2020 WI 42

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP765-OA

COMPLETE TITLE: Wisconsin Legislature,

 Petitioner,

 v.

Secretary-Designee Andrea Palm, Julie Willems 

Van Dijk and 

Lisa Olson, In Their Official Capacities As 

Executives of 

Wisconsin Department of Health Services,

 Respondents.

ORIGINAL ACTION

OPINION FILED: May 13, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: May 5, 2020 

SOURCE OF APPEAL:

COURT: 

COUNTY: 

JUDGE: 

JUSTICES:

ROGGENSACK, C.J., delivered the majority opinion of the Court, 

in which ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., 

joined. ROGGENSACK, C.J., filed a concurring opinion. REBECCA 

GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, 

J. joined. KELLY, J., filed a concurring opinion, in which 

REBECCA GRASSL BRADLEY, J., joined. ANN WALSH BRADLEY, J., 

filed a dissenting opinion, in which DALLET, J., joined. 

DALLET, J., filed a dissenting opinion, in which ANN WALSH 

BRADLEY, joined. HAGEDORN, J., filed a dissenting opinion, in 

which ANN WALSH BRADLEY, and DALLET, JJ., joined with respect to 

¶¶198-258.

NOT PARTICIPATING:

 

ATTORNEYS:

For the petitioners, there was a petition and reply filed by 

Eric M. McLeod, Lane E.B. Ruhland and Husch Blackwell LLP, Madison 

and Ryan J. Walsh, John K. Adams, Amy Miller and Eimer Stahl LLP, 

Madison. There was an oral argument by Ryan J. Walsh, Madison.
2

For the respondents, there was a response filed by Colin A. 

Hector, Thomas C. Bellavia, Colin R. Stroud, Hannah S. Jurss, 

Steven C. Kilpatrick, assistant attorneys general, and Joshua L. 

Kaul, attorney general. There was an oral argument by Colin Thomas 

Roth, assistant attorney general.

An amicus curiae brief was filed on behalf of The Tavern 

League of Wisconsin by James A. Friedman, Zachary P. Bemis, Maxted 

M. Lenz and Godfrey & Kahn, S.C., Madison.

An amicus curiae brief was filed on behalf of Wisconsin Faith 

Voices for Justice by Stephen E. Kravit, Benjamin J. Glicksman and 

Kravit, Hovel & Krawczyk, S.C., Milwaukee.

An amicus curiae brief was filed on behalf of Americans for 

Prosperity – Wisconsin by Matthew M. Fernholz and Cramer, Multhauf 

& Hammes, LLP, Waukesha and Eric R. Bolinder, pro hac vice, 

Arlington, Virginia.

An amicus curiae brief was filed on behalf of Wisconsin 

Manufacturers and Commerce and Wisconsin Dairy Alliance by Robert 

I. Fassbender and Great Lakes Legal Foundation, Madison and Corydon 

J. Fish, Madison.

An amicus curiae brief was filed on behalf of Wisconsin Public 

Health Association, Wisconsin Nurses Association, Wisconsin 

Chapter of American Academy of Pediatrics and Other Healthcare 

Amici Curiae by Jeffrey A. Mandell and Stafford Rosenbaum LLP, 

Madison.

An amicus curiae brief was filed on behalf of Legal Scholars 

as Amici Curiae by Miriam Seifter, Robert Yablon and the University 
3

of Wisconsin Law School and Barry J. Blonien and Boardman & Clark 

LLP, Madison.

An amicus curiae brief was filed on behalf of Wisconsin 

Association of Local Health Departments and Boards and Associated 

Municipalities and Counties by Paul V. Gagliardi, Salem.

An amicus curiae brief was filed on behalf of 24 Wisconsin 

Community, Advocacy, Labor and Membership Organizations by Douglas 

M. Poland and Rathje Woodward LLC, Madison and Richard Saks and 

Hawks Quindel, S.C., Milwaukee.

An amicus curiae brief was filed on behalf of Hunter Nation, 

Wisconsin Lakeshore Business Association, Sport-Fishing Guides and 

Individual Anglers by Adam M. Jarchow and Jarchow Law, LLC, Clear 

Lake.

An amicus curiae brief was filed on behalf of Legal Action of 

Wisconsin, Inc. by Amanda C. Aubrey, Carlos N. Bailey and Robert 

Bebb Held, Madison.

An amicus curiae brief was filed on behalf of Americans for 

Prosperity – Wisconsin by Matthew M. Fernholz and Cramer, Multhauf 

& Hammes, LLP, Waukesha and Eric R. Bolinder, pro hac vice, 

Arlington, Virginia.

An amicus curiae brief was filed on behalf of Disability 

Rights Wisconsin, The Arc Wisconsin, The Arc and Disability and 

Aging Organizations by Elaine J. Goldenberg, pro hac vice, Brendan 

B. Gants, pro hac vice and Munger, Tolles & Olson LLP, Washington 

D.C. and Kristin M. Kerschensteiner, Madison and Lauren C. Barnett, 

pro hac vice and Munger, Tolles & Olson LLP, Los Angeles, 

California and Shira Wakschlag, pro hac vice, Washington, D.C.
4

An amicus curiae brief was filed on behalf of Milwaukee

Teachers’ Education Association, Madison Teachers, Inc., SEIU 

Healthcare Wisconsin, and Amalgamated Transit Union Local 998 by 

Lester A. Pines, Tamara B. Packard, Christa O. Westerberg and Pines 

Bach LLP, Madison.

An amicus curiae brief was filed on behalf of Independent 

Business Association of Wisconsin, Double Decker Automotive, Inc. 

and Shear Xcellence, LLC by Richard M. Esenberg, Luke Berg, Anthony 

LoCoco, Lucas Vebber and Wisconsin Institute for Law and Liberty, 

Inc., Milwaukee.

An amicus curiae brief was filed on behalf of Washington 

County, Wisconsin by Bradley S. Stern, county attorney, West Bend.
2020 AP 42

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP765-OA

STATE OF WISCONSIN : IN SUPREME COURT

Wisconsin Legislature,

 Petitioner,

 v.

Secretary-Designee Andrea Palm, Julie Willems 

Van Dijk and Lisa Olson, In Their Official 

Capacities As Executives of Wisconsin 

Department of Health Services,

 Respondents.

FILED

MAY 13, 2020

Sheila T. Reiff

Clerk of Supreme Court

ROGGENSACK, C.J., delivered the majority opinion of the Court, in 

which ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. 

ROGGENSACK, C.J., filed a concurring opinion. REBECCA GRASSL 

BRADLEY, J., filed a concurring opinion, in which KELLY, J. joined. 

KELLY, J., filed a concurring opinion, in which REBECCA GRASSL 

BRADLEY, J., joined. ANN WALSH BRADLEY, J., filed a dissenting 

opinion, in which DALLET, J., joined. DALLET, J., filed a 

dissenting opinion, in which ANN WALSH BRADLEY, joined. HAGEDORN, 

J., filed a dissenting opinion, in which ANN WALSH BRADLEY, and 

DALLET, JJ., joined with respect to ¶¶198-258.

ORIGINAL ACTION. Rights declared.

¶1 PATIENCE DRAKE ROGGENSACK, C.J. This case is about the 

assertion of power by one unelected official, Andrea Palm, and her 
No. 2020AP765-OA 

2

order to all people within Wisconsin to remain in their homes, not 

to travel and to close all businesses that she declares are not 

"essential" in Emergency Order 28. Palm says that failure to obey 

Order 28 subjects the transgressor to imprisonment for 30 days, a 

$250 fine or both. This case is not about Governor Tony Evers' 

Emergency Order or the powers of the Governor. 

¶2 Accordingly, we review the Wisconsin Legislature's 

Emergency Petition for Original Action that asserts: (1) Palm as 

Secretary-designee of the Department of Health Services (DHS), 

broke the law when she issued Emergency Order 28 after failing to 

follow emergency rule procedures required under Wis. Stat.

§ 227.24 (2017-18),1 and (2) even if rulemaking were not required, 

Palm exceeded her authority by ordering everyone to stay home,2

closing all "non-essential" businesses,3 prohibiting private 

gatherings of any number of people who are not part of a single

household,4 and forbidding all "non-essential" travel.5 Palm 

responded that Emergency Order 28 is not a rule. Rather, it is an 

Order, fully authorized by the powers the Legislature assigned to 

DHS under Wis. Stat. § 252.02. 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.

2 Order 28, Section 1.

3 Id., Section 2.

4 Id., Section 3. 

5 Id., Section 5.
No. 2020AP765-OA 

3

¶3 We conclude that Emergency Order 28 is a rule under the 

controlling precedent of this court, Citizens for Sensible Zoning, 

Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore 

is subject to statutory emergency rulemaking procedures 

established by the Legislature. Emergency Order 28 is a general 

order of general application within the meaning of Wis. Stat. 

§ 227.01(13), which defines "Rule." Accordingly, the rulemaking 

procedures of Wis. Stat. § 227.24 were required to be followed 

during the promulgation of Order 28. Because they were not, 

Emergency Order 28 is unenforceable.6 Furthermore, Wis. Stat. 

§ 252.25 required that Emergency Order 28 be promulgated using the 

procedures established by the Legislature for rulemaking if 

criminal penalties were to follow, as we explain fully below. 

Because Palm did not follow the law in creating Order 28, there

can be no criminal penalties for violations of her order. The 

procedural requirements of Wis. Stat. ch. 227 must be followed 

because they safeguard all people. 

¶4 We do not conclude that Palm was without any power to 

act in the face of this pandemic. However, Palm must follow the 

law that is applicable to state-wide emergencies. We further 

conclude that Palm's order confining all people to their homes, 

forbidding travel and closing businesses exceeded the statutory 

authority of Wis. Stat. § 252.02 upon which Palm claims to rely.7 

 

6 This decision does not apply to Section 4. a. of Emergency 

Order 28. 

7 The Legislature's petition included a third issue: "Even 

if the Department did not violate [Wis. Stat.] § 227.24, whether 

the Department acted arbitrarily and capriciously in issuing 
No. 2020AP765-OA 

4

I. BACKGROUND

¶5 Although we do not address the Governor's order, we note 

for purposes of background, that on March 12, 2020, Governor Evers 

issued Executive Order 72 "Declaring a Health Emergency in Response 

to the COVID-19 Coronavirus." Order 72:

 proclaimed that a public health emergency existed in 

Wisconsin;

 designated DHS as the lead agency to respond to the 

emergency;

 directed DHS to take "all necessary and appropriate 

measures to prevent and respond to incidents of COVID-19 

in the State";

 suspended administrative rules that the DHS Secretary 

thought would interfere with the emergency response and 

increase the health threat;

 authorized the Adjutant General to activate the National 

Guard to assist in responding to the emergency;

 directed all state agencies to assist in responding to the 

emergency;

 proclaimed "that a period of abnormal economic disruption" 

existed; and

 directed the Department of Agriculture, Trade, and Consumer 

Protection to guard against price gauging during the 

emergency.

 

Emergency Order 28." The court declined to take the third issue. 

Therefore, we do not address it.
No. 2020AP765-OA 

5

¶6 As further background we note that DHS Secretarydesignee, Andrea Palm, issued Emergency Order 12 on March 24, 2020, 

"under the authority of Wis. Stat. § 252.02(3) and (6) and all 

powers vested in [her] through Executive Order #72, and at the 

direction of Governor Tony Evers[.]" Palm's Emergency Order 12 

ordered "[a]ll individuals present within the State of 

Wisconsin . . . to stay at home or at their place of residence" 

with certain delineated exceptions. It remained in effect until 

April 24, 2020.

¶7 On April 16, 2020, Palm issued Emergency Order 28, also 

titled "Safer at Home Order." This order was not issued by the 

Governor, nor did it rely on the Governor's emergency declaration. 

Rather, it relied solely on "the authority vested in [Andrea Palm, 

Department of Health Services Secretary-designee] by the Laws of 

the State, including but not limited to [Wis. Stat. §] 252.02(3), 

(4), and (6)." Emergency Order 28 commands all individuals in 

Wisconsin "to stay at home or at their place of residence" with 

certain limited exceptions approved by Palm or risk punishment "by 

up to 30 days imprisonment, or up to $250 fine, or both."8 Order 

28 also:

 Prohibits "[a]ll forms of travel" except what Palm deems 

essential.

 Orders "[a]ll for-profit and non-profit businesses" to 

"cease all activities" except for minimum operations that 

Palm deemed basic.

 

8 Emergency Order 28, Section 18. 
No. 2020AP765-OA 

6

 Prohibits "[a]ll public and private gatherings of any 

number" "not part of a single household."

 Declares that all public and private K-12 schools "shall 

remain closed" for the remainder of the year. 

 Declares that libraries shall remain closed for "all inperson services."

 Declares all "public amusement and activity" places closed 

regardless of whether "indoors or outdoors" except golf 

courses (with restrictions). The order says "Driving 

ranges and miniature golf must remain closed."

 Continues the ordered closure of all salons and spas.

 Continues the closure of every restaurant and bar except 

for take-out or delivery service.

 Orders religious groups to limit gatherings to "fewer than 

10 people in a room" including weddings and funerals. 

 Imposes a six-foot social distancing requirement for any 

person not "residing in a single living unit or household."

Order 28 purports to remain in effect until May 26, 2020.

¶8 However, on April 20, 2020, Palm issued Emergency Order 

31. It is not challenged directly in this action. In it, Palm 

established "Gating Criteria" that must be met in order to limit

Emergency Order 28's proscriptions.9 Order 31 has no end date and 

relies solely on Palm's assertion of authority. 

¶9 It is Order 28 that is being challenged in this original 

action. The Legislature filed an Emergency Petition for Original 

 

9 Emergency Order 31, Section 2. b. 
No. 2020AP765-OA 

7

Action on April 21, 2020. On the same date, we issued an order 

setting a briefing schedule that required a response from Palm by 

April 28, 2020, and a reply from the Legislature by April 30, 2020. 

We also allowed numerous amici motions and briefs to be filed by 

April 29, 2020.10 On May 1, 2020, we granted the Legislature's 

Emergency Petition for Original Action and assumed jurisdiction 

over two issues: (1) whether Palm violated Wis. Stat. § 227.24, 

governing emergency rules, by issuing Emergency Order 28 without 

complying with § 227.24's procedures, and (2) even if Palm did not 

violate § 227.24, whether Palm's Order 28 exceeds her authority 

under Wis. Stat. § 252.02 by ordering all persons to stay at home, 

forbidding all "nonessential" travel and closing all 

"nonessential" businesses. The court heard oral argument on May 

5, 2020.

II. DISCUSSION

A. Our Review

¶10 We review this controversy under our original 

jurisdiction found in the Wisconsin Constitution, Article VII, 

§ 3(2), which provides: "The supreme court has appellate 

jurisdiction over all courts and may hear original actions and 

proceedings. The supreme court may issue all writs necessary in 

aid of its jurisdiction." Wis. Const. art. VII, § 3(2). We 

exercise original jurisdiction when "the matter is one that should 

trigger the institutional responsibilities of the Supreme Court."

Wis. S. Ct. IOP III (September 12, 2019). See Petition of Heil, 

 

10 We accepted 14 amici briefs.
No. 2020AP765-OA 

8

230 Wis. 428, 436, 284 N.W. 42, 45 (1939) ("[T]he purpose of the 

constitution was, 'To make this court indeed a supreme judicial 

tribunal over the whole state; a court of last resort on all 

judicial questions under the constitution and laws of the state; 

a court of first resort on all judicial questions affecting the 

sovereignty of the state, its franchises or prerogatives, or the 

liberties of its people.'" (quoted source omitted)).

¶11 The dispute in this case involves whether the Secretarydesignee of DHS issued an order in violation of the laws of 

Wisconsin——an order that impacts every person in Wisconsin, as 

well as persons who come into Wisconsin, and every "non-essential" 

business. Exercising original jurisdiction is appropriate in this 

dispute.

¶12 Palm has contended that the Legislature does not have 

standing to invoke our original jurisdiction for these claims. 

Whether a party has standing is a question of law. Schill v. Wis. 

Rapids Sch. Dist., 2010 WI 86, ¶38, 327 Wis. 2d 572, 786 N.W.2d 

177 (Lead opinion). "Wisconsin courts evaluate standing as a 

matter of judicial policy rather than as a jurisdictional 

prerequisite." Id. (citing Milwaukee Dist. Council 48 v. Milwaukee 

Cty., 2001 WI 65, ¶38 n.7, 244 Wis. 2d 333, 627 N.W.2d 866). One 

has standing to seek judicial review when one has a stake in the 

outcome of the controversy and is affected by the issues in 

controversy. Schill, 327 Wis. 2d 572, ¶38 (Lead opinion).

¶13 The crux of the Legislature's claims is that Emergency 

Order 28 was promulgated without following required statutory 

procedures applicable to an emergency, and in so doing, Palm 
No. 2020AP765-OA 

9

impinged upon the Legislature's constitutional core power and its 

functions under Wis. Stat. §§ 227.24 and 227.26. The Legislature's 

claim is grounded in the concept of separation of powers that is 

inherent in the Wisconsin Constitution. We previously have 

concluded that petitioners had standing to sue when, as 

legislators, they claimed that a member of the executive branch 

invaded the Legislature's core powers. Panzer v. Doyle, 2004 WI 

52, ¶42, 271 Wis. 2d 295, 680 N.W.2d 666, abrogated on other 

grounds by Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 

¶2, 295 Wis. 2d 1, 719 N.W.2d 408. Accordingly, we conclude that 

the Legislature has standing to proceed on the two claims for which 

we granted review. 

B. Standard of Review

¶14 Whether Emergency Order 28 fits the statutory definition 

of a "Rule" is critical to deciding the issues presented herein. 

We decide whether an action is a rule by interpreting Wis. Stat. 

§ 227.01(13), which defines when an action is a rule and when 

specified actions are not rules. § 227.01(13)(a)–(zz). Issues of 

statutory interpretation and application present questions of law. 

Milwaukee Police Ass'n. v. City of Milwaukee, 2018 WI 86, ¶17, 383 

Wis. 2d 247, 914 N.W.2d 597.

C. Applicable Statutes

1. Wisconsin Stat. § 227.01(13)

¶15 The Legislature contends that Palm violated the law by 

issuing Emergency Order 28 because Order 28 is a "Rule" as defined 

in Wis. Stat. § 227.01(13), and Palm did not follow rulemaking 

procedures that were required by Wis. Stat. § 227.24 when Order 28 
No. 2020AP765-OA 

10

was propagated. Palm contends that Order 28 is not a rule, but 

rather an order of state-wide application, which did not require 

that rulemaking procedures be followed during propagation. If 

Order 28 meets the statutory definition of a rule, then Palm 

violated the law because Palm admits that rulemaking procedures 

were not employed.

¶16 Wisconsin Stat. § 227.01(13), which defines "Rule" and 

those actions that are not rules is central to this controversy. 

It provides in relevant part:

"Rule" means a regulation, standard, statement of 

policy, or general order of general application that has 

the force of law and that is issued by an agency to 

implement, interpret, or make specific legislation 

enforced or administered by the agency or to govern the 

organization or procedure of the agency. "Rule" 

includes a modification of a rule under s. 227.265. 

"Rule" does not include, and s. 227.10 does not apply 

to, any action or inaction of an agency, whether it would 

otherwise meet the definition under this subsection, 

that: [come within the actions described in (a)–(zz)].

¶17 The Legislature argues that Emergency Order 28 is a rule 

because it is a "general order of general application." Wis. Stat. 

§ 227.01(13). The Legislature focuses the relevant inquiry on to 

whom the order applies; not why or how it applies. It is undisputed 

that Emergency Order 28 is applicable to every person physically 

present in Wisconsin, whether they were present when the order was 

issued or entered Wisconsin subsequently. Order 28 is not an 

"order in a contested case" nor "an order directed to a 

specifically named person or to a group of specifically named 

persons that does not constitute a general class." 
No. 2020AP765-OA 

11

§ 227.01(13)(b), (c). If it were either, it would be exempt from 

the definition of a rule set out in § 227.01(13).

¶18 Palm asserts that Emergency Order 28 is not a general 

order of general application because it responds to a specific 

situation. She states, "While an order responding to the pandemic 

may be a 'general order' because it applies to the population as 

a whole, it is not of 'general application' because it responds 

only to a specific, limited-in-time scenario." 

¶19 Palm also cites Wis. Stat. § 252.02(4), which states, in 

part, that "[a]ny rule or order" made by DHS "may be made 

applicable to the whole or any specified part of the state." She 

argues there has to be some way for an order to be applicable to 

the "whole" state without it being a general order of general 

application or the reference to orders in § 252.02(4) is redundant 

because all general orders of general application are rules. 

Therefore, Palm contends, Emergency Order 28 cannot be a general 

order of general application solely because it applies to every 

person physically present in Wisconsin. She also cites 

§ 252.02(6), which states that DHS can "authorize and implement 

all emergency measures to control communicable diseases."

¶20 The question of when a general order is of general 

application has been addressed previously by Wisconsin courts. We 

addressed the meaning of Wis. Stat. § 227.01(13)'s term, "of 

general application," in Citizens for Sensible Zoning, 90 

Wis. 2d 804. There, "the DNR issued an order which found that 

Columbia County had not enacted a reasonable and effective flood 

plain zoning ordinance and which adopted a zoning ordinance for 
No. 2020AP765-OA 

12

the delineated flood plain." Id. at 808. Over ten months after 

DNR promulgated the ordinance, Citizens for Sensible Zoning, Inc. 

(Citizens) sought declaratory judgment that the ordinance was 

invalid. Id. at 809. The DNR moved to dismiss on the ground that 

Citizens' claim was time-barred. Id. As we explained, Citizens' 

claim was not time-barred if the ordinance was a rule. Id. at 

813–14. 

¶21 Our answer to the question of whether the ordinance was 

a rule, was determined by the definition of "Rule" now set out in 

Wis. Stat. § 227.01(13).11 We concluded the ordinance was a rule 

because it was a "regulation of general application." Id. at 816. 

We stated:

It is not always easy to determine whether an agency 

action is a rule and is of general application or is a 

determination which affects specific parties. The 

Columbia County flood plain zoning ordinance applies 

only to land within the floodplain in unincorporated 

areas of Columbia County. The ordinance restricts the 

conduct of only those persons with a legal interest in 

such land. Nevertheless, to be of general application, 

a rule need not apply to all persons within the state. 

Even though an action applies only to persons within a 

small class, the action is of general application if 

that class is described in general terms and new members 

can be added to the class.

Id. at 814–16 (emphasis added). 

 

11 At the time that Citizens for Sensible Zoning, Inc. v. DNR, 

90 Wis. 2d 804, 280 N.W.2d 702 (1979) was decided, Wis. Stat. 

§ 227.01(3) (1973-74) defined "Rule" as "a regulation, standard, 

statement of policy or general order . . . of general application 

and having the effect of law, issued by an agency to implement, 

interpret or make specific legislation enforced or administered by 

such agency or to govern the organization or procedure of such 

agency." 
No. 2020AP765-OA 

13

¶22 We explained that "a rule for purposes of ch. 227 is 

(1) a regulation, standard, statement of policy or general order; 

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

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

specific legislation enforced or administered by such agency as to 

govern the interpretation or procedure of such agency." Id. at 

814. We concluded that the flood plain ordinance was a rule. Id. 

In so doing, our focus was on the people who were regulated by the 

order. Id. (explaining that the ordinance restricts the conduct 

of those persons with a legal interest in property in the flood 

plain). Our focus was not on the type of factual circumstances 

that led to the DNR order. We concluded that when the class of 

people regulated by an order "is described in general terms and 

new members can be added to the class," the order is of general 

application and is a rule. Id. at 816. There, the class of people 

were described in general terms and new members could be added to 

the class when others secured legal interests in property in the 

flood plain. 

¶23 Citizens for Sensible Zoning has been cited for its 

explanation of the Wis. Stat. § 227.01(13) term, "of general 

application," when a challenge is made to an agency action 

asserting that the action is a "Rule." In Cholvin v. DHFS, 2008 

WI App 127, 313 Wis. 2d 749, 758 N.W.2d 118, the court of appeals 

applied Citizens for Sensible Zoning. Id., ¶23. In Cholvin, the 

plaintiff had been receiving Wisconsin Medicaid program benefits. 

Id., ¶1. She challenged an instruction given to screeners that 

hindered her ability to continue receiving benefits. Id. One of 
No. 2020AP765-OA 

14

the issues was whether the instruction was a policy of general 

application and therefore a rule. She argued the policy was "of 

general application because it applie[d] to the entire class of 

persons who have their eligibility for a Medicaid waiver program 

determined by the use of the functional screen." Id., ¶24. She 

contended "that new members can be added to the class as additional 

people seek to receive Medicaid waiver benefits and as changes in 

their fluctuating abilities occur." Id. The court of appeals 

agreed, concluding that the instruction was a policy of general 

application and therefore a rule. Id., ¶25. As with Citizens for 

Sensible Zoning, in Cholvin, the focus was on the people regulated, 

not on the factual context in which the regulation arose. The 

class of people was described in general terms and there was the 

ability to add new members to the class. Id. 

¶24 We conclude that Order 28 is a "general order of general 

application." The order regulates all persons in Wisconsin at the 

time it was issued and it regulates all who will come into 

Wisconsin in the future. If we were to read the definition of 

"Rule" as Palm suggests, one person, Palm, an unelected official, 

could create law applicable to all people during the course of 

COVID-19 and subject people to imprisonment when they disobeyed 

her order. 

¶25 Palm has not addressed either Citizens for Sensible 

Zoning or Cholvin, yet these precedential decisions directly 

address whether Palm's Order 28 is a rule. In addition, both cases 

stand contrary to her argument that the reason for the order is 

controlling. Furthermore, both cases noted the openness of the 
No. 2020AP765-OA 

15

groups of people regulated. Stated otherwise, people not regulated 

by the order one day could have been regulated the next. Citizens 

for Sensible Zoning, 90 Wis. 2d at 814–16; Cholvin, 313 

Wis. 2d 749, ¶24. In the case now before us, persons travelling 

from other states become bound by Order 28 when they cross into 

Wisconsin. 

¶26 We note that the legislative history underlying Wis. 

Stat. § 252.02 confirms our understanding that the drafters of the 

language on which Palm relies did not contemplate expanding DHS's 

authority, nor did DHS understand the amendment to do so. 1981 

Assembly Bill 711 created the "issue orders" language. In the 

"Explanatory Notes" DHS stated that the bill is "basically 

technical changes designed to bring the statute into concordance 

with the current public health and epidemiologic thought and 

terminology." In 1979, the predecessor statute of Wis. Stat. 

§ 227.01(13) addressed "general orders of general application," 

showing that DHS had the authority to issue orders in 1979, but 

that an "order" was a "Rule" when it met the statutory definition 

of a rule. Citizens for Sensible Zoning, 90 Wis. 2d at 815. And 

finally, the Legislative Reference Bureau never described the 

added language as changing DHS's authority.

¶27 We also are not persuaded by Palm's characterization of 

Emergency Order 28. Her assertion that "it responds only to a 

specific, limited-in-time scenario" is questionable and not 

relevant to whether Order 28 is a rule. Furthermore, a "limitedin-time scenario" is not the power that Palm has seized. To 
No. 2020AP765-OA 

16

explain further, subsequent to Order 28, Palm has issued Emergency 

Order 31, which states:

Wisconsin shall adopt a phased approach to re-opening 

its economy and society, with each phase being 

incrementally less restrictive on businesses and 

individuals while protecting the public from COVID-19. 

The Department of Health Services shall announce the 

transition to each Phase with an order fully 

articulating the activities that will resume.

Emergency Order 31's "Gating Criteria" direct repeated extensions 

of the restrictions in Order 28 until criteria Palm has 

established, again without following the procedures for 

emergencies set out in Wis. Stat. § 227.24, are met. Stated 

otherwise, Palm's subjective judgment in regard to "Gating 

Criteria" is the only limitation of Order 28's restrictions. 

¶28 Rulemaking exists precisely to ensure that kind of 

controlling, subjective judgment asserted by one unelected 

official, Palm, is not imposed in Wisconsin. See NLRB v. WymanGorden Co., 394 U.S. 759, 764 (1969) (plurality opinion) 

(explaining that "rule-making provisions of that Act [the 

Administrative Procedures Act], which the Board would avoid, were 

designed to assure fairness and a mature consideration of rules of 

general application").

¶29 We recognize that emergency rulemaking procedures 

contemplate that rules may have to be promulgated in response to 

extraordinary circumstances. Wisconsin Stat. § 227.24(1)(a) 

explains that:

An agency may . . . promulgate a rule as an emergency 

rule without complying with the notice, hearing, and 

publication requirements under this chapter if 
No. 2020AP765-OA 

17

preservation of the public peace, health, safety, or 

welfare necessitates putting the rule into effect prior 

to the time it would take effect if the agency complied 

with the procedures.

An emergency rule promulgated under § 227.24(1)(a) "remains in 

effect only for 150 days," § 227.24(1)(c), unless extended by the 

Legislature's Joint Committee for Review of Administrative Rules. 

§ 227.24(2)(a). As counsel for the Legislature explained during 

oral argument: "Necessarily under [ch.] 227 you're dealing with 

a rule that's time limited and necessarily you're dealing with a 

rule that's responding to a new set of circumstances and is 

prospective." Therefore, Emergency Order 28 is a general order of 

general application: the class is generally defined and new 

members are added to the class when people enter Wisconsin. 

¶30 We also note that Wis. Stat. § 227.01(13)(a)–(zz) 

contains 72 specific exemptions from the definition of "Rule." 

The exemptions are extraordinarily detailed.12 Some exemptions 

apply to DHS. For example, DHS actions relating "to computing or 

publishing the number of nursing home beds, to be added in each 

 

12 For example, "standards under subch. IX of ch. 254" are 

exempted. Wis. Stat. § 227.01(13)(zu). Subchapter IX covers the 

"Sale or Gift of Cigarettes or Tobacco Products to Minors." 

Wisconsin Stat. § 254.916(1)(b) states: "The department, in 

consultation with other governmental regulatory authorities and 

with retailers, shall establish standards for procedures and 

training for conducting investigations under this section." 

Further, a rule does not include agency action that "[e]stablishes 

criteria and standards for certifying instructors for the trapper 

education program." § 227.01(13)(zn). Furthermore, the definition 

of rule does not cover decisions that "relate[] to the curriculum 

of, admission to or graduation from a public educational

institution, as determined by each institution." § 227.01(13)(f). 

The list goes on and on, describing § 227.01(13)'s 72 exemptions 

from the definition of "Rule." 
No. 2020AP765-OA 

18

health planning area under s. 150.33(1)" are exempt from the 

definition of "Rule." § 227.01(13)(u). Some exemptions relate to 

"orders," e.g., § 227.01(13)(b) and (c). However, despite the 

detailed nature of the list, and the Legislature's consideration 

of acts of DHS and its consideration of "orders," no act or order 

of DHS pursuant to Wis. Stat. § 252.02 is exempted from the 

definition of "Rule." 

¶31 In addition, we employ the constitutional-doubt 

principle. That is, we disfavor statutory interpretations that 

unnecessarily raise serious constitutional questions about the 

statute under consideration. Clark v. Martinez, 543 U.S. 371,

380-81 (2005). Palm points to statutes that she asserts give her 

broad authority to impose regulation; but it does not follow she 

can impose regulation without going through a process to give the 

people faith in the justness of the regulation. However, under 

Palm's theory, she can "implement all emergency measures necessary 

to control communicable diseases," Wis. Stat. § 252.02(6), even at 

the expense of fundamental liberties, without rulemaking. That 

interpretation is constitutionally suspect. We do not construe 

§ 252.02(6) as an "open-ended grant" of police powers to an 

unconfirmed cabinet secretary. Indus. Union Dep't, AFL-CIO v. Am. 

Petroleum Inst., 448 U.S. 607, 646 (1980) (plurality) (explaining 

that statutory construction that affords a "sweeping delegation of 

legislative power" has the potential to cause constitutional 

problems in future cases).

¶32 To explain further, Article I, Section 1 of the Wisconsin 

Constitution provides that "All people are born equally free and 
No. 2020AP765-OA 

19

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 form the 

consent of the governed." The people consent to the Legislature 

making laws because they have faith that the procedural hurdles 

required to pass legislation limit the ability of the Legislature 

to infringe on their rights. These limits include bicameralism 

and presentment, Wis. Const. art. V, § 10, quorum requirements, 

Wis. Const. art. IV, § 7, and journal and open door requirements, 

Wis. Const. art. IV, § 10. At times, legislation is enacted that 

infringes on a person's rights despite these front-end procedures, 

however, for that we have judicial review.

¶33 We have allowed the Legislature to delegate its 

authority to make law to administrative agencies. But as we stated 

in Martinez v. DILHR, 165 Wis. 2d 687, 697, 478 N.W.2d 582 (1992), 

such a delegation is allowed only if there are "adequate standards 

for conducting the allocated power." Stated otherwise, "[a] 

delegation of legislative power to a subordinate agency will be 

upheld if the purpose of the delegating statute is ascertainable 

and there are procedural safeguards to insure that the board or 

agency acts within that legislative purpose." J.F. Ahern Co. v. 

Wis. State Bldg. Comm'n, 114 Wis. 2d 69, 90, 336 N.W.2d 679 

(Ct. App. 1983) (quoting Watchmaking Examining Bd. v. Husar, 49 

Wis. 2d 526, 536, 182 N.W.2d 257 (1971)). 

¶34 When a grant of legislative power is made, there must be 

procedural safeguards to prevent the "arbitrary, unreasonable or 

oppressive conduct of the agency." J.F. Ahern, 114 Wis. 2d at 90 
No. 2020AP765-OA 

20

(quoting DOA v. DILHR, 77 Wis. 2d 126, 135, 252 N.W.2d 353 (1977)). 

Procedural safeguards, generally, are those requirements imposed 

by the Administrative Procedures Act, codified at ch. 227. Id. at 

135.

¶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. 

That is why our case law consistently speaks of "procedural and

judicial safeguards." E.g., id. (emphasis added). Rulemaking 

provides the ascertainable standards that hinder arbitrary or 

oppressive conduct by an agency. Judicial review does not prevent 

oppressive conduct from initially occurring.

¶36 Furthermore, Emergency Order 28 purports to criminalize 

conduct pursuant to Wis. Stat. § 252.25 when a factual directive

of Order 28 is transgressed.13 For example, Order 28 purports to 

impose 30 days in jail when a person leaves home for a purpose 

Palm did not approve. 

¶37 However, in order to constitute criminal conduct

proscribed by statute, the conduct must be set out with specificity 

in the statute to give fair notice. State v. Starks, 51 Wis. 2d 

256, 263-64, 186 N.W.2d 245 (1971). The same specificity is 

 

13 Emergency Order 28, Section 18; Wis. Stat. § 252.25 

provides: "Any person who willfully violates or obstructs the 

execution of any . . . department 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."
No. 2020AP765-OA 

21

required in a properly promulgated rule before criminal sanctions 

could follow violations. Both must "meet the standards of 

definiteness applicable to statutory definitions of criminal 

offenses." State v. Courtney, 74 Wis. 2d 705, 709, 247 N.W.2d 714

(1976) (violation of rule, Wis. Admin. Code § Ag 29.12(6), was 

charged as a misdemeanor). 

¶38 It has long been the law in Wisconsin that in order for 

the violation of an administrative agency's directive to 

constitute a crime, the directive must have been properly 

promulgated as a rule. HM Distribs. of Milwaukee v. Dep't of Ag., 

55 Wis. 2d 261, 268-69, 198 N.W.2d 598 (1972) (discussing a 

contention that criminal penalties were not proper because the 

administrative regulation was not properly promulgated as a rule); 

see also State v. Lambert, 68 Wis. 2d 523, 526, 229 N.W.2d 622 

(1975) (explaining that criminal conduct can follow from a properly 

promulgated rule). 

¶39 Palm asserts that Order 28 is not a rule, yet she also 

asserts Wis. Stat. § 252.25 endows her with the power to create 

criminal penalties for violations of Order 28. Her argument stands 

§ 252.25 on its head. This is so because criminal penalties can 

arise from a rule violation only when the rule was properly 

promulgated. HM Distribs., 55 Wis. 2d at 268-69 (explaining that 

HM Distributors' contention that "proper and required rulemaking 

procedures were not followed" was without merit). Without the 

promulgation of a rule, no criminal penalties are possible for 

violations of administrative agency directives. Id. 
No. 2020AP765-OA 

22

¶40 Notwithstanding the law, Emergency Order 28 does not 

rely on a statute within ch. 252 defining the elements of the crime 

to which punishment under Wis. Stat. § 252.25 must refer. Rather,

the prohibited "criminal conduct" to which Palm refers is factually 

defined solely by Emergency Order 28. Stated otherwise, Palm 

created the potential for a crime by Order 28. Counsel for Palm 

admitted as much at oral argument when he said that there was only 

one element that needed to be proved in a criminal prosecution for 

a violation of Emergency Order 28: that a provision of the order 

was violated. Such an argument is without legal foundation and 

ignores more than 50 years of Wisconsin law, some of which we cited 

above. 

¶41 As we said at the beginning of this decision, the 

Governor's emergency powers are not challenged by the Legislature, 

and Palm does not rely on the Governor's emergency powers. 

Constitutional law has generally permitted the Governor to respond 

to emergencies without the need for legislative approval. "With 

no time for ex ante deliberation, and no metric for ex post 

assessments, the executive's capacities for swift, vigorous, and 

secretive action are at a premium." Deborah N. Pearlstein, Form 

and Function in the National Security Constitution, 41 Conn. L. 

Rev. 1549, 1565 (2009) (internal quotations omitted). But the 

Governor's emergency powers are premised on the inability to secure 

legislative approval given the nature of the emergency. For 

example, if a forest fire breaks out, there is no time for debate. 

Action is needed. The Governor could declare an emergency and 

respond accordingly. But in the case of a pandemic, which lasts 
No. 2020AP765-OA 

23

month after month, the Governor cannot rely on emergency powers 

indefinitely.14 

¶42 Emergency Order 28 is a general order of general 

application within the meaning of Wis. Stat. § 227.01(13). It is 

a rule; and accordingly, the rulemaking procedures of Wis. Stat. 

§ 227.24, which protect people affected by DHS orders, were 

required to be followed during the promulgation of Order 28. 

Furthermore, Palm's reliance on Wis. Stat. § 252.25 for criminal 

penalties for those who violate Order 28 is misplaced. She chose 

not to follow the law; therefore, there can be no criminal 

penalties for violations of Order 28. Courtney, 74 Wis. 2d at 

709. 

2. Wisconsin Stat. ch. 252

¶43 Chapter 252 addresses communicable diseases. Palm 

relies on Wis. Stat. § 252.02 for the legitimacy of Order 28. As 

already explained, Palm was in error to assert that she was not 

required to comply with rulemaking procedures. However, because 

we granted review of the second issue presented by the Legislature, 

we assume, arguendo, that rulemaking was not required, and consider 

 

14 Indeed, Wis. Stat. § 323.10 authorizes the Governor to 

invoke special emergency powers for 60 days when the Governor 

declares an emergency, which Governor Evers did here. We note 

that 60 days is more than enough time to follow rulemaking 

procedures pursuant to Wis. Stat. § 227.24. Therefore, emergency 

circumstances do not justify Palm's failure to follow the 

Administrative Procedures Act. However, Palm claims that neither 

rulemaking nor time-constraints inherent to emergency powers 

restrict her power. That assertion is contrary to the law in the 

State of Wisconsin.
No. 2020AP765-OA 

24

whether Emergency Order 28 exceeded the scope of permissible 

actions under § 252.02. 

¶44 Palm claims that "the meaning of the provisions in [Wis. 

Stat. §] 252.02 are plain." She argues that "DHS has the power to 

take direct action to control communicable diseases, just as it 

did through Safer-at-Home [Order 28]." She asserts that 

§ 252.02(6) gives DHS expansive authority to respond to a rare 

public health crisis like COVID-19. Therefore, she can "authorize 

and implement all emergency measures necessary to control 

communicable diseases." In addition, Palm asserts that Order 28 

is independently authorized under § 252.02(4), which provides DHS 

with multiple avenues "for the control and suppression of 

communicable diseases." And finally, many of Order 28's provisions 

also fall under § 252.02(3), which Palm asserts empowers her to 

"close schools and forbid public gatherings in schools, churches, 

and other public places to control outbreaks and epidemics."

¶45 Palm asserts her broadest grant of authority is Wis. 

Stat. § 252.02(6) because it says she can authorize and implement 

"all" emergency measures "necessary" to control communicable 

diseases.15 She asserts that "'all' [as a modifier] suggests an 

expansive meaning because 'all' is a term of great breadth." She 

cites Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 336 

(4th Cir. 2012) (quoting Nat'l Coal. for Students with Disabilities 

Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 290 (4th Cir. 

 

15 Wisconsin Stat. § 252.02(6) provides: "The department may 

authorize and implement all emergency measures necessary to 

control communicable diseases."
No. 2020AP765-OA 

25

1998)). She argues that she does not have limitless power under 

this subsection because it applies "only in an 'emergency,'" and 

"the statute requires an action be 'necessary.'"

¶46 Crimes created by the Legislature in statutes must have 

specificity in order to be enforceable. State v. Popanz, 112 

Wis. 2d 166, 173, 332 N.W.2d 750 (1983) (explaining that a 

"criminal statute must be sufficiently definite to give a person 

of ordinary intelligence who seeks to avoid its penalties fair 

notice of conduct required or prohibited"). Because Palm fails to 

understand the specificity necessary to a valid criminal statute, 

she also fails to understand that no less specificity is required 

of a rule to which criminal penalties are assigned. Courtney, 74 

Wis. 2d at 709. 

¶47 If Wis. Stat. § 252.02(6) were the sole factual 

foundation for criminal charges, no criminal prosecution could 

result because § 252.02(6) does not have the specificity required 

for fair notice of the conduct required or prohibited. Stated 

otherwise, it has no definable standards for required or prohibited 

conduct. Popanz, 112 Wis. 2d at 173. If Emergency Order 28 had 

been promulgated as a rule, it has much more specificity; however, 

since no rulemaking occurred, Order 28 cannot save itself. 

¶48 Palm next cites Wis. Stat. § 252.02(4).16 

Section 252.02(4) addresses four occurrences that permit DHS 

 

16 Wisconsin Stats. § 252.02(4) provides: 

Except as provided in ss. 93.07 (24) (e) and 97.59, the 

department may promulgate and enforce rules or issue 

orders for guarding against the introduction of any 

communicable disease into the state, for the control and 
No. 2020AP765-OA 

26

action: First, "for guarding against the introduction of any 

communicable disease into the state;" second, "for control and 

suppression of communicable diseases;" third, "for the quarantine 

and disinfection of persons, localities and things infected or 

suspected of being infected by a communicable disease," and fourth, 

"for the sanitary care of jails, state prisons, mental health 

institutions, schools, and public buildings and connected 

premises."

¶49 However, Order 28 goes far beyond what is authorized in 

Wis. Stat. § 252.02(4). For example, Order 28 exceeds the 

§ 252.02(4) authority to quarantine those infected or suspected of 

being infected. Instead, Palm quarantines "[a]ll individuals 

present within the State of Wisconsin" by ordering them "to stay 

at home or at their place of residence" with exceptions she deems 

appropriate.17 She also prohibits "All public and private 

gatherings of any number of people that are not part of a single 

 

suppression of communicable diseases, for the quarantine 

and disinfection of persons, localities and things 

infected or suspected of being infected by a 

communicable disease and for the sanitary care of jails, 

state prisons, mental health institutions, schools, and 

public buildings and connected premises. Any rule or 

order may be made applicable to the whole or any 

specified part of the state, or to any vessel or other 

conveyance. The department may issue orders for any 

city, village or county by service upon the local health 

officer. Rules that are promulgated and orders that are 

issued under this subsection supersede conflicting or 

less stringent local regulations, orders or ordinances.

17 Emergency Order, Section 1.
No. 2020AP765-OA 

27

household or living unit."18 Again, this directive is not based 

on persons infected or suspected of being infected. 

¶50 Palm skips over this obvious overreach and contends that 

the first and second provision of Wis. Stat. § 252.02(4) permit 

actions taken in Order 28. However, once again, Order 28 is overly 

broad in its proscriptions. "Áll forms of travel are prohibited 

except for essential travel as defined in this Order,"19 i.e., by 

Palm. If this restriction supposedly is connected to the first 

permissible action under § 252.02(4) to "guard against the 

introduction of any communicable disease into the state," Order 28 

goes well beyond entry of communicable disease into the state. It 

prevents "All forms of travel," not simply interstate travel. 

Furthermore, nothing in § 252.02(4) permits Palm to close "All 

for-profit and non-profit businesses with a facility in Wisconsin, 

except [those Palm defies as essential businesses and 

operations]." She cites no authority for this vast seizure of 

power. 

¶51 In opposition to Palm's claims, the Legislature raised 

legislatively-imposed directives that courts are to follow when 

interpreting the scope of agency authority. To place this 

contention in context, the reader should note that there is history 

underlying how courts have interpreted administrative agency 

powers. Formerly, court decisions permitted Wisconsin 

administrative agency powers to be implied. See Wis. Citizens 

 

18 Id., Section 3.

19 Id., Section 5. 
No. 2020AP765-OA 

28

Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶14, 270 Wis. 2d 

318, 677 N.W.2d 612. In theory, "any reasonable doubt pertaining 

to an agency's implied powers" was resolved "against the agency." 

Wis. Builders Ass'n v. DOT, 2005 WI App 160, ¶9, 285 Wis. 2d 472, 

702 N.W.2d 433. However, the Legislature concluded that this 

theory did not match reality. Therefore, under 2011 Wis. Act 21,

the Legislature significantly altered our administrative law 

jurisprudence by imposing an "explicit authority requirement" on 

our interpretations of agency powers. Kirsten Koschnick, Comment, 

Making "Explicit Authority" Explicit Deciphering Wis. Act 21's 

Prescriptions for Agency Rulemaking Authority, 2019 Wis. L. 

Rev. 993, 997. 

¶52 The explicit authority requirement is codified at Wis. 

Stat. § 227.10(2m), which provides: "No agency may implement or 

enforce any standard, requirement, or threshold, . . . unless that 

standard, requirement, or threshold is explicitly required or 

explicitly permitted by statute or by a rule that has been 

promulgated in accordance with this subchapter[.]" Furthermore, 

Wis. Stat. § 227.11(2)(a)1.—3., as summarized by a recent comment 

in the Wisconsin Law Review, "prevent[s] agencies from 

circumventing this new 'explicit authority' requirement by simply 

utilizing broad statutes describing the agency's general duties or 

legislative purpose as a blank check for regulatory authority."20 

 

20 Wisconsin Stat. § 227.11(2)(a)2. provides: "A statutory 

provision describing the agency's general powers or duties does 

not confer rule-making authority on the agency or augment the 

agency's rule-making authority beyond the rule-making authority 

that is explicitly conferred on the agency by the legislature." 
No. 2020AP765-OA 

29

Koschnick, Making "Explicit Authority" Explicit, at 996. The 

explicit authority requirement is, in effect, a legislativelyimposed canon of construction that requires us to narrowly construe 

imprecise delegations of power to administrative agencies. See

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation 

of Legal Texts 225 (2012) ("Interpretive-Direction 

Canon": "interpretation clauses are to be carefully followed.").

¶53 In addition, the Legislature cites two more canons of 

construction that it asserts apply here: first, the Legislature 

does not alter fundamental details of a regulatory scheme in vague 

terms or in ancillary provisions. Second, the Legislature cites 

the constitutional-doubt principle. As the United States 

Department of Justice has recently written in a COVID-19-related 

case raising constitutional issues, "There is no pandemic 

exception . . . to the fundamental liberties the Constitution 

safeguards. Indeed, 'individual rights secured by the 

Constitution do not disappear during a public health crisis.' 

These individual rights, including the protections in the Bill of 

Rights made applicable to the states through the Fourteenth 

Amendment, are always in force and restrain government action." 

Statement of Interest, Temple Baptist Church v. City of Greenville, 

No. 4:20-cv-64-DMB-JMV (N.D. Miss. April 14, 2020), ECF No. 6 

(quoting In re Abbott, 954 F.3d 772 (5th Cir. 2020)).

¶54 With these canons as guides, the Legislature interprets 

Wis. Stat. § 252.02(3), (4) and (6) much differently than Palm. 

To some extent, Palm and the Legislature are talking past each 

other. For example, Palm focuses on § 252.02(6) which she asserts 
No. 2020AP765-OA 

30

granted broad powers to DHS. The Legislature focuses on the 

necessary procedural foundation that must precede DHS's 

implementation or enforcement. As Wis. Stat. § 227.10(2m) 

directs, unless a rule has been promulgated pursuant to ch. 227 or 

the DHS action is "explicitly required or explicitly permitted by 

statute" DHS has no power to implement or enforce its directives.

¶55 We do not define the precise scope of DHS authority under 

Wis. Stat. § 252.02(3), (4) and (6) because clearly Order 28 went 

too far. We cannot expansively read statutes with imprecise 

terminology that purport to delegate lawmaking authority to an 

administrative agency. The Legislature appropriately cites the 

statutory explicit authority requirement, Wis. Stat. § 229.10(2m),

and has provided plausible readings of the text. 

¶56 We have declared rights under the law wherein we have 

concluded that Emergency Order 28 is invalid and therefore, 

unenforceable. Although a very unusual request, on April 21, 2020, 

the Legislature asked this court to issue a temporary injunction 

of Emergency Order 28 but then requested a stay of that injunction 

for at least six days. We perceive this request as being grounded 

in a concern for an orderly transition from Order 28 to a lawful 

rule. 

¶57 However, more than two weeks have passed since we began 

our consideration of this case. Therefore, we trust that the 

Legislature and Palm have placed the interests of the people of 

Wisconsin first and have been working together in good faith to 

establish a lawful rule that addresses COVID-19 and its devastating 

effects on Wisconsin. People, businesses and other institutions 
No. 2020AP765-OA 

31

need to know how to proceed and what is expected of them. 

Therefore, we place the responsibility for this future law-making 

with the Legislature and DHS where it belongs.

IV. CONCLUSION

¶58 We conclude that Emergency Order 28 is a rule under the 

controlling precedent of this court, Citizens for Sensible Zoning, 

Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore

is subject to statutory emergency rulemaking procedures 

established by the Legislature. Emergency Order 28 is a general 

order of general application within the meaning of Wis. Stat. 

§ 227.01(13) which defines "Rule." Accordingly, the rulemaking 

procedures of Wis. Stat. § 227.24 were required to be followed 

during the promulgation of Order 28. Because they were not, 

Emergency Order 28 is unenforceable.21 Furthermore, Wis. Stat. 

§ 252.25 required that Emergency Order 28 be promulgated using the 

procedures established by the Legislature for rulemaking if 

criminal penalties were to follow. Because Palm did not follow the 

law in creating Order 28, there can be no criminal penalties for 

violations of her order. The procedural requirements of Wis. Stat. 

ch. 227 must be followed because they safeguard all people.

¶59 We further conclude that Palm's order confining all 

people to their homes, forbidding travel and closing businesses 

 

21 This decision does not apply to Section 4. a. of Emergency 

Order 28. 
No. 2020AP765-OA 

2

exceeded the statutory authority of Wis. Stat. § 252.02, upon which 

Palm claims to rely. 

By the Court.—Palm's Emergency Order 28 is declared unlawful, 

invalid, and unenforceable. 
No. 2020AP765-OA.pdr

1

¶60 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). I join 

the majority opinion, but for the reasons set forth below I also 

concur.

¶61 We have declared that Emergency Order 28 is invalid and 

therefore, unenforceable. Earlier, the Legislature asked us to 

issue an injunction but to stay such an injunction for six days, 

and at oral argument, the Legislature implied that a longer stay 

may be appropriate if we were to enjoin Order 28. 

¶62 Requesting a stay for a requested injunction is a very 

unusual request, but we understand that it is driven by the 

Legislature's concern that confusion may result if Order 28 is 

declared invalid and actions to enforce our declaration 

immediately commence. People, businesses and other institutions 

may not know how to proceed or what is expected of them.

¶63 Furthermore, there is authority supporting such a 

request. Declaratory judgment is a legal remedy; however, it is 

analogous to an injunction, which is an equitable remedy. Samuels 

v. Mackell, 401 U.S. 66, 70–71 (1971). In Samuels, The United 

States Supreme Court stated:

Although the declaratory judgment sought by the 

plaintiffs [in Great Lakes Dredge & Dock Co. v. Huffman, 

319 U.S. 293 (1943)] was a statutory remedy rather than 

a traditional form of equitable relief, the Court made 

clear that a suit for declaratory judgment was 

nevertheless 'essentially an equitable cause of action,' 

and was 'analogous to the equity jurisdiction in suits 

quia timet or for decree quieting title.' . . . [T]he 

Court held that in an action for a declaratory judgment, 

'the district court was as free as in any other suit in 

equity to grant or withhold the relief prayed, upon 

equitable grounds.
No. 2020AP765-OA.pdr

2

Samuels, 401 U.S. at 70-71 (internal citations omitted). The Court 

emphasized the "continuing validity" of its analogy between 

declaratory judgments and injunctive relief. Id. at 71. 

¶64 The analogy between declaratory judgment and injunctive 

relief is particularly strong in the context of this case. As 

then-Chief Justice Abrahamson and Justice Ann Walsh Bradley said, 

"[t]he oft-stated, oft-repeated legal maxim is clear: declaratory 

judgments are treated functionally as injunctions, when applied to 

governmental parties who are bound by the force and meaning of 

judgments under the law." Madison Teachers, Inc. v. Walker, 2013 

WI 91, ¶43, 351 Wis. 2d 237, 869 N.W.2d. 388 (Abrahamson, C.J., & 

A.W. Bradley, J., dissenting).1

¶65 Therefore, I conclude there is a legal basis upon which 

to consider the Legislature's extraordinary request. I too am 

appreciative of the concerns raised by COVID-19 and the possibility 

of throwing the state into chaos. Accordingly, although our 

declaration of rights is effective immediately, I would stay future 

actions to enforce our decision until May 20, 2020. However, I 

 

1 In Village of Brown Deer, we concluded that the circuit 

court could not stay execution of a declaratory judgment. Village

of Brown Deer v. City of Milwaukee, 8 Wis. 2d 631, 635, 99 

N.W.2d 860 (1959). However, Village of Brown Deer is factually 

distinct from the case before us because the stay resulted in 

creation of a financial obligation for a city. Id. at 637. We 

explained that by staying execution, "the city would be required 

to finance services in an area that had been judiciary [sic] 

determined to belong to the village. The trial court had no 

authority to impose that duty upon the city." Id. In the present 

dispute, there is no burden imposed on DHS as a result of our stay. 

Indeed, it will be helpful to Palm because she and her staff can 

use the period to promulgate an emergency rule pursuant to Wis. 

Stat. § 227.24.
No. 2020AP765-OA.pdr

2

trust that the parties will place the interests of the people of 

Wisconsin first and work together in good faith to quickly 

establish a rule that best addresses COVID-19 and its devastating 

effects on Wisconsin.
No. 2020AP765-0A.rgb

1

¶66 REBECCA GRASSL BRADLEY, J. (concurring).1 Under the 

Wisconsin Constitution, all governmental power derives "from the 

consent of the governed" and government officials may act only 

within the confines of the authority the people give them. Wis. 

Const. art. I, § 1. The people of Wisconsin never consented to 

any elected official, much less an unelected cabinet secretary, 

having the power to create law, execute it, and enforce it. 

"[E]ver vigilant in averting the accumulation of power by one body—

—a grave threat to liberty——the people devised a diffusion of 

governmental powers" among three branches of government. Gabler 

v. Crime Victims Rights Bd., 2017 WI 67, ¶60, 376 Wis. 2d 147, 897 

N.W.2d 384. Whenever any branch of government exceeds the 

boundaries of authority conferred by the people, it is the duty of 

the judicial branch to say so.

¶67 However well-intentioned, the secretary-designee of the 

Department of Health Services exceeded her powers by ordering the 

people of Wisconsin to follow her commands or face imprisonment 

for noncompliance.2 In issuing her order, she arrogated unto 

herself the power to make the law and the power to execute it, 

excluding the people from the lawmaking process altogether. The 

 

1 I join the majority opinion in full.

2 I would have promptly granted the Legislature's Emergency 

Motion for Temporary Injunction, enjoining Emergency Order 28, the 

Safer at Home Order, a motion the legislature filed on April 21, 

2020. An unlawful order should never issue in the first place, 

and it should not remain in effect for any period past the time a 

court ascertains its unlawfulness. In the context of a request 

for injunctive relief, an unlawful order of this magnitude, 

applicable to every citizen and every person present in the State 

of Wisconsin, should be enjoined as soon as a court determines the 

moving party is likely to succeed on the merits.
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separation of powers embodied in our constitution does not permit 

this. Statutory law being subordinate to the constitution,3 not 

even the people's representatives in the legislature may 

consolidate such power in one person.

To the Framers of the United States Constitution, the 

concentration of governmental power presented an 

extraordinary threat to individual liberty: "The 

accumulation of all powers, legislative, executive, and 

judiciary, in the same hands, whether of one, a few, or 

many, . . . may justly be pronounced the very definition 

of tyranny." The Federalist No. 47, at 298 (James 

Madison) (Clinton Rossiter ed., 1961).

 

3 Spurning more than two centuries of fundamental 

constitutional law as well as the Wisconsin Constitution's 

guarantee of liberty, Justice Brian Hagedorn shockingly proclaims 

"the judiciary must never cast aside our laws or the constitution 

itself in the name of liberty." Justice Hagedorn's dissent, ¶259. 

Setting aside the self-contradictory nature of that statement, 

Justice Hagedorn's 53-page opinion contains no constitutional 

analysis whatsoever, affirmatively rejects the constitution, and 

subjugates liberty. The Wisconsin Constitution IS the law——and it 

reigns supreme over any statute. "The Constitution's supremacy 

over legislation bears repeating: 'the Constitution is to be 

considered in court as a paramount law' and 'a law repugnant to 

the Constitution is void, and . . . courts, as well as other 

departments, are bound by that instrument.' See Marbury [v. 

Madison], 5 U.S. (1 Cranch) [137] at 178, 180 [1803]." Mayo v. 

Wis. Injured Patients and Families Comp. Fund, 2018 WI 78, ¶91, 

383 Wis. 2d 1, 914 N.W.2d 678 (Rebecca Grassl Bradley, J., 

concurring).

The Constitution is either a superior, paramount law, 

unchangeable by ordinary means, or it is on a level with 

ordinary legislative acts, and like other acts, is 

alterable when the legislature shall please to alter it. 

If the former part of the alternative be true, then a 

legislative act contrary to the Constitution is not law; 

if the latter part be true, then written constitutions 

are absurd attempts, on the part of the people, to limit 

a power, in its own nature illimitable. 

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
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Gabler, 376 Wis. 2d 147, ¶4 (ellipsis by Gabler). Blackstone——

whose conception of the separation of powers "profoundly 

influenced" the Founders——"defined a tyrannical government as one 

in which 'the right both of making and of enforcing the laws, is 

vested in one and the same man, or one and the same body of men,' 

for 'wherever these two powers are united together, there can be 

no public liberty.'" Koschkee v. Taylor, 2019 WI 76, ¶50, 387 

Wis. 2d 552, 929 N.W.2d 600 (Rebecca Grassl Bradley, J., 

concurring) (citing DOT v. Association of Am. R.Rs., 575 U.S. 43, 

73 (2015) (Thomas, J., concurring) (quoted source omitted)). 

Thomas Jefferson similarly warned that "concentrating [all the 

powers of government] in the same hands is precisely the definition 

of despotic government."4

¶68 The people of Wisconsin pronounced liberty to be of 

primary importance, establishing government principally to protect 

their freedom. "The Wisconsin Constitution begins with a 

Declaration of Rights, echoing language from our nation's 

Declaration of Independence, recognizing that the proper role of 

government——the very reason governments are instituted——is to 

secure our inherent rights, including liberty:

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 

 

4 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 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.
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rights, governments are instituted, deriving their just 

powers from the consent of the governed. 

Wis. Const. art. I, § 1 (emphasis added). 'Too much dignity cannot 

well be given to that declaration.' An inherent right to liberty 

means all people are born with it; the government does not bestow 

it upon us and it may not infringe it." Porter v. State, 2018 WI 

79, ¶52, 382 Wis. 2d 697, 913 N.W.2d 842 (Rebecca Grassl Bradley, 

J. and Daniel Kelly, J., dissenting) (emphasis added; internal 

citation omitted). Under the Wisconsin Constitution, government 

officials, whether elected or appointed, are servants of the 

citizens, not their masters.

¶69 Endowing one person with the sole power to create, 

execute, and enforce the law contravenes the structural separation 

of powers established by the people. Through the Wisconsin 

Constitution, the people confer distinct powers on the 

legislative, executive, and judicial branches of government. 

"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 power . . . shall be vested in a unified 

court system')." Gabler, 376 Wis. 2d 147, ¶11. "[T]he 

Constitution's central mechanism of separation of powers depends 

largely upon common understanding of what activities are 

appropriate to legislatures, to executives, and to courts." Lujan 

v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). Under the 

Wisconsin Constitution, the legislature makes the laws; an 
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unelected cabinet secretary serving in the executive branch cannot 

unilaterally do so.

¶70 Underlying the separation of powers reflected in our 

governmental structure is an avoidance of concentrations of 

authority: "it may be too great a temptation to human frailty, 

apt to grasp at power, for the same persons who have the power of 

making laws to have also in their hands the power to execute them." 

John Locke, The Second Treatise of Civil Government § 143 (1764), 

reprinted in Two Treatises of Government 119, 194 (Thomas I. Cook 

ed., 1947). "Montesquieu shared Locke's concern about the threat 

to liberty from accumulated power, expressing apprehension that a 

government with shared legislative and executive power could first 

'enact tyrannical laws' then 'execute them in a tyrannical 

manner.'" Gabler, 376 Wis. 2d 147, ¶5 (citing 1 Montesquieu, The 

Spirit of the Laws 151-52 (Oskar Piest et al. eds., Thomas Nugent 

trans., 1949) (1748) (footnote omitted)). Preserving the 

perimeters of power constitutionally conferred on each branch of 

government is essential for securing the liberty of the people. 

"The purpose of the separation and equilibration of powers in 

general . . . was not merely to assure effective government but to 

preserve individual freedom." Morrison v. Olson, 487 U.S. 654, 

727 (1988) (Scalia, J., dissenting). 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 
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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. This is particularly true in the context 

of the police power, the source of authority cited by the DHS 

secretary-designee in this case.

¶71 "Historically, when courts contaminate constitutional 

analysis with then-prevailing notions of what is 'good' for 

society, the rights of the people otherwise guaranteed by the text 

of the Constitution may be trampled. Departures from 

constitutional text have oppressed people under all manner of 

pernicious pretexts:

[T]he notion of "social harm" supporting the police 

power was completely untethered from constitutional text

and ripe for misuse in the hands of a Justice such as 

Holmes, who believed that the Constitution could be 

reduced to ad hoc balancing. Eugenics was built upon the 

notion of harm; indeed, it thrived on a sense of imminent 

doom: that society was degenerating because of what 

were called its "weaklings" and "discards." The idea 

that society was being swamped by incompetents was a 

common trope for eugenicists: the unfit were a 

"menace." . . . Like the great popular eugenicists of 

the day, Holmes wrote in Buck that eugenics would prevent 

society from being "swamped" by incompetents, that fewer 

criminals would be executed, and that fewer imbeciles 

would starve.

Victoria Nourse, Buck v. Bell: A Constitutional Tragedy from a 

Lost World, 39 Pepp. L. Rev. 101, 114-15 (2011) (emphasis added; 

footnotes omitted)." State v. Roberson, 2019 WI 102, ¶84, 389 

Wis. 2d 190, 935 N.W.2d 813 (Rebecca Grassl Bradley, J., 

concurring) (some emphasis omitted; some emphasis added).
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¶72 In Korematsu v. United States, 323 U.S. 214 (1944),5 the 

United States Supreme Court professed to apply "the most rigid 

scrutiny" to the internment of Japanese-Americans during World War 

II but nevertheless found the "assembling together and placing 

under guard all those of Japanese ancestry" in "assembly centers" 

to be constitutional based on "[p]ressing public necessity" and 

further rationalized this defilement of the Constitution because 

"the need for action was great, and time was short." Id. at 216, 

221, 223-24. "Korematsu is one of the Supreme Court's most reviled 

decisions——a relic of the nation's dark past widely regarded as 

unlikely to be repeated." Stephen Dycus, Requiem for Korematsu, 

10 J. Nat'l Sec. L. & Pol'y 237 (2019). And thankfully so. 

Nonetheless, the public fear underlying this contemptible case is 

capable of pressuring jurists to misuse the constitution in other 

contexts:

Judges "are heavily influenced by the perceived 

practical consequences of their decisions rather than 

being straight-jacketed by legal logic. . . . In a 

democracy," [Eric Yamamoto] writes, "judicial 

independence serves as the crucial check on the 

political branches' majoritarian impulses." 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. at 246 (citing Eric K. Yamamoto, In the Shadow of Korematsu: 

Democratic Liberties and National Security (Oxford Univ. Press 

2018) (footnotes omitted)). Although headlines may sensationalize 

the invocation of cases such as Korematsu, the point of citing 

them is not to draw comparisons between the circumstances of people 

 

5 Abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018).
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horrifically interned by their government during a war and those 

of people subjected to isolation orders during a pandemic. We 

mention cases like Korematsu in order to test the limits of 

government authority, to remind the state that urging courts to 

approve the exercise of extraordinary power during times of 

emergency may lead to extraordinary abuses of its citizens.6 "Of 

 

6 During oral arguments in this case, I posed multiple 

questions to the state's attorney representing the DHS secretarydesignee, asking him to identify the limits on her powers. 

Ultimately, he conceded the DHS secretary-designee could "take all 

necessary action" and identified only judicial review and "the 

medical community" as constraints on her power:

Court: One of the rationales that we're hearing 

justifying the Secretary's order in this case is that,

well it's a pandemic, and there isn't enough time to 

promulgate a rule and have the legislature involved with 

determining the details of the scope of the Secretary's 

authority. I'll direct your attention to another time in 

history and the Korematsu decision where the Court said 

the need for action was great and time was short and 

that justified, and I'm quoting, "assembling together 

and placing under guard all those of Japanese ancestry 

in assembly centers during World War II." Could the 

Secretary under this broad delegation of legislative 

power or legislative-like power order people out of 

their homes into centers where they are properly 

socially distanced in order to combat the pandemic?

State's counsel: Your Honor, Korematsu was an equal 

protection challenge to the action that the government 

took to address the crisis. This is not a substantive 

constitutional challenge to what DHS has done –

Court: My question goes to the scope again of the 

Secretary's authority and what the limits are. What I'm 

hearing is, well the legislature doesn't need to specify 

the limits, it's a time of pandemic, there isn't enough 

time to go through rulemaking, so the Secretary just has 

to do whatever she alone deems necessary to combat the 

pandemic. So my question to you in invoking Korematsu

is not the bases for the claims that were brought in 

that case versus this case; the point of my question is,
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what are the limits, constitutional or statutory? There 

have to be some, don't there counsel?

State's counsel: Yes. There absolutely are your Honor. 

Justice Bradley, I think if you read the petition for an 

original action that was filed with your court just last 

evening, there are a variety of fundamental rights based 

claims that target different pieces of Executive [sic 

"Emergency"] Order 28 on the basis of the freedom of 

religion, the freedom to travel, and-and I don't know 

all what's in there, it's a long petition, but there's 

a lot of constitutional rights in it. That is one of 

the fundamental backstops against an unreasonable and 

unconstitutional exercise of power by DHS.

Court: Counsel, that's not answering my question. I 

understand. We all understand that people have the right 

to come to this court or another court to vindicate their 

constitutional interests. What I'm asking——set aside the 

constitution for a moment, then. What are the statutory 

limits on the Secretary's power because I'm looking at 

page 45 of your brief and you say that section "252.02 

is not legislation 'enforced or administered by' DHS 

through issuing Safer-at-Home, and DHS's actions did not 

'implement, interpret, or make more specific' standards 

that the legislature designed by statute." Section 

252.02, according to your brief, "simply empowers DHS to 

act." What are the limits on the powers of DHS to act? 

What can't DHS do under the statute?

State's counsel: Your Honor, I think you take the 

statutory text as it is and the statutory text empowers 

DHS to take all necessary action to combat communicable 

diseases. I understand your Honor may be uncomfortable 

with that broad grant of authority in the sense that you 

think it may allow DHS to go too far. I humbly submit 

to you that that concern is best addressed to the 

legislature and asking them to amend the statute that 

they passed and-and-and lobby them to add limitations of 

the kind that your Honor is discussing.

Court: Let me just follow-up please. I have one more 

question. I think it goes to the heart of what this 

case is all about and as I understand the legislature's 

argument, the legislature is asking us to construe the 

statute so that there isn't a constitutional problem 

because counsel, I think there is a constitutional 

problem with the legislature giving away this much power 
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to an unelected cabinet secretary. The people never 

consented to a single individual having that kind of 

power.

State's counsel: I would respond in two ways. First, 

the DHS cabinet secretary serves at the pleasure of the 

Governor. She's clearly accountable to the people in 

the same way the Governor is. The second thing I'd say 

is the people chose to grant a broad power to the state's 

public health agency to do what's necessary in a pandemic 

to fight it. Courts for over a century have recognized 

that legislatures – I really encourage you to just think 

about it – think about it.

Court: Counsel, I have thought a lot about it. And my 

concern goes back to what the limits are on the Secretary 

because under your interpretation of the statutes she 

can do whatever she wants and she can order people to 

jail if they don't comply and I don't think the 

legislature can give that kind of power to an unelected 

individual.

State's counsel: Your Honor, what I can say is for over 

a century, courts have recognized that in the context of 

infectious diseases, it is practically impossible for 

the legislature to be able to predict exactly what is 

necessary. You have to keep in mind this is a novel –

it is literally called the novel coronavirus. We have 

never seen it before. We don't know exactly what it can 

do. And so the legislature realized that it needed to 

give an agency with the ability to respond with expertise 

and alacrity to changing dynamic circumstances on the 

ground.

Court: The logical consequence of your argument, 

counsel, is that the government could step in and do 

this, the DHS secretary could step in and do this every 

single flu season, every year, because the flu kills 

tens of thousands of people in America every year and 

that's a communicable disease. So would you agree with 

me then that the DHS secretary under your interpretation 

could be empowered to do this every single flu season?

State's counsel: No your Honor. I think that the DHS 

secretary if it tried to do that every single flu season 

would have no support in the medical community for 

imposing that kind of restriction.
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course, history may repeat itself – if we ignore the lessons of 

the past, and if the courts fail to do their duty." Stephen Dycus,

Requiem for Korematsu, 10 J. Nat'l Sec. L. & Pol'y at 252.7

¶73 These cases, among other similarly despicable examples, 

illustrate rather painfully why the judiciary cannot dispense with 

constitutional principles, even in response to a dire emergency. 

Indeed, it is in the midst of emergencies that constraints on 

government power are most important. It is during such emergencies 

that our historical memory is of vital importance. Although 

invoking the most odious instances of government-sanctioned 

oppression makes many uncomfortable and tends to trigger outrage, 

it is imperative to do so in order to remind the citizenry of grave 

abuses that have been justified in the name of exigent need. These 

repugnant cases must be cited to explain the fundamental importance 

of judicial resistance to popular pressures, which in times of 

crisis implore judges to cast aside the law in the name of 

emergency. "History teaches that grave threats to liberty often 

come in times of urgency, when constitutional rights seem too 

extravagant to endure. . . . [W]hen we allow fundamental freedoms 

to be sacrificed in the name of real or perceived exigency, we 

 

(Emphasis added.)

7 Although Korematsu has been disavowed by the United States 

Supreme Court, astonishingly, it has never been overruled. See 

Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) ("The dissent's 

reference to Korematsu, however, affords this Court the 

opportunity to make express what is already obvious: Korematsu

was gravely wrong the day it was decided, has been overruled in 

the court of history, and——to be clear——'has no place in law under 

the Constitution.' [Korematsu v. United States,] 323 U.S. [214], 

at 248 [1944] (Jackson, J. dissenting).").
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invariably come to regret it." Skinner v. Railway Labor 

Executives' Ass'n, 489 U.S. 602, 635 (1989) (Marshall, J., 

dissenting). Even if a significant portion of the public supports 

the Safer at Home Order, the judiciary must protect the structural 

separation of powers embodied in our state and federal 

constitutions in order to avoid future monumental mistakes from 

which our republic may never recover. "Experience should teach us 

to be most on our guard to protect liberty when the Government's 

purposes are beneficent. Men born to freedom are naturally alert 

to repel invasion of their liberty by evil-minded rulers. The 

greatest dangers to liberty lurk in insidious encroachment by men 

of zeal, well-meaning but without understanding." Olmstead v. 

United States, 277 U.S. 438, 479 (1928) (Brandeis, J. dissenting)

(overruled in part on other grounds by Katz v. United States, 389 

U.S. 347 (1967)).

¶74 Thomas Jefferson counseled that "the powers of 

government should be so divided and balanced among several bodies 

of magistracy, as that no one could transcend their legal limits, 

without being effectually checked and restrained by the others."8 

The judiciary serves as a check not only on the legislative and 

executive branches, but on itself no less. In the midst of the 

COVID-19 pandemic, I dissented from this court's indefinite 

 

8 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 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.
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suspension of criminal jury trials as a violation of the Sixth 

Amendment to the United States Constitution.9 I also dissented 

from this court's indefinite suspension of non-criminal jury 

trials, which overrode every statutory deadline applicable to such 

proceedings, because "[t]he court lacks any authority to infringe 

the right of Wisconsin citizens to have their cases tried by juries 

within the time frames established by the people's representatives 

in the legislature."10 In its ongoing suspension of the laws 

enacted by the people's representatives in the legislature, I 

cautioned that this court "invades the province of the legislature, 

violates the separation of powers, and 'creates a confrontation of 

constitutional magnitude between the legislature and this 

court.'"11 Notwithstanding COVID-19, "[n]either the constitution 

nor the statutes recognize an exception for public health 

emergencies."12

¶75 It "is the obligation of the Judiciary not only to 

confine itself to its proper role, but to ensure that the other 

branches do so as well." City of Arlington, Tex. v. F.C.C., 569 

 

9 In Re the Matter of Jury Trials During the COVID-19 Pandemic

(S. Ct. Order issued March 22, 2020) (Rebecca Grassl Bradley, J., 

dissenting) ("The Wisconsin Supreme Court suspends the 

constitutional rights of Wisconsin citizens, citing the exigency 

of a public health emergency. The Constitution does not 

countenance such an infringement.").

10 Interim Rule 20-02 In the Matter of an Interim Rule Re: 

Suspension of Deadlines for Non-Criminal Jury Trials Due to the 

COVID-19 Pandemic (March 31, 2020) (Rebecca Grassl Bradley, J., 

dissenting).

11 Id. (quoted source omitted).

12 Id.
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U.S. 290, 327 (2013) (Roberts, C.J., dissenting). In Gabler, this 

court invalidated a legislative conferral of authority on the 

executive branch: "In creating an executive branch entity with 

authority to pass judgment and impose discipline on a judge's 

exercise of core judicial powers, the Wisconsin legislature 

violates the Wisconsin Constitution's structural separation of 

powers and invades a domain recognized for over two hundred years 

as the exclusive province of the judiciary." Gabler, 376 

Wis. 2d 147, ¶1. Declaring the statute unconstitutional was 

necessary to protect the independence of the judiciary: "By 

statutorily authorizing executive action against the judiciary, 

the legislature unconstitutionally conferred power on an executive 

board to impair, improperly influence, and regulate the 

judiciary's exercise of its constitutional duties." Id., ¶2.

¶76 These instances illustrate that the judiciary acts as 

the backstop against encroachments by any branch——including the 

judiciary——on the core powers of a coordinate branch. "Whenever 

any branch of government claims the authority to act beyond the 

boundaries of its powers, the people should be alarmed."13 It is 

"judicial independence that serves as a bulwark protecting the 

people against tyranny." Gabler, 376 Wis. 2d 147, ¶2.

¶77 This court is well aware that many Wisconsin citizens 

support the Safer at Home Order while many oppose it. This court 

does not base its decisions on popular opinion; it grounds them in 

 

13 Interim Rule 20-02 In the Matter of an Interim Rule Re: 

Suspension of Deadlines for Non-Criminal Jury Trials Due to the 

COVID-19 Pandemic ¶15 n.1 (March 31, 2020) (Rebecca Grassl Bradley, 

J., dissenting).
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the law. It is for the political branches, not the judiciary, to 

respond to the public's wishes, and for this court to declare 

whether each branch acts within its constitutional grant of power 

and in accord with statutory law.14 "Emergency does not create 

power. Emergency does not increase granted power or remove or 

diminish the restrictions imposed upon power granted or reserved. 

The Constitution was adopted in a period of grave emergency. Its 

grants of power to the federal government and its limitations of 

the power of the States were determined in the light of emergency, 

and they are not altered by emergency." Home Bldg. & Loan Ass'n 

v. Blaisdell, 290 U.S. 398, 425 (1934) (emphasis added). In a 

republic in which the constitution demarcates the powers assigned 

to each branch of government, it is of foundational importance 

which government official presumes the power to control the people. 

Particularly in an emergency, this court may not cast aside the 

constitution nor disregard statutory law.

 

14 In a thinly-veiled attempt at garnering a sensationalized 

headline, Justice Rebecca Dallet repeatedly employs fear tactics 

in lieu of the law in order to dramatize her perceptions of the 

consequences of the majority's opinion. See, e.g., Justice 

Dallet's dissent, ¶¶132, 147, 162. Well-established canons of law

soundly reject this method of statutory construction, which favors

an interpretation that will "produce sensible, desirable results, 

since that is surely what the legislature must have intended. But 

it is precisely because people differ over what is sensible and 

what is desirable that we elect those who will write our laws——

and expect courts to observe what has been written." Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts 22 (2012). Hyperbolic concerns about the consequences of 

judicial interpretation of the law cannot override our duty to say 

what the law is and not what we may wish it to be. Marbury v. 

Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
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¶78 The DHS secretary-designee bases her authority to enter 

the Safer at Home Order on Wis. Stat. § 252.02, which she 

characterizes as a law that "simply empowers DHS to act"——

unilaterally, and with no input from the legislature or the people. 

The statutory language is indeed sweeping, and if interpreted 

expansively, calls into question its constitutionality as an 

impermissible delegation of legislative power never authorized by 

the people. As a general principle, it is the duty of the 

legislature to create the law, and any delegation of lawmaking 

responsibility to administrative agencies like DHS must be 

carefully circumscribed in order to avoid the people being governed 

by unelected bureaucrats.

¶79 "The concentration of power within an administrative 

leviathan clashes with the constitutional allocation of power 

among the elected and accountable branches of government at the 

expense of individual liberty." Koschkee, 387 Wis. 2d 552, ¶42 

(Rebecca Grassl Bradley, J., concurring). There is an inherent 

incompatibility between "the system of bureaucratic rule that took 

root in the Progressive era and now reaches into virtually every 

realm of American life" and the constitution's "'deliberate 

calibration of incentives and control between the branches' 

reflected in the structural separation of powers." Id., ¶43 (first 

quoting Charles J. Cooper, Confronting the Administrative State, 

25 National Affairs 96, 96 (Fall 2015); then quoting Gabler, 376 

Wis. 2d 147, ¶7). "The philosophical roots of rule by bureaucratic 

overlords are antithetical to the Founders' vision of our 

constitutional Republic, in which supreme power is held by the 
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people through their elected representatives." Koschkee, 387 

Wis. 2d 552, ¶45 (Rebecca Grassl Bradley, J., concurring). When 

legislatures expound broad policy goals and leave the details to 

administrative bodies, "[t]he consolidation of power within 

executive branch agencies 'often leaves Americans at the[ir] 

mercy' endowing agencies with 'a nearly freestanding coercive 

power' and '[t]he agencies thereby become rulers of a sort 

unfamiliar in a republic, and the people must jump at their 

commands.'" Id. (citing Phillip Hamburger, Is Administrative Law 

Unlawful? 335 (2014)).

¶80 It is insufficient for the DHS secretary-designee to 

point to the legislature's statutory delegation of lawmaking power 

as the source of her authority to dictate how the people must 

conduct their lives, without considering the constitutional 

ramifications of such a broad statutory interpretation——namely, 

the threat to the liberty of the people. "The Founders recognized 

that maintaining the formal separation of powers was essential to 

preserving individual liberty.

This devotion to the separation of powers is, in part, 

what supports our enduring conviction that the Vesting 

Clauses are exclusive and that the branch in which a 

power is vested may not give it up or otherwise 

reallocate it. The Framers were concerned not just with 

the starting allocation, but with the 'gradual 

concentration of the several powers in the same 

department.' The Federalist No. 51, at 321 (J. Madison).

Koschkee, 387 Wis. 2d 552, ¶51 (Rebecca Grassl Bradley, J., 

concurring) (citing DOT v. Association of Am. R.Rs., 575 U.S. 43, 

73 (Thomas, J., concurring)). "Under the original understanding 

of the Constitution," devising and imposing "generally applicable 
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rules of private conduct" on the people "requires the exercise of 

legislative power," and "the discretion inherent in executive 

power does not comprehend the discretion to formulate generally 

applicable rules of private conduct." Association of Am. R.Rs., 

575 U.S. at 69 (Thomas, J., concurring). Nor does the constitution 

contemplate executive power to penalize noncompliance with 

administratively-drawn rules of conduct through fines and 

imprisonment. "In facilitating the vast expansion of the 

administrative state, the legislative and executive branches 

transferred power from the people's elected representatives and 

elected executives, bestowing it upon unelected and unaccountable 

bureaucrats, thereby jeopardizing the constitution's safeguards 

against the tyrannical concentration of power." Koschkee, 387 

Wis. 2d 552, ¶53 (Rebecca Grassl Bradley, J., concurring).

¶81 In a particularly chilling exchange with this court 

during oral arguments, the attorney for the state representing the 

DHS secretary-designee claimed the authoritarian power to 

authorize the arrest and imprisonment of the people of Wisconsin 

for engaging in lawful activities proscribed by the DHS secretarydesignee in her sole discretion:

Court: Are there any statutory or constitutional limits 

on the powers of the Secretary?

. . . .

State's counsel: DHS's actions are limited by what is 

necessary to combat the infectious disease that's 

presented at the time. . . . when DHS faces an outbreak 

of a dangerous, communicable disease, it can do what is 

necessary to combat that disease.

Court: Whatever DHS and the cabinet secretary solely 

determine is necessary, right?
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State's counsel: . . . this is what the statute 

says . . . it says that DHS shall implement all 

emergency measures to control communicable 

diseases. . . . [T]hat is what the statute says. It 

gives that power to DHS. This is the statute the 

legislature chose to enact.

Court: . . . [T]he Secretary can identify behavior that 

is not otherwise criminal and . . . she can all by 

herself sit down at her computer keyboard, write up a 

description of behavior and make it criminal, correct?

. . . .

State's counsel: Yes. The scope of available 

enforcement is determined by the order. 

Yes. . . . That's true.

"If the separation of powers means anything, it must mean that the 

prosecutor isn't allowed to define the crimes he gets to 

enforce." Neil Gorsuch, A Republic If You Can Keep It 87 (Crown 

Forum ed., 1st ed. 2019). Justice Gorsuch's admonishment applies 

no less to an unelected cabinet secretary claiming the power to 

unilaterally define the crime and then enforce it.

¶82 "The people of Wisconsin vest distinct constitutional 

powers of governance in each branch of government, but consistent 

with founding principles of limited government and individual 

freedom, the people also impose constraints on the exercise of 

those powers." Porter, 382 Wis. 2d 697, ¶52 (Rebecca Grassl 

Bradley, J. and Daniel Kelly, J., dissenting). Among those 

constraints, it is constitutionally impermissible for the 

legislature to authorize the head of an administrative agency to 

unilaterally compel the 5.8 million citizens of Wisconsin to stay 

home, close their businesses, and face imprisonment if they do not 
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comply.15 Even in a pandemic, and notwithstanding the good 

intentions of the cabinet secretary. 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."16 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."17

¶83 While the rulemaking process the law requires as a 

precondition to an order of this magnitude may seem cumbersome 

during a pandemic, "the difficulties of the legislative process 

were essential to [the constitution's] design, purposefully placed 

there to ensure that laws would be more likely the product of 

deliberation than haste; more likely the product of compromise 

among the many than the will of the few; and more likely to respect 

 

15 The Safer at Home Order actually reaches beyond Wisconsin 

citizens to any individual present within the State: "All 

individuals present within the State of Wisconsin are ordered to 

stay at home or at their place of residence[.]"

16 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 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.

17 Id.
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minority interests than trample on their rights." Neil Gorsuch, A 

Republic If You Can Keep It 63 (Crown Forum ed., 1st ed. 2019).

* * *

¶84 Informed by the lessons of history, the Constitution was 

established to safeguard the rights of the people even under the 

most exigent circumstances. The framers "foresaw that troublous 

times would arise, when rulers and people would become restive 

under restraint, and seek by sharp and decisive measures to 

accomplish ends deemed just and proper; and that the principles of 

constitutional liberty would be in peril, unless established by 

irrepealable law. The history of the world had taught them that 

what was done in the past might be attempted in the future. The 

Constitution of the United States is a law for rulers and people, 

equally in war and in peace, and covers with the shield of its 

protection all classes of men, at all times, and under all 

circumstances. No doctrine, involving more pernicious 

consequences, was ever invented by the wit of man than that any of 

its provisions can be suspended during any of the great exigencies 

of government. Such a doctrine leads directly to anarchy or 

despotism, but the theory of necessity on which it is based is 

false; for the government, within the Constitution, has all the 

powers granted to it, which are necessary to preserve its 

existence; as has been happily proved by the result of the great 

effort to throw off its just authority." Ex parte Milligan, 71 

U.S. 2, 120-21 (1866) (emphasis added). It is especially in times 

of emergency that we must protect the rights of the people, lest 

we establish a dangerous precedent empowering less benevolent 
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government officials in the future to oppress the people in the 

name of exigency.

¶85 "In America THE LAW IS KING! For as in absolute 

governments the king is law, so in free countries the law ought to 

be king; and there ought to be no other." Thomas Paine, 1776, 

Common Sense (1776). In Wisconsin, as in the rest of America, the 

Constitution is our king——not the governor, not the legislature, 

not the judiciary, and not a cabinet secretary. We can never 

"allow fundamental freedoms to be sacrificed in the name of real 

or perceived exigency" nor risk subjecting the rights of the people 

to "the mercy of wicked rulers, or the clamor of an excited 

people." Fear never overrides the Constitution. Not even in times 

of public emergencies, not even in a pandemic.

¶86 I am authorized to state that Justice DANIEL KELLY joins 

this concurrence.
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¶87 DANIEL KELLY, J. (concurring). Secretary-designee 

Andrea Palm, pursuant to authority she says she found in Wis. Stat. 

§ 252.02 (2017-18),1 has taken control of a stunningly broad swath 

of the lives and activities of every single individual and business 

in the State of Wisconsin. Pursuant to Executive Order 28 (the 

"Order"), she is dictating that, inter alia:

 all individuals present within the State of 

Wisconsin stay at home or at their place of

residence, subject only to exceptions allowed by 

the Secretary. Section 1;

 all for-profit and non-profit businesses with a 

facility in Wisconsin, except essential businesses 

and operations (as defined in the Order) cease all 

activities at facilities located within Wisconsin

except as allowed by the Secretary. Section 2;

 all businesses allowed to remain open conform to 

the Secretary's directives on how to conduct their 

activities. Sections 2, 13, 14;

 there be no private gatherings except as allowed by 

the Secretary. Section 3;

 no one may travel except as allowed by the 

Secretary. Section 5;

 all people engaged in activities allowed by the 

Order must comply with DHS guidelines. Section 6;

 everyone must comply with social distancing 

requirements, including minimum spacing between 

individuals, how to wash one's hands, how to cough 

or sneeze, when to clean, and a ban on shaking 

hands. Sections 1, 2(b), 5, 8, 11(c), 13, 14, 15, 

16.

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
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And she asserts that violations of her Order are punishable as 

crimes. Order, Section 18 ("This Order is enforceable by any local 

law enforcement official, including county sheriffs. Violation or 

obstruction of this Order is punishable by up to 30 days 

imprisonment, or up to $250 fine, or both."). 

¶88 The Secretary says the Legislature delegated to her the 

authority to exercise this nearly total control over our lives via 

Wis. Stat. § 252.02. As relevant here, that statute empowers the 

Department of Health Services to:

"[C]lose schools and forbid public gatherings in 

schools, churches, and other places to control outbreaks 

and epidemics." Wis. Stat. § 252.02(3);

"[P]romulgate and enforce rules or issue orders for 

guarding against the introduction of any communicable 

disease into the state, for the control and suppression 

of communicable diseases . . . ." Wis. Stat. 

§ 252.02(4); and

"[A]uthorize and implement all emergency measures 

necessary to control communicable diseases." Wis. Stat. 

§ 252.02(6).

The court's opinion ably describes why these provisions do not 

confer on her the authority necessary to support the Order, and I 

join it. My purpose in writing separately is to describe why, 

under our constitutional form of government, the Legislature 

cannot possibly have given the Secretary the authority she believes 

she has.

¶89 In the Secretary's view, the Legislature gave her 

plenary power to simply "act" without the need of any further 

statutory or regulatory policy. Her brief candidly asserts there 

are no statutory or regulatory limitations on her authority to 

address communicable diseases:
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Wis. Stat. § 252.02 is not legislation "enforced or 

administered by" DHS through issuing Safer-at-Home

[Order], and DHS's actions here did not "implement, 

interpret, or make more specific" standards that the 

Legislature designed by statute. Unlike statutes that 

regulate certain conduct or activities, like food safety 

or traffic laws, section 252.02, as relevant here, 

simply empowers DHS to act. Thus, Safer-at-Home is not 

"enforc[ing]" any legislative requirement . . . .

(Emphasis added.) That is to say, she expressly disavows any 

suggestion that she is implementing statutory standards. And she 

not only acknowledges, but affirmatively asserts, that she is not 

enforcing any statutory requirement. This statute, she says, 

simply empowers her to "act." When queried during oral arguments, 

her attorney said there are no limits on this power, saving only 

judicial or legislative intervention.

¶90 But our constitution does not confer on any governmental 

official, bureaucrat, or employee a generalized power to "act." 

There are three powers on loan to our government——legislative, 

executive, and judicial. To the extent governmental officials may 

act at all, it is only within the context of one of those powers. 

Therefore, we must discern what type of authority the Secretary 

exercised when she issued her Order. And then, assuming Wis. Stat. 

§ 252.02 granted the Secretary all the power necessary to issue 

the Order, we must compare that grant against our basic 

constitutional structure and the non-delegation doctrine to 

determine whether the statute impermissibly delegated part of the 

Legislature's power to the Secretary. I'll begin with a brief 

rehearsal of the nature of legislative and executive powers.

I. THE LEGISLATIVE AND EXECUTIVE POWERS
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¶91 The executive's constitutionally-vested authority 

consists of executing the laws, not creating them: "The executive 

power shall be vested in a governor." Wis. Const. art. V, § 1. 

The difference between legislative and executive authority has 

been described as the difference between the power to prescribe 

and the power to put something into effect:

In 1792, Jacques Necker, the famous French 

statesman, neatly summed up the function and 

significance of the executive power. Of the function:

"[I]f by a fiction we were for a moment to personify the 

legislative and the executive powers, the latter in 

speaking of the former might . . . say: All that this 

man has talked of, I will perform." Of the significance: 

"The laws would in effect be nothing more than counsels, 

than so many maxims more or less sage, without this 

active and vigilant authority, which assures their 

empire and transmits to the administration the motion of 

which it stands in need."

Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 

U. Ill. L. Rev. 701, 819 (2003) (alteration in original; quoted 

source omitted). This commentator concluded that, "[i]n the lateeighteenth century, someone vested with the executive power and 

christened as the chief executive enjoyed the power to control the 

execution of law." Id.

¶92 On the other hand, we characterize legislative power as: 

"the authority to make laws, but not to enforce them." 

Schuette v. Van De Hey, 205 Wis. 2d 475, 480-81, 556 

N.W.2d 127 (Ct. App. 1996). Powers constitutionally 

vested in the legislature include the powers: "'to 

declare whether or not there shall be a law; to determine 

the general purpose or policy to be achieved by the law; 

[and] to fix the limits within which the law shall 

operate.'" See, e.g., Schmidt v. Dep't of Res. Dev., 39 

Wis. 2d 46, 59, 158 N.W.2d 306 (1968) (quoting State ex 

rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 472, 

505, 220 N.W. 929 (1928)).
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Koschkee v. Taylor, 2019 WI 76, ¶11, 387 Wis. 2d 552, 929 

N.W.2d 600 (alteration in original). It includes "the power to 

adopt generally applicable rules of conduct governing future 

actions by private persons——the power to 'prescrib[e] the rules by 

which the duties and rights of every citizen are to be regulated,'

or the power to 'prescribe general rules for the government of 

society.'" Gundy v. United States, 139 S. Ct. 2116, 2133, reh'g 

denied, 140 S. Ct. 579 (2019) (Gorsuch, J., dissenting)

(alteration in original) (quoting Fletcher v. Peck, 10 U.S. (6 

Cranch) 87, 136 (1810)). These powers must be kept forever 

separate because, as Madison once observed, "[t]here can be no 

liberty where the legislative and executive powers are united in 

the same person, or body of magistrates." The Federalist No. 47, 

at 299 (James Madison) (Clinton Rossiter ed., 1961). As I discuss 

below, our duty to ensure the lines do not cross is mandatory and 

non-discretionary.

II. THE SEPARATION OF POWERS AND THE NON-DELEGATION DOCTRINE

¶93 Our constitution opens with a frank statement of the 

proper relationship between the people of Wisconsin and their 

government. It declares that "[w]e, the people of

Wisconsin . . . do establish this constitution." Wis. Const. 

pmbl. This is a declaration of ownership; it establishes that the 

power to create and maintain governments belongs to the people. 

Our constitution also recognizes that the authors merely loan their 

authority to the government, they do not cede it. The very first 

article and section of the Wisconsin Constitution states that 

"[a]ll people are born equally free and independent, and have 
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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 (emphasis added). The 

government's power must come to it as a loan because the freedom 

to consent necessarily encompasses the freedom to withdraw that 

consent.

¶94 That has serious implications for the work conducted by 

each of the governmental branches. It means, first and foremost, 

that we must respect the constitutional structure they chose to 

create. Those selected to wield the government's loaned authority 

have no right to question the handiwork of the constitution's 

progenitors, except to the extent expressly allowed. See, e.g., 

Wis. Const. art. XII (providing for constitutional amendments and 

conventions). As relevant here, that means we must respect the 

fact that the constitution——the document adopted by the people of 

Wisconsin to direct and control the government they created——

divides authority amongst three distinct branches. Goodland v. 

Zimmerman, 243 Wis. 459, 466-67, 10 N.W.2d 180 (1943) 

("[G]overnmental powers are divided among the three departments of 

government, the legislative, the executive, and judicial[.]").2

 

2 "The executive power shall be vested in a governor." Wis. 

Const. art. V, § 1. "The legislative power shall be vested in a 

senate and assembly." Wis. Const. art. IV, § 1. "The judicial 

power of this state shall be vested in a unified court 

system . . . ." Wis. Const. art. VII, § 2.
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A. Separation of Powers

¶95 The "separation of powers" doctrine describes our 

understanding of how the constitution allocates each type of power 

to its respective branch.3 This fundamental principle of American 

constitutional government was "established at the founding of our 

nation and enshrined in the structure of the United States 

Constitution," and "inform[s] our understanding of the separation 

of powers under the Wisconsin Constitution." Gabler v. Crime 

Victims Rights Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147, 897 

N.W.2d 384; see also Flynn v. DOA, 216 Wis. 2d 521, 545, 576 

N.W.2d 245 (1998) ("The doctrine of separation of powers is 

implicitly found in the tripartite division of government [among] 

the judicial, legislative and executive branches." (citation 

omitted)); Goodland, 243 Wis. at 466-67 ("It must always be 

remembered that one of the fundamental principles of the American 

constitutional system is that governmental powers are divided 

among the three departments of government, the legislative, the 

executive, and judicial, and that each of these departments is 

separate and independent from the others except as otherwise 

provided by the constitution."); Rules of Court Case, 204 Wis. 501, 

503, 236 N.W. 717 (1931) ("It is, of course, elementary that we 

are committed by constitution to the doctrine of separation of 

powers.").

¶96 We must be assiduous in patrolling the borders between 

the branches. This is not just a practical matter of efficient 

 

3 I addressed this topic at some length in Tetra Tech EC, Inc. 

v. DOR, 2018 WI 75, ¶¶44-46, 382 Wis. 2d 496, 914 N.W.2d 21, and 

repeat it here for ease of access.
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and effective government. We maintain this separation because it 

provides structural protection against depredations on our 

liberties. The Framers of the United States Constitution 

understood that "[t]he accumulation of all powers legislative, 

executive and judiciary in the same hands, whether of one, a few 

or many, . . . may justly be pronounced the very definition of 

tyranny." The Federalist No. 47, at 298. Consequently, "[a]s 

Madison explained when advocating for the Constitution's adoption, 

neither the legislature nor the executive nor the judiciary 'ought 

to possess, directly or indirectly, an overruling influence over 

the others in the administration of their respective powers.'" 

Gabler, 376 Wis. 2d 147, ¶4 (quoting The Federalist No. 48, at 

305). "The purpose of the separation and equilibration of powers 

in general," said Justice Antonin Scalia, "was not merely to assure 

effective government but to preserve individual freedom."4 

Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., 

dissenting). To this day, "[a]fter more than two hundred years of 

constitutional governance, th[is] tripartite separation of 

independent governmental power remains the bedrock of the 

structure by which we secure liberty in both Wisconsin and the 

United States." Gabler, 376 Wis. 2d 147, ¶3. As Justice Joseph 

Story said, "the three great powers of government . . . should for 

 

4 See also Youngstown Sheet & Tube Co. v. Sawyer, 343 

U.S. 579, 635 (1952) (Jackson, J., concurring) (stating that "the 

Constitution diffuses power the better to secure liberty").

Centuries earlier, the French writer Montesquieu said "there is no 

liberty, if the judiciary power be not separated from the 

legislative and executive." Charles-Louis de Secondat 

Montesquieu, The Spirit of Laws bk. XI, at 152 (Thomas Nugent

trans., The Colonial Press rev. ed. 1900) (1748).
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ever be kept separate and distinct." Id. (quoting 2 Joseph Story, 

Commentaries on the Constitution of the United States § 519, at 2-

3 (Boston: Hilliard, Gray, & Co., 1833)).

¶97 The constitution does not, however, hermetically seal 

the branches from each other. The separation of powers doctrine 

"envisions a system of separate branches sharing many powers while 

jealously guarding certain others, a system of 'separateness but 

interdependence, autonomy but reciprocity.'" State ex rel. 

Friedrich v. Circuit Court for Dane Cty., 192 Wis. 2d 1, 14, 531 

N.W.2d 32 (1995) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 

343 U.S. 579, 635 (1952) (Jackson, J., concurring)). "The 

constitutional powers of each branch of government fall into two 

categories: exclusive powers and shared powers." State v. Horn, 

226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999). "Shared powers lie 

at the intersections of these exclusive core constitutional 

powers," and "[t]hese '[g]reat borderlands of power' are not 

exclusive to any one branch." Id. at 643-44 (quoting Friedrich, 

192 Wis. 2d at 14); see also State v. Holmes, 106 Wis. 2d 31, 42–

43, 315 N.W.2d 703 (1982). Although the "branches may exercise 

[shared] power within these borderlands," they "may [not] unduly 

burden or substantially interfere with another branch." Horn, 226 

Wis. 2d at 644.

¶98 Core powers, however, are not for sharing. "Each branch 

has exclusive core constitutional powers, into which the other 

branches may not intrude." Flynn, 216 Wis. 2d at 545. These 

"[c]ore zones of authority are to be 'jealously guarded' by each 

branch of government . . . ." Gabler, 376 Wis. 2d 147, ¶31 
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(quoting Barland v. Eau Claire Cty., 216 Wis. 2d 560, 573, 575 

N.W.2d 691 (1998)). The importance of constitutional limitations, 

Chief Justice Marshall once said, is that they compel restraint 

when restraint is not desired: "To what purpose are powers 

limited, and to what purpose is that limitation committed to 

writing, if these limits may, at any time, be passed by those 

intended to be restrained?" Marbury v. Madison, 5 U.S. (1 

Cranch) 137, 176 (1803).5

¶99 The separation of powers forbids abdication of core 

power just as much as it protects one branch from encroachment by 

another. "It is . . . fundamental and undeniable that no one of 

the three branches of government can effectively delegate any of 

the powers which peculiarly and intrinsically belong to that 

branch." Rules of Court Case, 204 Wis. at 503; see also id.

(stating that "any attempt to abdicate [a core power] in any 

particular field, though valid in form, must, necessarily, be held 

void'" (quoting State ex rel. Mueller v. Thompson, 149 Wis. 488, 

491, 137 N.W. 20 (1912))). Even if one branch truly wished to

abandon some aspect of its core power, no other branch may take it 

up and use it as its own. "As to these areas of 

authority, . . . any exercise of authority by another branch of 

government is unconstitutional.'" Gabler, 376 Wis. 2d 147, ¶31 

(quoting State ex rel. Fiedler v. Wis. Senate, 155 Wis. 2d 94, 

 

5 Chief Justice Marshall could be reaching through the 

intervening centuries to ask that exact question of Justice 

Hagedorn, who deploys a bevy of decision-avoidance doctrines so 

that he can affirm the Secretary's Order without determining 

whether it, or the statute upon which she relies, has exceeded 

constitutional boundaries. Justice Hagedorn's dissent, ¶¶245-258.
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100, 454 N.W.2d 770 (1990)); see also Town of Holland v. Vill. of 

Cedar Grove, 230 Wis. 177, 190, 282 N.W. 111 (1938) ("This court 

has repeatedly held that the judicial power vested by the 

constitution in the courts cannot be exercised by administrative 

or executive agencies.").

¶100 The borders between the branches require constant 

surveillance. It is not enough that we carefully drew them when 

our state was new. We need to keep a weather eye on the divide to 

ensure they maintain their separation:

This devotion to the separation of powers is, in part, 

what supports our enduring conviction that the Vesting 

Clauses are exclusive and that the branch in which a 

power is vested may not give it up or otherwise 

reallocate it. The Framers were concerned not just with 

the starting allocation, but with the "gradual 

concentration of the several powers in the same 

department." It was this fear that prompted the Framers 

to build checks and balances into our constitutional 

structure, so that the branches could defend their 

powers on an ongoing basis.

Dep't of Transp. v. Ass'n of Am. Railroads, 575 U.S. 43, 74 (2015) 

(Thomas, J., concurring) (quoted source and citations omitted). 

B. The Non-Delegation Doctrine

¶101 The border between the legislature and the executive is 

maintained, or at least it once was, under the aegis of the nondelegation doctrine. There are some who say this is a dead letter. 

See, e.g., Jason Iuliano & Keith E. Whittington, The Nondelegation 

Doctrine: Alive and Well, 93 Notre Dame L. Rev. 619 (2017) ("The 

nondelegation doctrine is dead. It is difficult to think of a 

more frequently repeated or widely accepted legal conclusion."). 

If that describes the doctrine's vitality in Wisconsin, it is not 

because we never recognized it or outright rejected it, but because 
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we allowed it to fall into desuetude.6 To the extent that has 

happened, we have been derelict in our duties.

¶102 The non-delegation doctrine rests on the premise that 

"[i]t is . . . fundamental and undeniable that no one of the three 

branches of government can effectively delegate any of the powers 

which peculiarly and intrinsically belong to that branch." Rules 

of Court Case, 204 Wis. at 503. The operative principle here is 

not that the branches should not delegate their core authority, it 

is that they cannot. 

¶103 This principle is a matter of power, not of prudence: 

the constitution's progenitors did not grant the various branches 

permission to shuffle their distinct powers amongst themselves. 

Justice Neil Gorsuch, commenting on this principle in the federal 

context, consulted John Locke ("one of the thinkers who most 

influenced the framers' understanding of the separation of 

powers") for its animating rationale:

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. The people alone can appoint the form of 

the commonwealth, which is by constituting the 

legislative, and appointing in whose hands that shall 

be. And when the people have said we will submit to 

rules, and be governed by laws made by such men, and in 

such forms, nobody 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 authorised to make laws for them.

 

6 We described this creeping enervation in Gilbert v. State, 

Med. Examining Bd., 119 Wis. 2d 168, 185, 349 N.W.2d 68 (1984): 

"Since 1928, however, the doctrine of the delegation of legislative 

power has shifted the focus away from the nature of the power 

delegated through scrutiny of the delegating standard's language 

and more toward the safeguards surrounding the delegated power."
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Gundy, 139 S. Ct. at 2133–34 (Gorsuch, J., dissenting) (quoting 

John Locke, The Second Treatise of Civil Government and a Letter 

Concerning Toleration § 41, p. 71 (1947)). It is for that reason 

the legislature cannot alienate even a sliver of its core power, 

even if it consciously intends that end. Not because it would be 

unwise, or imprudent, but because those who created the legislature 

gave it no power to do so. Therefore, prohibiting the legislature 

from transferring its authority to the executive "isn't about 

protecting institutional prerogatives or governmental turf." 

Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting). Instead, 

"[i]t's about respecting the people's sovereign choice to vest the 

legislative power in [the legislature] alone. And it's about 

safeguarding a structure designed to protect their liberties, 

minority rights, fair notice, and the rule of law." Id. In the 

constellation of constitutional doctrines, this serves as one of 

the central organizing principles. Without it, our constitution 

would be an incomprehensible jumble: "If [the Legislature] could 

pass off its legislative power to the executive branch, the 

'[v]esting [c]lauses, and indeed the entire structure of the 

Constitution,' would 'make no sense.'" Id. at 2134-35 (quoted 

source omitted).

¶104 But just because the legislature cannot pass off its 

powers to the executive doesn't mean it won't sometimes try. Even 

though the authors of our constitution designed it to maintain 

equilibrium amongst the branches through its internal system of 

checks and balances, and by arraying ambition against ambition, it 

has always been apparent that aberrations might arise. "The 
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framers knew . . . that the job of keeping the legislative power 

confined to the legislative branch couldn't be trusted to selfpolicing by Congress; often enough, legislators will face rational 

incentives to pass problems to the executive branch." Id. at 2135. 

And when an alleged aberration comes before us, we do not have the 

luxury of shrugging off the duty to discern whether a border 

incursion has occurred. 

[T]he Constitution does not permit judges to look the 

other way; we must call foul when the constitutional 

lines are crossed. Indeed, the framers afforded us 

independence from the political branches in large part 

to encourage exactly this kind of "fortitude . . . to do 

[our] duty as faithful guardians of the Constitution."

Id. (quoting The Federalist No. 78, at 468-469).

¶105 Adjudicating these constitutional border disputes is not 

easy. Even when our country was young, government was less 

pervasive, and there were far, far fewer statutes, Madison 

acknowledged that "no skill in the science of government has yet 

been able to discriminate and define, with sufficient certainty, 

its three great provinces—the legislative, executive, and 

judiciary." The Federalist No. 37, at 224. But as Justice Gorsuch 

observed, there are three principles by which to guide our inquiry.

¶106 The first is that "as long as Congress makes the policy 

decisions when regulating private conduct, it may authorize 

another branch to 'fill up the details.'" Gundy, 139 S. Ct. at 

2136 (Gorsuch, J., dissenting) (quoted source omitted). But the 

filling up must truly comprise details. "The framers 

understood . . . that it would frustrate 'the system of government 

ordained by the Constitution' if [the legislature] could merely 
No. 2020AP765-OA.dk

15

announce vague aspirations and then assign others the 

responsibility of adopting legislation to realize its goals." Id.

at 2133. So legislation must "set forth standards 'sufficiently 

definite and precise to enable Congress, the courts, and the public 

to ascertain' whether Congress's guidance has been followed." Id.

at 2136 (quoted source omitted). Second, "once [the legislature]

prescribes the rule governing private conduct, it may make the 

application of that rule depend on executive fact-finding." Id. 

And third, the legislature "may assign the executive and judicial 

branches certain non-legislative responsibilities." Id. at 2137. 

That is to say, a statute may require the executive to apply 

authority already resident in the executive branch to the matter 

addressed by the statute.

¶107 Although there is a great deal more that can be said——

and probably should be——about the non-delegation doctrine, we are 

resolving this case on an extraordinarily expedited basis (barely 

more than a week between arguments and release of our opinion). 

But this is sufficient for the day, and will adequately answer the 

Secretary's claim that the Legislature could give her enough power 

to justify the Order.

III. THE ORDER

¶108 Secretary Palm is the head of the Department of Health 

Services, an executive branch agency. Koschkee, 387 Wis. 2d 552, 

¶14 ("Agencies are considered part of the executive branch."). As 

a member of the executive branch, she has no inherent legislative 

authority, and "no inherent constitutional authority to make 

rules . . . ." Martinez v. DILHR, 165 Wis. 2d 687, 698, 478 
No. 2020AP765-OA.dk

16

N.W.2d 582 (1992). See also Wis. Stat. § 227.11(2) ("Rule-making 

authority is expressly conferred on an agency"). She says the 

Order is a purely and "quintessentially" executive action 

authorized by Wis. Stat. § 252.02, and so she need not promulgate 

any new rules or refer to any other statute before issuing the 

Order. So our task is to determine whether the Order incorporates, 

either explicitly or implicitly, policy decisions not already 

encompassed by current statutes or rules.7 If it does, and § 252.02 

allows her to make those policy decisions, then the statute 

violates the non-delegation doctrine. As Justice Scalia once said, 

[f]requently 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, 487 U.S. at 699 (Scalia, J., dissenting).

¶109 Under any rational reading, the Order contains or 

assumes policy decisions that are staggering both in their reach 

and in their effect on what we once thought of as inherent rights—

—rights that, according to our constitution, the government exists 

to secure. See Wis. Const. art. I, § 1. The Secretary insists 

the Order does not adopt any policies because, by its nature, it 

is time-delimited and directed at a certain set of temporary facts 

that (we all hope) won't recur. She says "the power to set public 

policy," on the other hand, is accomplished by "establishing 

 

7 I express no opinion on whether the Department could have 

supplied the standards on which the Order is based through the 

rule-making process. I have no need to do so because the Secretary 

insists her actions be judged without regard to any rule-making 

authority she might have.
No. 2020AP765-OA.dk

17

prospective, generally applicable requirements to govern future 

conduct." The Order, she claims, hasn't done that.

¶110 Although the Secretary's argument seems to accept the 

conceptual distinction between executive and legislative power, it 

does not adequately address the totality of what the Order 

accomplishes. The Order, it is true, contains an executive 

component. But much more significantly for our analysis today, it 

also announces some shockingly profound public policy decisions, 

or assumes they have previously been made. For example, the Order 

could not function without a public policy decision that the 

Secretary of the Department of Health Services has the authority 

to confine people to their homes. That's a policy decision with 

respect to both the grant of authority itself, as well as the 

choice of person in which to vest it. So is the public policy 

decision that the Secretary has the power to close private 

businesses, or forbid private gatherings, or ban intra-state 

travel, or dictate personal behavior. The Order also depends on 

a public policy decision that the Secretary has the authority, all 

by herself, to criminalize whatever conduct she believes is 

anathema to controlling communicable diseases.

¶111 The heart of the Secretary's error is her failure to 

recognize that her Order contains both executive and legislative 

components. Executive action does not exist in a vacuum. It must 

execute on a policy——a policy chosen by the legislature or 

promulgated as a rule. When such a policy decision has not been 

promulgated by the agency or adopted by the legislature, and the 

executive acts anyway, it is by that very action either announcing 
No. 2020AP765-OA.dk

18

adoption of the policy or erroneously assuming its existence. 

Consequently, when the Order confines people to their homes to 

manage the spread of COVID-19, it does far more than engage the 

executive power. It also simultaneously asserts there has been a 

public policy decision to vest this type of power in the Secretary. 

Her exercise of that authority in this situation is executive in 

nature, but the genesis of the authority itself is not——it is 

legislative. The same is true with respect to the Order's implicit 

assertion that there has been a public policy decision to vest in 

the Secretary the power to close private businesses, or forbid 

private gatherings, or ban intra-state travel, or dictate personal 

behavior. 

¶112 But no such public policy decisions have been taken. 

There are no statutes or rules that confer on the Secretary these 

sweeping powers. The Secretary not only knows this, she 

affirmatively asserts that Wis. Stat. § 252.02 gave her all the 

power needed to confer this type of authority on herself: "Under 

the statute's plain language," the Secretary says, "DHS may give 

legal force to suitable actions that it then carries out. The law 

requires no intermediary that DHS must go through . . . ." If 

§ 252.02 enables the Department to confer on itself the power to 

confine people to their homes, close businesses, etc., then it has 

quite obviously transferred no small amount of the legislature's 

core authority to the executive branch, thereby enabling the 

Secretary to make up public policy decisions as she goes along. 

Without that understanding of the Secretary's authority, the Order 

could not function. Justice Hagedorn mirrors this error, and even 
No. 2020AP765-OA.dk

19

uses it as the organizing principle for his dissent. The whole of 

his statutory analysis is faulty because he has not discerned that 

the Order implicitly created, or assumed to exist, a host of public 

policy decisions.8 Under Justice Hagedorn's rationale, an 

executive branch agency is free to make ad hoc policy decisions, 

so long as they are temporary and acted upon immediately. Nothing 

in our legal canon supports such an odd proposition.

¶113 The Secretary's incursion on legislative authority is 

readily apparent when we compare Wis. Stat. § 252.02 and the Order 

to the three principles that give life to the non-delegation 

doctrine. As described above, the first inquires into whether the 

legislature decided on the conduct-regulating policy and left the 

executive branch to only "fill up the details." The power to 

confine law-abiding individuals to their homes, commandeer their 

businesses, forbid private gatherings, ban their intra-state 

travel, and dictate their personal behavior cannot, in any 

imaginable universe, be considered a "detail." This comprehensive 

claim to control virtually every aspect of a person's life is 

something we normally associate with a prison, not a free society 

governed by the rule of law. 

¶114 Further, if Wis. Stat. § 252.02 actually allows this, as 

the Secretary says, the Framers would recognize the statute as a 

frustration of our system of government because it allows the 

 

8 Justice Hagedorn's statutory analysis might be perfectly 

serviceable if we were considering an executive order implementing

previously established public policy decisions. But that is not 

this case. So, as a functional matter, his analysis is operating

on a hypothetical set of facts. 
No. 2020AP765-OA.dk

20

legislature to "merely announce vague aspirations and then assign 

others the responsibility of adopting legislation to realize its 

goals." See Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting). 

To avoid offending the separation of powers, § 252.02 would have 

to "set forth standards 'sufficiently definite and precise to 

enable [the Legislature], the courts, and the public to ascertain'

whether [the Legislature's] guidance has been followed." Id. The 

Secretary eschews the need for any guidance. Her power, she says, 

is simply to "act" with all dispatch. If § 252.02 allows this,

there is literally no means by which we could ascertain whether 

the Secretary is following any legislatively determined policy at 

all. The Secretary's view of the statute is, essentially, that 

the Legislature charged her with the vague aspiration of 

controlling communicable diseases, and then left to her the 

responsibility of making the public policy decisions that she would 

then execute. 

¶115 If her authority is that boundless, there is no method 

by which we can determine what power she might assert next. The 

Secretary understands the scope of her power under Wis. Stat. 

§ 252.02 to be so complete, so comprehensive, that she can do 

literally anything she believes is necessary to combat COVID-19. 

Can she also dictate what we do in our own homes? Can she tell us 

how many hours we can spend outdoors in our own yards? Can she 

forbid us from buying certain products? Compel us to buy others? 

Nothing in § 252.02 is "sufficiently definite and precise to enable 

[the Legislature], the courts, and the public to ascertain whether 

[the Legislature's] guidance has been followed" with respect to 
No. 2020AP765-OA.dk

21

the types of power the Secretary may employ. Indeed, nothing in 

§ 252.02——the sole and sufficient source of power for everything 

the Secretary is doing——gives us any benchmark or even the vaguest 

of clues about what other types of power she might one day assert. 

¶116 The Order fares no better under the second principle of 

non-delegation: "[O]nce [the Legislature] prescribes the rule 

governing private conduct, it may make the application of that 

rule depend on executive fact-finding." Id. Under this rationale, 

it could conceivably be appropriate for the Legislature to confer 

on the Secretary the power to confine people to their homes if she 

finds that such an action is necessary to control the spread of a 

communicable disease. But no statute or rule confers on her that 

authority, so the Order cannot be justified as the exercise of 

executive authority under this principle.

¶117 Nor is the Order salvageable under the third nondelegation principle, which provides that the legislature "may 

assign the executive and judicial branches certain non-legislative 

responsibilities." Id. at 2137. The Secretary, however, insists 

that Wis. Stat. § 252.02 "simply empowers DHS to act," and that 

the Order "embodies the quintessential executive task of deciding 

how to address, for the time being, the exigency caused by COVID19," and that her authority to address that exigency is limited 

only by judicial or legislative intervention. If accepted, this 

would work an intolerable inversion in the nature of executive 

authority, allowing it to swallow almost all of the Legislature's 

power. Here's why.
No. 2020AP765-OA.dk

22

¶118 If Wis. Stat. § 252.02 makes the Order's contents 

entirely executive, a few strategically written statutes would 

make the legislature a virtual non-entity. What if the legislature 

instructed the Department of Justice to "issue orders . . . for 

the control and suppression of [crime]"? Or it enacted a statute 

that "simply empower[ed] [the Department of Financial 

Institutions] to act" with respect to the subjects within its 

purview? Or it charged some agency or other with "the 

quintessential executive task of deciding how to address, for the 

time being, the exigency caused by" economic vicissitudes? If the 

executive's authority under each of these hypothetical delegations 

was as staggeringly broad as the Secretary claims for herself under 

§ 252.02, the whole of our lives could be governed exclusively 

from within the executive branch. 

¶119 But none of those hypotheticals would be consistent with 

the separation of powers for the same reason the Order is not. An 

agency cannot confer on itself the power to dictate the lives of 

law-abiding individuals as comprehensively as the Order does 

without reaching beyond the executive branch's authority.9

 

9 Justice Hagedorn suggests my attention to constitutional 

boundaries is merely an effort to "try to get around" his 

observation that "[w]e do not enjoin particular enforcement 

actions under a facially constitutional statute simply because the 

statute could be deployed in ways that violate the constitution." 

Justice Hagedorn's dissent, ¶¶249, 248. I have no need to "get 

around" this observation because in this court we don't let the 

tail wag the dog. Justice Hagedorn is concerned about remedies 

when what we are concerned about is enforcing a structural 

limitation on the branches' powers. It would be irresponsible of 

us not to consider constitutional limitations when we declare what 

the law is.
No. 2020AP765-OA.dk

23

IV. CONCLUSION

¶120 The Order may be a brilliantly conceived and executed 

response to COVID-19. Or maybe it's not. Either way, that is not 

the question before the court. Brilliance does not confer 

authority. Nor does necessity. Our only task in this case was to 

determine whether Secretary Palm has the authority to issue the 

Order. We had an unavoidable, non-discretionary, obligatory 

responsibility to decide that question. And so we have.10 Because 

I agree with that declaration, I join the court's opinion. I wrote 

separately because it is important to establish that, if we agreed 

with the Secretary's reading of Wis. Stat. § 252.02, we would have 

to conclude the statute violated the separation of powers by 

 

10 Justice Ann Walsh Bradley is concerned that, without a stay 

on our decision, "chaos and confusion" may ensue. Although it is 

true that the legislature requested a temporary injunction pending 

our decision, subject to a stay for a period of time, it did not 

ask us to stay our decision. And even if it had, I'm not entirely 

sure what a stay would mean in this context. The petition 

requested a declaration of rights. Our opinion declares those 

rights . . . today. What would it mean to stay that declaration? 

Would everyone have to act like they hadn't read our decision until 

the end of the stay? Would there be an embargo on reporting on 

our decision until that date? I don't think staying a declaration 

of rights that we have just declared would mean anything at all 

because it couldn't un-say what we just said.
No. 2020AP765-OA.dk

2

conferring on the Secretary the power to make laws without going 

through the rule-making process.11

¶121 I am authorized to state that Justice REBECCA GRASSL 

BRADLEY joins this concurrence.

 

11 Justice Hagedorn suggests that somehow it is ironic that 

we should pay attention to the constitutionally-mandated 

demarcation between the legislative and executive branches. 

Justice Hagedorn's dissent, ¶252. Apparently, in his view, there 

is to be no policing of this boundary unless we are prepared to 

dismantle the entire administrative state. He condescends that 

"[i]f we are going to have a serious discussion about the 

separation of powers and its relationship to the administrative 

state, I welcome that conversation," insinuating that our 

reasoning is a species of "it's good for me but not for thee" 

rationalizing. Id. Justice Hagedorn doesn't provide any 

justification for this insult, and there appears to be none. As 

for the "serious discussion about the separation of 

powers" . . . the invitation to that conversation was included in 

our oath of office, wherein we swore to uphold the Wisconsin 

Constitution. He's free to join in anytime he wishes.
No. 2020AP765-OA.awb

1

¶122 ANN WALSH BRADLEY, J. (dissenting). Our 

responsibility as a court is to write clear decisions that provide 

guidance to the litigants, courts and the public at large. I write 

separately to address the issue of a stay and the confusion arising 

from the majority and concurring opinions of Chief Justice 

Roggensack on the issue.

¶123 The majority opinion, authored by Chief Justice 

Roggensack, does not grant a stay. Thus, the declaration of rights 

takes immediate effect, leaving no time for a transitional safety 

net that a stay could provide. Majority op., ¶¶56-57. That 

opinion garnered four votes (Chief Justice Roggensack and Justices 

Ziegler, Rebecca Grassl Bradley, and Kelly). However, concurring 

to her own authored majority opinion, Chief Justice Roggensack 

writes that she "would stay future actions to enforce our decision 

until May 20, 2020." Chief Justice Roggensack's concurrence, ¶65. 

These positions taken in the majority opinion and the concurrence 

are fundamentally contradictory. If you are confused, you are not 

alone. 

¶124 Chief Justice Roggensack needs to clarify in an opinion 

whether she is or is not voting for a stay of the majority's 

decision. If her concurrence is to be interpreted as merely a 

lament that she would stay it, then such a lament rings hollow. 

She can stay the immediate effect of the majority opinion. 

¶125 In a court of seven, it takes four votes to form a 

controlling majority on an issue. Chief Justice Roggensack 

provides the fourth vote to form a majority denying a stay. 

Without her vote there would be only three votes and the 
No. 2020AP765-OA.awb

2

declaration of rights would not have immediate effect. However, 

assuming Chief Justice Roggensack is actually voting for a stay, 

as her concurrence seemingly indicates, there appear to be four 

votes for issuing a stay (Chief Justice Roggensack and Justices 

Ann Walsh Bradley, Dallet, and Hagedorn).1 See Justice Dallet's 

Dissent, ¶161; Justice Hagedorn's dissent, ¶263 n.25. So, is there 

a stay or isn't there? It can't be both ways.

¶126 If the clarified vote is one for no stay, then the 

concurrence cannot stand. It is illogical to vote to deny a stay, 

while at the same time lamenting that because of the way you voted, 

there is no stay.

¶127 If there is no stay, I repeat to the petitioner, the 

Wisconsin Legislature, the old adage: "be careful what you wish 

for." You have come to this court asking that Emergency Order 28 

be deemed unlawful and unenforceable. Your wish is granted by 

today's majority.2

¶128 But, it appears you did not intend that your wish would 

go into effect immediately. You requested initially in briefing 

 

1 This apparent existence of a majority to issue a stay is 

unaffected by this court's statement in State v. Griep regarding 

"pooling" the votes of separate writings to create a majority 

proposition. See State v. Griep, 2015 WI 40, ¶37 n.16, 361 

Wis. 2d 657, 863 N.W.2d 567. In Griep, the court set forth that 

under Marks v. United States, 430 U.S. 188, 193 (1977), "the 

positions of the justices who dissented from the judgment are not 

counted in examining the divided opinions for holdings." In the 

present case, we are not "examining the divided opinions for 

holdings" on the presented issues, but instead we are deciding 

whether an equitable remedy should be granted.

2 The majority strikes down Emergency Order 28 in its entirety 

with the exception of section 4(a). Majority op., ¶3 n.6.
No. 2020AP765-OA.awb

3

that if you prevail, there should be a six-day stay before the 

decision would go into effect. Later, at oral argument, presumably 

mindful that any rulemaking would take longer than six days, your 

counsel advanced that approximately 12 days would be necessary for 

a rule replacing Emergency Order 28 to go into effect. Aware of 

the delicate balance necessary to save both livelihoods and lives, 

counsel likely was concerned with the chaos and confusion that 

would be occasioned by any decision in your favor with no stay.

¶129 But if there is no stay, your request has fallen on deaf 

ears. And there appears nothing in place to fill the void rendered 

by such a majority decision. The lack of a stay would be 

particularly breathtaking given the testimony yesterday before 

Congress by one of our nation's top infectious disease experts, 

Dr. Anthony Fauci. He warned against lifting too quickly stayat-home orders such as embodied in Emergency Order 28. He 

cautioned that if the country reopens too soon, it will result in 

"some suffering and death that could be avoided [and] could even 

set you back on the road to trying to get economic recovery."3

¶130 Given the admonition of Dr. Fauci, I fail to see the 

wisdom or the equity in invalidating Emergency Order 28 and, at 

 

3 Sheryl Gay Stolberg, "At Senate Hearing, Government Experts 

Paint Bleak Picture of the Pandemic," New York Times (May 12, 

2020), https://www.nytimes.com/2020/05/12/us/politics/fauci-cdccoronavirus-senate-testimony.html.
No. 2020AP765-OA.awb

2

least for the time being, leaving nothing in its stead.4 

Accordingly, I dissent. 

¶131 I am authorized to state that Justice REBECCA FRANK 

DALLET joins this dissent.

 

4 Declaratory judgments are treated functionally as 

injunctions when applied to governmental parties who are bound by 

the force and meaning of judgments. Chief Justice Roggensack's 

Concurrence, ¶64. The issuance of a permanent injunction demands 

that equity favors issuing the injunction. Pure Milk Prods. Coop v. Nat'l Farmers Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691 

(1979).

I also observe that, when balancing the equities to determine 

whether injunctive relief is appropriate, courts around the 

country have given the utmost weight to the protection of health 

and human life. See McLaughlin by McLaughlin v. Williams, 801 F. 

Supp. 633, 644 (S.D. Fla. 1992); see also Todd by Todd v. Sorrell, 

841 F.2d 87, 88 (4th Cir. 1988); Rockhill Care Center, Inc. v. 

Harris, 502 F. Supp. 1227, 1231 (W.D. Mo. 1980).
No. 2020AP765-OA.rfd

1

¶132 REBECCA FRANK DALLET, J. (dissenting). Today, a 

majority of this court does the Legislature's bidding by striking 

the entirety of Emergency Order 28, "Safer at Home Order," yet 

confusingly, in a footnote, upholding Section 4. a. The majority 

reaches its conclusion by torturing the plain language of Wis. 

Stat. § 252.02 (2017-18)1 and completely disregarding the longstanding, broad statutory powers the Legislature itself granted to 

the Department of Health Services (DHS) to control COVID-19, a

novel contagion.2 This decision will undoubtedly go down as one 

of the most blatant examples of judicial activism in this court's 

history. And it will be Wisconsinites who pay the price.

¶133 A majority of this court falls hook, line, and sinker 

for the Legislature's tactic to rewrite a duly enacted statute 

through litigation rather than legislation. But legislating a new 

policy from the bench exceeds the constitutional role of this 

court. While a majority of this court is clearly uncomfortable 

with the broad grants of authority the Legislature gave to DHS 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.

2 In the United States alone COVID-19 has sickened more than 

1.34 million people and approximately 80,820 people have died.

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/casesin-us.html. Here in Wisconsin, as of this writing, there are 

10,902 confirmed cases and 421 COVID-19 related deaths, with cases 

confirmed in almost every county. 

https://www.dhs.wisconsin.gov/covid-19/data.htm.
No. 2020AP765-OA.rfd

2

through Wis. Stat. § 252.02 and throughout Wisconsin history,3 the 

court's role is only to examine and apply the plain statutory 

language. "It is the duty of the courts to enforce the law as 

written." Baierl v. Riesenecker, 201 Wis. 454, 458, 227 N.W. 9 

(1929), rev'd on reh'g on other grounds, 201 Wis. 454, 230 N.W. 605 

(1930). 

¶134 Rather than examine the plain language of Wis. Stat. 

§ 252.02, the majority engages in analytical gymnastics to arrive 

at a desired conclusion. One need only examine the clear and plain 

statutory language to uncover what the majority attempts to 

obscure. Because the Legislature has bestowed on the DHS Secretary 

through § 252.02 the explicit authority to issue orders such as 

Emergency Order 28 without first going through the rulemaking

process, the majority's exercise ultimately fails. I dissent.

I. EMERGENCY ORDER 28 DID NOT REQUIRE RULEMAKING

¶135 It is first important to understand Wisconsin's longstanding history of giving a broad grant of power to its public 

health authority, a history the majority purposefully overlooks. 

The Wisconsin Legislature was among the first state legislatures 

to address public health emergencies when it created the State 

 

3 See, e.g., majority op., ¶31: "Palm points to statutes that 

she asserts give her broad authority to impose regulation; but it 

does not follow she can impose regulation without going through a 

process to give the people faith in the justness of the 

regulation"; "However, under Palm's theory, she can 'implement all 

emergency measures necessary to control communicable diseases,'

Wis. Stat. § 252.02(6), even at the expense of fundamental 

liberties . . . ."
No. 2020AP765-OA.rfd

3

Board of Health in March 1876.4 See ch. 366, Laws of 1876. This

was a panel of seven physicians who were responsible for "general 

supervision of the interests of the health and life of the citizens 

of the state." § 2, ch. 366, Laws of 1876.5 The Legislature

granted the board unusually broad powers, allowing it to impose 

statewide quarantines unilaterally in times of public health 

emergencies, as well as making "rules and 

regulations . . . necessary for the preservation or improvement of 

public health . . . ." § 10, ch. 366, Laws of 1876.

¶136 In 1904 this court recognized that the Legislature may 

"rightfully grant to boards of health authority to employ all 

necessary means to protect the public health" given the need to 

"act immediately and summarily in cases of . . . contagious and 

malignant diseases, which are liable to spread and become epidemic, 

causing destruction of human life." Lowe v. Conroy, 120 Wis. 151, 

155, 97 N.W. 942 (1904) (citing Bittenhaus v. Johnston, 92 Wis. 

588, 66 N.W. 805 (1896); City of Salem v. E. Ry. Co., 98 Mass. 431 

(1868); Lawton v. Steele, 152 U.S. 133 (1894)). Similarly, the 

United States Supreme Court has recognized that it was 

 

4 The impetus for the creation of the State Board of Health 

was "[t]he high death rate from various communicable diseases and 

subsequent efforts of medical societies." See State of Wisconsin 

Blue Book 465 (1983-84).

Notably, public health legislation in Wisconsin dates back to 

the territorial days. Id.

5 Wisconsin became the tenth state in the nation with such a 

board. See Steven B. Burg, Wisconsin and the Great Spanish Flu 

Epidemic of 1918, Wisconsin Magazine of History 37, 44 (Autumn 

2000).
No. 2020AP765-OA.rfd

4

"surely . . . appropriate," and "not an unusual, nor an 

unreasonable or arbitrary, requirement," to vest a board of health

with the authority to respond to "an epidemic of disease" because 

it is composed of persons in the affected locality who presumably 

had "fitness to determine such questions." Jacobson v. 

Commonwealth of Mass., 197 U.S. 11, 27 (1905).

¶137 The State Board of Health exercised its broad emergency 

powers during the Spanish Flu pandemic of 1918. In October 1918,

State Health Officer Dr. Cornelius Harper, in consultation with 

the governor, issued an order closing all public institutions in 

Wisconsin, including "schools, theaters, moving picture houses, 

other places of amusement and public gathering for an indefinite 

period of time." Burg, supra n.5, at 45. "[N]owhere except in 

Wisconsin was such an order issued statewide or in such a 

comprehensive fashion," as practically every local government in 

Wisconsin cooperated with the order immediately. Id. For almost 

three months, isolation rather than socialization was the norm for 

citizens of Wisconsin. Id. at 52. Compliance undoubtedly spelled 

the difference between life and death for hundreds, if not 

thousands, of Wisconsin citizens. Id. at 53.

¶138 The broad executive power to take swift measures in 

response to an outbreak of communicable disease has existed 

uninterrupted since 1876. The language of ch. 252 expressly 
No. 2020AP765-OA.rfd

5

confers on DHS, the modern successor to the State Board of Health,6

broad pandemic-response powers. Section 252.02, "Powers and 

duties of department," sets forth the powers and duties of DHS, 

the limits of which are not at issue in this case.

¶139 With this background, I turn to DHS's issuance of 

Emergency Order 28. DHS asserts that the plain text of Wis. Stat. 

§§ 252.02(3), (4), and (6) authorizes it to issue Emergency Order 

28 without first engaging in rulemaking. To determine the extent 

of the powers the Legislature has granted DHS to use during a 

pandemic, I start with the plain language of the statute. State 

ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271 

Wis. 2d 633, 681 N.W.2d 110.

¶140 Wisconsin Stat. § 252.02(4) reads:

The department may promulgate and enforce rules or issue 

orders for guarding against the introduction of any 

communicable disease into the state, for the control and 

suppression of communicable diseases, for the quarantine 

and disinfection of persons, localities and things 

infected or suspected of being infected by a 

communicable disease and for the sanitary care of jails, 

state prisons, mental health institutions, schools, and 

public buildings and connected premises. Any rule or

order may be made applicable to the whole or any 

specified part of the state, or to any vessel or other 

conveyance. . . .

 

6 The State Board of Health was abolished in 1939 and its 

functions were subsequently transferred throughout the executive 

branch. See State of Wisconsin Blue Book 141 (1940-41). Chapter 

250 of the Wisconsin Statutes designates DHS as "the state lead 

agency for public health," with "all powers necessary to fulfill 

the duties prescribed in the statutes." Wis. Stat. 

§§ 250.03(1)(b); 250.04(2)(a). In Chapter 252 of the Wisconsin 

Statutes, DHS is charged with controlling communicable disease 

within Wisconsin. 
No. 2020AP765-OA.rfd

6

(Emphasis added). Section 252.02(4) plainly grants DHS the power 

to address COVID-19 through rulemaking or by issuing orders. The 

use of the word "or" distinguishes "orders" from "rules." See

Loughrin v. United States, 573 U.S. 351, 357 (2014) (noting the 

use of "or" in a statute is "disjunctive, that is, the words it 

connects are to be given separate meanings"). Whichever 

alternative DHS chooses, order or rule, it can be made "applicable 

to the whole" of Wisconsin. The Legislature chose these words and 

is presumed to say what it means and mean what it says. See

Johnson v. City of Edgerton, 207 Wis. 2d 343, 351, 558 N.W.2d 653 

(Ct. App. 1996) ("When the Legislature uses different terms in a 

statute——particularly in the same section——we presume it intended 

the terms to have distinct meanings.").

¶141 The statutory history of Wis. Stat. § 252.02(4), part of 

a plain meaning analysis, confirms the authority of DHS to issue 

orders applicable to the whole of Wisconsin separate and apart 

from rules. See United States v. Franklin, 2019 WI 64, ¶13, 387 

Wis. 2d 259, 928 N.W.2d 545 (quoted source omitted) ("Evaluation 

of the context of a statute is part of a plain-meaning analysis 

and includes a review of . . . 'previously enacted and repealed 

provisions of a statute.'"). Originally, the predecessor to 

§ 252.02(4) did not allow for the issuance of orders; DHS could 

only "adopt and enforce rules and regulations," with "rule" 

carrying a similar definition as it does today, including "general 

order . . . of general application." See Wis. Stat. § 143.02(4)

(1955-56); compare Wis. Stat. § 227.01(3) (1955-56), with Wis. 

Stat. § 227.01(13) (2017-18). 
No. 2020AP765-OA.rfd

7

¶142 However, in 1982, at the beginning of the AIDS epidemic,7

the Legislature amended the predecessor to Wis. Stat. § 252.02(4) 

to explicitly include as part of DHS's power the ability "to issue 

orders" of statewide application. See § 21, ch. 291, Laws of 

1981.8 Even though DHS had existing authority to promulgate a 

"rule" which, again, had always included a "general order . . . of 

general application," the Legislature chose to give DHS the 

 

7 See https://www.hiv.gov/hiv-basics/overview/history/hivand-aids-timeline

8 The majority cites to extrinsic evidence, an "Explanatory 

Note" to Senate Bill 711, for support that the insertion of the 

phrase "issue orders" was "basically technical changes designed to 

bring the statute into concordance with the current public health 

and epidemiologic thought and terminology." Majority op., ¶26. 

Reliance on this "Explanatory Note" is problematic for several 

reasons. First, the court has clearly enunciated that it does not

look to extrinsic sources in a plain language analysis. See State 

ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271 

Wis. 2d 633, 681 N.W.2d 110 ("Where statutory language is 

unambiguous, there is no need to consult extrinsic sources of 

interpretation, such as legislative history."). Second, the cited 

"Explanatory Note" language was not even related to the "issue 

orders" language. Instead, it refers to inserting words like 

"communicable" before disease and switching the phrase "jails, 

asylums, schoolhouses" to "correctional facilities, mental health 

institutions, schools." The majority should have realized that 

the "issue orders" language has nothing to do with "public health 

and epidemiologic thought and terminology" and not blindly adopted 

an argument made by Wisconsin Manufacturers and Commerce in its 

amicus brief.

Further, the majority asserts that "the Legislative Reference 

Bureau never described the added language as changing DHS's 

authority." Majority op., ¶26. There is no support for the 

proposition that the LRB is expected to make such comments or that 

its description of any textual additions is dispositive. These 

strained inferences from inapplicable extrinsic evidence and the

LRB's silence illustrate how willing the majority is to circumvent 

the plain text of a statute to reach its desired policy outcome.
No. 2020AP765-OA.rfd

8

separate power to issue orders on a statewide basis to control and 

suppress communicable diseases. 

¶143 Additionally, in the same 1982 amendment giving DHS the 

power to issue orders of statewide application, the Legislature

added the requirement that "Rules of general application shall be 

adopted under ch. 227." See § 21, ch. 291, Laws of 1981 (emphasis 

added).9 The amendment did not say that "orders" applicable to 

the entire state shall be adopted pursuant to Wis. Stat. ch. 227. 

This further supports the Legislature's distinction between 

"orders" permitted under Wis. Stat. § 252.02(4) and "rules"

subject to ch. 227.

¶144 According to the majority opinion, any order applicable 

to the whole state would be a rule. But an "order" "made applicable 

to the whole" state cannot be synonymous with "rule" because, such 

a reading ignores the different words chosen by the Legislature 

and renders the language in the 1982 amendment superfluous. It is 

a basic tenet of statutory interpretation that we must read 

statutory language "to give reasonable effect to every word, in 

order to avoid surplusage."10 See Kalal, 271 Wis. 2d 633, ¶46; see 

also Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 176 (2012) ("Because legal drafters 

 

9 That language was removed from the predecessor to Wis. Stat. 

§ 252.02(4) pursuant to 1993 Wis. Act 27, § 284.

10 Notably, a majority of this court just recently relied on 

this interpretive canon against surplusage in striking down 

Executive Order 74 which had suspended in-person voting in response 

to the ongoing COVID-19 pandemic. See Am. Order, Wis. Legislature 

v. Evers, No. 2020AP608-OA, at 3 (Apr. 6, 2020).
No. 2020AP765-OA.rfd

9

should not include words that have no effect, courts avoid a 

reading that renders some words altogether redundant.").

¶145 Emergency Order 28 is authorized by two other 

subsections of Wis. Stat. § 252.02: §§ 252.02(3) and (6), neither 

of which require rulemaking under ch. 227. Section § 252.02(6) is 

the broadest grant of authority given by the Legislature to DHS. 

Subsection 6 reads: "The department may authorize and implement 

all emergency measures necessary to control communicable 

diseases." (Emphasis added). The very broad language of 

§ 252.02(6) to "authorize and implement all emergency measures 

necessary" includes the issuance of emergency orders necessary to 

combat a deadly virus.11 The Legislature asks the court to read 

in language that simply is not there. Section 252.02(6) does not 

 

11 The concurrences of Justice Rebecca Grassl Bradley and 

Justice Kelly attempt to resuscitate the non-delegation doctrine.

They cite dissenting opinions, evocative precedent, and a 

selective assortment of foreboding historical quotes, but their 

ultimate analyses of Wis. Stat. § 252.02 have been repeatedly 

rejected under modern administrative law. Broad grants of 

authority are routinely upheld where the statute as a whole, 

including its purpose, factual background, and context, bind the 

agency's authority. See, e.g., Am. Power & Light Co. v. SEC, 329 

U.S. 90, 104–05, (1946); see also Gundy v. United States, 139 S. 

Ct. 2116, 2130, reh'g denied, 140 S. Ct. 579 (2019) ("It is wisdom 

and humility alike that this Court has always upheld such 

'necessities of government.'") (citation omitted). The language 

of § 252.02(6) fits comfortably within the range of broad grants 

historically approved by the United States Supreme Court. See

Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., 

dissenting) ("What legislated standard, one must wonder, can 

possibly be too vague to survive judicial scrutiny, when we have 

repeatedly upheld, in various contexts, a 'public interest' 

standard?") (citing Nat'l Broad. Co. v. United States, 319 U.S. 

190, 216-17 (1943)); N.Y. Cent. Sec. Corp. v. United States, 287 

U.S. 12, 24-25 (1932)).
No. 2020AP765-OA.rfd

10

contain any limiting language——it does not say that DHS may 

"authorize and implement all emergency measures necessary except

general orders of general application, for which rulemaking is 

required." We will not read into a statute "words the legislature

did not see fit to write." Dawson v. Town of Jackson, 2011 WI 77, 

¶42, 336 Wis. 2d 318, 801 N.W.2d 316; see also State v. Fitzgerald, 

2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165 ("[R]ather, we 

interpret the words the legislature actually enacted into law.").

¶146 The statutory history of Wis. Stat. § 252.02(6) further 

supports a reading of § 252.02(6) which gives DHS a broad grant of 

authority to issue the entirety of Emergency Order 28 without going 

through the rulemaking process. The Legislature enacted this 

subsection in 1982 contemporaneously with adding the power to issue 

statewide orders and declaring that only rules of general 

application, not orders, be adopted as rules under ch. 227. See

§§ 21-22, ch. 291, Laws of 1981. Section 252.02(6) post-dates 

both §§ 252.02(3) and (4) and demonstrates how, over time, the 

Legislature has continued to expand DHS's ability to act to control 

contagion in emergencies such as this one.

¶147 Finally, Wis. Stat. § 252.02(3) independently provides 

authority for the issuance of several provisions in Emergency Order 

28 without rulemaking. Yet, it is significant that the majority 

fails to even mention this subsection despite Emergency Order 28 

explicitly citing § 252.02(3) as authority. Section 252.02(3) 

allows DHS to "close schools and forbid public gatherings in 

schools, churches and other places to control outbreaks and 

epidemics." Although § 252.02(3) does not specify the method by 
No. 2020AP765-OA.rfd

11

which DHS can close schools and forbid public gatherings, this 

subsection clearly envisions the issuance of orders. To suggest 

that in the midst of an outbreak or epidemic of a contagious 

disease DHS must go through the process of rulemaking before 

closing schools is preposterous and at odds with the other 

subsections of § 252.02. See Kalal, 271 Wis. 2d 633, ¶46 (noting 

that statutory language is examined "not in isolation but as part 

of a whole; in relation to the language of surrounding or closelyrelated statutes"). The majority opinion seemingly admits the 

absurdity of this outcome when it states that the decision striking 

the entirety of Emergency Order 28 "does not apply to Section 4.

a. of Emergency Order 28." Majority op., ¶3 n.6.

¶148 The majority's attempts to circumvent the statute's 

plain meaning in order to reach its desired outcome are legally 

suspect and, frankly, unpersuasive. To establish that Emergency 

Order 28 is a rule subject to the emergency rulemaking provisions 

in Wis. Stat. § 227.24, the majority reads "order" "made applicable 

to the whole" in Wis. Stat. § 252.02(4) as a "general order of 

general application." This reading makes the word "order" 

superfluous and changes the language of § 252.02(4) to read "the 

department may promulgate and enforce rules or issue 

rules . . . ." Courts do not read in redundancies for the sake of 

aligning a statute with a brand new policy preference. See Kalal, 

271 Wis. 2d 633, ¶46; Scalia & Garner, supra ¶144, at 176. 

¶149 This reading of Wis. Stat. § 252.02 is even more 

illogical because it hamstrings DHS to a time-consuming, lengthy 

rulemaking scheme inconsistent with the authorization for DHS to 
No. 2020AP765-OA.rfd

12

act "immediately and summarily" to guard against the introduction 

of communicable disease as well as to control and suppress it. 

Lowe, 120 Wis. at 155. A review of the tedious multi-step process 

required to enact an emergency rule illustrates why the Legislature

authorized DHS to issue statewide orders to control contagion. 

¶150 The emergency rulemaking process set forth in Wis. Stat. 

§ 227.24 includes 11-13 steps which the briefing indicates takes

a minimum of 18 and a maximum of 49 days.12 At oral argument, 

counsel for the Legislature focused only on the first eight steps, 

from the creation of a scope statement until the time a rule is 

published, which he thought "could take 12 days, in this case." 

However, counsel's phrases like "matter of an hour," "approve it 

in one minute," and "about a second" show that the time it takes 

to enact an emergency rule is guess work, at best, and discounts 

the uncertainty tied to this process.

¶151 Even assuming the Legislature's best-case-scenario 

timeframe of 12 days, DHS still may not be able to act to control 

a contagion using only emergency rulemaking. While the Legislature 

does not get a seat at the table to draft an emergency rule, a

 

12 There are eleven mandatory steps contained in Wis. Stat. 

§ 227.24, including drafting a statement of scope for the emergency 

rule, obtaining gubernatorial approval for the statement of scope, 

submitting the statement of scope for publication in the 

Administrative Register, and obtaining approval for the statement 

from the individual or body with the appropriate policy-making 

powers. See § 227.24(1)(e)1d. Additionally, the Joint Committee 

for Review of Administrative Rules (JCRAR), a legislative 

committee, can request a preliminary public hearing, which is a 

potential step that delays the process for several days to several 

weeks.
No. 2020AP765-OA.rfd

13

partisan legislative committee13 has the ability to suspend any 

emergency rule following a public hearing. See Wis. Stat. § 227.26 

(2)(d). This, and any other change in circumstances requiring a 

new scope statement, would send DHS right back to the drawing 

board. These procedures and timelines are wholly inconsistent

with the prompt and decisive action necessary to control and 

suppress a deadly communicable disease like COVID-19.

¶152 The majority and the Legislature point the finger at DHS 

and assert that it should have gone through emergency rulemaking 

while Governor Evers' Executive Order 72 was in effect.14 This 

overlooks the Legislature's own inaction. During the 23 days 

before DHS issued Emergency Order 28, there was already in effect

a nearly identical emergency order issued under Wis. Stat. 

§§ 252.02(3) and (6), which the Legislature never challenged. See

Emergency Order 12, at 2. During those 23 days, the Legislature

convened several times, including two special sessions, but chose 

not to address Order 12 or DHS's claimed grant of authority under 

 

13 The Joint Committee for Review of Administrative Rules is 

currently made up of: Representative Joan Ballweg (R), Senator 

Stephen Nass (R), Representative Adam Neylon (R), Senator Duey 

Stroebel (R), Senator David Craig (R), Senator Chris Larson (D), 

Senator Robert Wirch (D), Representative Romaine Quinn (R), 

Representative Gary Hebl (D), and Representative Lisa Subeck (D). 

https://docs.legis.wisconsin.gov/2019/committees/joint/1965.

14 In Executive Order 72, Governor Evers declared a public 

health emergency.
No. 2020AP765-OA.rfd

14

§ 252.02. See Executive Order 73; Executive Order 74.15 Instead, 

the Legislature now comes to this court and asks it to rescind the 

broad powers it granted to DHS. Whatever policy choices the 

Legislature makes going forward should be effectuated by the 

legislative process, not as a result of a decision made by the 

judiciary.

¶153 The majority further disregards the nature of Emergency 

Order 28, which is inconsistent with the purpose of emergency 

rulemaking. An emergency rule does not share the limited nature 

of an order; instead, it is intended to be in place temporarily 

until a permanent rule can be promulgated. See Wis. Stat. 

§§ 227.24(1)(c), (2)(a). Moreover, a rule applies to future 

circumstances and is enacted with the purpose of guiding future 

conduct. Emergency Order 28 is an immediate response to current 

circumstances and has an end-date of May 26, 2020. It does not 

serve as guidance for response to any future unique contagious 

disease, or even to the evolving circumstances surrounding COVID19, and is therefore by its very nature not a rule.

¶154 Finally, the majority conspicuously omits the fact that 

Emergency Order 28 expressly allows this court to sever any 

 

15 The majority calls Secretary Palm an "unelected," 

"unconfirmed" cabinet member. Majority op., ¶¶24, 28, 31. It is 

the Legislature who controls her confirmation and has yet to vote 

despite her approval by a bipartisan Senate Committee in August of 

2019. Secretary Palm does not need confirmation to serve as DHS 

Secretary. Wisconsin's executive branch is structured such that 

a department secretary, even one awaiting Senate confirmation, 

"serve[s] at the pleasure of the governor." Wis. Stat. § 15.05.
No. 2020AP765-OA.rfd

15

unconstitutional provision and save the rest.16 Why? So it could 

feign that it had no choice but to strike the entirety of the 

order. The majority had another option: sever the provisions

besides those "clos[ing] schools and forbid[ding] public 

gatherings in schools, churches, and other places," which the 

Legislature conceded are valid under Wis. Stat. § 252.02(3).17 

While the majority in a footnote says "This decision does not apply 

to Section 4. a. of Emergency Order 28," majority op., ¶3 n.6, it 

does not explicitly sever Section 4. a. In fact, the broad 

language in the majority opinion suggests otherwise: "Emergency 

Order 28 is invalid and therefore, unenforceable." Majority op., 

¶56. The majority's act of striking the entirety of Emergency 

Order 28 effective immediately is a prime example of judicial 

activism. 

¶155 Relatedly, the majority makes much ado about nothing 

when bemoaning that Emergency Order 28 allows the executive to 

 

16 Section 19 of Emergency Order 28 says: "To this end, the 

provisions of this Order are severable." 

17 For example, Section 4. a. of Emergency Order 28 indicates 

that "Public and private K-12 schools shall remain closed for pupil 

instruction and extracurricular activities for the remainder of 

the 2019-2020 school year." Such a provision is clearly within 

DHS's explicit authority pursuant to Wis. Stat. 

252.02(3). Similarly, Section 4. c. closes "places of public 

amusement and activity." Such places include but are not limited 

to "amusement parks, carnivals, water parks, licensed public or 

private swimming pools, splash pads, aquariums, zoos, museums, 

arcades, fairs, children's play centers, playgrounds, funplexes, 

theme parks, bowling alleys, movie and other theaters, concert and 

music halls, country clubs, social clubs, and gyms and fitness 

centers." Again, the Legislature concedes that DHS may order at 

least some of these places to close under § 252.02(3).
No. 2020AP765-OA.rfd

16

arbitrarily define crimes and impose criminal penalties.18 In 

fact, for shock value, the majority ties much of its reasoning to 

the imposition of criminal penalties. As detailed in Justice 

Hagedorn's dissent, ¶255 & n.21, criminal penalties for the 

violation of an agency action is nothing new. Nonetheless, as the 

assistant attorney general conceded at oral argument, this court 

could simply issue a ruling that Emergency Order 28 can only be 

enforced through civil fines and sever the language regarding 

criminal penalties. The majority fails to even mention this 

possibility because to do so would expose the flaws in their 

reasoning. Instead, the majority of this court strikes the 

entirety of Emergency Order 28, see majority op., ¶¶3, 56, and 

limits DHS's ability to act quickly while in the midst of its 

efforts to fight COVID-19.

II. THE MAJORITY'S ADVISORY OPINION ON THE LEGISLATURE'S 

SECOND CLAIM

¶156 The majority opinion should end after it addresses the 

Legislature's first claim and strikes the entirety of Emergency 

Order 28. Instead, the majority "assumes arguendo" that rulemaking 

was not required so that it can opine on issues not properly before 

the court. The reason given by the majority is that the court 

granted review of the second issue. See majority op., ¶43. Having 

decided to accept a question on review has never provided a 

justification to engage in an advisory opinion, which this court 

 

18 Section 18 of Emergency Order 28 indicates that violations 

of the order are punishable by up to 30 days imprisonment, pursuant 

to Wis. Stat. § 252.25.
No. 2020AP765-OA.rfd

17

disfavors. See Am. Med. Servs., Inc. v. Mut. Fed. Sav. & Loan 

Ass'n, 52 Wis. 2d 198, 203, 188 N.W.2d 529 (1971) ("Advisory 

opinions should not be given under the guise of a declaration of 

rights.").

¶157 The majority appropriately defines standing to seek 

judicial review as "when one has a stake in the outcome of the 

controversy and is affected by the issues in controversy." 

Majority op., ¶12 (citing Schill v. Wis. Rapids Sch. Dist., 2010 

WI 65, ¶38, 327 Wis. 2d 572, 786 N.W.2d 177). Yet, the majority 

offers a cursory and incomplete analysis on this issue because it 

only addresses standing based on an invasion of the Legislature's 

core powers. While the Legislature conceivably has standing on 

the first claim regarding rulemaking, this does not confer standing 

to challenge Emergency Order 28 as exceeding DHS's statutory 

authority. The majority opinion is void of any analysis as to the 

Legislature's standing to bring its second claim. 

¶158 The Legislature has no stake whatsoever in whether the 

mandate in Emergency Order 28 exceeded DHS's authority under Wis. 

Stat. §§ 252.02(3), (4), and (6). The Legislature itself is 

expressly exempt from the legal directives of Emergency Order 28. 

See Emergency Order 28 at 11 ("This section does not limit the 

ability or authority of the Wisconsin Legislature to meet or 

conduct business."). No single legislator signed on in an 

individual capacity to this lawsuit. In order for this court to 

properly reach this claim, it must be brought by one who is harmed 

by the order, a Wisconsin citizen or business entity that falls 

under the scope of Emergency Order 28.
No. 2020AP765-OA.rfd

18

¶159 Recognizing the Legislature's standing to bring a claim 

that enforcement of a statute "exceeded statutory authority" sets 

a dangerous precedent. This court has deemed it error for a 

legislator to testify regarding legislative intent of a statute 

and likewise the Legislature here cannot testify to its view of 

the scope of a statute. Cartwright v. Sharpe, 40 Wis. 2d 494, 

508-509, 162 N.W.2d 5 (1968); see also Responsible Use of Rural 

and Agr. Land v. PSC, 2000 WI 129, ¶39 n.20, 239 Wis. 2d 660, 619 

N.W.2d 888 ("ex post facto explanations from legislators cannot be 

relied upon to determine legislative intent . . . ."); State v.

Consolidated Freightways Corp., 72 Wis. 2d 727, 738, 242 

N.W.2d 192 (1976) ("However, neither a legislator, nor a private 

citizen, is permitted to testify as to what the intent of the 

legislature was in the passage of a particular statute."). 

Moreover, allowing the Legislature to challenge the scope of a 

duly enacted statute without a showing of any particularized harm 

opens the floodgates for future litigation about the application 

of each and every statute. See also Justice Hagedorn's dissent, 

¶¶233-44 (providing a well reasoned and extensive discussion on 

standing).

¶160 Even overlooking the clear standing issues, the advisory 

part of the opinion is cursory and misreads the statutory language. 

The majority cuts and pastes portions of Wis. Stat. § 252.02 and 

reaches undeveloped conclusions. For example, the majority 

opinion appears to say that Emergency Order 28 exceeds the

authority given to DHS in § 252.02(4) because it goes beyond the

quarantining of suspected infected persons and guarding against 
No. 2020AP765-OA.rfd

19

the introduction of communicable disease into the state. Majority 

op., ¶¶49-50. The majority conveniently fails to mention the rest 

of § 252.02(4), including the authority to issue statewide orders 

"for the control and suppression of communicable diseases." 

Ultimately, by engaging in an advisory opinion about the potential 

limits of § 252.02, the majority of this court did not just jump 

when the Legislature asked it to, it asked "how high?"

III. CONCLUSION

¶161 It is important to understand that the Legislature's 

request was not to immediately strike Emergency Order 28. Even 

the Legislature appreciated the abrupt changes that will be wrought 

by this decision and thus asked this court for a stay. In its 

initial brief, the Legislature requested that this Court stay 

enforcement of an injunction for a period of six days to allow DHS 

"to promulgate an emergency rule consistent" with state law. The 

reply brief suggests this court "stay enforcement of its injunction 

in its equitable discretion, to allow DHS sufficient time to 

promulgate a new emergency rule consistent with Wisconsin law." 

In its last act of judicial activism, the majority takes it upon 

itself to immediately overturn Emergency Order 28, a remedy neither 

party asked for.

¶162 The effective date of this decision should be stayed and 

the majority has the equitable power to do so. In her concurrence, 

Chief Justice Roggensack claims she would stay "future actions to 

enforce our decision," but since Emergency Order 28 will no longer 

be in effect, there will be no "future actions" of enforcement. 

These words are meaningless. It is clear that a majority of this 
No. 2020AP765-OA.rfd

20

court has no appreciation of the consequences of doing the 

Legislature's bidding in the midst of a pandemic. The Legislature 

has always had the power to act, but would rather ask this court 

to do so to avoid political fallout. Unfortunately for 

Wisconsinites, this court took the bait.

¶163 For the foregoing reasons, I dissent.

¶164 I am authorized to state that Justice ANN WALSH BRADLEY 

joins this dissent.
No. 2020AP765-OA.bh

1

¶165 BRIAN HAGEDORN, J. (dissenting). We are facing a 

unique public health crisis the likes of which few among us have

ever seen. And the government response of shutting down 

businesses, travel, and schools, forbidding private gatherings, 

and other such measures is a demonstration of government power the

likes of which few among us have ever seen. Understandably, our 

public discourse is full of passionate debate——both over how to 

handle the public health issues facing our world, and over whether 

this exercise of government power is appropriate for this crisis 

and for a nation "conceived in Liberty." Abraham Lincoln, Address 

at Gettysburg, Pennsylvania (Nov. 19, 1863).

¶166 The pressing and consequential nature of these questions 

cannot be overstated, but this particular case has nothing to do 

with them——nothing whatsoever. The judiciary receives its charge 

from the people through the Wisconsin Constitution. And the people 

have not empowered this court to step in and impose our wisdom on 

proper governance during this pandemic; they left that to the 

legislative and executive branches. They have empowered this court 

to decide cases according to the law, and that alone is what we 

must do.

¶167 Some would like to characterize this case as a battle 

over the constitutional limits on executive power——can an 

executive branch officer really shut down businesses, limit 

travel, and forbid public gatherings? These are important 

questions for sure, but they are not what this case is about. No 

party has raised or developed such a claim. Some would also like 

to frame this as a challenge to the government's potential 
No. 2020AP765-OA.bh

2

infringement of certain constitutional protections like the 

freedoms of religion, speech, and assembly, and the right to hunt 

and fish. But these issues are not before us either. No party 

has raised or developed a claim along these lines.

¶168 We are a court of law. We are not here to do freewheeling 

constitutional theory. We are not here to step in and referee 

every intractable political stalemate. We are not here to decide 

every interesting legal question. It is no doubt our duty to say 

what the law is, but we do so by deciding cases brought by specific 

parties raising specific arguments and seeking specific relief. 

In a case of this magnitude, we must be precise, carefully focusing 

on what amounts to the narrow, rather technical, questions before 

us. If we abandon that charge and push past the power the people 

have vested in their judiciary, we are threatening the very 

constitutional structure and protections we have sworn to uphold.

¶169 This court granted the legislature's petition for 

original action on two issues. First, we are asked whether the 

commands in Emergency Order 28 (Order 28) were required to be 

promulgated as an administrative rule under chapter 227 of the 

Wisconsin Statutes. I conclude they were not because Order 28 is 

an order applying to a specific factual circumstance, and is 

therefore not an order of "general application" under Wis. Stat. 

§ 227.01(13) (2017-18).1 Second, the legislature asks us to 

address whether, even if rulemaking was not required, Order 28 

exceeds the Department of Health Services' (DHS) statutory 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
No. 2020AP765-OA.bh

3

authority. Because this is a challenge to executive branch 

enforcement of clearly on-point statutes, I conclude the 

legislatureas a constitutional body whose interests lie in 

enacting, not enforcing the lawslacks standing to bring this 

claim. Such claims should be raised by those injured by the 

enforcement action, not by the branch of government who drafted 

the laws on which the executive branch purports to rely. To the 

extent we countenance an argument that Wis. Stat. § 252.02 grants 

too much power to DHS, we are allowing the legislature to argue 

its own laws are unconstitutional, a legal claim it has no 

authority to make.

¶170 In striking down most of Order 28, this court has strayed 

from its charge and turned this case into something quite different 

than the case brought to us. To make matters worse, it has failed 

to provide almost any guidance for what the relevant laws mean, 

and how our state is to govern through this crisis moving forward. 

The legislature may have buyer's remorse for the breadth of 

discretion it gave to DHS in Wis. Stat. § 252.02. But those are 

the laws it drafted; we must read them faithfully whether we like 

them or not. To be sure, this leaves much unanswered. Significant 

legal questions remain regarding the limits, scope, and propriety 

of the powers asserted in Order 28, and in the powers that might 

plausibly be exercised pursuant to the broad authority and 

responsibility given to DHS in § 252.02. But those are questions 

we must leave for another day; this court has no business raising 

and deciding claims to vindicate the rights of parties not before 
No. 2020AP765-OA.bh

4

us now. Based on the legal issues presented in this case, I would 

uphold Order 28. I respectfully dissent.

I. Background

¶171 The factual background to this case is well-known and 

sufficiently stated in the other writings. But some pertinent 

legal background will be helpful in understanding the issues——

namely, that which pertains to our basic constitutional structure 

and the police power generally.

¶172 The foundation of our system of government rests in the 

sovereignty of the people. Government has a morally legitimate 

claim to order and command not because it has the biggest guns or 

because it's always been that way, but because the people have 

given it that power. The Declaration of Independence para. 2 (U.S. 

1776); Wis. Const. art. I, § 1.

¶173 The people have granted power and delineated its limits 

through the United States Constitution and the Wisconsin 

Constitution. These constitutions reflect and describe both a 

vertical separation of powers and a horizontal separation of 

powers. More than even our Bill of Rights, our founders understood 

the separation of powers as the central bulwark of our liberty. 

See Morrison v. Olsen, 487 U.S. 654, 697 (1988) (Scalia, J., 

dissenting) ("The Framers of the Federal Constitution . . . viewed 

the principle of separation of powers as the absolutely central 

guarantee of a just Government.").

¶174 The vertical separation of powers is reflected in the 

allocation of powers between the federal government and state 
No. 2020AP765-OA.bh

5

governments, a concept known as federalism. Power is diffused 

into two separate sovereigns, each having their own spheres of 

authority within which they can and cannot act. The federal 

government, as established by the federal constitution, is a 

government of limited and enumerated powers. This means the 

federal government can only do what the federal constitution itself 

grants it power to do. Powers not given to the federal government 

are retained by the people and the states. U.S. Const. amend. X 

("The powers not delegated to the United States by the 

Constitution, nor prohibited by it to the States, are reserved to 

the States respectively, or to the people."); see also Erie R.R. 

Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("Congress has no power to 

declare substantive rules of common law applicable in a state 

whether they be local in their nature or 'general,' be they 

commercial law or a part of the law of torts. And no clause in 

the Constitution purports to confer such a power upon the federal 

courts.").

¶175 The horizontal separation of powers is the idea that 

government power at large is divided and deposited into three 

institutions or officers. The power to make law, to decide what 

the law should be, is given to the legislative branch. Wis. Const. 

art. IV, § 1. The power to enforce and execute the law already 

enacted is given to the executive branch. Id. art. V, § 1. And 

the power to decide disputes about the law is given to the judicial 

branch. Id. art. VII, § 2. This horizontal separation of powers 

is reflected in both the United States Constitution and the 
No. 2020AP765-OA.bh

6

Wisconsin Constitution. See Gabler v. Crime Victims Rights Bd., 

2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384.

¶176 These two principles——both the vertical and horizontal 

separation of powers——are of key importance to this case in a 

number of ways.

¶177 First, while the federal government is one of limited 

and enumerated powers, the state government is not. States have 

what is known as the police power. This is the state's inherent 

power "to promote the general welfare," which "covers all matters 

having a reasonable relation to the protection of the public 

health, safety or welfare." State v. Interstate Blood Bank, Inc., 

65 Wis. 2d 482, 490, 222 N.W.2d 912 (1974). If that sounds 

incredibly broad and far-reaching, that's because it is. It is 

the police power which allows states to enact general criminal 

laws and punish those who don't comply. It is the police power 

that allows states to enact permitting requirements on the use of 

private property. It is the police power that allows the state to 

tax its citizens, prohibit speeding, enact inheritance laws, and 

on and on.2

 

2 Quoting the United States Supreme Court, this court has 

explained: 

But what are the police powers of a State? They are 

nothing more or less than the powers of government 

inherent in every sovereignty to the extent of its 

dominions. And whether a State passes a quarantine law, 

or a law to punish offenses, or to establish courts of 

justice, or requiring certain instruments to be 

recorded, or to regulate commerce within its own limits, 

in every case it exercises the same powers; that is to 

say, the power of sovereignty, the power to govern men 

and things within the limits of its dominion. It is by 

virtue of this power that it legislates; and its 
No. 2020AP765-OA.bh

7

¶178 From the British common law through the Industrial 

Revolution and up through today, the power to quarantine and take 

other invasive actions to protect against the spread of infectious 

diseases has been universally recognized as a legitimate exercise 

of state police power. United States Supreme Court Chief Justice 

John Marshall said in the 1824 case of Gibbons v. Ogden that the 

police powers of the state include "every thing within the 

 

authority to make regulations of commerce is as absolute 

as its power to pass health laws, except in so far as it 

has been restricted by the constitution of the United 

States.

Thus has this court from the early days affirmed that 

the power to promote the general welfare is inherent in 

government. Touching the matters committed to it by the 

Constitution the United States possesses the power, as 

do the states in their sovereign capacity touching all 

subjects jurisdiction of which is not surrendered to the 

federal government.

Chi. & N.W. Ry. Co. v. La Follette, 43 Wis. 2d 631, 644, 169 

N.W.2d 441 (1969) (quoting Nebbia v. New York, 291 U.S. 502, 524-

25 (1934)).

Nineteenth century legal luminary Thomas Cooley described the 

police power this way: 

The police power of a State, in a comprehensive sense, 

embraces its system of internal regulation, by which it 

is sought not only to preserve the public order and to 

prevent offenses against the State, but also to 

establish for the intercourse of citizen with citizen 

those rules of good manners and good neighborhood which 

are calculated to prevent a conflict of rights, and to 

insure to each the uninterrupted enjoyment of his own, 

so far as is reasonably consistent with a like enjoyment 

of rights by others.

Thomas M. Cooley, A Treatise on the Constitutional Limitations 

Which Rest upon the Legislative Power of the States of the American 

Union *572 (1871) (citing Blackstone).
No. 2020AP765-OA.bh

8

territory of a State, not surrendered to the general government," 

including "quarantine laws" and "health laws of every 

description." 22 U.S. (9 Wheat.) 1, 203 (1824). In 1902, the 

Court again sounded a similar theme, concluding that preventing a 

ship from docking due to a partial quarantine was a reasonable 

exercise of Louisiana's police power. Campagnie Francaise de 

Navigation a Vapeur v. Bd. of Health, 186 U.S. 380, 387-93 (1902). 

And in 1905, the Supreme Court went even further and concluded 

that mandatory vaccination to prevent the spread of infectious 

disease was a valid exercise of the police power. Jacobson v. 

Massachusetts, 197 U.S. 11, 27-30, 35 (1905).3

¶179 The power of state government is not without limits, 

however. Every exercise of the police power is subject to the 

limits set by the people through our constitutions. Bushnell v. 

Town of Beloit, 10 Wis. 195, 225 (1860) ("[T]he constitution of 

the state is to be regarded not as a grant of power, but rather as 

a limitation upon the powers of the legislature, and . . . it is 

competent for the legislature to exercise all legislative power 

not forbidden by the constitution or delegated to the general 

government, or prohibited by the constitution of the United 

States."). The federal constitution imposes certain limits on 

state action——prohibiting slavery, guaranteeing the right to vote 

for men and women eighteen or older of any race, and guaranteeing 

the right to due process and equal protection of the laws, among 

 

3 I cite these cases not to approve or disapprove of their 

holdings, but to establish that strong public health measures have 

long been understood as valid exercises of the police power.
No. 2020AP765-OA.bh

9

others.4 The state constitution also contains many limits, some 

overlapping with the protections in the federal constitution. 

Among them are the freedom of religion, the right to hunt and fish, 

the right to bear arms, and a variety of protections for crime 

victims and those accused of crimes.5

¶180 These limits are real and substantive. Neither 

legislative enactments themselves nor executive enforcement of 

otherwise valid laws may transgress these or any other 

constitutional boundary. See State v. Wood, 2010 WI 17, ¶13, 323 

Wis. 2d 321, 780 N.W.2d 63 ("If a challenger successfully shows 

that such a violation [of his or her constitutional rights] 

occurred, the operation of the law is void as to the party 

asserting the claim." (citation omitted)). And among these limits, 

now generally understood to be housed in due process guarantees, 

any exercise of police power must be legitimately aimed at 

protecting the public health, safety, and welfare of the people. 

State v. McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654 (1989) ("Due 

process requires that the means chosen by the legislature bear a 

reasonable and rational relationship to the purpose or object of 

the enactment; if it does, and the legislative purpose is a proper 

 

4 See U.S. Const. amend. XIII (prohibiting slavery); id.

amend. XV (suffrage for all races); id. amend. XIX (suffrage for 

women); id. amend. XXVI (suffrage for eighteen-year-olds); id.

amend. XIV (due process and equal protection).

5 See Wis. Const. art. I, § 18 (freedom of worship); id. art. 

I, § 26 (right to fish, hunt, trap, and take game); id. art. I, 

§ 25 (right to bear arms); id. art. I, §§ 6, 7, 8, 9, 9m & 11 

(protecting rights of crime victims and those accused of crimes).
No. 2020AP765-OA.bh

10

one, the exercise of the police power is valid." (citation 

omitted)).

¶181 Of course, recognizing the potential breadth of state 

power is not the same as applauding or affirming use of that power. 

Whether the state can quarantine individuals, forbid public 

gatherings, and take drastic emergency measures during a pandemic 

is quite a different question than whether government has used 

that power wisely or within constitutional limits.

¶182 Moving beyond the boundaries of potentially permissible 

uses of the police power, its mechanism is also important to this 

case. The scope of the police power determines the potentially 

legitimate goals of government action——that is, the policies that 

will govern the state. In our constitutional system, it is the 

legislature that determines policy choices in the first instance. 

Bushnell, 10 Wis. at 225 ("The legislature, subject to a qualified 

veto of the executive, possesses all the legislative power of the 

state."). It does this pursuant to its constitutional power to 

enact laws. Wis. Const. art. IV, § 17. Following enactment of 

laws, the legislature's constitutional role as originally designed 

is generally complete.

¶183 The executive then has authority to faithfully execute 

the laws already on the books. Wis. Const. art. V, § 4. Executive 

authority is in one sense quite limited; the executive branch must 

enforce the laws the legislature has passed whether it likes them 

or not. In another sense, however, the authority is quite 

extensive. The executive branch generally has broad authority to 

execute the laws, and to use judgment and discretion in so doing.
No. 2020AP765-OA.bh

11

¶184 Where the legislature gives broad discretionary 

authority to the executive——in the enforcement of the criminal 

law, for example——that power can be immense. To illustrate, the 

legislature defines crimes, and has created a system for the 

prosecution of those crimes. But law enforcement has considerable 

discretion in determining whether to arrest those who break the 

law and refer them for punishment. All of us who have received a 

kindly warning from a merciful officer for driving a bit over the 

speed limit know this firsthand. Even after referral, prosecutors 

are given vast discretion in choosing whether to file a criminal 

complaint, and which crimes to charge. In practical effect, some 

crimes are almost never prosecuted in some jurisdictions.6

¶185 Thus, under our constitutional design, the scope and 

size of the executive branch, the areas in which the executive 

branch is called upon to act, and the discretion with which it is 

entrusted is set by the legislature through the enactment of laws.

¶186 While more can be said, it is with this foundation that 

we proceed to the two issues before us. The first question is 

whether Order 28, with all of its various dictates, was required 

to be promulgated as an administrative rule, the failure of which 

renders the order unlawful. The second issue is whether Order 28 

goes beyond the statutory powers granted to DHS in Wis. Stat. 

§ 252.02.

 

6 See, e.g., https://www.wiscontext.org/wisconsins-racialchasm-marijuana-enforcement (noting that the Dane County district 

attorney informed law enforcement not to bring him cases based on 

small amounts of marijuana possession).
No. 2020AP765-OA.bh

12

II. Order 28 Is Not an Administrative Rule

¶187 The legislature argues that Order 28 constitutes an 

administrative rule that was not promulgated pursuant to the 

procedural requirements in Wis. Stat. ch. 227 and should therefore 

be struck down in its entirety. The legislature appears to have 

standing to raise this issue since it has a statutory role in the 

promulgation of rules, in particular, the authority to oversee and 

suspend proposed rules through the Joint Committee for Review of 

Administrative Rules (JCRAR). See generally Wis. Stat. § 227.19. 

Moreover, nothing in Wis. Stat. § 227.40, the section pertaining 

to judicial review of the validity of a rule, expressly precludes 

the legislature from bringing a claim of this kind. While an 

argument could be made that JCRAR is the proper party with a 

cognizable harmrather than the legislature as a wholethis is, 

at the very least, a close enough call that I do not see standing 

as a roadblock to consideration of this issue.

A. Agency Authority and Rulemaking Generally

¶188 Before examining the precise arguments of the parties 

regarding Order 28, it is helpful to understand the role 

administrative agencies and administrative rules play within our 

government.

¶189 Administrative agencies are created by the legislature.

Wis. Stat. § 15.02. The legislature has the ability to withdraw 

an agency's power, dictate how any agency power is exercised, and 

extinguish the agency's power entirely. Schmidt v. Dep't of Res. 

Dev., 39 Wis. 2d 46, 57, 158 N.W.2d 306 (1968). Even so, agencies 
No. 2020AP765-OA.bh

13

are members of the executive branch. See Wis. Stat. § 15.001(2); 

Koschkee v. Taylor, 2019 WI 76, ¶14, 387 Wis. 2d 552, 929 

N.W.2d 600.

¶190 The legislature created DHS as an executive branch 

agency through Wis. Stat. § 15.19 and granted it a variety of 

statutory powers and duties generally found in Wis. Stat. chs. 250 

to 257, including authority relating to communicable diseases 

under chapter 252.7 Some of these powers are triggered when the 

governor declares a public health state of emergency under Wis. 

Stat. § 323.10. DHS is then treated as the public health authority 

and given certain powers and duties specific to that designation. 

Wis. Stat. § 250.01(6g). However, chapter 252 contains separate 

authority that is not, at least on its face, dependent on a 

governor's emergency declaration. Secretary Palm asserts that 

Order 28 is grounded in such separate statutory authority. Thus, 

an emergency declaration by the governor is not relevant to 

 

7 See also Justice Dallet's dissent, ¶¶135-38 (discussing the 

historical path of Wisconsin's public health law and law 

enforcement, including emergency response measures taken in 

previous instances of communicable disease outbreak).
No. 2020AP765-OA.bh

14

analysis of whether Order 28 meets the statutory definition of an 

administrative rule.8

¶191 At the outset, it bears mentioning that the 

administrative rulemaking process itself sits a bit uneasily 

within a constitutional structure that vests three different kinds 

of power in three different branches. See Koschkee, 387 

Wis. 2d 552, ¶¶42-57 (Rebecca Grassl Bradley, J., concurring). In 

practice today, administrative rules occupy a form of shared 

governance between the executive and legislative branches.

¶192 During its rise in the Progressive Era, this court had 

some difficulty squaring the emerging administrative state with 

the structure of the Wisconsin Constitution. But eventually, like 

the U.S. Supreme Court, it acquiesced. See J.W. Hampton, Jr. & 

Co. v. United States, 276 U.S. 394, 409 (1928) (upholding a 

congressional delegation of authority to the executive to fix 

customs duties). See generally Gundy v. United States, 139 

S. Ct. 2116, 213342 (2019) (Gorsuch, J., dissenting) (criticizing 

the nondelegation doctrine in federal law for its wayward departure 

 

8 If the legislature's rulemaking argument is correct, it 

would appear that Secretary Palm's prior orders, including the 

original "Safer at Home" order issued on March 24, would be 

captured in the same net. After all, the definition of a rule, as 

explained more fully below, includes something issued by an agency. 

An order from Secretary Palm, even one issued at the direction of 

the governor, would still be issued by the agency. In other words, 

nothing in the definition of a rule suggests the governor's 

declaration of an emergency gives Secretary Palm the power to issue 

orders without first going through the rulemaking process. If so, 

the legislature's rulemaking argument was ripe when the first 

COVID-19 orders were issued in March.
No. 2020AP765-OA.bh

15

from the federal constitution and its historical embrace of a 

separation-of-powers triangle).

¶193 When the administrative rules process was adopted, early 

cases treated rulemaking as more of an executive power. See, e.g., 

State ex rel. Buell v. Frear, 146 Wis. 291, 30607, 131 N.W. 832 

(1911) (rejecting the theory that rulemaking and other related 

administrative action was, in this case, a legislative power, and 

explaining that such action falls within the ambit of executing 

the law within legislatively set parameters). The logic is not 

hard to understand. If the legislature passes a law requiring 

cigarettes to be taxed, for example, it would be an executive 

function to interpret and enforce the law, including determining 

what constitutes a cigarette and what does not. Rulemaking over 

the definition of a cigarette is, in one sense, the legislature's 

attempt to add further definition to statutes that the legislature 

did not provide in the first place. It is a post-enactment effort 

to control and limit how the laws are executed.

¶194 But over time, this court has come to describe rulemaking 

as closer to a legislative power. See, e.g., Watchmaking Examining 

Bd. v. Husar, 49 Wis. 2d 526, 53334, 182 N.W.2d 257 (1971) 

(characterizing rulemaking as a "delegation" of legislative power 

to a subordinate administrative agency). The logic here is not 

hard to understand either. As government grew into the modern 

behemoth it is today, the legislature began to enact statutes that 

looked more like broad, undefined goals, rather than concrete laws. 

Doing so left specific policy decisions to the executive branch. 

Understandably, the legislature then subjected those choices to a 
No. 2020AP765-OA.bh

16

check through the rulemaking process. For example, if the 

legislature passes a law empowering the Department of Revenue to 

"tax products in the public interest," it has, one could argue, 

made no policy judgments at all for the executive to execute. In 

this view, rulemaking is the legislature's attempt to ensure it 

retains the power to make policy decisions, which is consistent 

with its constitutional role to say what the law should be.

¶195 Both parties invoke the separation of powers reflected 

in these concepts to support their assertion that rulemaking should 

or should not be required here. Regardless of how we characterize 

rulemaking generally, the parties accept the constitutional status 

quo, and merely ask us to enforce and apply the statutory 

rulemaking prescriptions.

B. Defining the Claim

¶196 The legislature asserts that Order 28 is a rule and that 

DHS's failure to comply with the rulemaking requirements in Wis. 

Stat. ch. 227 leaves an invalid rule that must be enjoined from 

further application. Not all agency action is rulemaking, of 

course. The question is a matter of statutory interpretation, 

both of the definition of a rule in Wis. Stat. § 227.01(13), and 

Wis. Stat. § 252.02(4), one of the statutory bases DHS cited for 

the order's authorization.

¶197 Relevant for what follows, Wis. Stat. § 252.02(4) states 

in part that DHS "may promulgate and enforce rules or issue 

orders," both of which may "be made applicable to the whole or any 

specified part of the state," for purposes of controlling and 
No. 2020AP765-OA.bh

17

suppressing any communicable disease. Secretary Palm argues the 

statutory distinction between "rules" and "orders" indicates that 

DHS has authority to act on a statewide basis outside of the 

rulemaking processthat is, DHS can issue orders based on the 

police power given to the executive through the legislatively set 

parameters in § 252.02. The legislature rejects this theory, 

arguing that a statewide order issued pursuant to § 252.02(4) that 

has the force of law (as Order 28 does) is, by virtue of its 

statewide application, required to be promulgated as a rule. With 

this in mind, we must unpack what makes a rule.

C. Defining a Rule

¶198 According to Wis. Stat. § 227.01(13), a "rule" is 

defined by five separate criteria. It must be "(1) a regulation, 

standard, statement of policy or general order; (2) of general 

application; (3) having the [force9] of law; (4) issued by an 

agency; (5) to implement, interpret or make specific legislation 

enforced or administered by such agency [or] to govern the 

interpretation or procedure of such agency." Citizens for Sensible 

Zoning, Inc. v. DNR, 90 Wis. 2d 804, 814, 280 N.W.2d 702 (1979) 

(citing § 227.01(13)). Neither party disputes that Order 28 has 

the force of the law and was issued by an agency, the third and 

fourth requirements in the statutory definition. It was issued by 

DHS, and has the force of law because it is legally enforceable 

rather than just exhortatory. But the parties dispute whether DHS 

 

9 In 2017 Wis. Act 369, § 32, the legislature changed this 

portion of the definition from "effect of law" to "force of law."
No. 2020AP765-OA.bh

18

issued Order 28 "to implement, interpret or make specific" 

legislation that it enforces or administers, as well as the 

requirements that it be "a regulation, standard, statement of 

policy, or general order" and one of "general application."

¶199 I conclude the textual evidence overwhelmingly shows 

that Order 28 is a "general order" precisely because of its 

statewide application. Therefore, the legislature's argument that 

its statewide effect also makes it an order of "general 

application" is incorrect. An order of "general application" is 

one that has prospective application beyond the situation at hand. 

Order 28 does not. I focus my analysis on the "general order" and 

"general application" requirements because they conclusively 

demonstrate that Order 28 does not meet the definition of a rule.10

 

10 I am also skeptical that Order 28 was issued by DHS "to 

implement, interpret, or make specific legislation enforced or 

administered by the agency or to govern the organization or 

procedure of the agency." Wis. Stat. § 227.01(13). Order 28 was 

obviously not issued to govern DHS's organization or procedure, 

and nothing suggests that Order 28 interprets or makes specific 

any terms or requirements of Wis. Stat. § 252.02. Whether Order 

28 "implements" legislation is a closer call, however.
No. 2020AP765-OA.bh

19

¶200 First, a rule must be "a regulation, standard, statement 

of policy, or general order." Wis. Stat. § 227.01(13). On its 

face, each of these phrases speaks of a broad and substantive 

policy choice of some sort. And the chosen policy or standard 

would, by implication, go beyond a one-time situation or decision.

¶201 Of particular relevance here is the "general order" 

requirement. Both parties agree Order 28 is a general order, but 

they are not especially precise on why that is. Note first that 

a simple "order" is not enough to meet the definition. The statute 

has the modifier "general"——meaning not all orders fit the bill, 

only "general" ones. And we need to, where possible, "give 

reasonable effect to every word." State ex rel. Kalal v. Circuit 

Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 

 

In context, "implement," like the rest of the rule definition 

and rulemaking process, seems aimed at covering future enforcement 

and application of the statutory powers and duties vested in a

respective agency. See State ex rel. Kalal v. Circuit Court for 

Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 

(explaining statutory language is to be interpreted "in the context 

in which it is used"). A rule expresses how a statute will be 

enforced going forward, and part of that can involve establishing 

the specifics of a larger procedure or system for all future 

applications of that statute. Accord Citizens for Sensible Zoning, 

Inc. v. DNR, 90 Wis. 2d 804, 808 & n.1, 816, 280 N.W.2d 702 (1979) 

(explaining that the Department of Natural Resources' adoption of 

a floodplain zoning ordinance constituted implementation of a 

statute pertaining to floodplain zoning that the department 

administered). This is distinct from actual enforcement and 

application of the law. Although the parties do not provide much 

help in this analysis, Order 28 seems to be enforcing and applying 

the law, rather than implementing a procedure for future 

applications of Wis. Stat. § 252.02.

In any event, because Order 28 does not satisfy the "general 

application" requirement in the definition of a rule, a firm 

conclusion on this requirement is unnecessary.
No. 2020AP765-OA.bh

20

N.W.2d 110. Yet, Wis. Stat. ch. 227 does not tell us what makes 

an ordinary order, much less a general order. So we must look for 

clues in chapter 227 and the rest of our laws. See id., ¶45 

("Statutory language is given its common, ordinary, and accepted 

meaning, except that technical or specially-defined words or 

phrases are given their technical or special definitional 

meaning." (citation omitted)); Bank Mut. v. S.J. Boyer Constr., 

Inc., 2010 WI 74, ¶31, 326 Wis. 2d 521, 785 N.W.2d 462 ("When the 

same term is used throughout a chapter of the statutes, it is a 

reasonable deduction that the legislature intended that the term 

possess an identical meaning each time it appears." (citation 

omitted)).

¶202 In chapter 227, an "order" most commonly describes a 

binding decision applying to a specific person or situation. For 

instance, in Wis. Stat. § 227.01(3), a "contested case" is defined 

as an agency proceeding that determines a party's rights; this 

proceeding results in "a decision or order." This type of order 

is also explicitly excluded from the definition of a rule in 

§ 227.01(13)(b). Elsewhere in the administrative rules statutes, 

Wis. Stat. § 227.03(6) excludes from chapter 227's reach "[o]rders 

of the election commission" issued under Wis. Stat. § 5.06(6). 

That section references the election commission's power to decide 

"by order" certain election-related complaints against election 

officials. § 5.06(6). Various other provisions in chapter 227 

refer to court "orders" directed at specific parties. See, e.g., 

Wis. Stat. § 227.11(3)(b); Wis. Stat. § 227.114(6m)(d).
No. 2020AP765-OA.bh

21

¶203 The most helpful clue in chapter 227 is found in Wis. 

Stat. § 227.40, which governs judicial review of the validity of 

rules. Section 227.40(2)(e) states, among other things, that the 

validity of a rule may be challenged in proceedings "under chapters 

102, 108, or 949 for review of decisions and orders of 

administrative agencies." Wisconsin Stat. chs. 108 and 949 cover 

unemployment claims and crime victim compensation, respectively. 

Those chapters discuss person-specific orders, again confirming 

the common usage of "order" as some government decision tied to 

and resulting from a specific factual situation.

¶204 But Wis. Stat. ch. 102, governing worker compensation 

claims, is different. Unlike any of the foregoing, that chapter 

defines both an "order" and a "general order." "'Order' means any 

decision, rule, regulation, direction, requirement, or standard of 

the department or the division, or any other determination arrived 

at or decision made by the department or the division." Wis. Stat. 

§ 102.01(2)(dm). And a "general order" is "such order as applies 

generally throughout the state to all persons, employments, places 

of employment or public buildings, or all persons, employments or 

places of employment or public buildings of a class under the 

jurisdiction of the department. All other orders of the department 

shall be considered special orders." § 102.01(2)(bm) (emphasis 

added). Thus, chapter 102 distinguishes between special orders, 

those applying to a specific person or party, and general orders, 

those applying generally to the entire state.

¶205 As it happens, this same statutory distinction between 

general and special orders is found all throughout Wisconsin 
No. 2020AP765-OA.bh

22

statutes governing agency action. For example, Wis. Stat. ch. 103 

deals with employment regulations as overseen by the Department of 

Workforce Development (DWD). In the chapter's definitions 

section, which covers Wis. Stat. chs. 103 to 106, nearly identical 

definitions are used, this time adding a complementary definition 

of a local order as well: 

(9) "General order" means such order as applies 

generally throughout the state to all persons, 

employments, places of employment or public buildings, 

or all persons, employments or places of employment or 

public buildings of a class under the jurisdiction of 

the department. All other orders of the department shall 

be considered special orders.

(10) "Local order" means any ordinance, order, rule or 

determination of any common council, board of 

alderpersons, board of trustees or the village board, of 

any village or city, a regulation or order of the local 

board of health, as defined in s. 250.01(3), or an order 

or direction of any official of a municipality, upon any 

matter over which the department has jurisdiction.

(11) "Order" means any decision, rule, regulation, 

direction, requirement or standard of the department, or 

any other determination arrived at or decision made by 

the department.

Wis. Stat. § 103.001(9), (10), (11). Again, this understanding is 

replicated throughout Wisconsin law, offering a consistent 
No. 2020AP765-OA.bh

23

definition of a "general order" as an order having statewide 

effect.11

¶206 This is not all. The statutes not only make clear that 

a general order is one applying statewide, but also that such 

statewide general orders may or may not need to be promulgated as 

rules. This can be seen throughout chapters 103 to 106, where we 

see that DWD has statutory authority to issue statewide orders, 

which may or may not be rules falling under the scope of Wis. Stat. 

ch. 227. One example is in Wis. Stat. § 106.01(9), which 

authorizes DWD to issue apprenticeship-related "rules and general 

 

11 The same definitions of "Order," "Local order," and "General 

order" are found in Wis. Stat. ch. 101, which governs the 

Department of Safety and Professional Services. Wis. Stat. 

§ 101.01(7), (8), (9). In Wis. Stat. ch. 218, in a section 

governing collection agencies, a "General order" is defined as "an 

order which is not a special order," while a "'Special order' means 

an order against a person." Wis. Stat. § 218.04(1)(d), (g). 

Elsewhere in this section, the Department of Financial 

Institutions (DFI) is authorized "To issue general or special 

orders" and may require reasonable and relevant information "by 

general or special order" that licensees must annually report. 

§ 218.04(7)(a), (10)(a). Likewise, Wis. Stat. ch. 138 authorizes 

DFI to issue "general orders or special orders" to prevent or 

correct certain actions by insurance premium finance companies. 

Wis. Stat. § 138.12(5m)(b). In this context, a special order is 

"an order of [DFI] to or affecting a person," and a general order 

is any order "other than a special order." § 138.12(5m)(a)1. & 2. 

The same definitions and order-issuing authority are found in Wis. 

Stat. § 138.14, which governs payday loans. See § 138.14(1)(h), 

(L); § 138.14(8). We also find nearly identical language and usage 

in Wis. Stat. ch. 217, which governs check sellers (Wis. Stat. 

§ 217.02(3), (10); § 217.18(1)), and in Wis. Stat. ch. 93, which 

describes various powers and duties of the Department of 

Agriculture, Trade and Consumer Protection (DATCP) (Wis. Stat. 

§ 93.06(3), (5), (6)). See also Wis. Stat. § 100.19(2) & (3) 

(authorizing DATCP to issue "general orders" and "a special order 

against any person" related to methods of or practices in food 

products and fuel distribution).
No. 2020AP765-OA.bh

24

or special orders." Wisconsin Stat. § 106.015(1) similarly 

prohibits DWD from prescribing, enforcing, or authorizing certain 

requirements "whether through the promulgation of a rule [or] the 

issuance of a general or special order."

¶207 The logic is plain, and of immense importance to this 

case. General orders are those that apply to everyone. And some 

general orders may be rules, but not all of them are. If all 

general orders must be promulgated as rules, these provisions would 

make no sense. They would instead say, "rules and special orders," 

not "rules and general or special orders."12 The only reasonable 

reading of these statutes is that orders applying statewide are 

general orders, and that these may be rules, but only if they meet 

the other requirements of the rule definition.13

 

12 Or the statutes could expressly inform that orders issued 

pursuant to these provisions will be considered rules for purposes 

of chapter 227. The legislature has shown it can do precisely 

that in Wis. Stat. § 87.30(1), where any order issued by the 

Department of Natural Resources that fixes limits of floodplains 

or enacts local floodplain zoning ordinances is subject to the 

rulemaking process under Wis. Stat. § 227.19 (legislative review 

before promulgation) and Wis. Stat. § 227.26 (legislative review 

after promulgation), and "may be suspended by the joint committee 

for review of administrative rules." § 87.30(1).

13 This reading is further supported by other chapters in the 

Wisconsin Statutes. For instance, Wis. Stat. ch. 281 governs water 

and sewage, which is an area generally under the purview of the 

Department of Natural Resources (DNR). See Wis. Stat. § 281.01(3). 

Wisconsin Stat. § 281.19, which is entitled "Orders," states: 

(1) The department may issue general orders, and adopt 

rules applicable throughout the state for the 

construction, installation, use and operation of 

practicable and available systems, methods and means for 

preventing and abating pollution of the waters of the 

state. Such general orders and rules shall be issued 
No. 2020AP765-OA.bh

25

 

only after an opportunity to be heard thereon has been 

afforded to interested parties.

(2) (a) The department may issue special orders 

directing particular owners to remedy violations of the 

safe drinking water program under s. 281.17 (8) and (9) 

or to secure such operating results toward the control 

of pollution of the waters of the state as the department 

prescribes, within a specified time. Pending efforts to 

comply with any order, the department may permit

continuance of operations on such conditions as it 

prescribes. If any owner cannot comply with an order 

within the time specified, the owner may, before the 

date set in the order, petition the department to modify 

the order. The department may modify the order, 

specifying in writing the reasons therefor. If any order 

is not complied with within the time period specified, 

the department shall immediately notify the attorney 

general of this fact. After receiving the notice, the 

attorney general shall commence an action under s. 

299.95. 

(b) The department may issue temporary emergency orders 

without prior hearing when the department determines 

that the protection of the public health necessitates 

such immediate action. Such emergency orders shall take 

effect at such time as the department determines. As 

soon as is practicable, the department shall hold a 

public hearing after which it may modify or rescind the 

temporary emergency order or issue a special order under 

par. (a).

§ 281.19 (emphasis added).

The next subsection provides that "[t]he department shall 

make investigations and inspections to insure compliance with any 

general or special order or rule which it issues." Wis. Stat. 

§ 281.19(3) (emphasis added). Note that elsewhere in Wis. Stat. 

ch. 281 the department is directed to prescribe various performance 

and certification standards, practices, and prohibitions solely by 

promulgating rules. § 281.16(2), (3); § 281.165(1); § 281.17(3).
No. 2020AP765-OA.bh

26

¶208 The legislature does not address this overwhelming 

textual evidence informing what "general order" means for purposes 

of Wis. Stat. § 227.01(13). Rather, it looks to one of the 

enumerated exclusions from the rule definition relating to orders, 

and suggests this alone proves that any order applying statewide 

must also be a rule.

¶209 Wisconsin Stat. § 227.01(13)(c) excludes from the 

definition of "rule" any agency action or inaction that 

[i]s an order directed to a specifically named person or 

to a group of specifically named persons that does not 

constitute a general class, and which is served on the 

person or persons to whom it is directed by the 

appropriate means applicable to the order. The fact 

that a named person serves a group of unnamed persons 

that will also be affected does not make an order a rule.

With this, the legislature maintains, by way of converse 

implication, that any order applying statewide is included in the 

definition of a rule. But this argument does not do the heavy 

analytical lifting the legislature wishes it to do. 

Section 227.01(13)(c) does not purport to define any particular 

kind of order, nor does it state or imply that all orders are rules 

but for those fitting this description. Instead, it clarifies 

that certain person or group-specific orders served on those 

 

The distinctions are clear. Special orders are issued to 

particular persons. General orders apply to everyone "throughout 

the state." And not all general orders, which again, apply to 

all, are rules. Otherwise, the language in Wis. Stat. § 281.19(1) 

and (3) indicating that DNR may issue general orders and adopt 

rules, and ensure compliance with both, would make no sense.
No. 2020AP765-OA.bh

27

persons or groups are not rules, making it one of many belt-andsuspenders exclusions from the definition of a rule.14

¶210 None of this overcomes or even contradicts the statutory 

meaning of the phrase "general order." And although chapter 227 

does not tell us what a "general order" is, the story told 

throughout the rest of the Wisconsin Statutes does. A general 

order is an order that applies to everyone statewide. Other 

orders, often referred to as special orders, apply to specific 

persons or entities only.

¶211 This reading also makes sense in the context of the other 

phrases listed in the first criteria of the rule definition. A 

"regulation," a "standard," and a "statement of policy" all give 

the idea of a general standard applicable to everyone affected by 

its subject. It would only make sense that a general order does 

the same. This first requirement, at root, addresses the kind of 

decree and the statewide breadth of its impact (even if only some 

people are personally affected).

¶212 Importantly, however, our statutes also show that just 

because something is a general order does not make it a rule. 

While many general orders are rules, not all of them are. They 

still must meet the other criteria to actually qualify as a rule.

¶213 With that in mind, the second requirement for any rule 

is that it must have "general application." The legislature's 

 

14 Like Wis. Stat. § 227.01(13)(c), other listed exclusions 

appear quite unlikely to meet the definition of a rule under even 

normal circumstances. E.g., § 227.01(13)(r) (excluding a 

"pamphlet or other explanatory material that is not intended or 

designed as interpretation of legislation enforced or administered 

by an agency, but which is merely informational in nature").
No. 2020AP765-OA.bh

28

main theory in this case is that a "general order of general 

application" is an order applying statewide. Connecting the dots, 

because Order 28 applies to a broad class of persons or entities 

rather than a specific person or entity, it is an order of "general 

application" in the legislature's telling. In other words, the 

legislature maintains the temperature gauge for what constitutes 

an order of general application is the breadth of the persons 

subject to the order.

¶214 But for reasons that are obvious from the previous 

discussion, this is plainly wrong. If a "general order" is an 

order applying statewide, that cannot be what "general 

application" means too. The legislature never makes any attempt 

to give separate meaning to "general order," nor does it engage in 

any statutory analysis regarding its interpretation. "General 

application" is a second, separate statutory requirement under the 

rule definition, and it must be given independent meaning. Kalal, 

271 Wis. 2d 633, ¶46 ("Statutory language is read where possible 

to give reasonable effect to every word, in order to avoid 

surplusage."). The legislature's theory, which depends on 

conflating the two, fails from the outset.

¶215 Secretary Palm argues, and I agree, that a regulation, 

standard, statement of policy, or general order is one of "general 

application" if it applies generally, as opposed to specifically. 

That is, an application is specific if it applies to a single, 

particular factual situation. Something with general application 

applies to multiple, prospective factual situations. A specific 
No. 2020AP765-OA.bh

29

application is focused on the present; a general application is 

focused on the future.

¶216 This reading makes sense first and foremost given the 

statutory text's use of the modifier "general." Just like the 

modifier "general" in "general order" means an order directed to 

everyone (as opposed to a specific someone), the modifier "general" 

in "general application" should have the same effect——that is, an 

order that applies to every situation covered by the subject matter 

(as opposed to a specific situation covered by the subject matter).

¶217 This reading also makes sense because of what rules are 

meant to be. Rules are designed to have enduring effect. They 

are published in official registers. They require public hearings, 

written input, and a series of complicated bureaucratic checks 

before being implemented. And while emergency rules are an option, 

they are still relatively slow and cumbersome. This is all by 

design. Government orders with limited application to a particular 

situation and individual circumstances warranting temporary action 

are not what rulemaking is designed to address.

¶218 In some ways, Secretary Palm's interpretation of the 

statutes may even be constitutionally required. To the extent 

rulemaking has a justification under our state constitution, it is 

because it retains the legislature's constitutional prerogative to 

determine the general policies that will govern the state. But 

rulemaking itself cannot tread so far as to authorize a legislative 

intrusion into the core power of the executive to enforce the laws. 

Our constitution's commitment to the separation of powers means 

the legislature should not, as a general matter, have a say in the 
No. 2020AP765-OA.bh

30

executive branch's day-to-day application and execution of the 

laws. The legislature gets to make the laws, not second guess the 

executive branch's judgment in the execution of those laws. If 

rulemaking is understood as establishing a check on how a law is 

prospectively understood, that could be justified as retaining the 

legislature's constitutional prerogative to determine the state's 

public policy. But if rulemaking morphs into subjecting executive 

branch enforcement of enacted laws to a legislative veto, that 

turns our constitutional structure on its very head.

¶219 The parties do not maintain that any cases directly 

address or control the issues before us, and I agree. But two 

cases that do address the meaning of "general application" support 

Secretary Palm's reading, not the legislature's.

¶220 In Citizens for Sensible Zoning, Inc., this court 

concluded that a Department of Natural Resources' (DNR) floodplain 

zoning ordinance covering Columbia County was a regulation of 

general application. We reasoned that a rule "need not apply to 

all persons within the state" to have general application. 90 

Wis. 2d at 815-16. The class size was small, we said, but the 

class was "described in general terms and new members can be added 

to the class." Id. at 816. That is consistent with Secretary 

Palm's interpretation of "general application." The newly enacted 

zoning ordinance was not tailored to a specific circumstance or 

current dispute; rather, it was a regulation applying to the 

general class of all future property owners. Id. (citing 

Frankenthal v. Wis. Real Estate Brokers' Bd., 3 Wis. 2d 249, 257B, 

89 N.W.2d 825 (1958), which held an instruction covering the 
No. 2020AP765-OA.bh

31

license renewal procedure for real estate brokers was a policy 

statement of "general application").

¶221 Similarly, in Cholvin v. DHFS, the court of appeals 

explained that a written instruction used by screeners to determine 

new applicants' eligibility for a certain Wisconsin Medicaid 

program was of "general application." 2008 WI App 127, ¶¶2425, 

313 Wis. 2d 749, 758 N.W.2d 118. As the court put it, the 

instruction "does not speak to a specific case, nor is it limited 

to an individual applicant. It announces the general policy and 

the specific criteria to be employed when entering information on 

fluctuating levels of functional ability for all applicants." 

Id., ¶25. In other words, the instruction was meant for 

prospective application to everyone covered by the subject matter, 

namely a Medicaid program eligibility screening, not just to a 

current factual situation.

¶222 Therefore, the best reading of the "general application" 

requirement, as a matter of text, context, structure, 

constitutional limitation, and caselaw is that a general order, 

which by definition covers everyone statewide, must apply not just 

to a specific circumstance, but to all circumstances present and 

future that are contemplated by the scope of the order.

D. Wis. Stat. § 252.02 Does Not Require Rulemaking

¶223 Collectively, the definition of a rule reflects a 

dictate with statewide effect that takes broad statutory language 

and makes it specific or workable, not just to a particular 

situation, but for future situations of the same kind. While 
No. 2020AP765-OA.bh

32

orders certainly can be, and often are, rules, Order 28 does not 

meet this definition. It is statewide in scope, and therefore it 

constitutes a general order. But it does not have general 

application. It is an order with only temporary effect, expiring 

on May 26, 2020, and focused specifically on the control and 

suppression of a particular communicable disease.

¶224 Wisconsin Stat. § 252.02 confirms this reading. Section 

252.02(4), on which Order 28 is based in part, states that DHS 

may promulgate and enforce rules or issue orders for 

guarding against the introduction of any communicable 

disease into the state, for the control and suppression 

of communicable diseases, for the quarantine and 

disinfection of persons, localities and things infected 

or suspected of being infected by a communicable disease 

and for the sanitary care of jails, state prisons, mental 

health institutions, schools, and public buildings and 

connected premises. Any rule or order may be made 

applicable to the whole or any specified part of the 

state, or to any vessel or other conveyance. The 

department may issue orders for any city, village or 

county by service upon the local health officer. Rules 

that are promulgated and orders that are issued under 

this subsection supersede conflicting or less stringent 

local regulations, orders or ordinances.

§ 252.02(4) (emphasis added).

¶225 The only and unavoidable conclusion from this text is 

that DHS can issue an order that applies statewide and is not a 

rule. It still must meet the other criteria defining a rule in 

Wis. Stat. § 227.01(13), including the "general application" 

requirement. Not coincidentally, that is perfectly consistent 

with the distinctions found throughout the Wisconsin Statutes 

between general statewide orders and person-specific orders, and 

the textual distinction in other statutes confirming that a 

statewide order may or may not be a rule.
No. 2020AP765-OA.bh

33

¶226 This textual reading is also supported by statutory 

history. In 1982, the statute was amended to explicitly give DHS 

the power to issue orders in addition to promulgating and enforcing 

rules, and to clarify that both could have statewide application. 

§ 21, ch. 291, Laws of 1981. Nothing in this amendment indicated 

that orders issued by DHS would be treated as rules for purposes 

of Wis. Stat. ch. 227. Cf. Wis. Stat. § 87.30(1) (dictating that 

orders issued by DNR under this subsection will be treated as rules 

for purposes of Wis. Stat. ch. 227).

¶227 The textual evidence conclusively stands against the 

legislature's position that a statewide order issued under Wis. 

Stat. § 252.02(4) is necessarily a rule.15 But taking a step back 

to look at the reasonableness of its interpretive approach makes 

its error even more plain. Kalal, 271 Wis. 2d 633, ¶46 

("[S]tatutory language is interpreted in the context in which it 

is used; not in isolation but as part of a whole; in relation to 

the language of surrounding or closely-related statutes; and 

reasonably, to avoid absurd or unreasonable results.").

¶228 The administrative rulemaking process is about as smooth 

sailing as a canoe traversing the Atlantic Ocean. It's not 

 

15 Elsewhere in its briefing, the legislature seems to turn 

its entire argument inside out by contending that Wis. Stat. 

§ 252.02 is nothing more than a general powers and duties statute. 

But if this were true, and § 252.02 was only a general powers and 

duties statute, then DHS would have no authority to promulgate 

rules under that provision because, as the legislature helpfully 

explains, agencies may not rely on general powers and duties 

provisions to promulgate rules. See Wis. Stat. § 227.11(2)(a)2. 

Said differently, the legislature somehow suggests that rulemaking 

cannot happen under the statute, notwithstanding its primary 

theory that rulemaking must happen under the statute.
No. 2020AP765-OA.bh

34

impossible, but it's not a particularly fun trip. This is a 

feature, by the way, not a bug. The rulemaking process is filled 

with checks and double checks and public input and imposed waiting 

periods to discourage some rulemaking, and to ensure a final 

product that is fully vetted, sufficiently clear, statutorily 

grounded, and able to guide agency action moving forward.

¶229 During oral argument, the legislature effectively 

conceded that the requirements of Order 28 could have been issued 

for Milwaukee County, and that it would not need to be promulgated 

as a rule. But it continued to argue that the same order applying 

to half the state or the whole state would need to be promulgated 

as a rule. This makes no sense. Wisconsin Stat. § 252.02 on its 

face gives broad authority to take statewide action to combat the 

spread of communicable diseases. Under the legislature's theory, 

DHS can act locally without going through the rulemaking process, 

but not on a statewide basis. Presumably it could issue 72 

identical orders applying to each of Wisconsin's counties, and 

these would not need to be promulgated as rules. But it could not 

do the same thing in one order applying statewide. Such a line is 

wholly impractical and inconsistent with the broad authority and 

discretion granted to DHS by the very words of the statutes the 

legislature enacted. If we are truly in a public health emergency 

requiring immediate state action, it would make little sense to 

tie the hands of DHS from acting to protect the whole state, but 

give it expansive authority to do the same exact thing through 

multiple actions with a narrower geographic focus. My point is 

not that we read the statute to give DHS the powers it needs, but 
No. 2020AP765-OA.bh

35

rather that the legislature's position is an unreasonable way to 

read these broadly worded statutes.16

¶230 The legislature suggests that the emergency rulemaking 

process ameliorates some of these problems. During oral argument, 

the legislature indicated that emergency rules——from concept to 

legal effect——could happen in as soon as 12 days under a best-case 

scenario. That's much quicker than the ordinary rulemaking 

process, but it is wholly unequal to the task Wis. Stat. § 252.02 

seems to ask of DHS. Twelve days is far too long in a real 

emergency.17 Epidemics don't always give you a two-week heads up 

on their next move. In addition, emergency rules, just like 

ordinary rules, require a new rule to revoke the earlier one. Wis. 

Stat. § 227.265.18 If facts on the ground are different next week 

 

16 Moreover, the legislature's line-drawing derives from no 

discernable statutory text. At some undefined point, according to 

the legislature, the amount of people covered by an order becomes 

too large, and any such order must be promulgated as a rule. This 

line, we are told, is apparently less than statewide, but larger 

than Milwaukee County. Why? Who knows? This "I know it when I 

see it" argument will no doubt prove to be a complicated line to 

adjudicate moving forward since it has no textual foundation or 

guide.

17 And as Justice Dallet correctly points out, a 12-day 

turnaround time is hardly guaranteed given the number of 

assumptions that are baked into the legislature's claim. Justice 

Dallet's dissent, ¶150.

18 Emergency rules of the kind proposed here are only effective 

for 150 days after publication. Wis. Stat. § 227.24(1)(c). While 

§ 227.24 provides a method to extend the effectiveness of the rule 

for up to an additional 120 days, § 227.24(2)(a), it is silent 

with respect to how such emergency rules would be revoked or 

modified. As a new rule is required to modify or repeal an existing 

rule, it stands to reason that this process would also be required 

for emergency rules.
No. 2020AP765-OA.bh

36

than they are this week (and in this pandemic, we seem to be 

learning new things all the time), that makes even changing shortterm policies practically impossible. The reality is, the 

emergency rules process does not allow for the kind of fits and 

starts and day-in, day-out modifications that would be required in 

any comprehensive, real-time response to a statewide epidemic. 

And again, my point is not that DHS should be granted these powers 

because it needs them, but instead that the legislature's proffered 

interpretation of § 252.02 in conjunction with Wis. Stat. 

§ 227.01(13) is a wholly unreasonable way to read these statutes.

¶231 Rather than the game of statutory twister offered by the 

legislature, the faithful judicial approach is to read these 

statutes reasonably, and to construe them as they are written. 

Wisconsin Stat. § 252.02(4) contemplates that orders may be issued 

statewide and not be rules. The meaning of "general order" as 

derived from our statutes as a whole confirms this. Section 

252.02(4) seems to give DHS extraordinarily broad powers to act 

and respond to public health emergencies not just county by county, 

but statewide. To the extent any general orders have general, 

prospective application, they may need to be promulgated as rules. 

But situation-specific orders made pursuant to the authority 

already outlined in the statute, whether statewide or local, are 

not subject to the rulemaking requirements of chapter 227.

¶232 In sum, Order 28 is a statewide order and therefore a 

general order. But it is temporary and designed to specifically 

and singly address the current COVID-19 pandemic. This order does 

not have general application to future DHS actions based on Wis. 
No. 2020AP765-OA.bh

37

Stat. § 252.02; it has no application after May 26, 2020. Rather, 

it is an effort to apply and enforce the statute pursuant to the 

authority DHS has already been granted. Order 28 therefore does 

not meet the definition of a rule in Wis. Stat. § 227.01(13).19

III. The Legislature Lacks Standing to Challenge DHS's 

Application of the Statutes

¶233 The legislature has a fallback issue. If Order 28 is 

not a rule (and it is not), they argue that its terms nonetheless 

exceed the statutory authority on which it is purportedly based. 

To be clear, this is not a constitutional claim; it is an executive 

branch enforcement claim. That is, the legislature argues the 

executive branch is imposing requirements on the people of 

Wisconsin that go beyond the powers granted to DHS in Wis. Stat. 

§ 252.02.

¶234 While I am not unmindful of the unusual circumstances 

giving rise to this case, claims of this kind are common; they 

happen all the time. Unemployment compensation claimants argue 

they were illegally denied benefits to which they were statutorily 

entitled. Agricultural operations claim they were asked to submit 

 

19 The majority reaches a contrary conclusion, but somehow 

excepts section 4.a. from its analysis. See majority op., ¶3 n.6. 

If rulemaking is required, however, then there is no good reason 

to remove section 4.a. from the result of this reasoning, for it 

is no less a statewide order. To the extent section 4.a. should 

be treated differently due to the explicit authority granted to 

DHS to close schools in Wis. Stat. § 252.02(3), that same logic 

would seem to apply to the other provisions in Order 28 that have 

the same statutory support. See Justice Dallet's dissent, ¶154 

n.17 (discussing how section 4.c. of Order 28 closes places of 

public amusement and activity, which also seemingly falls within 

DHS's stated authority in § 252.02(3)).
No. 2020AP765-OA.bh

38

to permit requirements the authorities had no authority to impose. 

Criminal defendants argue their convictions were secured in 

violation of, for example, the expiration of a statute of 

limitations. As these common claims illustrate, challenges to 

executive branch enforcement are ordinarily brought by the 

specific individuals and entities who are injured or otherwise 

affected by the purportedly overreaching government action.

¶235 The legislature, on the other hand, is not the state's 

litigator-in-chief or even the representative of the people at 

large. The legislature is a constitutional creation having a 

significant, but limited, role in governance——the enactment of 

laws. It is the executive branch that enforces the laws pursuant 

to its own constitutionally vested power. When the executive 

branch enforces the law in a way that is beyond the statutory terms 

or otherwise violates our constitution, it harms those who are 

directly affected by that enforcement. And it is those same 

individuals and entities that can challenge that enforcement.

¶236 The requirement that those challenging government action 

have some cognizable harm is far more flexible in Wisconsin than 

in federal courts, but there are good reasons for not dispensing 

with this requirement altogether. While federal courts may only 

hear "cases or controversies," "standing in Wisconsin is not a 

matter of jurisdiction, but of sound judicial policy." McConkey 

v. Van Hollen, 2010 WI 57, ¶15, 326 Wis. 2d 1, 783 N.W.2d 855. In 

determining whether a party has standing, the overarching theme is 

"whether 'a party has a sufficient stake in an otherwise 

justiciable controversy to obtain judicial resolution of that 
No. 2020AP765-OA.bh

39

controversy.'" State ex rel. First Nat'l Bank of Wis. Rapids v. 

M & I Peoples Bank of Coloma, 95 Wis. 2d 303, 30708, 290 

N.W.2d 321 (1980) (quoting Sierra Club v. Morton, 405 U.S. 727, 

731 (1972)). Wisconsin courts apply a two-step analysis for 

standing determinations: we ask "(1) whether the plaintiff has 

suffered a threatened or actual injury, and (2) whether the 

interest asserted is recognized by law." Norquist v. Zeuske, 211 

Wis. 2d 241, 24748, 564 N.W.2d 748 (1997) (citations omitted).

¶237 Generally, in order to demonstrate an injury, "a 

plaintiff must allege 'such a personal stake in the outcome of the 

controversy,' as to insure that 'the dispute sought to be 

adjudicated will be presented in an adversary context and in a 

form historically viewed as capable of judicial resolution.'" 

First Nat'l Bank, 95 Wis. 2d at 308-09 (quoted sources omitted). 

The extent of the injury is not determinative, a mere trifle will 

suffice to satisfy this requirement. Id. at 309. However, the 

injury "must be actual or threatened." Norquist, 211 Wis. 2d at 

249.

¶238 To satisfy the second step, courts determine "[w]hether 

the injury is of a type recognized, regulated, or sought to be 

protected by the challenged law." Waste Mgmt. of Wis., Inc. v. 

DNR, 144 Wis. 2d 499, 506, 424 N.W.2d 685 (1988).

¶239 The legislature would no doubt like to see the laws it 

has passed enforced within their limits and within constitutional 

boundaries. But as an institution, the legislature suffers no 

particular cognizable injury when the executive branch enforces

the law unlawfully. To accept this principle would grant the 
No. 2020AP765-OA.bh

40

legislature a seat in every executive branch enforcement action, 

whether public or private, in the state of Wisconsin. Can the 

legislature sue over unlawful DNR permit requirements? Overbroad 

criminal prosecutions? Generally not. While we have allowed the 

legislature to litigate and sue the governor and other executive 

branch officials in limited situations, that is not a blanket 

invitation to the legislature to litigate every challenge to 

executive action. See, e.g., State ex rel. Wis. Senate v. 

Thompson, 144 Wis. 2d 429, 432-33, 424 N.W.2d 385 (1988) 

(permitting the legislative houses, their leaders, and a joint 

legislative committee to bring an original action against the 

governor's use of his partial veto).

¶240 In its briefing, the only harm the legislature offers is 

its right to suspend administrative rules it finds objectionable. 

That's it; they allege nothing else. But this harm is wholly 

inapplicable to this issue, which concerns only the execution and 

enforcement of the laws. Economic harm to individual citizens and 

businesses may be real, but it is not harm to the legislature as 

a constitutional body. And that is the only kind of harm that can 

establish the standing necessary to raise this claim. See Powers 

v. Ohio, 499 U.S. 400, 410 (1991) ("[A] litigant must assert his 

or her own legal rights and interests, and cannot rest a claim to 

relief on the legal rights or interests of third parties." 

(citation omitted)).

¶241 A sad feature of our government is that the executive 

branch sometimes acts outside its administrative, statutory, and 

constitutional authority. This is, of course, not a commendable 
No. 2020AP765-OA.bh

41

state of affairs. Sometimes we the people respond by persuading 

lawmakers to change the law. Sometimes we throw the bums out. 

Sometimes we respond with protest and argument, and sometimes civil 

disobedience. In extraordinary situations, even revolution may be 

justified. See The Declaration of Independence (U.S. 1776). But 

the ordinary legal remedy for executive branch overreach is for 

someone personally harmed by that overreach to seek judicial 

relief. If a business ordered closed wants to challenge the 

authority of the executive branch to close its business, it may do 

so. If a person wanting to travel wishes to challenge the 

authority of the executive to forbid travel, she may do so. If a 

church wanting to challenge the authority of the executive branch 

to shut down Sunday services, it may do so. This is the way our 

system works, and it ensures a careful adjudication of the issues 

based on specific harms, not theoretical broadsides.

¶242 This also ensures courts enjoin only unlawful executive 

action. If Order 28 does not need to be promulgated as a rule, 

then presumably some of its commands are lawful. The legislature 

appears to acknowledge statutory authority to close schools and 

churches and forbid other "public gatherings" to control outbreaks 

and epidemics. Wis. Stat. § 252.02(3). But how would this apply 

to large sporting events, small coffee shops, and open-air tree 

farms? These are hard questions, and having litigants who are 

able to present specific harms and specific burdens ensures we 

remedy only unlawful enforcement efforts and do not sweep more 

broadly than is necessary.
No. 2020AP765-OA.bh

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¶243 While interpreting statutes is a question of law, 

application of statutes generally requires facts. To my mind, the 

legislature's broad arguments do not sufficiently assist this 

court in separating the wheat from the chaff. The legislature 

cites no law in support of the notion that they are injured by 

poor or even unlawful enforcement of the laws. We do not let 

anyone bring any case they want, and we certainly don't let the 

legislature bring any case it wants. Accord Bowsher v. Synar, 478 

U.S. 714, 733-34 (1986) ("[O]nce Congress makes its choice in 

enacting legislation, its participation ends. Congress can 

thereafter control the execution of its enactment only 

indirectlyby passing new legislation." (citation omitted)). The 

legislature did not even try to assert that it is harmed by the 

alleged statutory overreach. Therefore, I conclude the 

legislature lacks standing to raise this issue.

¶244 Executive overreach, of course, should not be blithely 

dismissed. But as a court of law, and as an appellate court of 

last resort, it is essential we do not turn ourselves into a panel 

that offers advisory opinions to the legislature on what the laws 

it passed mean. See Broadrick v. Oklahoma, 413 U.S. 601, 610-11 

(1973) ("[U]nder our constitutional system courts are not roving 

commissions assigned to pass judgment on the validity of the 

Nation's laws." (citation omitted)). Except in limited 

situations, only those affected by executive branch enforcement 

can claim injury, not the branch that drafted the law in the first 

place.
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IV. Response to Other Writings

¶245 While the above analysis addresses many of the 

shortcomings in the various writings of members of the majority, 

several arguments deserve a more direct response.

¶246 A majority of this court suggests Order 28 should be 

struck down because the statute on which it is based contains 

indiscernible and therefore constitutionally problematic limits. 

But this approach runs completely counter to the way we adjudicate 

these kinds of questions.

¶247 At the outset, it is a misrepresentation to suggest 

Secretary Palm argues her power knows no bounds. She made no such 

claim. Secretary Palm acknowledged that her orders could be 

challenged on the grounds that they violated provisions of the 

constitution, including violation of our fundamental liberties and 

basic due process protections. No party, of course, raised these 

kinds of claims here. It is fair game to reject the Secretary's 

proffered legal arguments; it is unfair to ascribe to her and then 

reject arguments she did not make.

¶248 But suppose Wis. Stat. § 252.02 does offer Secretary 

Palm too much power. The remedy for this, assuming there are some 

permissible constitutional applications of the statute, would be 

to entertain an as-applied constitutional challenge to the statute 

by someone alleging injury from its enforcement. We do not enjoin 

particular enforcement actions under a facially constitutional 

statute simply because the statute could be deployed in ways that 

violate the constitution.
No. 2020AP765-OA.bh

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¶249 Some members of the majority try to get around this by 

asserting that Order 28 violates the nondelegation doctrine under 

a legal test raised and developed sua sponte without the benefit 

of adversarial briefing. Even assuming this new legal framework 

is correct and should be adopted, the rationale offered does not 

support the suggested conclusion.

¶250 Under the nondelegation doctrine as traditionally 

understood, it is usually the statute itself that is the basis for 

any nondelegation problems, not enforcement efforts. In the recent 

United States Supreme Court decision where Justice Gorsuch in 

dissent called for reinvigoration of a more vigorous nondelegation 

doctrine, the question was whether a law could give the executive 

the discretion to decide to whom it would apply. See Gundy, 139 

S. Ct. at 2121 (majority opinion) (asking whether Congress 

violated the nondelegation doctrine in enacting 34 U.S.C 

§ 20913(d)); see also id. at 2135 (Gorsuch, J., dissenting) 

(inquiring as to whether Congress "unconstitutionally divested 

itself of its legislative responsibilities"). Similarly, in early 

cases challenging the emerging administrative state, the question 

was whether the law itself provided enough detail. See J.W. 

Hampton, Jr. & Co., 276 U.S. at 409 (explaining Congress could 

statutorily delegate if it set forth an "intelligible principle" 

authorizing how the delegated authority was to be exercised).

¶251 Accordingly, if Wis. Stat. § 252.02 gives too much 

undefined power to Secretary Palm——and that is the argument being 

made by the majority and concurrences——the remedy would be that 

the statute itself should be declared unconstitutional. The 
No. 2020AP765-OA.bh

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problem under a nondelegation theory is not whether an enforcement 

action is consistent with the law, but whether the underlying law 

is constitutionally capable of being enforced in the first place. 

But there's an obvious obstacle with deploying that approach in 

this case with respect to § 252.02. Namely, it would need to be 

premised on legislative standing to argue that the laws it wrote 

are unconstitutional. It cannot be that the legislative branch 

has standing to sue the executive branch on the grounds that the 

legislature itself violated the constitution when it passed 

certain laws.

¶252 Furthermore, a certain irony inheres in calls to breathe 

new life into the nondelegation doctrine in this case. If we are 

to return to a vision of the separation of powers that does not 

allow delegation from one branch to another,20 how in the world can 

we support that proposition and at the same time hold that 

Secretary Palm is required to submit to rulemaking, a process that 

is premised, lo and behold, on the delegation of legislative power 

to the executive branch? If we are going to have a serious 

discussion about the separation of powers and its relationship to 

the administrative state, I welcome that conversation. But a 

decision grounded in "it's good for me but not for thee" does not 

inspire confidence that we are applying the same law to both 

parties before us.

¶253 Finally, the majority premises much of its argument on 

the notion that an executive branch order may only carry criminal 

 

20 In his separate writing, Justice Kelly argues the 

legislature cannot delegate "even a sliver of its core power." 

Justice Kelly's concurrence, ¶103.
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penalties for any violation if the elements of a crime are first 

promulgated as a rule or otherwise defined in the statutes. 

Majority op., ¶¶36-40. This argument suffers from several glaring 

flaws.

¶254 First, in what is a recurring theme, this argument was 

not developed by any party. This is raised sua sponte by this 

court without the benefit of adversarial briefing. We risk serious 

error when we issue broad rulings based on legal rationales that 

have not been tested through the crucible of adversarial 

litigation. When accepting an original action, this danger is 

even greater.

¶255 More to the point, this is a dramatic holding that could 

call into question all kinds of laws. Our statues include numerous 

instances where violating an agency's order can result in criminal 
No. 2020AP765-OA.bh

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penalties.21 In each of these statutes, it is the legislature that 

has defined violation of a lawful order as a criminal offense. If 

an enactment of this sort is unlawful, then all of these statutes 

 

21 See, e.g., Wis. Stat. § 26.985(2) (authorizing criminal 

penalties for violation of any order issued by DNR pursuant to 

protection of forest lands and forest productivity provisions); 

Wis. Stat. § 93.21(3) (authorizing criminal penalties for 

violation of any order issued by the Department of Agriculture, 

Trade and Consumer Protection (DATCP)); § 93.21(4) (authorizing 

criminal penalties for violation of any general or special order 

issued by DATCP to avert, relieve, or terminate a scarcity of food 

products or fuel in the state); Wis. Stat. § 94.77(1)-(2) 

(authorizing criminal penalties for violation of any orders issued 

by DATCP or DNR that are not the subject of a specific penalty 

under chapter 94); Wis. Stat. § 95.99 (authorizing criminal 

penalties for violation of any order issued by DATCP pursuant to 

animal health provisions); Wis. Stat. § 126.87(2)(b) (authorizing 

criminal penalties for violations of any order issued by DATCP

pursuant to agriculture producer security provisions); Wis. Stat. 

§ 250.04(7) (authorizing criminal penalties for violation of any 

orders issued by DHS regarding the duties of local health officers 

and boards); Wis. Stat. § 254.30(2)(b) (authorizing criminal 

penalties for violation of any order issued by DHS pursuant to 

toxic substances provisions); Wis. Stat. § 285.87(2) (authorizing 

criminal penalties for violation of any special order issued by 

DNR pursuant to air pollution provisions); Wis. Stat. 

§ 291.97(2)(b)2. (authorizing criminal penalties for violation of 

any special order issued by DNR pursuant to hazardous waste 

management provisions); Wis. Stat. § 463.18 (authorizing criminal 

penalties for violation of any order issued by the Department of 

Safety and Professional Services (DSPS) pursuant to body art laws 

and relating to public health); Wis. Stat. § 551.508(1) 

(authorizing criminal penalties for violation of any order issued 

by the Department of Financial Institutions (DFI) pursuant to 

securities law provisions); Wis. Stat. § 552.19(1) (authorizing 

criminal penalties for violation of any order issued by DFI 

directing any person to file any belated statement required under 

corporate take-over provisions).
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would presumably be unconstitutional. The same may be true for 

analogous statutes authorizing civil penalties.22

¶256 Wisconsin Stat. § 252.25 does the same thing here. It 

defines criminal penalties for any person who violates a 

"departmental order under this chapter and relating to the public 

health." This applies to any DHS order, whether a statewide ban 

on large public gatherings or closing Green Bay West High School 

or quarantining someone in Racine. No further course of conduct 

 

22 See, e.g., Wis. Stat. § 89.079(4)(a) (authorizing penalties 

for violation of any special order issued by DATCP regarding 

unauthorized practice of veterinary medicine); Wis. Stat. 

§ 94.73(13) (authorizing penalties for violation of any order 

issued by DATCP or DNR pursuant to corrective action for discharge 

of agricultural chemicals); Wis. Stat. § 168.26 (authorizing 

penalties for violation of any order issued by DATCP pursuant to 

storage of dangerous substances provisions); Wis. Stat. 

§ 169.45(3) (authorizing penalties for violation of any order 

issued by DNR requiring any captive animal licensee to comply with 

promulgated rules regarding captive animals); Wis. Stat. § 194.17 

(authorizing penalties for violation of any order issued by the 

Department of Administration (DOA) or the Secretary of 

Transportation pursuant to motor vehicle provisions); Wis. Stat. 

§ 218.43 (authorizing penalties for violations of any orders 

issued by DOA regarding licensure for selling mopeds); Wis. Stat. 

§ 254.20(11) (authorizing penalties for violation of any order 

issued by DHS regarding asbestos abatement certification); Wis. 

Stat. § 283.91(2) (authorizing penalties for violation of any 

order issued by DNR pursuant to pollution discharge elimination 

provisions); Wis. Stat. § 289.96(3)(a) (authorizing penalties for 

violation of any special order issued by DNR pursuant to solid 

waste facilities provisions); Wis. Stat. § 293.87(3) (authorizing 

penalties for violation of any order issued by DNR pursuant to 

nonferrous metallic mining provisions applicable to person holding 

a prospecting or mining permit); § 293.87(4) (same but for nonpermit holders); Wis. Stat. § 295.19(3)(a)-(b) (authorizing 

penalties for violation of any order issued by DNR pursuant to 

nonmetallic mining reclamation provisions); § 295.37(2) (same but 

oil and gas provisions); § 295.79(4)(a) (same but ferrous metallic 

mining); Wis. Stat. § 440.21(4)(a) (authorizing penalties for 

violation of any special order issued by DSPS regarding 

uncredentialed practice or use of a title).
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needs to be articulated as the legislature has plainly stated that 

violations of DHS orderswhich is exactly what Order 28 isare 

conduct subject to criminal penalties.

¶257 The majority's logic is premised not on the proposition 

that Order 28 violates Wis. Stat. ch. 252, but rather that the 

statute authorizing criminal penalties for violation of Order 28, 

Wis. Stat. § 252.25, is unconstitutional. This means all of the 

public health authority granted to DHS in chapter 252 will be left 

with no enforcement mechanism at all, contrary to the law as the 

legislature drafted it.23

¶258 If we're going to go there, we should be clear-eyed about 

where this logic takes us and what else it applies to. The 

legislature cannot, as I've already stated, sue the executive 

branch and argue one of its duly-enacted laws is unconstitutional. 

And in fact, they did not do so. This court should not craft such 

an argument for them, thereby dispensing with scores of contrary 

law,24 without at least a squarely presented issue supported by 

 

23 And even if this conclusion could be reached, the majority 

pays no heed to the possibility of severing the penalty provision 

from Order 28, despite a severability clause being expressly 

included by Secretary Palm. See also Justice Dallet's dissent, 

¶154.

24 Beyond the plethora of statutes that do exactly what the 

majority now says cannot be done, our cases have long supported 

the notion that, at least in concept, criminal penalties for 

violating a lawful order are permissible.
No. 2020AP765-OA.bh

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adversarial briefing and raised by a party with standing to bring 

such a claim.

V. Conclusion

¶259 It is without doubt that the strictures of the 

constitution must be diligently defended during this crisis; the 

judiciary must never cast aside the law in the name of emergency. 

But just as true, the judiciary must never cast aside our laws or 

the constitution itself in the name of liberty. The rule of law, 

and therefore the true liberty of the people, is threatened no

less by a tyrannical judiciary than by a tyrannical executive or 

legislature. Today's decision may or may not be good policy, but 

it is not grounded in the law.

¶260 The legislature brings two narrow claims to us, none 

involving constitutional questions or a determination of how far 

DHS can go in exercising its powers under Wis. Stat. § 252.02. I 

would stick to the legal issues before us and go no further.

¶261 The first question is whether Order 28 was required to 

be promulgated as an administrative rule. Order 28 is a general 

order by virtue of having statewide effect, but it is not one of 

general application. It is a temporary order issued to address 

 

One example is Ervin v. State, a case concerning the validity 

of an arrest made for violation a community-wide curfew order 

issued by the Milwaukee mayor. 41 Wis. 2d 194, 163 N.W.2d 207 

(1968). The mayor, under the relevant Wisconsin statute, had 

authority to declare a state of emergency "and do what is necessary 

in such emergency." Id. at 198-99. The court upheld the temporary 

curfew order as "a legitimate and proper exercise of the police 

power." Id. at 201-02. The majority's logic would require a 

different result in this and who knows how many other cases.
No. 2020AP765-OA.bh

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the outbreak of a particular communicable disease. Therefore, it 

does not meet the definition of a rule under Wis. Stat. 

§ 227.01(13).

¶262 The legislature asks in the alternative that we address 

whether Order 28 goes beyond the statutory powers DHS has been 

granted in Wis. Stat. § 252.02. But the legislature has not 

alleged, nor can I identify, any harm to the legislature as a 

constitutional body for which this court can grant relief. 

Executive branch overreach may be challenged by those who are 

harmed by the executive branch action. Except in unusual cases, 

the lawmaking body is not injured in its lawmaking functions by 

executive branch enforcement gone awry. Therefore, the 

legislature lacks standing to bring this claim, and it should be 

dismissed.

¶263 For these reasons, I respectfully dissent.25

¶264 I am authorized to state that Justices ANN WALSH BRADLEY 

and REBECCA FRANK DALLET join ¶¶198-258 of this dissent.

 

25 In light of my legal conclusions, and in accord with the 

legislature's request, I would have granted a stay of the court's 

decision to give the parties time to consider a replacement for 

Order 28.
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