14

¶54 This has not always been our practice.15 Between 1896 

and 1927, we were more exacting regarding the substance of 

delegated authority.16 During that time, we said certain policy 

decisions could not be farmed out to the executive branch. 

Although agencies could be left to fill up rather technical 

details, the overall policy choices needed to come directly from 

 

13 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.

14 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").

15 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).

16 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).
No. 2021AP1343 & 2021AP1382.bh

6

the legislature.17 We closed this chapter, however, and have 

since declined to fastidiously police the line between 

permissible legislative grants of power and impermissible 

delegations of legislative power.18

¶55 The petitioners urge us to return to a more robust 

judicial enforcement of the nondelegation doctrine akin to our 

1896-1927 decisions, asking that we articulate general 

principles to govern nondelegation challenges. Specifically, 

relying on the separate writings of two United States Supreme 

Court justices proposing tests under the federal Constitution, 

 

17 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").

18 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).
No. 2021AP1343 & 2021AP1382.bh

7

they advance a two-question framework that asks (1) whether the 

delegated power involves "the formulation of generally 

applicable rules of private conduct,"19 and (2) whether the 

executive branch, rather than the legislature, is left to make 

policy judgments.20 The petitioners also urge us to maintain the 

current requirement for procedural safeguards.

¶56 The major difficulty with the petitioners' plea is 

they make little effort to ground either their claims or their 

proposed framework in the original understanding of the 

Wisconsin Constitution. Instead, they point to language in our 

1896-1927 cases and offer theories about nondelegation under the 

federal Constitution. But an originalist analysis of the 

Wisconsin Constitution requires examining how the nondelegation 

doctrine was understood in 1848 when our constitution was 

ratified.21

¶57 The petitioners' effort to compose a new, broadly 

applicable legal test misses the key point in the analysis. We 

must begin with constitutional text and history, and measure any 

proposed test against that. "A proper legal test must implement 

and effectuate" the original understanding of the law; that is, 

it "must be a faithful extension of the lines ascertainable in 

 

19 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).

20 See Gundy, 139 S. Ct. at 2136, 2141 (Gorsuch, J., 

dissenting).

21 James, 397 Wis. 2d 517, ¶62 (Hagedorn, J., concurring).
No. 2021AP1343 & 2021AP1382.bh

8

the provision's text and history."22 In that light, the 

questions proposed by petitioners are less helpful to this 

nascent inquiry into the how the separation of powers should be 

enforced by the judiciary today. A better approach is first to 

examine the allegedly improper delegation based on what the text 

and history reveal.23

II. APPLICATION

¶58 The petitioners in this case offer two distinct 

nondelegation claims. First, they contend that Wis. Stat. 

§ 252.03 impermissibly delegates legislative power to local 

health officers. Second, the petitioners assert that Dane 

County Ordinance § 46.40(2) unlawfully transfers local 

 

22 State v. Roundtree, 2021 WI 1, ¶116, 395 Wis. 2d 94, 952 

N.W.2d 765 (Hagedorn, J., dissenting).

23 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.
No. 2021AP1343 & 2021AP1382.bh

9

legislative authority to Dane County's local health officer. 

Both claims fall short, though for different reasons.

A. Wisconsin Stat. § 252.03

¶59 In the challenged statute, the legislature directs 

local health officers to "take all measures necessary to 

prevent, suppress and control communicable diseases" and 

instructs that they "may do what is reasonable and necessary for 

the prevention and suppression of disease," including forbidding 

public gatherings.24 The petitioners contend that in enacting 

this law, the legislature violated the constitution by 

impermissibly delegating legislative power to local health 

officers.

¶60 This claim rests upon the constitutional vesting of 

legislative power "in a senate and assembly."25 While this 

textual grant informs our analysis, we must conduct a historical 

inquiry to determine how this was understood in practice, 

keeping our eye out for on-point historical analogues.

¶61 We applied this approach recently in State ex rel. 

Kaul v. Prehn.26 There, we analyzed the available historical 

evidence to determine whether the original understanding of the 

Wisconsin Constitution conferred broad removal powers on the 

governor.27 Looking to the historical record, we rejected the 

 

24 Wis. Stat. § 252.03(1) & (2).

25 Wis. Const. art. IV, § 1.

26 2022 WI 50, ¶42-51, Wis. 2d , N.W.2d .

27 Id.
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attorney general's argument, rooted in political theory and 

federal law, that this sort of control over appointment and 

removal was a core executive power.28 Instead, our research 

revealed that the original understanding of the removal power in 

Wisconsin was different, and suggested that the legislature was 

understood to have more of these powers under Wisconsin's 

constitutional design.29 That form of analysis——looking to 

history to illuminate the understanding of imprecise 

constitutional text——is appropriate in this case as well.

¶62 Our earliest statutes provide particularly important

evidence of how the Wisconsin Constitution was originally 

understood.30 The Revised Statutes of 1849 were written and 

adopted by legislators who observed or participated in the 

constitutional convention first hand.31 Shortly after it 

convened, Wisconsin's first state legislature quickly created a 

commission to assist in drafting our first statutes.32 The 

commission's task was to compile and recommend an initial set of 

laws based upon territorial rules and practice, omitting those 

 

28 Id., ¶¶43, 44-50.

29 Id., ¶45.

30 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.").

31 See Ranney, supra n.17, at 76. 

32 Id.
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that were obsolete, as well as those repugnant to the newly 

drafted constitution.33 The commission's recommendations were 

then debated and voted on by the legislature, ultimately 

creating the Revised Statutes of 1849.34

¶63 These laws therefore have unique relevance to an 

analysis focused on the original understanding of the 

constitutional text.35 This is particularly true when we find 

laws on the books today that either descended from these early 

statutes or do similar things. When the constitutionality of 

such a law is challenged, the historical context provided by 

those early laws must weigh heavily in the analysis. Does this 

mean these 1849 laws represent the final word on a statute's 

constitutionality? No. But unquestionably, they provide very 

strong evidence of the constitution's original understanding.36

 

33 Id.

34 Id. at 76-77.

35 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)).

36 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").
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¶64 One such 1849 statute is especially on-point in this 

case. Chapter 26 in the Revised Statutes of 1849 was entitled 

"Of the Preservation of the Public Health."37 That statute is 

significant for our purposes because it established local boards 

of health and gave them duties and responsibilities quite 

similar to the statutes challenged in this case.38 In relevant 

part, the statute provided: "Every board of health may take 

such measures, and make such rules and regulations, as they may 

deem most effectual for the preservation of the public health."39 

It then provided that "every person who shall violate any order

or regulation, made by any board of health . . . shall be deemed 

guilty of a misdemeanor, and punished by a fine not exceeding 

one hundred dollars, or by imprisonment in the county jail not 

exceeding three months."40 In other words, not only did 

Wisconsin's first state government authorize local health 

authorities to issue orders, it criminalized the failure to 

follow those orders.

¶65 These 1849 statutes offer significant evidence of 

original understanding in this case. When the Wisconsin 

Constitution was ratified, those participating in state 

government did not appear to understand the constitution to 

forbid giving local officials charged with protecting public 

 

37 Wis. Stat. ch. 26 (1849).

38 Id.

39 Wis. Stat. ch. 26, § 2 (1849).

40 Wis. Stat. ch. 26, § 3 (1849).
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health the authority to issue at least some orders of 

indeterminate character. Nor was it understood to be 

problematic if those orders were enforceable. That same general 

statutory authority has been amended and modified many times, 

but it continues in today's Wis. Stat. § 252.03.41 If this 

arrangement on its face did not run afoul of the constitutional 

separation of powers in 1849, it is hard to see why it would 

today. Whatever theoretical nondelegation framework may be 

found in the Wisconsin Constitution, this kind of empowerment of 

local health officials does not appear to violate it.

¶66 I stress that this conclusion does not mean that 

orders issued by local health officers are immune from 

challenge. In State ex rel. Adams v. Burdge, for example, 

following a challenge by an affected parent, this court struck 

down a rule adopted by the state board of health mandating 

smallpox vaccines as a condition of attending school.42 The 

court found this to be in conflict with the law mandating school 

attendance, and explained that permitting the state board of 

health to adopt this type of rule would be an impermissible 

delegation of legislative power.43 The court further concluded 

the rule would be "void as unreasonable and unnecessary," 

 

41 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).

42 95 Wis. 390; see also James, 397 Wis. 2d 517.

43 Burdge, 95 Wis. at 399-404.
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calling it "a sweeping and far–reaching exercise of the power."44 

But Burdge itself affirmed that the legislature could authorize 

health officials to issue orders in some circumstances:

It cannot be doubted but that, under appropriate 

general provisions of law in relation to the 

prevention and suppression of dangerous and contagious 

diseases, authority may be conferred by the 

legislature upon the state board of health or local 

boards to make reasonable rules and regulations for 

carrying into effect such general provisions, which 

will be valid, and may be enforced accordingly.[45]

Unlike in Burdge, the question in this case is not whether a 

particular order was out of bounds, but whether the statute may 

authorize public health orders at all. Justice Pinney's opinion 

in Burdge supports the conclusion that the authority to issue 

local health orders may be conferred by the legislature on local 

health officials, but specific orders may be challenged on 

constitutional grounds or on the basis that they are not 

reasonable and necessary, among other claims.46

¶67 Perhaps historical evidence specific to the Wisconsin 

Constitution weighs the other way, but it has not been presented 

to us nor has my research uncovered it. My conclusion is based 

 

44 Id. at 405.

45 Id. at 401.

46 The dissent misses this point in our cases and 

misunderstands the claim before us. It spends considerable time 

criticizing the fines levied against A Leap Above Dance, LLC; 

the decision to classify a dance class as a high risk sport; the 

multiple orders it describes as "oppressive"; and the banning of 

gatherings in private homes before Thanksgiving. But again, 

whether those particular choices were unlawful or 

unconstitutional is not before this court; the petitioners 

challenged only whether any orders can be issued at all.
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on the historical evidence available to me and the unique claims 

before us.47 And because this claim can be resolved on the basis 

of this historical evidence, it is unnecessary at this time to 

adopt a new nondelegation framework to analyze future claims.

B. Dane County Ordinance § 46.40(2)

¶68 The petitioners' second nondelegation claim is 

different. They contend Dane County Ordinance § 46.40(2)

unlawfully delegates local legislative power vested in the 

county board to the local health officer. The challenged 

ordinance provides: "It shall be a violation of this chapter to 

refuse to obey an Order of the Director of Public Health Madison 

and Dane County entered to prevent, suppress or control 

communicable disease pursuant to Wis. Stat. [§] 252.03."48 The 

penalty for noncompliance is a forfeiture "not less than $50 nor 

more than $200 for each day that a violation exists."49 Refusal 

to pay the forfeiture, when one has the ability to pay, may 

result in confinement not to exceed 30 days.50

¶69 The dissent contains a thorough overview of the cases 

interpreting Article IV, Section 22 of the Wisconsin 

Constitution, on which the petitioners' claim is based. But we 

 

47 Prehn, Wis. 2d , ¶44 (explaining that it falls to 

the parties to "construct a historical record in support of" 

their constitutional claims).

48 Dane County Ordinance § 46.40(2).

49 Dane County Ordinance § 46.27(1).

50 Dane County Ordinance § 46.27(3).
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need not analyze that provision because Dane County Ordinance 

§ 46.40(2) does not even trigger it. The ordinance is limited. 

It penalizes those who refuse to obey an order issued "pursuant 

to Wis. Stat. [§] 252.03." The authority to issue an order 

punishable under this ordinance is therefore confined to the 

powers conferred by § 252.03. The ordinance on its face simply 

does not give the county's legislative power to the local health 

officer; it does not independently authorize local health 

officers to issue orders at all. The legislature——not the 

county board——granted that power to local health officers in 

§ 252.03, which is all the ordinance appeals to. The ordinance 

makes it a violation subject to penalty to disobey a lawful 

order authorized by § 252.03.51 Just as the legislature can, and 

does, penalize the violation of lawful public health orders,52 I 

see no reason why a duly enacted county ordinance making it a 

violation to disobey lawful local public health orders would be 

considered an impermissible delegation of power.

¶70 The petitioners offer no meaningful counterargument 

for this understanding of what the ordinance does, asserting 

only that if the power to issue orders comes from Wis. Stat. 

§ 252.03 rather than the ordinance, "it just means the 

nondelegation problem lies in § 252.03." But as we have 

explained, § 252.03 does authorize local health officers to 

issue orders, and it does not violate the nondelegation 

doctrine. Nothing in the text of Dane County Ordinance 

 

51 See also Wis. Stat. § 66.0113.

52 See Wis. Stat. § 252.25.
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§ 46.40(2) suggests it separately authorizes local health 

orders. Without that, there is no plausible delegation of 

legislative power to evaluate.

III. CONCLUSION

¶71 The petitioners bring us two nondelegation claims 

supported by a proposal for how we should analyze nondelegation 

questions going forward. I do not endorse a broader 

nondelegation framework at this time because doing so is 

unnecessary to resolve the claims before us. Based on the 

historical record, I conclude the legislature did not 

impermissibly delegate legislative power to local health 

officers by authorizing them to issue orders under Wis. Stat. 

§ 252.03. I also conclude the petitioners' claim that Dane 

County Ordinance § 46.40(2) violates local nondelegation 

principles fails because the ordinance does not delegate, or 

redelegate as the dissent frames it, legislative power at all.

¶72 I close with a word to litigants. Regardless of 

judicial philosophy, every member of this court is interested in 

what the text says and what the historical evidence reveals 

about the text.53 Therefore, parties who come to us advancing 

legal theories grounded in the Wisconsin Constitution should 

make every effort to present arguments focused on the original 

understanding of our constitution.54 While such briefing is 

 

53 See majority/lead op., ¶¶38-39 (relying on historical 

evidence from Wisconsin's founding era).

54 See Halverson, 395 Wis. 2d 385, ¶¶22, 24.
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always welcome, arguments of this type are especially helpful 

when analyzing novel claims or considering challenges to our 

precedent. This is not a new invitation; it is made in 

earnest.55

 

55 James, 397 Wis. 2d 517, ¶62 (Hagedorn, J., concurring).
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1

¶73 REBECCA GRASSL BRADLEY, J. (dissenting). 

"'Law is the ultimate science,'" Paul quoted. "Thus 

it reads above the Emperor's door. I propose to show 

him law." 

Frank Herbert, Dune 284 (Penguin Books 2016) (1965). 

¶74 Our republic and our state were founded on the 

fundamental idea that the people possess inherent rights, they 

form governments for the primary purpose of protecting those 

rights, and governments may exercise only those powers the 

people consent to give them.1 Under our state constitution, the 

people of Wisconsin authorized particular elected officials to 

exercise power over them. But the people never consented to 

that power being given away. 

¶75 This case involves the power to make the rules by 

which the people will be bound, a power the people have

entrusted to state and local legislatures alone. Not 

surprisingly, when the people consented to submitting to the 

rules that will govern society, they carefully confined the 

exercise of such awesome power to those whom they elect. Should 

others attempt to rule over the people, their actions are beyond 

the law, even if they bear the imprimatur of a legislative body. 

Legislators have no power to anoint legislators; only the people 

do.

 

1 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.
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2

The legislative cannot transfer the power of making 

laws to any other hands: for it being but a delegated 

power from the people, they who have it cannot pass it 

over to others. . . . And when the people have said, 

We will submit to rules, and be governed by laws made 

by such men, and in such forms, no body else can say 

other men shall make laws for them; nor can the people 

be bound by any laws, but such as are enacted by those 

whom they have chosen, and authorized to make laws for 

them. The power of the legislative, being derived 

from the people by a positive voluntary grant and 

institution, can be no other than what that positive 

grant conveyed, which being only to make laws, and not 

to make legislators, the legislative can have no power 

to transfer their authority of making laws, and place 

it in other hands.

. . . .

The legislative neither must nor can transfer the 

power of making laws to any body else, or place it any 

where, but where the people have.

John Locke, Second Treatise of Government §§ 141–42 (C.B. 

McPherson ed. 1980) (1690). 

¶76 The majority misunderstands first principles and 

ignores the plaintiffs' principal and most persuasive argument. 

In Article IV, Section 22 of the Wisconsin Constitution, a 

section the majority/lead opinion2 and the concurrence both cite 

but once in passing references,3 the people of Wisconsin 

 

2 Wis. Sup. Ct. IOP III.G.5 ("If . . . the opinion 

originally circulated as the majority opinion does not garner 

the vote of a majority of the court, it shall be referred to in 

separate writings as the 'lead opinion[.]'").

3 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 
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3

authorized the state legislature to delegate certain powers to 

county boards. That section states, "[t]he legislature may 

confer upon the boards of supervisors of the several counties of 

the state such powers of a local, legislative and administrative 

character as they shall from time to time prescribe." Wis. 

Const. art. IV, § 22. The original public meaning of this text, 

as confirmed by the historical record, reflects the founders' 

recognition of the non-delegation principle, on which the 

constitutional framers' vesting of separate powers in each 

branch was based. Because the people decide who may create the 

laws that will bind them, those to whom power has been delegated 

may not give it away. The people adopted an exception 

permitting the legislature to delegate lawmaking power to county 

boards (the members of which are elected), but those local 

governmental entities may not give the power to anyone else. 

See infra Part II. 

¶77 This court has long held the Wisconsin Constitution 

does not permit county boards of supervisors to subdelegate 

lawmaking power. Although Article IV, Section 22 authorizes the 

initial delegation from the legislature to the county boards, 

the constitution does not authorize any subdelegation. 

Accordingly, this court has declared unconstitutional a statute 

enacted by the legislature authorizing "a county board to 

delegate to the electors of the county a power by the 

Constitution expressly delegated to the county board itself." 

 

fails to undertake the analysis at all. Discerning original 

meaning requires hard work but is an essential element of our 

job as justices.
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4

See Marshall v. Dane Cnty. Bd. of Supervisors, 236 Wis. 57, 59, 

294 N.W. 496 (1940). The constitution does not give the Dane 

County Board of Supervisors any authority to empower a single, 

unelected bureaucrat to restrict the liberty of the people of 

Dane County.4 

¶78 Dane County Ordinance § 46.40 (Dec. 2020) violates the 

Wisconsin Constitution because it transfers lawmaking power 

delegated to the Dane County Board of Supervisors. Enforcing 

the non-delegation principle is vital to the maintenance of free 

government but the majority eviscerates it. Violating its oath 

to uphold the Wisconsin Constitution, the majority disturbs the 

people's constitutional choices of who may exercise power over 

them, eroding the people's fundamental freedoms. I dissent.

I. BACKGROUND

A. Dane County Ordinance § 46.40

¶79 The outbreak of COVID-19 spawned an unprecedented 

exercise of extraordinary power over the people by many 

governmental entities. See generally Samuel Alito, United 

States Supreme Court Justice, Address at the Federalist Society 

National Convention (Nov. 12, 2020) ("The pandemic has resulted 

in previously unimaginable restrictions on individual 

liberty."). This case concerns the actions of one particular 

official, Janel Heinrich, the Public Health Officer and Director 

of Public Health of Madison and Dane County ("PHMDC").

 

4 As explained in Part II, a county board of supervisors can 

pass an ordinance that takes effect only if it is approved by a 

vote of the people; however, it cannot make referendum votes to 

pass ordinances by direct democracy binding on itself.
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5

¶80 For nearly two years, Heinrich has been creating law, 

interpreting it, and then enforcing it against the people of

Dane County. In late May 2020, the Dane County Board of 

Supervisors passed Dane County Ordinance § 46.40, purportedly 

granting Heinrich unilateral rulemaking authority effectively 

identical (although on a smaller geographical scale) to the very 

powers this court held only weeks earlier could not be lawfully 

exercised by a state official. See generally Wis. Legislature 

v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900; Wis. Cnty. 

Ass'n, Guidance in Implementing Regulations Surrounding 

Communicable Diseases 37 (2020) ("Even though the decision 

applied only to [the Department of Health Services ('DHS')], the 

Palm Court's reasoning suggests that legislative body oversight 

may be a prerequisite to an unelected official's (e.g., a local 

health officer) authority to enforce a public health order 

applicable to the public at large without raising significant 

constitutional concerns surrounding separation of powers."). 

¶81 Dane County Ordinance § 46.40 provides, in relevant 

part:

(1) Duty of Director, Public Health Madison and Dane 

County. Pursuant to Wis. Stat. ss. 252.03(1) & (2) 

the Director of Public Health Madison and Dane 

County shall promptly take all measures necessary 

to prevent, suppress and control communicable 

diseases within Dane County, including forbidding 

public gatherings when deemed necessary to control 

outbreaks or epidemics.

(2) Public Health Orders. It shall be a violation of 

this chapter to refuse to obey an Order of the 

Director of Public Health Madison and Dane County 

entered to prevent, suppress or control 
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6

communicable diseases pursuant to Wis. Stat. 

s. 252.03.

§ 46.40(1)–(2). A violation of an "order" issued pursuant to 

this ordinance exposes a person to a civil forfeiture of $50 to 

$200 for each day the violation exists. Dane County Ordinance 

§ 46.27(1). If a person does not pay, the person can be jailed. 

§ 46.27(3) ("Any person who has the ability to pay any 

forfeiture against him or her under this chapter but who refuses 

to do so may be confined in the county jail until such 

forfeiture is paid, but in no event to exceed thirty (30) 

days.").

¶82 The ordinance creates an enforcement mechanism nonexistent in Wisconsin statutes. For context, Wis. Stat. 

§ 252.25 (2019–20)5 states:

Any person who willfully violates or obstructs the 

execution of any state statute or rule, county, city 

or village ordinance or [DHS] order under this chapter 

and relating to the public health, for which no other 

penalty is prescribed, shall be imprisoned for not 

more than 30 days or fined not more than $500 or both.

While § 252.25 declares a violation of a DHS order punishable by 

jail and a fine, it does not provide a penalty or other 

enforcement mechanism for "orders" issued by local health 

officers. See Wis. Cnty. Ass'n, Guidance in Implementing 

Regulations, at 32 ("Neither the statutes nor the administrative 

code provide for a detailed enforcement mechanism of a local 

health officer's general order. It is important to understand 

that a local health officer's order, standing alone, may not be 

 

5 All subsequent references to the Wisconsin Statutes are to 

the 2019–20 version unless otherwise indicated.
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7

'enforced' – make a violator subject to civil forfeiture –

absent a local ordinance allowing for such enforcement."). Dane 

County's prayer for relief effectively concedes this point, 

citing Dane County Ordinance § 46.27(1)——not any statute——as a 

justification for the fine.

¶83 The question in this case is not whether any statute 

has delegated lawmaking power to Heinrich (lawfully or 

otherwise) but whether the county ordinance has lawfully 

delegated this power to her. See Dane County Ordinance 

§ 46.40(2) ("It shall be a violation of this chapter . . . ."). 

Because the county board empowered Heinrich to define what 

constitutes a violation of the ordinance, and only a violation 

of the ordinance can trigger a penalty, the issue in this case 

does not rest on any statute purporting to directly grant her 

authority. To the extent the majority suggests otherwise, it 

misdirects the analysis.

B. Heinrich's Tyranny

¶84 Heinrich has exercised dictatorial powers for nearly 

two years, in contrast with her peers in other counties.6 In 

this very case, Dane County fully admits Heinrich issued an 

 

6 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.
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8

"emergency order." PHMDC then posted "guidance" on its website 

explaining how Heinrich defined certain key terms in that order. 

PHMDC later filed an enforcement action against A Leap Above 

Dance, LLC ("Dance Studio") seeking nearly $24,000 in fines.7

¶85 According to Dane County, around Christmas 2020 

(nearly a year after the outbreak of COVID-19), the Dance Studio 

held a performance of the Nutcracker ballet. Dane County 

mislabeled this performance a "high risk sport" as defined on 

its webpage——not in Heinrich's order.8 For the apparent purpose 

of maximizing penalties, it declared that each of the eight 

segments of the ballet constituted a different event. The Dance 

Studio pointed out that the order's terms permitted "unregulated 

youth programs," an undefined phrase in the order. In its 

Orwellian doublethink,9 Dane County absurdly says ballet is a 

sport and not a youth program. 

¶86 After the Dance Studio joined this lawsuit, PHMDC 

dismissed the enforcement action and filed two counterclaims in 

 

7 Although Dane County uses the term civil forfeiture, a 

$24,000 penalty could cripple a small business.

8 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[.]"

9 "To know and not to know, to be conscious of complete 

truthfulness while telling carefully constructed lies, to hold 

simultaneously two opinions which cancelled out, knowing them to 

be contradictory and believing in both of them, to use logic 

against logic, to repudiate morality while laying claim to it, 

to believe that democracy was impossible and that the Party was 

the guardian of democracy . . . . Even to understand the word

'doublethink' involved the use of doublethink." George Orwell, 

Nineteen Eight-Four 36 (Plume | Harcourt Brace Book 2003) 

(1949).
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9

this case. Although Dane County now seeks less than $24,000, it 

still alleges sixteen separate violations——eight for each 

counterclaim——for a single ballet performance. Specifically, 

Dane County asserts the Dance Studio committed eight separate 

violations of the "mass gathering" prohibition declared in 

Heinrich's emergency order. In a second counterclaim, Dane 

County asserts eight separate violations of a "physical 

distancing" mandate declared in an amendment to the order.

¶87 At oral argument, plaintiffs' counsel claimed Heinrich 

had issued twenty-three different emergency orders. I take 

judicial notice that PHMDC's website confirms the accuracy of 

this statement.10 For the better part of two years, the people 

of Dane County have been subjected to a constantly shifting 

regulatory regime, rendering compliance illusory and objections 

futile. As even the majority acknowledges, Heinrich's orders 

have "requir[ed] face coverings, limit[ed] or forbid[den] 

gatherings, require[ed] sanitation protocols for particular 

facilities, limit[ed] or forbid[den] certain sport activities, 

limit[ed] businesses' allowable indoor capacity, and requir[ed] 

physical distancing between individuals."11 In abstract terms, 

these measures may not seem particularly burdensome; in reality 

they were oppressive. As but one representative example, 

Heinrich banned small gatherings in private homes over 

 

10 Current Orders, PHMDC (last visited June 2, 2022), 

https://publichealthmdc.com/coronavirus/current-order.

11 Majority/lead op., ¶4.
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Thanksgiving, giving a mere week's notice of this diktat.12 She 

threatened $1000 fines for violations.

¶88 Rather than respond to any of the legal analysis in 

this dissent, the majority instead castigates its author for 

characterizing Heinrich's actions in terms of tyranny, 

autocracy, dictatorship, and despotism. There are no more 

fitting words to describe the arrogation of power Heinrich 

wields. James Madison forewarned that "[t]he accumulation of 

all powers, legislative, executive, and judiciary, in the same 

hands, whether of one, a few, or many, and whether hereditary, 

self-appointed, or elective, may justly be pronounced the very 

definition of tyranny." The Federalist No. 47, at 373–74 (James 

Madison) (John C. Hamilton ed., 1882) (emphasis added). 

¶89 Because his legal analysis of the non-delegation 

doctrine collapses under the weight of founding principles and 

more than 100 years of Wisconsin precedent applying them, 

Justice Brian Hagedorn attempts to marginalize this opinion as 

 

12 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.
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"miss[ing] th[e] point" by spending "considerable time" 

"criticizing" Heinrich's "choices."13 It is, of course, 

customary for any judicial opinion to relay the facts of the 

case; this 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. Wis. Elections Comm'n, 2020 WI 75, ¶14, 393 

Wis. 2d 629, 948 N.W.2d 877 (Roggensack, C.J., dissenting).

¶90 A "public servant" who exceeded her lawful authority 

has no ground to argue she was "merely doing her job[.]"15 As a 

government official, Heinrich has an obligation to perform her 

duties within constitutional confines even if a majority of this 

court is not willing to enforce those boundaries. History is 

replete with examples of abuses by public officials who 

rationalized their actions as "just doing their jobs." 

 

13 Concurrence, ¶66 n.46.

14 Id., ¶50 (emphasis added).

15 Teigen v. Wis. Elections Comm'n, 2022 WI __, ¶247 n.17, 

__ Wis. 2d __, __ N.W.2d __ (Ann Walsh Bradley, J., dissenting).
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¶91 Heinrich is a powerful government official, not a 

powerless victim who has been dragged to court, as the majority 

insinuates. Heinrich is a named party in this case——she has had 

every "opportunity to defend herself"16 (and to prosecute her own 

counterclaims, for that matter). In contrast, defending 

government overreach is difficult, as evidenced by the majority 

glossing over the facts of this case and refusing to apply 

governing law. 

¶92 Instead of defending liberty, the majority tries to 

conceal tyranny with benevolent motives. "[T]he greatest 

threats to our system of constitutional liberties may arise when 

the ends are laudable, and the intent is good——especially in an 

emergency." County of Butler v. Wolf, 486 F. Supp. 883, 890 

(W.D. Penn. 2020). However well-intentioned, a government 

official who employs her powers to prohibit families from 

enjoying Thanksgiving dinner together and who threatens hefty 

financial sanctions for noncompliance has become the people's 

master rather than their servant. "Thomas Jefferson advised 

against being 'deluded by the integrity of' governmental actors' 

'purposes' and cautioned against 'conclud[ing] that these 

unlimited powers will never be abused' merely because current 

office holders 'are not disposed to abuse them.'" Palm, 391 

Wis. 2d 497, ¶82 (Rebecca Grassl Bradley, J., concurring)

(quoting Thomas Jefferson, Notes on the State of Virginia. 

Edited by William Peden. Chapel Hill: University of North 

Carolina Press for the Institute of Early American History and 

 

16 Majority/lead op., ¶44.
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13

Culture, Williamsburg, Virginia, 1954. The Founders' 

Constitution, Volume 1, Chapter 10, Document 9, http://presspubs.uchicago.edu/founders/documents/v1ch10s9.html. The 

University of Chicago Press) (modification in the original). 

"Jefferson forewarned that '[t]he time to guard against 

corruption and tyranny, is before they shall have gotten hold on 

us. It is better to keep the wolf out of the fold, than to 

trust to drawing his teeth and talons after he shall have 

entered.'" Id. (quoting Jefferson, Notes on the State of 

Virginia). The majority stands by while unlimited powers are 

abused, and does nothing to guard against the tyranny that has 

already gotten hold of the people of Dane County.

II. ANALYSIS

A. The Non-Delegation Principle

¶93 Evidence of the non-delegation principle underlying 

the separation of powers in the Wisconsin Constitution has been 

well-documented by Wisconsin's seminal source for originalist 

constitutional interpretation: 

In the formation of a state constitution it would be 

well to keep in view the principles upon which 

republican governments profess to be established. All 

legitimate power proceeds from the people. This could 

not be denied, even among men who wished to frame a 

monarchy. . . . [W]e sometimes find men, nominally 

liberal, practical tyrants. The governed should 

beware of transferring too much authority into the 

hands of rulers; for, forgetting that they are 

servants, they too often become masters of the people. 

Individuals are more ambitious and more tenacious of 

power than the mass, and all history has proved that 

in times of peace and quiet the former are apt to make 

inroads and aggressions upon the latter. . . . Under 

the head of implied and constructive powers, tyranny 
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may find a plausible pretext to stamp his foot, 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." Palm, 391 Wis. 2d 497, ¶68.

¶95 The people have delegated to state government, subject 

to limits specified in the state constitution, powers they would 

otherwise inherently retain. In a sense, each branch of 

government is an "agent" of the people, capable of legitimately 

exercising only those powers the people have delegated to them. 

Philip Hamburger, Is Administrative Law Unlawful? 377 (2014); 

see also Taxation——Borrowing Money, at 179 ("The members of the 

legislature are the agents of the people. They act for the 

people by power of attorney."). Embodying this agency 

relationship, the constitution commands that "'[a]ll laws' 
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enacted pursuant to the Wisconsin Constitution begin with the 

phrase, '[t]he people of the state of Wisconsin, represented in 

the senate and assembly, do enact as follows.'" In re Amending 

Wis. Stat. §§ 48.299 & 938.299 Regulating the Use of Restraints 

on Child. in Juv. Ct. (Juv. Ct.), 2022 WI 26, ¶55 n.11, __ 

Wis. 2d __, __ N.W.2d __ (Rebecca Grassl Bradley, J., 

dissenting) (quoting Wis. Const. art. IV, § 17(1)). As our 

state's founders understood, "'[l]aw is an expression of the 

legislative will'——that is, an embodiment of the people's 

wishes, expressed by delegated authority." Legal Absurdities——

Pleadings (1846), reprinted in The Movement for Statehood, 1845–

46, at 467, 470 (quoting the Livingston Code).

¶96 Under the common law of agency, "the agent ordinarily 

cannot subdelegate the power to a sub-agent, as this runs 

counter to the apparent intent of the principal." Koschkee v. 

Taylor, 2019 WI 76, ¶54 n.5, 387 Wis. 2d 552, 929 N.W.2d 600 

(Rebecca Grassl Bradley, J., concurring) (quoting Hamburger, Is 

Administrative Law Unlawful?, at 380); see also Lang v. Lions 

Club of Cudahy Wis., Inc., 2020 WI 25, ¶40, 390 Wis. 2d 627, 939 

N.W.2d 582 (lead op.) ("An agent may appoint a subagent only if 

the agent has actual or apparent authority to do so." (quoting 

Restatement (Third) of Agency § 3.15(2))). "In individual 

circumstances, this is a matter of personal freedom; in 

politics, it is a foundation of constitutional liberty." 

Hamburger, Is Administrative Law Unlawful?, at 380. Delegata 

potestas non potest delegari: no delegated powers can be 

further delegated. The non-delegation principle ensures only 
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the entity the people chose to entrust with power may exercise 

it, subject to limitations specified by the people.

¶97 The non-delegation principle traces its origins to 

English law. See Jarkesy v. Sec. & Exch. Comm'n, 34 F.4th 446, 

460 n.12 (5th Cir. 2022) ("Principles of non-delegation had even 

taken hold in England before the American Founding." (citing 

Hamburger, Is Administrative Law Unlawful?, at 381)). Even the 

king of England, following the rise of popular sovereignty, was 

not permitted to transfer certain powers vested in him by 

Parliament. Sir Edward Coke explained: 

That the prosecution and execution of any penal 

statute cannot be granted to any, for that the act 

being made by the policy and wisdom of the parliament 

for the general good of the whole realm, and of trust

committed to the King as to the head of the justice 

and of the weal public, the same cannot by law be 

transferred to any subject.

Penal Statutes (1605), Coke, Reports, 7:36b–37a; see also

Hamburger, Is Administrative Law Unlawful?, at 381 

("[P]arliamentary subdelegations were widely understood to be 

unlawful. Englishmen of whiggish views tended to argue that 

legislative power came from the people and that the legislature 

therefore could not subdelegate its power to others."). 

¶98 The United States adopted from England a similar 

understanding of the non-transferability of the people's grant 

of legislative power. Recent scholarship has explored this 

concept in detail. See Ilan Wurman, Nondelegation at the 

Founding, 130 Yale L.J. 1490 (2021); Philip Hamburger, 

Delegating or Divesting?, 115 Nw. U. L. Rev. Online 88 (2020). 

But see Nicholas Bagley, Delegation at the Founding, 121 Colum. 
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L. Rev. 277 (2021). The early nineteenth century debates and 

proceedings in the Congress of the United States document 

Congress' understanding of the non-delegation principle as a 

limit on transferring their authority: 

 1808: "[T]o suspend or repeal a law is a Legislative 

act, and we cannot transfer the power of legislating from 

ourselves to the President." 18 Annals of Cong. 2125 

(1808).

 1810: "It seems to me with equal constitutionality we 

might refer to the President the authority of declaring 

war, levying taxes, or of doing everything which the 

Constitution points out as the duty of Congress. All 

legislative power is by the Constitution vested in 

Congress. They cannot transfer it." 21 Annals of 

Cong. 2022 (1810).

 1818: "Legislative power, when granted, is not 

transferable; nor can it be exercised by substitute; nor 

in any other manner than according to the constitution 

granting it." 31 Annals of Cong. 1144 (1818).

¶99 Wisconsin's founders adopted a system of government 

similar in structure to the government designed under the United 

States Constitution. "Like its federal counterpart, '[o]ur 

state constitution . . . created three branches of government, 

each with distinct functions and powers,' and '[t]he separation 

of powers . . . is implicit in this tripartite division.'" 

Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶11, 376 

Wis. 2d 147, 897 N.W.2d 384 (quoted source omitted; alternations 

in original). "Three clauses of the Wisconsin Constitution 

embody this separation: Article IV, Section 1 ('[t]he 

legislative power shall be vested in a senate and assembly'); 

Article V, Section 1 ('[t]he executive power shall be vested in 

a governor'); and Article VII, Section 2 ('[t]he judicial 
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power . . . shall be vested in a unified court system')." Id.

(citation omitted). As a general rule, "[o]ur constitutional 

structure confers no authority on any branch to subdelegate any 

powers the sovereign people themselves delegated to particular 

government actors." Fabick v. Evers, 2021 WI 28, ¶56, 396 

Wis. 2d 231, 956 N.W.2d 856 (Rebecca Grassl Bradley, J., 

concurring). "A strict accountability from public officers will 

be required, and the will of the people be the great governing 

voice . . . . [The people] will not permit their popular 

sovereignty to be delegated to others who now, because dressed 

'in a little brief authority' arrogate to themselves the 

authority of being thinkers for the people, and 'the tongues o' 

the common mouth.' To us such considerations are more weighty 

than gold." State Government——No. 1, reprinted in The Movement 

for Statehood, 1845–46, at 372, 375–76.

¶100 As is self-evident from the three vesting clauses, 

"[t]he people vested the [lawmaking] power in the legislature——

not the executive and certainly not the judiciary." Johnson v. 

Wis. Elections Comm'n, 2021 WI 87, ¶69, 399 Wis. 2d 623, 967 

N.W.2d 469 (citing Fabick, 396 Wis. 2d 231, ¶55). This power 

includes the authority to: (1) "declare whether or not there 

shall be a law"; (2) "determine the general purpose or policy to 

be achieved by the law"; and (3) "fix the limits within which 

the law shall operate." Koschkee, 387 Wis. 2d 552, ¶11 

(majority op.) (quoting Schmidt v. Dep't of Res. Dev., 39 

Wis. 2d 46, 59, 158 N.W.2d 306 (1968)).
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¶101 "The legislative power is 'the supreme power' because 

of its extraordinary reach[.]" Juv. Ct., __ Wis. 2d __, ¶44 

(quoting Locke, Second Treatise of Government, § 134). 

Therefore, "[l]aw-making is the platonic ideal of a '[c]ore 

power[],' which is 'not for sharing.'" Id., ¶46 (quoting 

Fabick, 396 Wis. 2d 231, ¶58). The people granted the lawmaking 

power to the legislature subject to many conditions designed to 

inhibit most ideas from ever becoming law. "Bicameralism and 

presentment are the crucible bills must overcome to become law. 

By design, it is much more difficult than rule by dictatorship." 

Id., ¶55 n.11; see also Gundy v. United States, 585 U.S. __, 139 

S. Ct. 2116, 2134 (2019) (Gorsuch, J., dissenting) ("An 'excess 

of law-making' was, in [the framers'] words, one of 'the 

diseases to which our governments are most liable.' To address 

that tendency, the framers went to great lengths to make 

lawmaking difficult."17 (quoting The Federalist No. 62, at 378 

 

17 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.
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(Alexander Hamilton) (C. Rossiter ed. 1961))). "Because the 

people gave the legislature its power to make laws, the 

legislature alone must exercise it." Johnson, 399 Wis. 2d 623, 

¶69 (quoting Fabick, 396 Wis. 2d 231, ¶56). "Safeguarding" the 

legislature's exclusive domain "is particularly important in 

light of its awesome sweep." Id. (quoting Fabick, 396 

Wis. 2d 231, ¶55).

¶102 "In the early years of Wisconsin's statehood, this 

court understood that the three branches of government could not 

delegate their vested powers, imposing substantive limitations 

on the legislature's assignment of authority to the executive to 

carry out the legislature's policies." Fabick, 396 Wis. 2d 231, 

¶64; see also Joseph A. Ranney, Trusting Nothing to Providence: 

A History of Wisconsin's Legal System 377 (1999) ("Beginning 

with the controversy over municipal financing of railroads in 

the 1850s, the issue of what powers the legislature could confer 

on subordinate units of government arose regularly in Wisconsin. 

The Wisconsin Supreme Court adopted the . . . doctrine followed 

in most American states as a partial answer to the problem. The 

doctrine stated in essence that the legislature could grant 

power to subordinate units to implement its policies but not to 

make their own."). For example, in Dowling v. Lancashire Ins. 

Co., this court held "a law must be complete, in all its terms 

and provisions, when it leaves the legislative branch of the 

government, and nothing must be left to the judgment of the 

electors or other appointee or delegate of the legislature." 92 

Wis. 63, 74, 65 N.W. 738 (1896) (emphasis added).
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¶103 The majority/lead opinion dedicates much ink to 

statutory history in an effort to establish the legitimacy of 

delegations in the context of boards of health; however, it 

ignores one of this court's leading cases, State v. Burdge, 

(which was cited by the plaintiffs). 95 Wis. 390, 70 N.W. 347 

(1897). In that case, this court examined a statute authorizing 

the state board of health "to make such rules and regulations 

and to take such measures as may, in its judgment, be necessary 

for the protection of the people from Asiatic cholera, or other 

dangerous disease[s]." Id. at 398. The act noted it was to "be 

construed and understood" to cover "such diseases as the state 

board of health shall designate as contagious and dangerous to 

the public health." Id. at 401. Purporting to act in accord 

with these statutes, the state board of health implemented a 

vaccination requirement in schools in response to Smallpox 

cases. Id. at 405. Through a "single stroke of the pen" and 

without any input from the legislature, the board of health 

"excluded from the common schools" "every child of school age, 

throughout the entire state, that had not been vaccinated." Id.

No statute explicitly permitted the exclusion of students based 

on vaccination status. Id. at 399.

¶104 After discussing Dowling, this court noted, "[t]he 

provisions of the statute import and include an absolute 

delegation of the legislative power over the entire subject here 

involved[.]" Id. at 401. The court recognized, however, that 

the board was a mere "administrative body[.]" Id. at 400. It 

had no "legislative power" and "no part of the legislative power 
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c[ould] be delegated by the legislature to [it]" or "any other 

department or body[.]" Id. 

¶105 For the state board of health to act upon its 

administrative powers, it had to act pursuant to "some 

substantive provision of law to be administered and carried into 

effect." Id. at 402. Because no law explicitly permitted the 

exclusion of unvaccinated students, this court held the state 

board of health acted without authority notwithstanding its 

ostensible statutory powers "to take such measures as may, in 

its judgment, be necessary." Id. at 403. That statute was 

"quite general" and therefore not a source of rulemaking 

authority. Id. at 400. Extending its holding to both the 

"state board of health" and "local boards," the court emphasized 

that rulemaking by such bodies could be done only if the 

authorizing statute was sufficiently complete in and of itself 

that rulemaking did not "involve[] a discretion as to what [the 

law] shall be" but merely "discretion as to its execution[.]"18

Id. at 401–02.

 

18 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))).

"We may look to 'three primary sources in determining the 

meaning of a constitution provision: [1] the plain meaning, [2] 

the constitutional debates and practices of the time, and [3] 

the earliest interpretations of the provision by the 
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¶106 Justice Hagedorn trivializes Burdge because the case 

was decided in 1897, a few decades after the state's founding. 

Concurrence, ¶11 ("The major difficulty with the petitioners' 

plea is they make little effort to ground either their claims or 

their proposed framework in the original understanding of the 

Wisconsin Constitution. Instead, they point to our 1896–1927 

cases and offer theories about nondelegation under the federal 

constitution."). 

 

legislature, as manifested through the first legislative action 

following adoption.'" Black v. City of Milwaukee, 2016 WI 47, 

¶54, 369 Wis. 2d 272, 882 N.W.2d 333 (Rebecca Grassl Bradley, 

J., concurring) (quoting Diaryland Greyhound Park, Inc. v. 

Doyle, 2006 WI 107, ¶19, 295 Wis. 2d 1, 719 N.W.2d 408) 

(modifications in the original). The ordering of these sources 

reflect their legal weight, i.e., plain meaning is most 

important while early statutory enactments are least indicative. 

Id. & n.2. "In the performance of assigned constitutional 

duties each branch of the Government must initially interpret 

the Constitution, and the interpretation of its powers by any 

branch is due great respect from the others. . . . Many 

decisions of this Court, however, have unequivocally reaffirmed 

the holding of Marbury v. Madison that '(i)t is emphatically the 

province and duty of the judicial department to say what the law 

is.'" Id., ¶54 n.2 (quoting United States v. Nixon, 418 

U.S. 683, 703 (1974) (modification in the original)).

As the United States Supreme Court recently reiterated, 

"post-ratification adoption or acceptance of laws that are 

inconsistent with the original meaning of the constitutional 

text obviously cannot overcome or alter that text." N.Y. State 

Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. __, No. 20-843, 

slip op. at 27–28 (June 23, 2022) (quoting District of Columbia 

v. Heller, 670 F.3d 1244, 1274 n.6 (D.C. Cir. 2011) (Kavanaugh, 

J., dissenting)). Under the majority's logic, the Alien & 

Sedition Acts are proof positive of the First Amendment's 

meaning. Legislatures often adopt laws without a full 

appreciation of the relevant constitutional implications; 

judicial review exists for a reason.
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¶107 Burdge undoubtedly stands as evidence of original 

meaning. The opinion was authored by Justice Silas U. Pinney, 

who was born in 1833. Former Justices: Justice Silas U. 

Pinney, Wis. Ct. Sys. (last visited June 27, 2022), 

https://www.wicourts.gov/courts/supreme/justices/retired/pinney.

htm. "Upon his death in 1899, it was believed that he had 

argued more cases before the Wisconsin Supreme Court than any 

other lawyer in the state. In the 100 volumes of the Wisconsin 

Reports printed by the time of his death, his name appeared as 

either counsel or justice in all but the first two volumes." 

Id. Justice Pinney was also one of this state's first judicial 

opinion reporters. "In 1872, [Justice] Pinney gathered the 

opinions of the territorial Supreme Court and the original state 

Supreme Court and published them in three volumes called 

Pinney's Wisconsin Reports. The first volume includes [Justice] 

Pinney's written history of the Wisconsin Territory." Id. He 

also served as a state legislator and the mayor of Madison prior 

to his election to the state supreme court. Id. A respected 

jurist, Justice Pinney wrote a unanimous decision in Burdge, and 

given his background, the fact that he wrote it in 1897 instead 

of 1857 (or whatever arbitrary date Justice Hagedorn has in 

mind) does not impair its persuasive value.

¶108 On the merits, Justice Hagedorn fundamentally 

mischaracterizes Burdge, block quoting a single sentence from 

the opinion completely out of context in order to suggest Burdge

says the exact opposite of its actual holding. Justice Hagedorn 

truncates Burdge to the following passage:
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It cannot be doubted but that under appropriate 

general provisions of law, in relation to the 

prevention and suppression of dangerous and contagious 

diseases, authority may be conferred by the 

legislature upon the state board of health or local 

boards to make reasonable rules and regulations for 

carrying into effect such general provisions, which 

will be valid, and may be enforced accordingly.

In the sentences immediately following, Burdge goes on to 

explain the authority the legislature may confer on local boards 

(not unelected bureaucrats) to make "reasonable rules and 

regulations" does not include discretionary decisions about what 

the law itself may be; rather, the authority conferred is 

limited to how the law may be executed:

The making of such rules and regulations is an 

administrative function, and not a legislative power, 

but there must first be some substantive provision of 

law to be administered and carried into effect. The 

true test and distinction whether a power is strictly 

legislative, or whether it is administrative, and 

merely relates to the execution of the statute law, 

'is between the delegation of power to make the law, 

which necessarily involves a discretion as to what it 

shall be, and conferring authority or discretion as to 

its execution, to be exercised under and in pursuance 

of the law.' The first cannot be done. To the latter, 

no valid objection can be made. . . . Where an act is 

clothed with all the forms of law, and is complete in 

and of itself, it may be provided that it shall become 

operative only upon some certain act or event, or, in 

like manner, that its operation shall be suspended; 

and the fact of such act or event, in either case, may 

be made to depend upon the ascertainment of it by some 

other department, body, or officer, which is 

essentially an administrative act.

95. Wis. at 401-02 (emphasis added). Applying these principles, 

the court in Burdge concluded "the rule under consideration 

could be made operative only as an act of legislative power, 

and it does not come within the domain of the power to make 
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rules and regulations in aid or execution of some general 

statutory provision." Id. at 403. 

¶109 Justice Hagedorn also misconstrues Burdge as endorsing 

the legislature's authority to delegate its lawmaking powers to 

local health officials. It doesn't say that. The case 

considered only whether "authority may be conferred by the 

legislature upon the state board of health or local boards." 

Id. at 401. The court emphasized "the importance and necessity 

of a strict adherence to the constitutional rule, that the power 

to make the law cannot be delegated to any board or body not 

directly responsible to the people." Id. at 404 (emphasis 

added). If, as Burdge concluded, the power to make the law 

cannot be delegated to a state or local board of health, it 

certainly may not be delegated to a local health officer who is 

undisputedly "not directly responsible to the people." Burdge's 

conclusion faithfully follows the Wisconsin Constitution, under 

which "[t]he legislature may confer upon the boards of 

supervisors of the several counties of the state such powers of 

a local, legislative and administrative character as they shall 

from time to time prescribe." Wis. Const. art. IV, § 22 

(emphasis added). Justice Hagedorn's conclusion does not. 

¶110 "[I]n the wake of the Progressive era, this court 

began to uproot substantive limits on the legislature's 

delegation of its constitutionally-conferred powers, thereby 

damaging the 'foundation of American representative government' 

that is the separation of powers." Fabick, 396 Wis. 2d 231, ¶64 

(quoting Gary Lawson, Delegation and Original Meaning, 88 Va. L. 
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Rev. 327, 332 (2002)); see also Ranney, Trusting Nothing to 

Providence, at 377 ("The line between making and implementing 

policy blurred substantially during the Progressive era as large 

administrative agencies came into operation for the first time. 

During the 1920s and 1930s, the supreme court, urged on by Chief 

Justice Rosenberry, was one of the first in the nation to 

acknowledge that the traditional delegation doctrine was dead 

and that henceforth, administrative agencies must effectively be 

treated as a separate branch of government.").

¶111 Although on paper this court claims to require some 

substantive limits on delegated legislative power, it has 

heavily preferred "procedural safeguards." Fabick, 396 

Wis. 2d 231, ¶66 ("More accurately, the constitution's 

substantive limitations on delegating authority are all but 

dead. In their place survives judicial complacence with 

transfers of legislative power, '[s]o long as there are adequate 

procedural safeguards' in place to limit executive overreach." 

(quoting Gilbert v. State, Med. Examining Bd., 119 Wis. 2d 168, 

186, 349 N.W.2d 68 (1984))). Such complacence does not comport 

with the original meaning of the vesting clauses, which the 

court has an obligation to restore. Id., ¶68.

B. The Non-Re-Delegation Doctrine

¶112 The history of the non-delegation doctrine provides 

helpful context for understanding the illegitimacy of delegating 

already-delegated legislative power. County boards of 

supervisors have no inherent power.19 Town of Vernon v. Waukesha 

 

19 Unlike municipalities, counties lack constitutional home 

rule. See Wis. Const. art. XI, § 3(1) ("Cities and villages 
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County, 102 Wis. 2d 686, 689, 307 N.W.2d 227 (1981) ("[A] county 

board has only such powers as are expressly conferred upon it or 

necessarily implied from the powers expressly given or from the 

nature of the grant of power."). They have only those powers 

the legislature decides to confer upon them. This is a 

subdelegation of power actually authorized by the people under 

Article IV, Section 22 of the Wisconsin Constitution.

¶113 Absent the people's express consent to confer on 

county boards of supervisors some limited lawmaking power, the 

non-delegation principle would otherwise prohibit the 

legislature from transferring even a small portion of its power 

to any other entity. Under Article IV, Section 1 of the 

Wisconsin Constitution, "[t]he legislative power shall be vested 

in a senate and assembly." This vesting clause prohibits the 

legislature from giving away its lawmaking power. Fabick, 396 

Wis. 2d 231, ¶55. It was based on the United States 

Constitution's legislative vesting clause, in which "the 'people 

had vested the power to prescribe rules limiting their liberties 

in Congress alone'——not the executive." Id. (quoting Gundy, 139 

S. Ct. at 2133). Article IV, Section 22 was created as a carve 

out to this rule. As one scholar noted, Section 22 "seems 

puzzling" if it was not "drafted to forestall an objection based 

on the non-delegation doctrine." Michael E. Libonati, "Neither 

 

organized pursuant to state law may determine their local 

affairs and government, subject only to this constitution and to 

such enactments of the legislature of statewide concern as with 

uniformity shall affect every city or every village. The method 

of such determination shall be prescribed by the legislature.").
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Peace Nor Uniformity": Local Government in the Wisconsin 

Constitution, 90 Marq. L. Rev. 596, 598 (2007).

¶114 The history of Article IV, Section 22 of the Wisconsin 

Constitution confirms it creates an exception to the nondelegation principle. The language of this section was taken 

from the 1846 New York Constitution. Id.; see also The 

Constitution——No. 6 (1847), reprinted in The Struggle over 

Ratification, at 474, 482 (Milo M. Quaife ed., Wis. Hist. Soc'y 

1920) ("The nearer home all legislation is brought, the better 

and safer it is: that problem was well settled by the admirable 

town governments in New England."). The New York representative 

who introduced the language at that state's convention 

explained:

Sir, the first section of the article to which this is 

offered as an amendment, provides that the entire 

legislative power of the state shall be vested in the 

Senate and Assembly. It is therefore my opinion that 

powers of local legislation cannot be conferred upon 

the several boards of supervisors, without a 

constitutional section permitting the state 

legislature to delegate such power.

Report of the Debates and Proceedings of the Convention for the 

Revision of the Constitution of the State of New-York 1070 

(1846) (statement of R. Campbell, Jr.).

¶115 Article IV, Section 22 of the Wisconsin Constitution 

was an "experiment" and this state's founders accordingly 

proceeded with great caution. The Constitution——No. 6, at 482. 

In theory, "[i]f each state can legislate better for itself than 

Congress could, each county in the state can for itself better 

than can the state at large[.]" Id. Nevertheless, local 
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legislative control needed to be cabined because it was 

"untried, and the details full of difficulty." Id. The author 

of The Constitution——No. 6, a source for the original meaning of 

Article IV, Section 22, explained that "it will take some time 

and some experience to settle well and finally the bounds of 

local legislation. Accordingly this constitution simply 

provides that the legislature shall establish . . . county 

government and may confer upon the county boards of supervisors 

such powers of local legislation and administration as they 

shall from time to time prescribe." Id. The author predicted 

"the seed is sown, and the harvest will ripen in due time and 

after due development." Id. Article IV, Section 22 has never

been amended. The founders' "experiment," reflecting a cautious 

view of delegated county power, continues in its original form. 

Our founders did not envision this "experiment" with 

subdelegation being corrupted by further levels of delegation to 

which the people never consented.

¶116 Article IV, Section 22 of the Wisconsin Constitution 

would be pure surplusage, its historical purpose contravened, 

and its existence utterly unnecessary if county boards of 

supervisors could subdelegate their lawmaking power. See

Appling v. Walker, 2014 WI 96, ¶23, 358 Wis. 2d 132, 853 

N.W.2d 888 (explaining constitutional language should be read to 

"give reasonable effect to every word," so as to "avoid 

surplusage" (quoting C. Coakley Relocation Sys. Inc. v. City of 

Milwaukee, 2008 WI 68, ¶17, 310 Wis. 2d 456, 750 N.W.2d 900)); 

see also Antonin Scalia & Bryan A. Garner, Reading Law: The 
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Interpretation of Legal Texts 174 (2012) ("If possible, every 

word and every provision is to be given effect (verba cum 

effectu sunt accipienda). None should be ignored. None should 

needlessly be given an interpretation that causes it to 

duplicate another provision or to have no consequence."). 

Because an express grant of authority was necessary for the 

legislature to delegate its power to the county boards of 

supervisors for the purpose of experimentation, the absence of 

an equally express authorization of subdelegation confirms the 

people withheld their consent to subdelegations by the county 

boards. Nothing in the constitutional text, its structure, or 

its history establishes any exception, nor does an emergency 

such as the COVID-19 pandemic. See Palm, 391 Wis. 2d 497, ¶53 

(majority op.) ("There is no pandemic exception . . . to the 

fundamental liberties the Constitution safeguards." (citation 

omitted) (ellipsis in the original)); Fabick, 396 Wis. 2d 231, 

¶50 ("Even in a pandemic, the government 'cannot be allowed to 

obscure the limitations of the authority to delegate, if our 

constitutional system is to be maintained.'" (quoting A.L.A. 

Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 

(1935))).

¶117 More than a century of precedent uniformly preserved 

the non-re-delegation principle as applied to county boards of 

supervisors. Consistent with the original meaning of Article 

IV, Section 22, the Wisconsin Supreme Court invariably enforced 

the prohibition on re-delegation of the supreme power——

irrespective of substantive or procedural safeguards. Although 
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this court has corrupted the non-delegation principle, its 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. 58 Wis. 402, 404, 17 N.W. 1 

(1883). This court determined "[t]here can be no just claim 

that the committee did not act strictly within the scope of the 

authority conferred by the resolution." Id. at 405. For this 

reason, it upheld the purchase, which the court emphasized was 

not an act of lawmaking power. Id. at 408. Its holding was 

limited: "There are, doubtless, powers vested in the county 

board which could not be delegated to any committee. Powers 

which are legislative in their character . . . must be exercised 

under the immediate authority of the board." Id. at 406.

¶119 The next relevant case chronologically remains the 

seminal decision interpreting Article IV, Section 22 of the 

Wisconsin Constitution. See Meade v. Dane County, 155 Wis. 632, 

145 N.W. 239 (1914). The Dane County Board of Supervisors 

 

20 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. 

21 See generally poor farm, Shorter Oxford English

Dictionary (6th ed. 2007) ("A farm run at public expense to 

house and support the poor.").
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approved the purchase of farmland for $24,200 and directed the 

chairman of the board, the county clerk, and the district 

attorney to complete the purchase. Importantly, the board 

intended to add the land to the existing county poor farm.

¶120 This proposed purchase generated significant 

controversy. Dane County residents filed three petitions under 

Wis. Stat. § 39j (1911) challenging the plan. That statute 

stated, in relevant part:

(1) . . . [N]o ordinance or resolution of any county 

board shall go into effect within twenty days from 

the time of its passage[.] . . .

(2) An emergency ordinance or resolution shall be any 

ordinance or resolution . . . making any 

appropriation for maintaining the . . . county 

government or maintaining or aiding any public 

institution. . . .

(3) If within twenty days after the passage and 

publication of any ordinance or resolution, a 

petition, signed by qualified electors of the city 

or county equal in number to at least twenty per 

cent. of all the votes cast for Governor in 

such . . . county at the last preceding regular 

election, shall be filed with the . . . county 

clerk and certified by him to the . . . county 

board, praying that the operation of such 

ordinance or resolution be suspended, the 

operation of such ordinance or resolution, unless 

the same shall be an emergency ordinance or 

resolution, shall be suspended. At its next 

regular meeting, . . . the . . . county board 

shall consider such ordinance or resolution, and 

either repeal it or submit it to the electors of 

the . . . county at the next regular election or 

at a special election, to be called for that 

purpose . . . . If any such ordinance or 

resolution shall be approved by a majority of the 

electors voting thereon, it shall take effect and 

be in force from and after twenty days from the 

date of the election.
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(4) An emergency ordinance or resolution shall remain 

in force notwithstanding any petition filed upon 

it, but such ordinance or resolution shall stand 

repealed from and after twenty days after being 

rejected by a majority of the qualified electors 

voting thereon.

§ 39j. When the petitions were presented to the Dane County 

Board of Supervisors, it refused to act. It neither repealed 

its plan nor provided for its submission to a vote of the 

people, as purportedly required by § 39j. Instead, the board 

proceeded to pay $1000 of the $24,200 but was enjoined from 

paying the remainder following the filing of a lawsuit by a Dane 

County resident and taxpayer. The circuit court ruled in favor 

of the plaintiff.

¶121 On appeal, this court reversed and remanded with 

directions to dismiss the complaint. Meade, Wis. at 645. When 

a county board of supervisors enacts ordinances and resolutions, 

the court recognized "the county acts by delegated authority, 

and the state Constitution (section 22, art. 4) expressly 

authorizes the Legislature to confer upon the boards of 

supervisors of the several counties 'such powers of a local, 

legislative, and administrative character.'" Id. at 642–43. It 

then noted the plan of the Dane County Board of Supervisors was 

an "emergency order or resolution" because it was intended to 

benefit the poor farm. Id. at 643. Accordingly, "by 

subdivision 4 [of Wis. Stat. § 39j] the action of the county 

board [wa]s not merely to go into effect upon the contingency 

that a majority of the electors declare[d] it, but, on the 

contrary, t[ook] effect from the time of its passage[.]" Id. 

The statute purported to authorize the voters not just to 
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approve a law before it went into effect but to "repeal[]" a law 

already in effect. Id. This court concluded the legislature 

could not create a statute "delegating to the electors the 

legislative power of repeal" because such a statute "vest[ed] in 

the electors of the county the powers which the Constitution 

says may be vested in the county board." Id. "The Constitution 

provides for and authorizes a delegation of such powers to a 

specified body. Expressio unius est exclusio alterius. In that 

section 39j conflicts with the Constitution." Id.

¶122 This court held Wis. Stat. § 39j conflicted with the 

Constitution in at least two respects: "(1) Because it violates 

section 22 of article 4 in attempting to delegate to the 

electors powers which that section, interpreted by the regular 

rules of interpretation . . . requires to be otherwise 

delegated. (2) Because, as regards emergency resolutions there 

defined, which includes the resolutions in question here, the 

statute is an attempted delegation of the legislative power of 

repeal." Id. at 644. This court rebuked the enactment of 

statute with decidedly strong language: "The statute in 

question seems to have been framed in entire unconsciousness of 

fundamental principles, and we have no reasonable doubt of its 

invalidity." Id. at 645. It reiterated its concern multiple 

times, even declaring ordinances in force pending possible 

repeal unconstitutional. Id. at 644 ("As to all ordinances, and 

as to those resolutions which are in effect ordinances, declared 

by said section to be in force and effect until repealed by the 

electors, this is a delegation of legislative power and 
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forbidden by constitutional law."); id. at 645 ("As to all other 

resolutions of the county board, this is a delegation of 

administrative power, and this class of powers the Constitution 

(Section 22, art. 4) permits to be delegated only to the county 

board.").

¶123 Meade was followed a few months later by State ex rel. 

Carey v. Ballard, 158 Wis. 251, 148 N.W. 1090 (1914). In that 

case, this court reviewed the constitutionality of a statute 

delegating the legislative power "to levy a tax" to a group of 

freeholders within a county. Id. at 256. While that case 

concerned whether the statute violated the legislative vesting 

clause, not Article IV, Section 22 of the Wisconsin 

Constitution, its reasoning is nevertheless relevant. This 

court recognized then (as it should now) "[u]nder our 

constitutional form of government the Legislature cannot 

delegate legislative power to any officer or to any body of 

persons, individual or corporate, aside from the power to confer 

local legislative and administrative powers on county boards and 

municipal corporations." Id. at 257 (citations omitted); see 

also In re Village of N. Milwaukee, 93 Wis. 616, 621, 67 

N.W. 1033 (1896) ("[T]he legislature may delegate local 

legislative and administrative powers to county boards of 

supervisors, and to no other officer or body, save in so far as 

it may delegate powers of local self-government to municipal 

corporations." (emphasis added)); 1 County Government in 

Wisconsin 7 (Univ. of Wis. & Wis. Hist. Soc'y 1942) ("At its 

first session, the State Legislature provided for the 
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establishment in each county of a board of 

supervisors, . . . which was to be the only body competent to 

exercise the powers of the county as a body politic."). "In 

conferring the taxing power on these local governments the 

legislature must provide for its exercise by the proper 

legislative authority of the local government." Carey, 158 

Wis. at 257 (citation omitted). The court explained that local 

legislative power had to be "exerted . . . either directly [by 

the senate and assembly] or through the officers of a political 

subdivision who act in their capacity of legislative 

representatives of the people[.]" Id. at 258. It declared the 

statute unconstitutional because "the Legislature acted in 

excess of its power in attempting to vest authority for the 

imposition of a tax for improving highways in a body of 

freeholders who are not elected by the people as their 

representatives, nor in any way responsible to them on account 

of the tax burdens they imposed." Id. at 260. Again, this 

court used unequivocal language: "[The statute]

delegates . . . power to a group of persons in their individual 

capacity, which is condemned as contrary to the principles of 

representative government under our Constitution." Id. at 261.

¶124 Two years later, this court decided State ex rel. 

Nehbass v. Harper, 162 Wis. 589, 156 N.W. 961 (1916). That case 

examined subdelegation by a village board, not a county board of 

supervisors, and therefore did not directly concern Article IV, 

Section 22 of the Wisconsin Constitution. Nonetheless, it 

elucidates the non-re-delegation principle, specifically as 
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applied to local governments, analogizing to decisions such as 

Ballard involving county boards. See id. at 593 (citing 

Ballard, 158 Wis. at 257). 

¶125 In Nehbass, the City of Milwaukee enacted an ordinance 

that required a person desiring to erect, remodel, or maintain 

certain types of buildings to first obtain "the written consent 

of two-thirds of all the real estate owners within three hundred 

feet of the space[.]" Id. at 590. This court struck the 

ordinance as a violation of the non-re-delegation principle. In 

supporting its decision, the court summarized its prior 

holdings:

 "A legislative body cannot delegate to a mere 

administrative officer power to make a law . . . . In the 

present cast the ordinance by its terms gives power to the 

president to decide arbitrarily and in the exercise of his 

own discretion when a saloon shall close. This is an 

attempt to vest legislative discretion in him, and cannot 

be sustained."22 Id. at 593 (quoting Village of Little 

Chute v. Van Camp, 136 Wis. 526, 527, 117 N.W. 1012 

(1908)). 

 "A county board cannot delegate to one not a member of the 

board the power and authority to act as a member of the 

committee of the board." Id. (citing Forest County v. 

Shaw, 150 Wis. 294, 136 N.W. 642 (1912)).23

 "Under our constitutional form of government the 

Legislature cannot delegate legislative powers to any 

officer or to any body of persons, individual or corporate, 

aside from the power to confer local legislative and 

 

22 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."

23 Shaw appears to have been grounded in statutory law more 

than constitutional principles.
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administrative powers on county boards and municipal 

corporations." Id. (quoting Ballard, 158 Wis. at 257).

 "[In State v. O'Neill a statute] provided that a certain 

act should be void unless accepted by a majority of the 

legal voters of the city of Milwaukee . . . . This was 

held not to be a delegation of legislative power 

[because] the law was . . . '[a] complete enactment in 

itself; contains an entire and perfect declaration of 

legislative will; requires nothing to perfect it as a law; 

while it is only left to the people to be affected by it to 

determine whether they will avail themselves of its 

provisions." Id. at 594 (quoting O'Neill, 24 Wis. 149 

(1869)).

Synthesizing these authorities, the court reasoned, "[i]f the 

state [by statute] cannot delegate [lawmaking power] certainly a 

common council cannot redelegate legislative power properly 

delegated to it." Id. at 593. Critically, "[t]he ordinance in 

question [unlike O'Neill] [wa]s not one left to take 

effect . . . upon the ascertainment of some prescribed 

fact . . . but attempt[ed] to delegate to property owners the 

right to say how a particular person shall use a particular 

piece of property[.]" Id. "[I]t is plain that the question of 

whether or not a garage shall be erected in a particular place 

is determined, not by the common council, but by the property 

owners." Id. at 594.

¶126 A few decades later, Marshall v. Dane County Board of 

Supervisors rehashed Meade. See 236 Wis. 57. The case 

considered a different, but analogous referendum statute. A 

petition was presented to the Dane County Board of Supervisors

demanding the adoption of "a complete civil service 

ordinance[.]" Id. at 58. The relevant statute purported to 

require a county board presented with such a petition to pass 
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the proposed ordinance or submit it to a vote of the people. 

Id. As in Meade, the board refused to act; it neither voted to 

adopt an ordinance nor submitted it for a vote. Id.

¶127 This court concluded the case was governed by Meade. 

It reiterated the statute in Meade "was held unconstitutional by 

the court because the legislature could not empower a county 

board to delegate to the electors of the county a power by the 

Constitution expressly delegated to the county board itself." 

Id. at 59. The statute required county boards of supervisors 

presented with a proper petition to: (1) repeal the ordinance; 

or (2) submit the question of repeal to the people. That choice 

could not be forced upon the boards; the constitution prohibits 

boards from transferring their lawmaking power, even to the 

people, if the boards were unwilling to repeal the ordinance.

¶128 After summarizing Meade, this court held "[t]he power 

to enact such an ordinance must, under the constitutional 

provision cited, be vested by the legislature in the county 

board itself; the legislature cannot authorize the county board 

to delegate the power to enact an ordinance of such a character 

to the electors." Id. at 59. The decision was unanimous. If 

the lawmakers may not re-delegate their delegated power even to 

the people, it is logically impossible for county boards to 

redelegate their delegated power to an unelected bureaucrat.

¶129 Multiple Wisconsin Attorney General opinions interpret 

Article IV, Section 22 of the Wisconsin Constitution in 

accordance with this court's understanding of the text. On at 

least five occasions, the attorney general has concluded the 
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legislative powers of county boards of supervisors cannot be 

exercised by the electors of the county without violating the 

non-re-delegation principle.24 

 

24 27 Wis. Att'y Gen. 161, 161 (1938) ("[D]irect legislation 

in counties by the electors is not permitted by the 

constitution. . . . [A]rt. IV, sec. 22[] . . . empower[s] the 

legislature to confer upon the county boards the legislative 

power for the county and . . . therefore a statute providing for 

direct legislation in counties [i]s unconstitutional because it 

attempt[s] to confer legislative power upon the electors."); 22 

Wis. Att'y Gen. 785, 785–86 (1933) ("The determination by a 

referendum vote to build a new courthouse would constitute 

direct legislation. This department in a previous 

opinion . . . . held that sec. 59.02 was unconstitutional in so 

far as it authorized referendum on legislative and 

administrative matters in counties. . . . Since the question of 

building a new courthouse rests with the county board, its clerk 

has no authority to call a special meeting of the county board 

or file presentation of a referendum petition."); 21 Wis. Att'y 

Gen. 207, 208 (1932) ("The board must decide the question and 

such decision cannot be delegated to the electors."); 11 Wis. 

Att'y Gen. 106, 106–07 (1922) ("The case seems to me to fall 

within the language of the supreme court in Meade . . . where a 

similar referendum law was said to apply to any and every kind 

of action that might be taken by a county board. The supreme 

court also held, however, in the Meade case that a statute of 

this kind is unconstitutional as applied to counties, for the 

reason that it violates sec. 22, art. IV . . . . There is no 

question in my mind but that sec. 59.02, in so far as it 

provides for a referendum, is subject to all the infirmities 

pointed out by the supreme court in the statute involved in the 

Meade case. I, therefore, conclude . . . that the question of 

employing a county agent cannot be lawfully determined by a 

referendum among the voters of the county."); 9 Wis. Att'y 

Gen. 66, 67–68 (1920) ("If the constitution does not permit 

direct legislation of the voters of the county on purchasing a 

poor farm, it does not permit such legislation on the subject of 

public schools. . . . It seems to me that the decision in the 

Meade case completely rules this question. . . . The Meade case 

was an effort to kill a resolution by having it referred to the 

electors. This case is an effort to defeat an ordinance by 

enacting a repealing ordinance. If one is legislation, so is 

the other, and legislation by direct action of the electors of 

counties is declared to be prohibited by the constitution and 

beyond the power of the legislature to confer.").
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¶130 In at least one opinion, the attorney general 

concluded county boards of supervisors could not delegate 

lawmaking power to committees of the board. In 1972, the 

corporation counsel for Dane County requested an opinion on 

"whether a county board can delegate to a committee of the board 

the authority to make all appointments to county board 

committees created under sec. 59.06, Stats., without necessity 

of further action or confirmation by the board." 61 Wis. Att'y 

Gen. 214, 215 (1972). The attorney general responded, "[i]t is 

my opinion that the board is without such authority[.]" Id. 

Referencing Article IV, Section 22 of the Wisconsin 

Constitution, he reasoned, "[t]he board can exercise the 

legislative and administrative powers delegated to it by the 

legislature as a collective body." Id. (emphasis added). 

Because "[t]he power to create a committee and to provide for 

its scope and purposes is legislative in nature," he concluded 

it "could not be delegated to a committee." Id. at 216.

¶131 Treatises on municipal law similarly describe the 

non-re-delegation principle and acknowledge its present 

vitality. Constitutionally-ensconced since ratification and 

upheld by this court for nearly 140 years, it is black-letter 

law. See 2 Local Government Law § 13:13 (updated May 2022) 

("[T]he doctrine that a legislative body cannot delegate its 

legislative powers applies to local governments."); 2A McQuillin 

Mun. Corp. § 10:45 (3d ed. updated Sept. 2021) ("So far as the 

powers of a municipal corporation are legislative they rest in 

the discretion and judgment of the municipal body entrusted with 
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them, and the general rule is that that body cannot delegate or 

refer the exercise of such powers to the judgment of a committee 

of the council, or to an administrative board or officer of the 

city, or to arbitrators under an agreement for binding 

arbitration. If the legislature confers powers on a municipal 

corporation, the exercise of discretion by the governing body of 

the municipality cannot be delegated to a municipal officer or 

other person of body.").

¶132 The collective thrust of these binding decisions is 

relatively straightforward: (1) Article IV, Section 22 of the 

Wisconsin Constitution does not allow the legislature to vest 

lawmaking power in a municipal officer or body other than the 

county boards of supervisors; (2) the non-re-delegation 

principle prohibits a county board of supervisors from giving 

any of its delegated lawmaking power to any person or other 

body——the power must be exercised by the whole board, 

collectively; (3) lawmaking means discretionary decisions that 

bind the public with the force of law; and (4) for an ordinance 

to be constitutionally valid, it must be complete and whole, 

requiring no further discretionary decisions of a substantive 

nature to carry its purpose into effect. This court has 

consistently struck down subdelegations that caused 

substantially less intrusive infringements on fundamental 

liberties, e.g., invalidating a village ordinance that granted 

the village president the power to allow saloons to stay open 

late on a case-by-case basis. Van Camp, 136 Wis. at 527. The 
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majority refuses to apply Article IV, Section 22, but there is 

no statutory end-run around the constitution. 

C. The Unconstitutionality of Dane County's Ordinance & 

Heinrich's Orders

¶133 Having sworn oaths to support the Wisconsin 

Constitution, this court must assiduously protect the people's 

prerogative to decide who may govern them by enforcing the 

constitutional limitations on the exercise of power the people 

gave to particular public servants. Although Justice Hagedorn 

dismisses this principle as nothing more than "general theories 

of government power,"25 "[p]reserving the perimeters of power 

constitutionally conferred on each branch of government is 

essential for securing the liberty of the people." Palm, 391 

Wis. 2d 900, ¶70 (Rebecca Grassl Bradley, J., concurring). This 

duty becomes imperative when governmental actors conspire to 

collapse the carefully calibrated separation of powers among 

three branches in favor of consolidating power in a single, 

unelected bureaucrat. 

¶134 "The accumulation of all powers, legislative, 

executive, and judiciary, in the same hands, whether of one, a 

few, or many, and whether hereditary, self-appointed, or 

elective, may justly be pronounced the very definition of 

tyranny." The Federalist No. 47, at 373–74. The Dane County 

Board bestowed on Heinrich "the three great powers of 

government," even though our constitutional order is founded on 

the axiom that they should be "ever . . . kept separate and 

distinct." Serv. Emps. Int'l Union, Local 1 v. Vos, 2020 WI 67, 

 

25 Concurrence, ¶49.
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¶87, 393 Wis. 2d 38, 946 N.W.2d 35 (Kelly, J., majority op.) 

(quoting 2 Joseph Story, Commentaries on the Constitution of the 

United States § 519, at 2–3 (Boston, Hilliard, Gray, & Co. 

1833)). "Although consolidation of power in one person may be 

tempting in times of exigency, for purposes of expeditiously 

producing an efficient and effective response to emergencies 

like a pandemic, history informs of the perils of the 

consolidation of power, and not merely through the exhortations 

of the Founders and philosophers. Regrettably, we have tangible 

examples of judicial acquiescence to unconstitutional 

governmental actions considered——at the time——to inure to the 

benefit of society, but later acknowledged to be vehicles of 

oppression." Palm, 391 Wis. 2d 900, ¶70. "Careful judicial 

scrutiny is especially important in times of stress, when 

Americans may find themselves 'at the mercy of wicked rulers, or 

the clamor of an excited people.'" Id., ¶72 (quoting Stephen 

Dycus, Requiem for Korematsu, 10 J. Nat'l Sec. L. & Pol'y 237, 

246 (2019)).

¶135 The facts of this case demonstrate the danger. 

Heinrich prosecuted a local business for allegedly violating her 

vague order. The County Board unlawfully gave her powers that 

no elected official in this state possesses: the power to write 

the rules, interpret their meaning, and impose punishments of 

her choosing for violations only she may declare. The ordinance 

by which the Board created this autocrat contains no legitimate 

limiting directives, instead incorporating by reference statutes 

similarly lacking any meaningful substantive constraints on her 
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power. See Wis. Stat. § 252.03(1) ("The local health officer 

shall promptly take all measures necessary to prevent, suppress 

and control communicable diseases, and shall report to the 

appropriate governing body the progress of the communicable 

diseases and the measures used against them, as needed to keep 

the appropriate governing body fully informed, or at such 

intervals as the secretary may direct."). 

¶136 As interpreted by the majority, this statute violates 

the constitution as interpreted in Ballard, which held: "Under 

our constitutional form of government the Legislature cannot 

delegate legislative powers to any officer or to any body of 

persons, individual or corporate, aside from the power to confer 

local legislative and administrative powers on county boards and 

municipal corporations." 158 Wis. at 257. It is a 

substantially more open-ended grant of power than those this 

court has struck in previous cases, e.g., the grant in Van Camp. 

It mirrors the "take such measures as may, in its judgment, be 

necessary" language construed in Burdge, which this court held 

granted no rulemaking authority at all. See 95 Wis. at 398. It 

is also indistinguishable from the power this court held a state 

official could not exercise in Wisconsin Legislature v. Palm, 

391 Wis. 2d 497 (majority op.). The majority silently overrules 

Palm, a decision from which three members of the majority in 

this case sharply dissented. Only a change in court membership 

enables the current majority to discard this quite recent 

precedent.
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¶137 Such a broad grant, particularly without procedural 

safeguards, is patently unconstitutional. Id., ¶¶79–80 (Rebecca 

Grassl Bradley, J., concurring). Heinrich has been permitted to 

exercise "the supreme [lawmaking] power," with no pre-issuance 

procedural safeguards to limit the power from being applied 

arbitrarily and capaciously. See Juv. Ct., __ Wis. 2d __, ¶55 

n.11 (quoting Locke, Second Treatise of Government, § 134); 

Palm, 391 Wis. 2d 497, ¶35 (majority op.) (explaining a 

procedural safeguard is inadequate if it can be applied only to 

undo an unlawful rule). Renouncing multiple precedents spanning 

more than a century, the majority accedes to Heinrich's 

arrogation of breathtaking power.

¶138 The majority's decimation of the non-delegation 

principle ignores controlling precedent on "procedural 

safeguards." Tellingly, in the majority/lead opinion's three 

paragraphs discussing procedural safeguards, it does not cite a 

single case; the precedent overlooked by the majority explicitly 

rebuts the majority's analysis. E.g., compare majority/lead 

op., ¶40 ("[S]tate courts may review an order issued pursuant to 

Wis. Stat. § 252.03 and Dane County Ordinance § 46.40 and ensure 

its measures conform to the laws' substantive limitations."), 

with Palm, 391 Wis. 2d 497, ¶35 ("Palm cannot point to any 

procedural safeguards on the power she claims. At oral 

argument, she continuously referenced judicial review; but 

judicial review takes place after an allegation is made that an 

individual's rights have been violated. . . . Rulemaking 

provides the ascertainable standards that hinder arbitrary or 
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oppressive conduct by an agency. Judicial review does not 

prevent oppressive conduct from initially occurring."). In 

Palm, this court held procedural safeguards must resemble 

chapter 227's rulemaking procedures; nothing comparable inhibits 

Heinrich's exercise of unilateral power. Palm, 391 Wis. 2d 497, 

¶34 ("Procedural safeguards, generally, are those requirements 

imposed by the Administrative Procedures Act, codified at ch. 

227." (citation omitted)).

¶139 The majority claims it is merely applying existing 

precedent on the non-delegation principle; if the majority is 

sincere, its efforts betray a startling ignorance of a 

fundamental first principle. While ignoring the non-redelegation principle entirely, the majority implicitly abrogates 

the non-delegation principle, facilitating unlimited future acts 

of tyranny akin to Heinrich's. The majority/lead opinion says, 

"[a]s with any legislative authority, the state legislature may 

curb exercises of granted power it deems excessive[.]"26 The 

legislature always has such power (as even the majority 

acknowledges). The majority entirely misses the rationale 

underlying the non-delegation principle: if the people did not 

authorize the legislature to give its power away, its exercise 

by anyone other than the legislature is unlawful, and the 

legislature's ability to "curb" excess cannot cure the 

subdelegation's constitutional infirmity.

¶140 The Dane County Board of Supervisors exceeded its 

constitutional authority by assigning Heinrich such far-reaching 

 

26 Majority/lead op., ¶40.
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powers. This subdelegation was substantively defective, even 

under a liberal reading of the long line of governing precedent. 

The Board's re-delegation imposed no meaningful procedural 

restraints on Heinrich's power. By judicial fiat, the majority 

endorses executive fiat, and the people's liberty languishes.

¶141 "Frequently an issue of this sort will come before the 

Court clad, so to speak, in sheep's clothing: the potential of 

the asserted principle to effect important change in the 

equilibrium of power is not immediately evident, and must be 

discerned by a careful and perceptive analysis. But this wolf 

comes as a wolf." Morrison v. Olson, 487 U.S. 654, 699 (1988) 

(Scalia, J., dissenting).

III. THE MAJORITY/LEAD OPINION'S FLAWED STATUTORY ANALYSIS 

¶142 In James v. Heinrich——a recent case challenging the 

exercise of power over the people by the same Dane County health 

officer named in this case——this court held that "if 'the 

legislature did not specifically confer a power,' the exercise 

of that power is not authorized." 2021 WI 58, ¶18, 397 

Wis. 2d 516, 960 N.W.2d 350 (quoting State ex rel. Harris v. 

Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974)); see also

Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs., 594 

U.S. __, 141 S. Ct. 2485 (2021) (per curiam) ("We expect 

Congress to speak clearly when authorizing an agency to exercise 

powers of vast economic and political significance." (citation 

omitted)). This court held Wis. Stat. § 252.03's "reasonable 

and necessary" provisions did not grant Heinrich the power to 

"close schools." Among other reasons, such a generic 
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authorization "cannot be reasonably read to encompass anything 

and everything"; otherwise, it would swallow the rest of the 

statute, creating substantial redundancy. James, 397 

Wis. 2d 516, ¶¶22–23. Additionally, Wis. Stat. § 252.02 

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." 391 Wis. 2d 497, ¶¶45–59. "We cannot expansively 

read statutes with imprecise terminology that purport to 

delegate lawmaking authority to an administrative agency." Id., 

¶55; see also id., ¶24 (noting skepticism toward an 

interpretation of a statute that would allow a single "unelected 

official[ to] create law applicable to all people during the 

course of COVID-19 and subject people to imprisonment when they 

disobeyed her order").
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¶145 The majority's conclusions in this case cannot be 

reconciled with James or Palm, so the majority ignores those 

cases. Wisconsin Stat. § 252.03 cannot be read to give local 

health officers greater power to rule over the people than their 

state counterpart possesses. And a statute cannot override the 

constitutional constraints on the delegation of lawmaking 

power.27 

IV. CONCLUSION

¶146 [L]ocal assemblies of citizens constitute the 

strength of free nations. Town-meetings are to 

liberty what primary schools are to science; they 

bring it within the people's reach, they teach man how 

to use and how to enjoy it. A nation may establish a 

system of free government, but without the spirit of 

municipal institutions it cannot have the spirit of 

liberty.

1 Alexis Tocqueville, Democracy in America ch. V, Part I (1835). 

¶147 Today's majority insulates local government from the 

oversight of the town hall meeting——a beacon of representative 

democracy——subjecting the people to the whims of an 

unaccountable overlord. The majority displaces the 

constitutional design for the exercise of lawmaking power with a 

"technocracy"28 the majority favors. As Justice Patience Drake 

 

27 Justice Hagedorn apparently believes statutes take 

precedence over the constitution. Ignoring the glaring absence 

of any constitutional authority, Justice Hagedorn says 

penalizing the people for disobeying any order decreed by "local 

health authorities" is perfectly acceptable if the legislature 

says so, even though the people never consented. Concurrence, 

¶64.

28 Technocracy, The American Heritage Dictionary (5th ed. 

2011) ("A government or social system controlled by technicians, 

especially scientists and technical experts.").
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Roggensack described during oral argument in this case: 

"Counsel, I give you that a dictatorship which is what Heinrich 

exercised for about two years is the most efficient manner of 

handling a problem you're focusing on, but it is not necessarily 

a democratic manner." Efficiency bears a heavy price. A 

"technocratic" approach to government "drains public discourse 

of substantive moral argument and treats ideologically 

contestable questions as if they were matters of economic 

efficiency, the province of experts." See Michael J. Sandel, 

The Tyranny of Merit: What's Become of the Common Good 20 

(2020). It tells the common citizen he has no right to 

participate in government, for he is not a "technical expert" 

and the complexities of modern life are "beyond the reach" of 

his feeble understanding. Id. "This narrow[ing]" of 

"democratic government" "hollow[s] out the terms of public 

discourse, and produce[s] a growing sense of disempowerment." 

Id.

¶148 In declaring independence from the crown, the Founders 

sought to escape despotism: "when a long train of abuses and 

usurpations, pursuing invariably the same Object evinces a 

design to reduce them under absolute Despotism, it is their 

right, it is their duty, to throw off such Government, and to 

provide new Guards for their future security." The Declaration 

of Independence para. 2 (U.S. 1776). Not only is it our 

constitutional duty to apply the original meaning of the 

Wisconsin Constitution's structural safeguards, it is essential 

to preventing the collapse of representative democracy. The 
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people of this state constitutionally constrained the exercise 

of power over them, but the majority refuses to enforce those 

limits, opting instead to "look[] the other way"29 as unelected 

bureaucrats run roughshod over the people's liberty. For two 

years, "[s]eas would rise when [Heinrich] gave the word"; she 

"held the key" to power. ColdPlay, Viva La Vida (2008). 

Lacking any constitutional foundation, her usurped authority 

"stand[s] upon pillars of salt and pillars of sand" and nothing 

the majority says can fortify it. Id. The majority abandons 

its station as a bulwark of liberty. I dissent.

¶149 I am authorized to state that Chief Justice ANNETTE 

KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join 

this dissent.

 

29 Concurrence, ¶53.
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