Tetra Tech EC, Inc. v. Wisconsin Department of Revenue

2018 WI 75

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP2019

COMPLETE TITLE: Tetra Tech EC, Inc., and Lower Fox River

Remediation LLC,

Petitioners-Appellants-Petitioners,

v.

Wisconsin Department of Revenue,

Respondent-Respondent.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 373 Wis. 2d 287, 890 N.W.2d 598

PDC No: 2017 WI App 4 - Published

OPINION FILED: June 26, 2018

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: December 1, 2017

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Brown

JUDGE: Marc A. Hammer

JUSTICES:

CONCURRED: A.W. BRADLEY, J., concurs, joined by ABRAHAMSON,

J. (opinion filed).

ZIEGLER, J., concurs. ROGGENSACK, C.J., joins

Part I (opinion filed).

GABLEMAN, J., concurs, joined by ROGGENSACK,

C.J. (opinion filed).

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:

For the petitioners-appellants-petitioners, there were

briefs filed by Barret V. Van Sicklen, Frederic J. Brouner,

Donald Leo Bach, and DeWitt Ross & Stevens S.C., Madison. There

was an oral argument by Barret Van Sicklen.

For the respondent-respondent, there was a brief filed by

Misha Tseytlin, solicitor general, with whom on the brief were

Brad D. Schimel, attorney general, and Kevin M. LeRoy, deputy

solicitor general. There was an oral argument by Misha

Tseytlin.

An amicus curiae brief was filed on behalf of Wisconsin

Institute for Law & Liberty, Inc. by Richard M. Esenberg, Thomas

C. Kamenick, and Wisconsin Institute for Law & Liberty,

Milwaukee.

An amicus curiae brief was filed on behalf of Wisconsin

Utilities Association by James E. Goldschmidt, Bradley Jackson,

and Quarles & Brady LLP, Madison and Milwaukee.

An amicus curiae brief was filed on behalf of Wisconsin

Manufacturers and Commerce, Inc., Midwest Food Products

Association, Metropolitan Milwaukee Association of Commerce,

Wisconsin Bankers Association, Wisconsin Cheese Makers

Association, Wisconsin Paper Council, Dairy Business

Association, Inc., Associated Builders and Contractors, Inc.

(Wisconsin Chapter), Wisconsin Potato and Vegetable Growers

Association, Wisconsin Farm Bureau Federation, and Wisconsin

Corn Growers Association by Robert I. Fassbender and Great Lakes

Legal Foundation, Madison.

2

2018 WI 75

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2015AP2019

(L.C. No. 2015CV132)

STATE OF WISCONSIN : IN SUPREME COURT

Tetra Tech EC, Inc. and Lower Fox River

Remediation LLC,

Petitioners-Appellants-Petitioners, FILED

v.

JUN 26, 2018

Wisconsin Department of Revenue,

Sheila T. Reiff

Clerk of Supreme Court

Respondent-Respondent.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DANIEL KELLY, J. The Wisconsin Department of Revenue

(the "Department") imposed a tax on the petitioners pursuant to

Wis. Stat. § 77.52(2)(a)11. (2007-08) for the "processing" of

river sediments into waste sludge, reusable sand, and water.

The petitioners say the statutory term "processing" is not

expansive enough to cover the separation of river sediment into

No. 2015AP2019

its component parts, and so they asked us to reject the

Department's interpretation of that term.1

¶2 Because resolving this question implicates the

authoritativeness of an administrative agency's interpretation

and application of a statute, we asked the parties to also

address this issue: "Does the practice of deferring to agency

interpretations of statutes comport with Article VII, Section 2

of the Wisconsin Constitution, which vests the judicial power in

the unified court system?"2

¶3 We conclude that the term "processing" in Wis. Stat.

§ 77.52(2)(a)11. includes the separation of river sediment into

its component parts. Therefore, we affirm the court of appeals.

We have also decided to end our practice of deferring to

1

This is a review of a published decision of the court of

appeals, Tetra Tech EC, Inc. v. DOR, 2017 WI App 4, 373

Wis. 2d 287, 890 N.W.2d 598, which affirmed an order of the

Brown County Circuit Court, the Honorable Marc A. Hammer

presiding, that affirmed an order of the Wisconsin Tax Appeals

Commission ("Commission").

2

All references to the Wisconsin Statutes with respect to

the question of whether we defer to an administrative agency's

interpretation of a statute are to the 2015-16 version unless

otherwise indicated.

All references to the Wisconsin Statutes with respect to

the meaning of "processing," as that term is used in Wis. Stat.

§ 77.52(2)(a)11., are to the 2007-08 version unless otherwise

indicated. We cite this version, as the court of appeals did,

because the relevant tax years for the case are 2007-09 and

because the 2005-06 version of the Wisconsin Statutes, which

would govern the 2007 tax year, is not materially different from

the 2007-08 version. See Tetra Tech EC, Inc., 373 Wis. 2d 287,

¶1 n.1.

2

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administrative agencies' conclusions of law.3 However, pursuant

to Wis. Stat. § 227.57(10), we will give "due weight" to the

experience, technical competence, and specialized knowledge of

an administrative agency as we consider its arguments.4

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶4 On November 13, 2007, the United States Environmental

Protection Agency ("EPA") ordered several paper companies to

remediate the environmental impact of polychlorinated biphenyls

("PCBs") they had released into the Fox River as part of their

manufacturing activities. The paper companies created Lower Fox

River Remediation, LLC ("LFR Remediation") to carry out the

EPA's order. LFR Remediation hired Tetra Tech EC, Inc. ("Tetra

Tech") to perform the actual remediation activities. Tetra Tech

subcontracted a portion of the work to Stuyvesant Dredging, Inc.

("Stuyvesant Dredging").5 Stuyvesant Dredging's responsibilities

3

Although a majority of the court agrees we should no

longer defer to administrative agencies' conclusions of law,

there is disagreement with respect to why we should end the

practice. This opinion describes one rationale; other opinions

will contain alternative bases for our conclusion.

4

Justice Rebecca Bradley joins the opinion in toto. Chief

Justice Roggensack joins Sections I., II.A.1., II.A.2., II.B.,

and III. Justice Gableman joins Paragraphs 1-3, Sections I.,

II. (introduction), II.A. (introduction), II.A.1., II.A.2.,

II.A.6., II.B., and III., and the mandate, although he does not

join Section II.A.6. to the extent that the first sentence of

Paragraph 84 implies a holding on constitutional grounds.

Therefore, this opinion announces the opinion of the court with

respect to Sections I., II.A.1., II.A.2., II.B., and III.

5

Stuyvesant Dredging is now known as Stuyvesant Projects

Realization, Inc.

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included receiving sediment dredged from the Fox River, and then

using membrane filter presses to separate it into its component

parts: water, sand, and PCB-containing sludge. Part of the

purpose of Stuyvesant Dredging's work was to "provide a supply

of relatively clean sand that could be sold for off-site use or

used beneficially on site."

¶5 In 2010, the Department conducted a field audit of

both Tetra Tech and LFR Remediation (collectively, "Taxpayers").

During that same year, the Department issued a Notice of Field

Audit Action that assessed a use tax on LFR Remediation's

purchase of the portion of Tetra Tech's remediation services

that represented Stuyvesant Dredging's work. The Department

also issued a Notice of Field Audit Action that assessed a sales

tax on the portion of Tetra Tech's sale of remediation services

to LFR Remediation (to the extent it reflected Stuyvesant

Dredging's work). In both notices, the Department said

Stuyvesant Dredging's activities constituted the "repair,

service, alteration, fitting, cleaning, painting, coating,

towing, inspection and maintenance of tangible personal

property," and so were taxable under Wis. Stat. § 77.52(2)(a)10.

¶6 Tetra Tech and LFR Remediation petitioned the

Department for redetermination of the assessed taxes. The

Department denied the petitions, concluding that Stuyvesant

Dredging's "dewatering and desanding of dredged, contaminated

sediment that is not returned to the river is a service to

tangible personal property" that was taxable under Wis. Stat.

§ 77.52(2)(a)10. Tetra Tech and LFR Remediation then filed

4

No. 2015AP2019

petitions with the Wisconsin Tax Appeals Commission (the

"Commission") requesting review of the Department's denial of

their reassessment requests. In its presentation to the

Commission, the Department argued that Stuyvesant Dredging's

activities were taxable under § 77.52(2)(a)10., or

alternatively, under § 77.52(2)(a)11. as "processing" of

tangible personal property. The Commission issued a Ruling and

Order in favor of the Department.6 Upholding the sales and use

taxes, the Commission concluded that "what SDI [Stuyvesant

Dredging] does with the sediment is 'processing . . . for a

consideration for consumers [Tetra Tech] who furnish directly or

indirectly the materials [sediment] used in

the . . . processing' under the meaning of Wis. Stat.

§ 77.52(2)(a)11." The Commission reasoned that "[t]he

dictionary definition of 'processing' is 'to put through the

steps of a prescribed procedure; or, to prepare, treat, or

convert by subjecting to a special process.' SDI's activities

certainly fall within that definition."7

¶7 Tetra Tech and LFR Remediation timely filed a petition

for judicial review, pursuant to Wis. Stat. § 227.52, in the

6

Tetra Tech and LFR Remediation's petitions received

separate docket numbers (12-S-192 and 12-S-193, respectively),

but the Commission decided the cases together.

7

See Processing, The American Heritage Dictionary 1444 (3d

ed. 1992) (defining "processing" in relevant part: "1. To put

through the steps of a prescribed procedure," and as "2. To

prepare, treat, or convert by subjecting to a special process").

5

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Brown County Circuit Court. The petition requested the circuit

court to set aside the Commission's Ruling and Order that

Stuyvesant Dredging's work subjected Tetra Tech and LFR

Remediation to sales and use taxes. The circuit court affirmed,

relying on the same definition of "processing" the Commission

had used. LFR Remediation and Tetra Tech appealed. The court

of appeals, using a dictionary definition of "processing"

similar to the one used by the circuit court and the Commission,

affirmed. Tetra Tech EC, Inc. v. DOR, 2017 WI App 4, ¶¶2, 17,

373 Wis. 2d 287, 890 N.W.2d 598. We granted Tetra Tech and LFR

Remediation's petition for review, and now affirm.

II. DISCUSSION

¶8 The ultimate question we must answer in this case is

whether the petitioners are subject to the tax levied on them by

the Department of Revenue pursuant to Wis. Stat.

§ 77.52(2)(a)11. The Commission says they are, and urges us to

agree with its interpretation and application of that statute.

¶9 Before we may answer that question, however, there is

a predicate matter we must address: When we review an

administrative agency's decision, are there circumstances in

which we must defer to the agency's interpretation and

application of the law? Our current jurisprudence says there

are. And ever since Harnischfeger Corp. v. LIRC, 196

Wis. 2d 650, 659, 539 N.W.2d 98 (1995), we have treated that

deference as a "standard of review." Therefore, because

identifying the appropriate standard of review is an appellate

court's first task, we will begin there. Once we resolve that

6

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issue, we will address the interpretation of Wis. Stat.

§ 77.52(2)(a)11. and how it applies to Tetra Tech and LFR

Remediation.

A. Deference to Administrative Agencies

¶10 Our assessment of the deference doctrine begins in the

following section with a brief overview of its current contours.

To truly understand its function, however, we need to search out

its roots, the results of which we discuss in the second

section. As preparation for our comparison of the deference

doctrine to our constitutional responsibilities, we examine in

the third section the nature of the judiciary's powers and how

they relate to the other governmental branches. In the fourth

and fifth sections, we separately assess "great weight" and "due

weight" deference in light of the constitutional provisions and

principles that govern our work.

1. Current Standard for Reviewing Administrative Agency

Decisions

¶11 We generally review administrative agency decisions in

accordance with chapter 227 of our statutes.8 As relevant here,

Wis. Stat. § 227.57 contains two specific directions regarding

how we are to conduct those reviews. First, it instructs a

court to "set aside or modify the agency action if it finds that

8

This decision applies to judicial review of all

administrative agency decisions. While chapter 227 applies to

judicial review of most administrative decisions, it does not

apply to all. See, e.g., Wis. Stat. § 102.23 (establishing

procedures for judicial review of workers compensation orders).

7

No. 2015AP2019

the agency has erroneously interpreted a provision of law and a

correct interpretation compels a particular action, or it shall

remand the case to the agency for further action under a correct

interpretation of the provision of law." § 227.57(5). And

second, it instructs that, "[s]ubject to sub. (11), upon such

review due weight shall be accorded the experience, technical

competence, and specialized knowledge of the agency involved, as

well as discretionary authority conferred upon it."9

§ 227.57(10).

¶12 We have developed, over time, a contextualized

methodology of reviewing administrative agency decisions.10 The

provenance of this methodology lies partly with the preceding

statute, and partly with our own doctrinal developments. In its

modern iteration, this method begins with the principle that

"statutory interpretation is a question of law which courts

decide de novo." See Harnischfeger, 196 Wis. 2d at 659. And we

recognize that "a court is not bound by an agency's

interpretation of a statute." Id. But then we wrap those

principles within another, one we have said is of equal gravity:

9

Subsection 11 does not apply to the case before us today,

but it will play a small part in our discussion below. This

subsection provides that "[u]pon review of an agency action or

decision affecting a property owner's use of the property

owner's property, the court shall accord no deference to the

agency's interpretation of law if the agency action or decision

restricts the property owner's free use of the property owner's

property." Wis. Stat. § 227.57(11).

10

Whether, or how closely, our practice comports with the

preceding statutory instructions will be addressed below.

8

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"As important, however, is the principle that courts should

defer to an administrative agency's interpretation of a statute

in certain situations." Id.

¶13 Calibrating this "deference principle" to those

"certain situations" resulted in our contextualized, three-

tiered treatment of an administrative agency's conclusions

regarding the interpretation and application of statutory

provisions. When reviewing those conclusions, we give them

(1) great weight deference; (2) due weight deference; or (3) no

deference at all. See id. at 659–60 & n.4.

¶14 We have said the first of these——great weight

deference——is appropriate upon concluding that:

(1) the agency was charged by the legislature with the

duty of administering the statute; (2) . . . the

interpretation of the agency is one of long-standing;

(3) . . . the agency employed its expertise or

specialized knowledge in forming the interpretation;

and (4) . . . the agency's interpretation will provide

uniformity and consistency in the application of the

statute.

Id. at 660. Giving "great weight" to an administrative agency's

interpretation means the court must adopt it so long as it is

reasonable. Id. at 661 ("[W]e have repeatedly held that an

agency's interpretation must then merely be reasonable for it to

be sustained."). An interpretation is reasonable if it does not

"directly contravene[] the words of the statute," is not

"clearly contrary to legislative intent," and is not "without

9

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rational basis." See id. at 662.11 Deference is required even

when the court has a more reasonable interpretation of the law.

Racine Harley-Davidson, Inc. v. Wis. Div. of Hearings & Appeals,

2006 WI 86, ¶17, 292 Wis. 2d 549, 717 N.W.2d 184 (stating that

under great weight deference, a reviewing court must accept "an

agency's reasonable statutory interpretation, even if the court

concludes that another interpretation is equally reasonable, or

even more reasonable, than that of the agency"); Crystal Lake

Cheese Factory v. LIRC, 2003 WI 106, ¶24, 264 Wis. 2d 200, 664

N.W.2d 651 ("This [the need to defer] is true even if the court

were to conclude that another interpretation was more

reasonable."). These principles also apply to the agency's

application of the statute to undisputed facts, which is itself

a question of law.12 See, e.g., Crystal Lake Cheese Factory, 264

Wis. 2d 200, ¶30 ("LIRC's interpretations, including its

determination of reasonable accommodation in this case, should

be given 'great weight' deference.").

¶15 The second tier of review, "due weight" deference, is

appropriate when "the statute is one that the agency was charged

11

In the context of an ambiguous statute, "an agency's

interpretation cannot, by definition, be found to directly

contravene it." Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650,

662, 539 N.W.2d 98 (1995).

12

See DOR v. Exxon Corp., 90 Wis. 2d 700, 713, 281

N.W.2d 94 (1979) ("The question of whether the facts fulfill a

particular legal standard is itself a question of law.").

10

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with administering,"13 and "the agency has some experience in an

area, but has not developed the expertise which necessarily

places it in a better position to make judgments regarding the

interpretation of the statute than a court."14 Under this

standard, "the fact that the agency's interpretation is

reasonable does not mean that its interpretation will

necessarily be upheld." UFE Inc. v. LIRC, 201 Wis. 2d 274, 287,

548 N.W.2d 57 (1996). Instead, "[i]f a court finds an

alternative interpretation more reasonable, it need not adopt

the agency's interpretation." Id. In effect, this creates a

"tie goes to the agency" rule in which deference is required

unless the court's interpretation is more reasonable than that

of the agency. ABKA Ltd. P'ship v. DNR, 2002 WI 106, ¶116, 255

Wis. 2d 486, 648 N.W.2d 854 (Sykes, J., dissenting) ("[T]he

agency's legal interpretation will be upheld even if there is a

different, equally reasonable interpretation——in other words, a

tie goes to the agency."); see also Daniel R. Suhr, Interpreting

Wisconsin Administrative Law at 7 (August 23, 2017),

https://ssrn.com/abstract=3025085 ("Due weight might be called

'tie goes to the agency' deference."). The agency's application

of a statute to undisputed facts is also entitled to due weight

13

Operton v. LIRC, 2017 WI 46, ¶20, 375 Wis. 2d 1, 894

N.W.2d 426 (quoting Racine Harley-Davidson, Inc. v. Wis. Div. of

Hearings & Appeals, 2006 WI 86, ¶107, 292 Wis. 2d 549, 717

N.W.2d 184 (Roggensack, J., concurring)).

14

UFE Inc. v. LIRC, 201 Wis. 2d 274, 286, 548 N.W.2d 57

(1996).

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deference when it satisfies the Harnischfeger preconditions.

See DOR v. A. O. Smith Harvestore Prods., Inc., 72 Wis. 2d 60,

65-66, 240 N.W.2d 357 (1976) ("Due deference must be accorded

the agency's application of the law to the found facts when the

agency has particular competence or expertise in the matter at

hand." (citing Wis. Stat. § 227.20(2) (1973))).

¶16 When conditions support neither great weight nor due

weight deference, we give the administrative agency's statutory

interpretation no deference at all. See Racine Harley-Davidson,

Inc., 292 Wis. 2d 549, ¶19. In those circumstances, "the

reviewing court merely benefits from the agency's determination

and may reverse the agency's interpretation even when an

alternative statutory interpretation is equally reasonable to

the interpretation of the agency." Id., ¶20. This is the same

method we use in reviewing questions of law decided by our

circuit courts and court of appeals. State v. Alger, 2015 WI 3,

¶21, 360 Wis. 2d 193, 858 N.W.2d 346 ("The interpretation and

application of a statute present questions of law that this

court reviews de novo while benefitting from the analyses of the

court of appeals and circuit court.").

2. History of the Deference Doctrine

¶17 Although we often speak of the deference doctrine in a

manner that suggests it started and developed as a cohesive

whole, it did not. It is actually a portmanteau, derived from

two different sources, the pieces of which developed over two

different timelines, until they reached their fullest expression

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in Harnischfeger. For purposes of clarity and ease of access,

we will rehearse their histories separately.

i. A Brief History of "Great Weight" Deference

¶18 The road to Harnischfeger's "great weight deference"

is a long one (it reaches as far back as Harrington v. Smith, 28

Wis. 43, 59-70 (1871)), but it is not an entirely clear one. As

originally conceived, the doctrine did not contemplate deference

at all, and it certainly did not purport to command the court's

obedience. But with time it developed into a decision-avoidance

doctrine that left to the administrative agencies the job of

statutory interpretation and application when the doctrine's

preconditions were satisfied. A dozen years ago, now-Chief

Justice Patience Drake Roggensack did yeoman's work in tracing

the development and effect of this doctrine. See The Honorable

Patience Drake Roggensack, Elected to Decide: Is the Decision-

Avoidance Doctrine of Great Weight Deference Appropriate in This

Court of Last Resort?, 89 Marq. L. Rev. 541, 548-60 (2006). The

following history relies heavily on that scholarship.

¶19 In Harrington, we discussed some of the canons of

construction we used in discerning the proper meaning of an

ambiguous statute. One of those canons says that an agency's

understanding of the statute could be probative of its meaning:

"Long and uninterrupted practice under a statute, especially by

the officers whose duty it was to execute it, is good evidence

of its construction, and such practical construction will be

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adhered to, even though, were it res integra,[15] it might be

difficult to maintain it." Harrington, 28 Wis. at 68. The

practice of executive branch employees "extending through a

period of so many years, ought, it would seem, to be some

evidence of what the law is; and some persons might be disposed,

perhaps, to think, evidence equal to a decision of this court."

Id. at 69. "Great weight," we concluded, "is undoubtedly to be

attached to a construction which has thus been given." Id.

¶20 This is not the language of deference, but of

persuasion. In a search for the proper meaning of an ambiguous

statute, we said we could properly have recourse to the views of

others and treat them as pieces of evidence for use in the

process of statutory construction in which we ourselves were

engaged. In support of our statement about the evidentiary

nature of the executive employees' views, we cited Edwards'

Lessee v. Darby, 25 U.S. (12 Wheat.) 206, 210 (1827). There,

the United States Supreme Court said that "[i]n the construction

of a doubtful and ambiguous law, the contemporaneous

construction of those who were called upon to act under the law,

and were appointed to carry its provisions into effect, is

15

"Res integra" means, literally, "an entire thing." Res

Integra, Black's Law Dictionary (10th ed. 2014) (citing Res

Nova, id.). Typically, the phrase refers to a matter of first

impression. See Res Integra, Black's Law Dictionary (10th ed.

2014); see also Res Nova, id. (stating that res nova is also

termed res integra, and defining res nova as a "case of first

impression").

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entitled to very great respect." Id. One may respect an

interpretation, even greatly, without deferring to it.

¶21 Nor was Harrington expressing deference to an

administrative agency when it said we would adhere to the

executive branch's long-standing interpretation of a statute.

Instead, we were acknowledging that a change in an ancient

practice could have unacceptably disruptive consequences. For

this principle we cited Rogers v. Goodwin, in which the Supreme

Judicial Court of Massachusetts said:

Were the Court now to decide that this construction is

not to be supported, very great mischief would follow.

And although, if it were now res integra,[16] it might

be very difficult to maintain such a construction, yet

at this day the argumentum ab inconvenienti[17] applies

with great weight. We cannot shake a principle which

in practice has so long and so extensively prevailed.

If the practice originated in error, yet the error is

now so common that it must have the force of law.

2 Mass. (2 Tyng) 475, 477–78 (Mass. 1807).

¶22 Harrington cast a long shadow. The court was content

for many years to repeat and apply its formulation without

reading deference into its language. See, e.g., State ex rel.

Owen v. Donald, 160 Wis. 21, 111, 151 N.W. 331 (1915) (quoting

Harrington, and stating long practice is evidence of meaning);

State ex rel. State Ass'n of Y.M.C.A. of Wis. v. Richardson, 197

16

See supra n.15.

17

"Argumentum ab inconvenienti" means "[a]n argument from

inconvenience; an argument that emphasizes the harmful

consequences of failing to follow the position advocated."

Argumentum, Black's Law Dictionary (10th ed. 2014).

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Wis. 390, 393, 222 N.W. 222 (1928) ("If we were in doubt as to

the proper construction to be placed upon the statute, we should

have to give much weight to the practical construction which has

been placed upon the statute ever since its enactment."); Wis.

Axle Div. (Timken-Detroit Axle Co.) v. Indus. Comm'n, 263

Wis. 529, 537b, 60 N.W.2d 383 (1953) (per curiam) ("This court

has held that where there is any obscurity in the meaning of a

statute, practical construction given by the administrative

agency charged with administering such law is entitled to great

weight."); Trczyniewski v. City of Milwaukee, 15 Wis. 2d 236,

240, 112 N.W.2d 725 (1961) (same). As Justice Rebecca Bradley

recently observed, "[b]y recognizing the value of executive

interpretations without entirely ceding interpretive authority

to the executive, these older cases reflect a more nuanced

appreciation for judicial interaction with agency

interpretation . . . ." Operton v. LIRC, 2017 WI 46, ¶78, 375

Wis. 2d 1, 894 N.W.2d 426 (R. Grassl Bradley, J., concurring).

¶23 But then came Pabst v. Wisconsin Department of

Taxation, 19 Wis. 2d 313, 120 N.W.2d 77 (1963). There, we

started our analysis of an agency's statutory interpretation

with the proposition that "[e]rrors of law are always reviewable

by the reviewing court." Id. at 322. But in our extended

discussion of the nature of that review, we did something new.

We imported the concept of deference. Federal courts, we noted,

afforded deference to an administrative agency's application of

a statute to undisputed facts under certain circumstances. See

id. at 322-24. In determining "whether the administrative

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agency has correctly applied a statute to certain facts," the

federal courts would employ either the "analytical approach" or

the "practical approach." See id. at 322.

¶24 Under the analytical approach, "the court decides

which part of the agency's determination presents a question of

fact and which part a question of law." Id. As Professor

Kenneth Culp Davis described this methodology, the court upholds

the agency's factual findings if they have a reasonable basis.

4 Kenneth Culp Davis, Administrative Law Treatise § 30.01

(1958). But with respect to questions of law, the court

substitutes its judgment for that of the agency. Id.

Essentially, this creates a de novo standard for reviewing

questions of law.

¶25 The practical approach treats the agency's decision

more like legislation than adjudication. It avoids any attempt

to distinguish between facts and law, and instead holds that

"[t]he judicial function is exhausted when there is found to be

a rational basis for the conclusions approved by the

administrative body." Pabst, 19 Wis. 2d at 323 (quoting

Rochester Tel. Corp. v. United States, 307 U.S. 125, 146

(1939)).18

18

The practical approach is very similar to the "rational

basis" standard of review we apply to legislation. See Blake v.

Jossart, 2016 WI 57, ¶31, 370 Wis. 2d 1, 884 N.W.2d 484

(indicating that under rational basis review, "[i]n cases where

a statutory classification does not involve a suspect class or a

fundamental interest, the classification will be upheld if there

is any rational basis to support it" (quoting State v. Burgess,

2003 WI 71, ¶10, 262 Wis. 2d 354, 665 N.W.2d 124)).

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¶26 Pabst observed that the method of review chosen by the

court would be outcome-determinative with respect to whose

application of the statute would control the case: "[Professor

Davis] concludes that the court applies the analytical approach

when it does not wish to be bound by the agency's application of

a statute to a set of facts, and the practical approach when it

believes the agency's application of the law should be deferred

to." Pabst, 19 Wis. 2d at 323. The primary factor driving the

selection of the review method, Professor Davis believed, was

the agency's expertise:

Davis believes that one of the most-important factors

which influences the court's choice of approach in

this field is the comparative qualification of court

and agency to decide the particular issue. The court

often deems agencies and their staffs to be expert

within their own specialized fields. In such

situations, the practical approach is likely to be

employed rather than the analytical in determining the

scope of review to be applied.

Id. (citing Davis, supra ¶24, at § 30.01 et seq. (Professor

Kenneth Culp Davis, University of Chicago School of Law and

University of San Diego School of Law)). The "practical

approach" bears a close resemblance to the "great weight

deference" formulation. It also reaches the same result, to

wit, preference for the agency's conclusion of law over that of

the court.

¶27 We concluded in Pabst that the statutes as they

existed at the time bound us to use the analytical approach.

18

No. 2015AP2019

"We believe that pars. (b) and (d) of sec. 227.20(1), Stats.,[19]

require Wisconsin courts to employ the analytical approach when

reviewing agency decisions." Pabst, 19 Wis. 2d at 323. But we

also said that dividing the facts from the law would not

necessarily prevent us from deferring to the agency's

application of the statute (i.e., the practical approach):

Nevertheless, in fields in which an agency has

particular competence or expertise, the courts should

not substitute their judgment for the agency's

application of a particular statute to the found facts

if a rational basis exists in law for the agency's

interpretation and it does not conflict with the

statute's legislative history, prior decisions of this

court, or constitutional prohibitions.

Id. at 323-24.

19

At the time, Wis. Stat. § 227.20(1) (1961) provided, in

part:

The court may affirm the decision of the agency, or

may reverse or modify it if the substantial rights of

the appellant have been prejudiced as a result of the

administrative findings, inferences, conclusions or

decisions being:

. . . .

(b) In excess of the statutory authority or

jurisdiction of the agency, or affected by other error

of law; or

. . . .

(d) Unsupported by substantial evidence in view of the

entire record as submitted; . . . .

§ 227.20(1)(b), (d) (1961).

19

No. 2015AP2019

¶28 We used the analytical approach in Pabst, in

accordance with statutory requirements,20 but only because we did

not "deem the board more competent than this court to decide a

question of law involving trust administration." See id. at

324. Subsequent cases confirm that our commitment to the

analytical approach has always been more nominal than real. For

example, in DOR v. Exxon Corp., we said:

While this court has held that ch. 227, Stats.

requires that courts employ the "analytical" approach

when reviewing agency decisions, this court will give

deference to agency determinations, where the agency

has particular expertise, rational basis exists in law

for the agency's interpretation, and it does not

conflict with the statute's legislative history, prior

decisions of this court, or constitutional

prohibitions.

90 Wis. 2d 700, 713, 281 N.W.2d 94 (1979) (citing Pabst, 19

Wis. 2d at 323-24), aff'd, 447 U.S. 207 (1980). So although the

statutes require a de novo review of questions of law (the

analytical approach), we have deferred to an administrative

agency (the practical approach) when circumstances satisfied our

criteria.

¶29 Where we once treated an agency's interpretation of a

statute as evidence of its meaning (Harrington), Pabst put us in

a posture of deference to administrative agencies. The shift

was not a comfortable one, as evidenced by a sporadic, but

short-lived, return to a more Harrington-like understanding of

"great weight." See Mednis v. Indus. Comm'n, 27 Wis. 2d 439,

20

Wis. Stat. § 227.20(1)(b), (d) (1961).

20

No. 2015AP2019

444, 134 N.W.2d 416 (1965) ("The construction and interpretation

adopted by the administrative agency charged with the duty of

applying the law is entitled to great weight in the courts.");

see also Cook v. Indus. Comm'n, 31 Wis. 2d 232, 240, 142

N.W.2d 827 (1966) (same). Each of these cases relied on pre-

Pabst authorities, such as Wisconsin Axle Division and

Trczyniewski,21 in which the agencies' understanding of the law

assisted, but did not supplant, our own application of the

statutes.

¶30 When we eventually circled back to Pabst's

understanding of "great weight," we granted administrative

agencies even broader deference than they had enjoyed before.

See Roggensack, supra ¶18, at 558-59. Whereas Pabst called for

deference only to an agency's application of a statute to

undisputed facts, we extended that deference to the construction

of the statute itself in Bucyrus-Erie Co. v. DILHR, 90

Wis. 2d 408, 417, 280 N.W.2d 142 (1979). There, we acknowledged

that "questions of law are always reviewable by the court," and

that "[t]he construction of a statute or the application of a

statute to a particular set of facts is such a question of law."

Id. But when we applied the Pabst deference principle, we made

no distinction between interpreting a statute and applying it.

21

Trczyniewski v. City of Milwaukee, 15 Wis. 2d 236, 240,

112 N.W.2d 725 (1961); Wis. Axle Div. (Timken-Detroit Axle Co.)

v. Indus. Comm'n, 263 Wis. 529, 537b, 60 N.W.2d 383 (1953) (per

curiam).

21

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We acknowledged the case "involve[d] the interpretation and

application of certain statutory provisions," but then said:

The court will hesitate to substitute its judgment for

that of the agency on a question of law if " . . . a

rational basis exists in law for the agency's

interpretation and it does not conflict with the

statute's legislative history, prior decisions of this

court, or constitutional prohibitions."

Bucyrus-Erie Co., 90 Wis. 2d at 411, 417 (quoting Pabst, 19

Wis. 2d at 323-24). After Bucyrus-Erie Co., we never returned

to Harrington's formulation that an administrative agency's

application of a statute was evidence of its meaning that the

court could accept or reject in the process of authoritatively

resolving questions of law. By expanding the reach of the

deference principle, "the court continued a trend of applying

great weight deference more and more often, thereby construing

statutes less and less frequently." Roggensack, supra ¶18, at

556.

¶31 Only one transformation remains before we reach the

current expression of the deference doctrine. Prior to

Harnischfeger, we treated deference to administrative agencies

as a choice, something the courts could do in the process of

interpreting and applying a statute, but were not required to

do. Just a few years before we decided Harnischfeger, we said:

"The interpretation of a statute presents a question of law, and

the 'blackletter' rule is that a court is not bound by an

agency's interpretation. Courts, however, frequently refrain

from substituting their interpretation of a statute for that of

the agency charged with the administration of a law." Lisney v.

22

No. 2015AP2019

LIRC, 171 Wis. 2d 499, 505, 493 N.W.2d 14 (1992). "Frequently

refrain" describes something episodic, not a rule of uniform

application. It implies the court will decide, on a case-by-

case basis, whether to defer to the administrative agency as it

resolves questions of law.

¶32 Harnischfeger, however, made the deference doctrine a

systematic requirement upon satisfaction of its preconditions.

See Roggensack, supra ¶18, at 553. It accomplished this feat by

promoting deference from a canon of construction to a standard

of review: "Whether or not a court agrees or disagrees with

LIRC's methodology, however, is not the issue in this case.

Instead, the central question is what standard of review the

courts of this state should apply when called upon to evaluate

an agency's interpretation of a statute." Harnischfeger, 196

Wis. 2d at 659.22 We then identified "great weight" deference,

"due weight" deference, and no deference as the available

options. Id. at 659-60. Determining the correct standard of

review, of course, is something an appellate court does at the

22

"In setting the frame for broad deference to agencies,

the court [in Harnischfeger] described the legal issue before

the court as deciding what level of deference it should accord

LIRC's decision. It did not characterize the legal issue as the

interpretation of an ambiguous statute." The Honorable Patience

Drake Roggensack, Elected to Decide: Is the Decision-Avoidance

Doctrine of Great Weight Deference Appropriate in This Court of

Last Resort?, 89 Marq. L. Rev. 541, 553 (2006).

23

No. 2015AP2019

very beginning of its work, and it definitively controls how we

address questions of both fact and law.23

¶33 Enshrining this doctrine as a standard of review bakes

deference into the structure of our analysis as a controlling

principle. By the time we reach the questions of law we are

supposed to review, that structure leaves us with no choice but

to defer if the preconditions are met. Id. at 663 ("When, as in

this case, great weight deference is appropriate and the

agency's interpretation is not otherwise unreasonable, 'the

court of appeals and this court should refrain from substituting

their interpretation of [a] statute for the long-standing

interpretation of the agency charged with its administration.'"

(quoted source omitted) (emphasis omitted)). Harnischfeger made

good on this premise by reversing the court of appeals for

failing to defer to the administrative agency. Our subsequent

cases make it clear we understand the mandatory nature of the

deference doctrine. See, e.g., Crystal Lake Cheese Factory, 264

Wis. 2d 200, ¶52 ("As we have determined LIRC's interpretation

to be reasonable, under the 'great weight' standard of review,

23

Utah v. Thurman, 846 P.2d 1256, 1265-66 (Utah 1993) ("It

is widely agreed that the primary function of a standard of

review is to apportion power and, consequently, responsibility

between trial and appellate courts for determining an issue or a

class of issues. . . . In determining the appropriateness of a

particular allocation of responsibility for deciding an issue or

a class of issues, account should be taken of the relative

capabilities of each level of the court system to take evidence

and make findings of fact in the face of conflicting evidence,

on the one hand, and to set binding jurisdiction-wide policy, on

the other." (internal citations omitted)).

24

No. 2015AP2019

we must, therefore, defer to LIRC's conclusion." (emphasis

added)).

ii. A Brief History of "Due Weight" Deference

¶34 "Due weight deference" is of a much younger vintage

than "great weight deference." It also has a different source.

Whereas the latter developed as a home-grown doctrine within the

judiciary, the former has its roots in our statutes. In 1943,

our legislature adopted Wis. Stat. § 227.20(2) (subsequently

renumbered to § 227.57(10)), which read: "Upon such review due

weight shall be accorded the experience, technical competence,

and specialized knowledge of the agency involved, as well as

discretionary authority conferred upon it."24

¶35 Our first opportunity to engage with that language

came in Ray-O-Vac Co. v. Wisconsin Employment Relations Board,

249 Wis. 112, 119, 23 N.W.2d 489 (1946). There, the Wisconsin

Employment Relations Board asserted:

[O]n a review of the board's findings, the court has

no jurisdiction to determine the factual issues anew

if there is some evidence before the board reasonably

tending to support a finding, and "the court may not

weigh the evidence to ascertain whether it

preponderates in favor of the finding" . . . ; or

substitute its judgment for that of the board even

though the court might have decided the question

differently had it been before the court de novo.

Id. (internal citation omitted).

24

Wis. Stat. § 227.20(2) (1943); see § 1, ch. 375, Laws of

1943 (creating § 227.20(2)); see also § 24, ch. 414, Laws of

1975 (renumbering); 1985 Wis. Act 182, § 41 (renumbering again).

25

No. 2015AP2019

¶36 We agreed with the Board, noting that "[i]n relation

to a court review of the board's findings and orders it must be

noted that there is applicable thereto" the terms of Wis. Stat.

§ 227.20(2) (1943). Ray-O-Vac Co., 249 Wis. at 119-20. The

court's reference to the Board's orders (in addition to its

findings) suggests the court gave "due weight . . . [to] the

experience, technical competence, and specialized knowledge of

the agency involved," see § 227.20(2) (1943), as it reviewed the

Board's conclusions of law as well. This is probable because

the court relied on a separate source of authority for the

proposition that it must defer to the Board's findings of fact.

It cited Wisconsin Labor Relations Board v. Fred Rueping Leather

Co., which held:

[I]f th[e] evidence supports the finding of the

industrial commission, the finding must stand. The

Wisconsin Labor Relations Act in sec. 111.10 (5), Wis.

Stats., provides what is lacking in the Workmen's

Compensation Act, namely, an implied authorization to

the courts to review the facts, coupled with the

express provision that the findings, "if supported by

evidence in the record," shall be conclusive.

228 Wis. 473, 494, 279 N.W. 673 (1938).25

25

We were, perhaps, even more enigmatic with respect to the

doctrine's application to questions of law in Milwaukee Electric

Railway & Transport Co. v. Public Service Commission, 261

Wis. 299, 302–03, 52 N.W.2d 876 (1952). There, we said "[t]he

court must also recognize that the commission has expert

knowledge, that such knowledge may be applied by it, and that

even though we might differ with the commission, we are without

power to substitute our views of what may be reasonable." Id.

In the next sentence, however, we said only that "[w]e may not

disturb the commission's findings," which is a reference only to

the facts that the agency found. See id. at 303.

26

No. 2015AP2019

¶37 We were not any more specific about how "due weight"

consideration affects conclusions of law when we decided

Muskego-Norway Consolidated Schools Joint School District No. 9

v. Wisconsin Employment Relations Board, 35 Wis. 2d 540, 151

N.W.2d 617 (1967). But we did frame the statute's provision in

terms of "deference":

[I]n this court's judicial review we are not required

to agree in every detail with the WERB as to its

findings, conclusions and order. . . . Sec[tion]

227.20 (2), Stats., requires that upon such review due

weight shall be accorded the experience, technical

competence, and specialized knowledge of the agency

involved. In short, this means the court must make

some deference to the expertise of the agency.

Muskego-Norway Consol. Sch. Joint Sch. Dist. No. 9, 35 Wis. 2d

at 562. We applied the statute's "due weight" mandate to the

Board's findings and conclusions of law without differentiation.

"Some deference" was due, we said, but we did not say how that

should be applied or quantified.

¶38 We were a little more direct on this topic in Vivian

v. Examining Board of Architects, Professional Engineers,

Designers and Land Surveyors, in which we reviewed the Board's

determination of whether the defendant's conduct could satisfy a

"gross negligence" standard. 61 Wis. 2d 627, 638, 213

N.W.2d 359 (1974). We strongly implied that the Board was

qualified not just to apply that standard, but to define it as

well:

The legislative command that due weight is to be given

to "the experience, technical competence, and

specialized knowledge of the agency involved," in

determining what is gross negligence, indicates the

27

No. 2015AP2019

determination of the grossness of the negligence is to

be made by those knowledgeable as to the particular

profession involved.

Id. (emphasis added) (quoting Wis. Stat. § 227.20(2) (1971)).

¶39 A few years later, we stated explicitly that Wis.

Stat. § 227.20(2) (1973) applies to an administrative agency's

legal conclusions. And we described deference as a requirement

when its preconditions were met. In A. O. Smith Harvestore

Products, Inc., we acknowledged that "[t]his court has uniformly

held that whether or not the facts found fulfill a particular

legal standard is a question of law, not a question of fact."

72 Wis. 2d at 65. And then we said that under § 227.20(2)

(1973), "[d]ue deference must be accorded the agency's

application of the law to the found facts when the agency has

particular competence or expertise in the matter at hand."

A. O. Smith Harvestore Prods., Inc., 72 Wis. 2d at 65-66

(emphasis added) (citing § 227.20(2) (1973)).

¶40 As we mentioned above, Harnischfeger elevated the

deference doctrine from a canon of construction to a standard of

review. "Whether or not a court agrees or disagrees with LIRC's

methodology, however, is not the issue in this case. Instead,

the central question is what standard of review the courts of

this state should apply when called upon to evaluate an agency's

interpretation of a statute." Harnischfeger, 196 Wis. 2d at

659. So, just like "great weight" deference, "due weight"

deference has become an integral, and therefore unavoidable,

part of the framework within which we review an administrative

agency's conclusions of law.

28

No. 2015AP2019

¶41 Fortified by this history of our deference

jurisprudence, we can now determine whether the doctrine is

consistent with the judiciary's constitutional responsibility.26

3. The Judiciary's Constitutional Responsibilities

¶42 As the deference doctrine developed, we recognized

that its operation allowed the executive branch of government to

authoritatively decide questions of law in specific cases

brought to our courts for resolution. But nowhere in the

journey from Harrington to Harnischfeger did we determine

whether this was consistent with the allocation of governmental

power amongst the three branches. So, as a matter of first

impression, we consider whether our deference doctrine is

compatible with our constitution's grant of power to the

judiciary:

The judicial power of this state shall be vested in a

unified court system consisting of one supreme court,

a court of appeals, a circuit court, such trial courts

of general uniform statewide jurisdiction as the

legislature may create by law, and a municipal court

if authorized by the legislature under section 14.

Wis. Const. art. VII, § 2. It is, perhaps, tautological to say

that the judicial power should reside in the judiciary. But the

26

Roggensack, supra n.22, at 542 ("[B]ecause the Wisconsin

Supreme Court's members were elected to decide what the law is,

and because the court restricts its own docket in order to

maintain its law-declaring status, it [is] appropriate for the

court to re-examine whether decision-avoidance is too often

replacing the court's full consideration of the issues raised on

appeal, at least in regard to state agency decisions to which

the highest level of deference, great weight deference, is

accorded.").

29

No. 2015AP2019

constitution does not define what that term comprises, nor does

it explicitly describe how that power relates to the other

branches of government.27

¶43 Allowing an administrative agency to authoritatively

interpret the law raises the possibility that our deference

doctrine has allowed some part of the state's judicial power to

take up residence in the executive branch of government. To

discover whether it did, we must first get our bearings on the

nature and extent of judicial power. We had occasion to dwell

on this subject at some length just last term. See generally

Gabler v. Crime Victims Rights Bd., 2017 WI 67, 376 Wis. 2d 147,

897 N.W.2d 384. There is no need to recreate Gabler's thorough

analysis, so we will content ourselves with referencing only

those parts that illuminate our work here.

¶44 The "separation of powers" doctrine informs our

understanding of how the constitution allocates governmental

power amongst its constituent branches.28 This fundamental

principle of American constitutional government was "established

at the founding of our nation and enshrined in the structure of

27

"This court has recognized, however, that the

constitution does not define legislative, executive or judicial

power . . . ." State v. Holmes, 106 Wis. 2d 31, 42–43, 315

N.W.2d 703 (1982).

28

The executive and legislative branches have their own

explicit grants of power under our constitution. Wis. Const.

art. V, § 1 (providing that "[t]he executive power shall be

vested in a governor"); Wis. Const. art. IV, § 1 (stating that

"[t]he legislative power shall be vested in a senate and

assembly").

30

No. 2015AP2019

the United States Constitution," and "inform[s] our

understanding of the separation of powers under the Wisconsin

Constitution." Gabler, 376 Wis. 2d 147, ¶11; 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."); Goodland v. Zimmerman, 243 Wis. 459, 466-

67, 10 N.W.2d 180 (1943) ("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.").

¶45 We must be assiduous in patrolling the borders between

the branches. This is not just a practical matter of efficient

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 324 (James Madison) (Jacob

Cooke ed., 1961). Consequently, "[a]s Madison explained when

31

No. 2015AP2019

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 (James Madison) (Clinton Rossiter ed., 1961)). "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."29 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 United States Supreme Court

Justice Joseph Story said, "the three great powers of

government . . . should for 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)).

29

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 de Secondat Montesquieu,

The Spirit of Laws bk. XI, at 152 (Thomas Nugent trans., The

Colonial Press rev. ed. 1900) (1748).

32

No. 2015AP2019

¶46 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.

¶47 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.

"For more than a century, this court has been called upon to

resist attempts by other branches of government to exercise

authority in an exclusively judicial area." In re Complaint

Against Grady, 118 Wis. 2d 762, 778, 348 N.W.2d 559 (1984).

33

No. 2015AP2019

These "[c]ore zones of authority are to be 'jealously guarded'

by each branch of government, . . . ." Gabler, 376 Wis. 2d 147,

¶31 (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).

¶48 The separation of powers prevents us from abdicating

core power just as much as it protects the judiciary from

encroachment by other branches. "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" (internal quotation mark

omitted) (quoting State ex rel. Mueller v. Thompson, 149

Wis. 488, 491-92, 137 N.W. 20 (1912))). Even if we truly wished

to abandon some aspect of our 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

(internal quotation mark omitted) (quoting State ex rel. Fiedler

v. Wis. Senate, 155 Wis. 2d 94, 100, 454 N.W.2d 770 (1990))

34

No. 2015AP2019

(emphasis in original); 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.").

¶49 The propriety of our deference doctrine, therefore,

depends on whether it transfers to a coordinate branch of

government a quantum of our core powers. To make that

determination, we need to describe those powers well enough

that, if they are present in our deference doctrine, we will

recognize them.

¶50 From the earliest days of our country, we have

understood that the judiciary's first and irreducible

responsibility is to proclaim the law: "It is emphatically the

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

is." Marbury, 5 U.S. at 177. The process of interpreting the

law in a specific case is part of that central duty: "Those who

apply the rule to particular cases, must of necessity expound

and interpret that rule." Id. We agreed with Marbury just a

few years ago when we described our judicial power as "the

ultimate adjudicative authority of courts to finally decide

rights and responsibilities as between individuals." State v.

Williams, 2012 WI 59, ¶36, 341 Wis. 2d 191, 814 N.W.2d 460.

¶51 It is fair to say that exercising judgment in the

interpretation and application of the law in a particular case

is the very thing that distinguishes the judiciary from the

other branches:

35

No. 2015AP2019

The judiciary . . . has no influence over either the

sword or the purse, no direction either of the

strength or of the wealth of the society, and can take

no active resolution whatever. It may truly be said

to have neither Force nor Will, but merely judgment;

and must ultimately depend upon the aid of the

executive arm even for the efficacy of its judgments.

The Federalist No. 78, at 523 (Alexander Hamilton) (Jacob Cooke

ed., 1961). We, too, have said as much: "By vesting the

judicial power in a unified court system, the Wisconsin

Constitution entrusts the judiciary with the duty of

interpreting and applying laws made and enforced by coordinate

branches of state government." Gabler, 376 Wis. 2d 147, ¶37;

see also State v. Van Brocklin, 194 Wis. 441, 443, 217 N.W. 277

(1927) ("Judicial power is that power which adjudicates and

protects the rights and interests of individual citizens, and to

that end construes and applies the laws." (quoted source

omitted)).

¶52 Some would argue that the judiciary's law-declaring

and law-applying power lies not at the core of what it means to

be a court, but somewhere out on the periphery of our powers

where we share it with the executive branch. Some of our older

cases have spoken in terms that lend this proposition at least

some superficial plausibility. For example, in State ex rel.

Wisconsin Inspection Bureau v. Whitman we said:

Every executive officer in the execution of the law

must of necessity interpret it in order to find out

what it is he is required to do. While his

interpretation is not final, yet in the vast majority

of cases it is the only interpretation placed upon it,

and as long as it is acquiesced in it becomes the

official interpretation which the courts heed and in

36

No. 2015AP2019

which they oftentimes acquiesce as a practical

construction.

196 Wis. 472, 497, 220 N.W. 929 (1928); see also Rules of Court

Case, 204 Wis. at 504 (same) (quoting this portion of Whitman).

And even earlier, we had noted the quasi-judicial nature of some

administrative bodies:

We do not consider the Industrial Commission a court,

nor do we construe the act as vesting in the

Commission judicial powers within the meaning of the

constitution. It is an administrative body or arm of

the government which in the course of its

administration of a law is empowered to ascertain some

questions of fact and apply the existing law thereto,

and in so doing acts quasi-judicially, but it is not

thereby vested with judicial power in the

constitutional sense.

Borgnis v. Falk Co., 147 Wis. 327, 358, 133 N.W. 209 (1911)

(emphasis in original).

¶53 But these cases cannot bear the weight their

proponents assign them. The executive must certainly interpret

and apply the law; it would be impossible to perform his duties

if he did not. After all, he must determine for himself what

the law requires (interpretation) so that he may carry it into

effect (application). Our constitution not only does not forbid

this, it requires it. Wis. Const. art. V, § 1 ("The executive

power shall be vested in a governor, . . . ."); Perez v. Mortg.

Bankers Ass'n, 135 S. Ct. 1199, 1217 (2015) (Thomas, J.,

concurring) ("It is undoubtedly true that the other branches of

Government have the authority and obligation to interpret the

law, . . . ."). But this comprises interpretation and

application within the executive branch. We are here concerned

37

No. 2015AP2019

with the authoritative interpretation and application of the law

as applied to a particular case within the judicial branch.

"[O]nly the judicial interpretation [as opposed to

interpretations offered by the other branches] would be

considered authoritative in a judicial proceeding." Perez, 135

S. Ct. at 1217 (Thomas, J., concurring). Even Rules of Court

Case and Whitman recognize that the executive's understanding of

the law is provisional, and that it gains a measure of

permanence only through habit and inertia. See Rules of Court

Case, 204 Wis. at 504; Whitman, 196 Wis. at 497 ("While [the

executive's] interpretation is not final, yet in the vast

majority of cases it is the only interpretation placed upon

it, . . . in which [the courts] oftentimes acquiesce as a

practical construction."). We do not understand Borgnis to say

anything different. There, we recognized that the work of some

administrative agencies looks very similar to that of the

courts. We described the power they exercised as "quasi

judicial," but it was "quasi" rather than simply "judicial"

because they had no power to impose their understanding of the

law on the judiciary's resolution of a particular case.30

30

Justice Ann Walsh Bradley suggests we have committed

"legal error" and ignored "controlling precedent." Justice Ann

Walsh Bradley's concurrence, ¶¶111, 115. Presumably, she is

referring to the observation in Borgnis that "a board may

lawfully be endowed with very broad powers, and its conclusions

may be given great dignity and force, so that courts may not

reverse them unless the proof be clear and satisfactory that

they are wrong." See Borgnis v. Falk Co., 147 Wis. 327, 359,

133 N.W. 209 (1911). As an initial matter, it is not clear

whether Borgnis was here referring to findings of fact or

(continued)

38

No. 2015AP2019

¶54 When we distill our cases and two centuries of

constitutional history to their essence, the result is a

lodestar that leads us directly to the most central of our

powers: "No aspect of the judicial power is more fundamental

than the judiciary's exclusive responsibility to exercise

judgment in cases and controversies arising under the law."

Gabler, 376 Wis. 2d 147, ¶37; see also Operton, 375 Wis. 2d 1,

¶73 (R. Grassl Bradley, J., concurring) (indicating that "the

court's duty to say what the law is" constitutes a "core

judicial function"); In re Appointment of Revisor, 141 Wis. 592,

598, 124 N.W. 670 (1910) (stating that "it is the exclusive

function of the courts to expound the laws"). Judgment, of

course, encompasses interpreting and applying the law to the

case sub judice. Marbury, 5 U.S. at 177 ("Those who apply the

rule to particular cases, must of necessity expound and

interpret that rule."); The Federalist No. 78, at 525 (Alexander

Hamilton) (Jacob Cooke ed., 1961) ("The interpretation of the

laws is the proper and peculiar province of the courts.");

conclusions of law. If the former, this opinion does not tread

on those grounds. If the latter, then Borgnis would be counted

amongst those cases with which we treat today. If we choose to

overrule it we risk aspersions on our wisdom, but not legal

error. Nor would we be ignoring controlling precedent. The

doctrine the case espouses is our own, and is, therefore,

unquestionably within our remit to accept or reject without

committing legal error. And because the case itself is our own,

it is impossible for it to control our decision. Stare decisis

is a critical rule that promotes stability by ensuring we do not

abandon precedent for light or transient reasons. But it is not

a limitation on our authority.

39

No. 2015AP2019

Roggensack, supra ¶18, at 547 (stating that "[d]eclaring what a

statute means is a core function of the courts"). We conclude

that only the judiciary may authoritatively interpret and apply

the law in cases before our courts. The executive may not

intrude on this duty, and the judiciary may not cede it. If our

deference doctrine allows either, we must reject it.

4. "Great Weight" Deference Considered

¶55 We see our core judicial powers lying at the heart of

"great weight" deference. When the doctrine's preconditions are

satisfied, that is, when an administrative agency meets the four

Harnischfeger criteria, we cede to the agency the power to

authoritatively interpret the law ("an agency's interpretation

must then merely be reasonable for it to be sustained,"

Harnischfeger, 196 Wis. 2d at 661), and apply the law to the

case before us ("the courts should not substitute their judgment

for the agency's application of a particular statute to the

found facts," Pabst, 19 Wis. 2d at 323-24 (emphasis added)).

Because Harnischfeger made this a structural piece of the

standard by which we review an agency's decision, we arrive at

the legal issues involved in the case with an a priori

commitment to letting the agency decide them. But Marbury and

Gabler say the power to interpret and apply the law in the case

at bar is an exclusively judicial power. Therefore, because

that power belongs to the judiciary——and the judiciary alone——we

may not allow an administrative agency to exercise it.

¶56 We provide guardrails for an administrative agency's

exercise of our power, to be sure, but they are minimal. Under

40

No. 2015AP2019

great weight deference, we simply require that the agency's

judgment on the law not overrule our precedents, violate the

constitution, contradict legislative history, or be

unreasonable.31 Within those expansive boundaries, however, the

agency is the master of statutory construction and application,

and it occupies the field to the exclusion of the judiciary.32

We reserve a sufficient quantum of judicial power to set the

guardrails, but that gives no good answer to the charge that

this doctrine cedes something that belongs exclusively to the

judiciary. We are concerned here with categories of power, not

quantity. Regardless of the circumscriptions we put in place,

when we defer we are allowing the agency to exercise what is

unmistakably core judicial power.

¶57 Chief Justice Roggensack has been particularly

incisive in describing the practical problems this deference

causes. She has observed that "[w]hat decision-avoidance

doctrines accomplish is to relieve the court of the real work of

judicial review, what has been described as the 'burden of

31

We will defer if "a rational basis exists in law for the

agency's interpretation and it does not conflict with the

statute's legislative history, prior decisions of this court, or

constitutional prohibitions." Bucyrus-Erie Co. v. DILHR, 90

Wis. 2d 408, 417, 280 N.W.2d 142 (1979) (quoting Pabst v. Wis.

Dep't of Taxation, 19 Wis. 2d 313, 324, 120 N.W.2d 77 (1963)).

32

When great weight deference applies, a reviewing court

must accept "an agency's reasonable statutory interpretation,

even if the court concludes that another interpretation is

equally reasonable, or even more reasonable, than that of the

agency." Racine Harley-Davidson, Inc. v. Wis. Div. of Hearings

& Appeals, 2006 WI 86, ¶17, 292 Wis. 2d 549, 717 N.W.2d 184.

41

No. 2015AP2019

reasoned decisionmaking.'" Roggensack, supra ¶18, at 546

(quoted source omitted). And it privileges unelected executive-

branch employees over those the people of Wisconsin elected to

resolve questions of law.

When the court employs judicially created doctrines

that limit the scope of its review instead of applying

the collective knowledge that the seven justices were

elected to exercise, it avoids the real work of

appellate decision making: explaining to the public

why the application of the law to the facts of the

case resulted in the court's decision and why that

result is fair under the law.

Roggensack, supra ¶18, at 560.

¶58 The abdication of core judicial power to the executive

is a concern not just of our court, but of the federal judiciary

as well. Wisconsin's separation of powers is a reflection of

that found in the United States Constitution, which provides (in

relevant part) that "[t]he judicial Power of the United States,

shall be vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain and

establish." U.S. Const. art. III, § 1.33 Whereas our decision

in Harnischfeger made us structurally deferential to

administrative agencies, Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc. accomplished something very

similar for the federal courts. 467 U.S. 837, 843 (1984). In

33

"The executive Power shall be vested in a President of

the United States of America." U.S. Const. art. II, § 1, cl. 1.

"All legislative Powers herein granted shall be vested in a

Congress of the United States, which shall consist of a Senate

and House of Representatives." U.S. Const. art. I, § 1.

42

No. 2015AP2019

reviewing an administrative agency's interpretation and

application of a statute, the Supreme Court said:

[T]he court does not simply impose its own

construction on the statute, as would be necessary in

the absence of an administrative interpretation.

Rather, if the statute is silent or ambiguous with

respect to the specific issue, the question for the

court is whether the agency's answer is based on a

permissible construction of the statute.

Id. (footnote omitted). The Court, it observed, "ha[s] long

recognized that considerable weight should be accorded to an

executive department's construction of a statutory scheme it is

entrusted to administer, and the principle of deference to

administrative interpretations has been consistently followed by

this Court . . . ." Id. at 844 (footnote omitted) (internal

mark and quoted source omitted).

¶59 Jurists in federal courts have expressed the same

concern with Chevron deference as we have with Harnischfeger

deference. Justice Clarence Thomas directly questioned the

constitutionality of deferring to an administrative agency's

interpretation of the law in Michigan v. Environmental

Protection Agency, 135 S. Ct. 2699, 2712 (2015) (Thomas, J.,

concurring). The EPA's request for deference, he said, "raises

serious questions about the constitutionality of our broader

practice of deferring to agency interpretations of federal

statutes." Id. He was concerned that this deference allowed

the judiciary to escape its responsibility to independently

resolve questions of law: "[T]he judicial power, as originally

understood, requires a court to exercise its independent

43

No. 2015AP2019

judgment in interpreting and expounding upon the laws." Id.

(quoting Perez, 135 S. Ct. at 1217 (Thomas, J., concurring))

(alteration in original). Yet, "Chevron deference precludes

judges from exercising that judgment, forcing them to abandon

what they believe is 'the best reading of an ambiguous statute'

in favor of an agency's construction." Michigan, 135 S. Ct. at

2712 (Thomas, J., concurring) (quoting Nat'l Cable & Telecomm.

Ass'n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005)).

This "wrests from Courts the ultimate interpretative authority

to 'say what the law is,' Marbury v. Madison, 1 Cranch 137, 177,

2 L.Ed. 60 (1803), and hands it over to the Executive."

Michigan, 135 S. Ct. at 2712 (Thomas, J., concurring). Such a

transfer of power, he concluded, "is in tension with Article

III's Vesting Clause, which vests the judicial power exclusively

in Article III courts, not administrative agencies." Id.

(citing U.S. Const. art. III, § 1).

¶60 Justice Antonin Scalia was equally concerned with the

possible abandonment of judicial power to the executive branch.

Although he supported Chevron's imprimatur on the executive's

authority to adopt policy-making regulations to fill up

interstitial statutory silences, his approval did not extend to

an agency's authority to make binding pronouncements on the law:

I suppose it is harmless enough to speak about "giving

deference to the views of the Executive" concerning

the meaning of a statute, just as we speak of "giving

deference to the views of the Congress" concerning the

constitutionality of particular legislation——the

mealy-mouthed word "deference" not necessarily meaning

anything more than considering those views with

44

No. 2015AP2019

attentiveness and profound respect, before we reject

them. But to say that those views, if at least

reasonable, will ever be binding——that is, seemingly,

a striking abdication of judicial responsibility.

The Honorable Antonin Scalia, Judicial Deference to

Administrative Interpretations of Law, 1989 Duke L.J. 511, 513–

14 (1989). Chevron deference eventually spawned Auer deference,

which requires federal courts to prefer an agency's

interpretation of its regulations over the court's own

interpretation.34 This, Justice Scalia believed, was a mistake

because of its effect on a court's authority to decide questions

of law:

I would therefore restore the balance originally

struck by the APA with respect to an agency's

interpretation of its own regulations, not by

rewriting the Act in order to make up for Auer, but by

abandoning Auer and applying the Act as written. The

agency is free to interpret its own regulations with

or without notice and comment; but courts will decide—

—with no deference to the agency——whether that

interpretation is correct.

Perez, 135 S. Ct. at 1213 (Scalia, J., concurring). And he

understood that Chevron was what made it possible: "The problem

is bad enough, and perhaps insoluble if Chevron is not to be

uprooted, with respect to interpretive rules setting forth

agency interpretation of statutes." Perez, 135 S. Ct. at 1212.

¶61 Justice Neil Gorsuch, when he was on the Tenth Circuit

Court of Appeals, elegantly summarized how deference to

administrative agencies hollows out a court's judicial power:

34

See Auer v. Robbins, 519 U.S. 452 (1997).

45

No. 2015AP2019

Yet, rather than completing the task expressly

assigned to us, rather than

"interpret[ing] . . . statutory provisions," [5 U.S.C.

§ 706] declaring what the law is, and overturning

inconsistent agency action, Chevron step two tells us

we must allow an executive agency to resolve the

meaning of any ambiguous statutory provision. In this

way, Chevron seems no less than a judge-made doctrine

for the abdication of the judicial duty. Of course,

some role remains for judges even under Chevron. At

Chevron step one, judges decide whether the statute is

"ambiguous," and at step two they decide whether the

agency's view is "reasonable."

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1151–52 (10th Cir.

2016) (Gorsuch, J., concurring) (brackets in original). What he

said of Chevron is equally true of Harnischfeger: "But where in

all this does a court interpret the law and say what it is?

When does a court independently decide what the statute means

and whether it has or has not vested a legal right in a person?

Where Chevron applies that job seems to have gone extinct."

Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J., concurring).35

35

Justice Ann Walsh Bradley does not believe our deference

doctrine cedes our core judicial power to administrative

agencies: "[C]ontrary to the majority/lead opinion's assertion,

agency deference does not remove from the court its interpretive

role and cede it to the agency." Justice Ann Walsh Bradley's

concurrence, ¶119. She says we still must engage in the

exercise of statutory construction so that we may compare our

interpretation to the agency's because "[o]nly reasonable

interpretations are worthy of deference." See id. Yes, but

that says nothing about whose "reasonable interpretation"

controls the case. If we interpret a statute for ourselves, but

then set it aside in favor of the agency's interpretation, we

have ceded our authority. The point of the interpretive

exercise is not to see if we are as good at it as an

administrative agency; it is to apply the results of our efforts

to the case before us. If we fail to do that, then we have

failed to act as a court.

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No. 2015AP2019

¶62 Indeed, it has. And that presents a related, and

equally serious problem.

*

¶63 Ceding judicial power to an administrative agency is,

from a separation of powers perspective, unacceptably

problematic; it is problematic along a different axis when that

agency appears in our courts as a party. The non-agency party

may reasonably ask whether our deference doctrine will deprive

him of an impartial decisionmaker's exercise of independent

judgment, and, thereby, the due process of law.36

¶64 The United States Supreme Court says that a "fair

trial in a fair tribunal is a basic requirement of due process."

In re Murchison, 349 U.S. 133, 136 (1955). We have remarked

that this proposition is so plain as to be axiomatic. State v.

Herrmann, 2015 WI 84, ¶25, 364 Wis. 2d 336, 867 N.W.2d 772. But

there cannot be a fair trial without a constitutionally

acceptable decisionmaker: "It is, of course, undisputable that

a minimal rudiment of due process is a fair and impartial

decisionmaker." Guthrie v. WERC, 111 Wis. 2d 447, 454, 331

N.W.2d 331 (1983). Our commitment to this principle is such

that we do not accept even the appearance of bias: "[W]hen

36

"Procedural due process under the Fourteenth Amendment to

the United States Constitution and Article I, Section 1 of the

Wisconsin Constitution protect against government actions that

deprive an individual of life, liberty, or property without due

process of the law." Adams v. Northland Equip. Co., 2014 WI 79,

¶64, 356 Wis. 2d 529, 850 N.W.2d 272.

47

No. 2015AP2019

determining whether a defendant's right to an objectively

impartial decisionmaker has been violated we consider the

appearance of bias in addition to actual bias. When the

appearance of bias reveals a great risk of actual bias, the

presumption of impartiality is rebutted, and a due process

violation occurs." Herrmann, 364 Wis. 2d 336, ¶46. Therefore,

a biased decisionmaker is "constitutionally unacceptable."

Withrow v. Larkin, 421 U.S. 35, 47 (1975).37

¶65 We have already concluded that our deference doctrine

cedes to administrative agencies some of our exclusive judicial

powers. It necessarily follows that when that agency comes to

us as a party in a case, it——not the court——controls some part

of the litigation. When questions of law arise, the court

serves as a gatekeeper to adjudge compliance with the

Harnischfeger prerequisites. But once the court completes that

task, it receives instruction from the governmental party on how

to interpret and apply the rule of decision.

¶66 When a court defers to the governmental party, simply

because it is the government, the opposing party is unlikely to

37

Our Code of Judicial Conduct reflects the foundational

importance of keeping core judicial power in the hands of an

independent judiciary: "Our legal system is based on the

principle that an independent, fair and competent judiciary will

interpret and apply the laws that govern us." SCR ch. 60,

Preamble. The comment to the first rule (SCR 60.02) says that

our institutional legitimacy depends on this principle.

"Deference to the judgments and rulings of courts depends upon

public confidence in the integrity and independence of the

judges." SCR 60.02 cmt.

48

No. 2015AP2019

be mollified with assurances that the court bears him no

personal animus as it does so.38 The injury arises not from the

reason the court favors one party over another, but from the

fact that the court has a favorite at all.39 As Professor

Phillip Hamburger observed, "when judges defer to the

executive's view of the law, they display systematic bias toward

one of the parties." Philip Hamburger, Chevron Bias, 84 Geo.

Wash. L. Rev. 1187, 1212 (2016). Harnischfeger deference, like

Chevron deference, "is an institutionally declared and thus

systematic precommitment in favor of the government." Cf.

Hamburger, supra ¶66, at 1211.

¶67 This systematic favor deprives the non-governmental

party of an independent and impartial tribunal. Justice David

Prosser sounded the alarm on this issue in Hilton ex rel. Pages

Homeowners' Association v. DNR, 2006 WI 84, ¶¶54-55, 293

Wis. 2d 1, 717 N.W.2d 166 (Prosser, J., concurring). When great

weight deference applies, he said, "[t]he supreme court and

other Wisconsin courts are expected to rationalize and

rubberstamp the agency's decision unless the agency's legal

38

"The danger to independent judgment arises whenever

judges relinquish their judgment in any degree, and the danger

of systematic bias arises whenever judges show greater respect

for the legal position of one party than that of the other."

Philip Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187, 1202

(2016).

39

"Of course, the bias arises from institutional precedent

rather than individual prejudice, but this makes the bias

especially systematic and the Fifth Amendment due process

problem especially serious." Id. at 1189.

49

No. 2015AP2019

interpretation is plainly wrong. The result is that many

litigants have lost their right to a decision by an independent

judiciary." Id.; see also Gabler, 376 Wis. 2d 147, ¶39

(indicating that "[i]f the judiciary passively permits [the

executive] branch to arrogate judicial power unto itself,

however estimable the professed purpose for asserting this

prerogative, the people inevitably suffer" because they lose

"their independent arbiters of the law"); Roggensack, supra ¶18,

at 546 ("Indeed, some writers who have examined judicially

created decision-avoidance doctrines have stated that when 'the

scope of review is too limited, the right to review itself

becomes meaningless.'" (quoted source omitted)).

¶68 The situation appears no better when considered from

the agency's perspective. When an administrative agency

interprets and applies the law in a case to which it is a party,

it is to that extent acting as judge of its own cause. By the

time the Framers condemned such an arrangement, the rationale

had already been a part of our wisdom literature for centuries:

No man is allowed to be a judge in his own cause;

because his interest would certainly bias his

judgment, and, not improbably, corrupt his integrity.

With equal, nay with greater reason, a body of men,

are unfit to be both judges and parties, at the same

time; . . . .

50

No. 2015AP2019

The Federalist No. 10, at 59 (James Madison) (Jacob Cooke ed.,

1961).40 Echoing Madison, the United States Supreme Court said

that "no man can be a judge in his own case[,] and no man is

permitted to try cases where he has an interest in the outcome."

In re Murchison, 349 U.S. at 136.

¶69 An administrative agency has an obvious interest in

the outcome of a case to which it is a party. Yet, our

deference doctrine commits the rule of decision to its hands

anyway. It is entirely unrealistic to expect the agency to

function as a "fair and impartial decisionmaker" as it

authoritatively tells the court how to interpret and apply the

law that will decide its case. Because it cannot do so,

deference threatens the most elemental aspect of a fair trial.41

Guthrie, 111 Wis. 2d at 454 ("[A] minimal rudiment of due

process is a fair and impartial decisionmaker."). This is not

to question the agency's good faith, which we presume. It is

40

Sir Edward Coke said "it is a maxime in law, aliquis non

debet esse judex in propria causa." 1 Edward Coke, Institutes

of the Laws of England § 212 (James & Luke G. Hansard & Sons

19th ed. 1832) (1628). He said so in English, too: "[I]t is

against reason, that if wrong be done any man, that he thereof

should be his own judge." Id.; see also Dr. Bonham's Case, 77

Eng. Rep. 646, 652, 8 Co. Rep. 113 (1610) (in which Sir Coke

applied this maxim).

41

This is not to say an administrative agency cannot

satisfy the due process requirement of an impartial

decisionmaker as it decides contested cases within the executive

branch. And nothing in our opinion today should be understood

to question that.

51

No. 2015AP2019

merely to join with the ancients in recognizing that no one can

be impartial in his own cause.

*

¶70 As a postscript to this issue, it is worth recalling

that great weight deference is a creature of our own making——

that is, nothing in our statutes called it into being. If

anything, the relevant provision under which we normally review

agency decisions militates against it. Subsection 227.57(5)

says:

The court shall set aside or modify the agency action

if it finds that the agency has erroneously

interpreted a provision of law and a correct

interpretation compels a particular action, or it

shall remand the case to the agency for further action

under a correct interpretation of the provision of

law.

Wis. Stat. § 227.57(5). This says nothing about comparing our

interpretation of the law to that of the agency, or gatekeeping,

or reasonableness. Instead, the statute says the court is to

decide whether the agency has "erroneously interpreted a

provision of law." Id. And the court is to determine the

"correct interpretation of the provision of law." Id. This

formulation recognizes the proper residence of our core judicial

powers.

5. "Due Weight" Deference Considered

¶71 "Due weight," as a principle, entered our

jurisprudence through a statute, but over time our cases grafted

it into the administrative deference doctrine. The original

statutory foundation, however, is still there, and is just as

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No. 2015AP2019

viable as it was before. Today, we restore the principle of

"due weight" to its original form by removing the patina of

"deference" with which our cases have covered it.

¶72 It is true that due weight deference presents a threat

to our core powers that is less extensive than that presented by

great weight deference. It has been said that "in most

situations, applying due weight deference will lead to the same

result as would applying no deference at all." MercyCare Ins.

Co. v. Wis. Comm'r of Ins., 2010 WI 87, ¶37, 328 Wis. 2d 110,

786 N.W.2d 785; see also Operton, 375 Wis. 2d 1, ¶22 ("We note

here that there is little difference between due weight

deference and no deference, since both situations require us to

construe the statute ourselves." (internal quotation mark

omitted) (quoting Cty. of Dane v. LIRC, 2009 WI 9, ¶19, 315

Wis. 2d 293, 759 N.W.2d 571)).

¶73 The threat presented by due weight deference is less,

however, only in the sense that the preconditions that justify

the agency's exercise of our exclusive power are fulfilled more

rarely. When the "due weight" preconditions are satisfied,42 we

must defer to the agency when our respective views of the law,

42

The preconditions are that: (1) "the statute is one that

the agency was charged with administering"; and (2) "the agency

has at least some expertise in the interpretation of the statute

in question." Operton, 375 Wis. 2d 1, ¶20 (quoting Racine

Harley-Davidson, Inc., 292 Wis. 2d 549, ¶107 (Roggensack, J.,

concurring) (internal quotation mark omitted)).

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No. 2015AP2019

while different, are equally reasonable.43 When there is

equipoise, the court cedes its core judicial power just as

surely as if great weight deference had applied. Infrequency

does not make the cession appropriate.

¶74 Nor does cession become acceptable because the agency

has less latitude in exercising our power under due weight

deference than it does under great weight deference. In Racine

Harley-Davidson, Inc., 292 Wis. 2d 549, ¶¶14-15, we suggested

that granting deference did not abandon our judicial power

because we retained the authority to establish the guardrails

within which the agency exercised that power. See id.

(emphasizing that the court decides "whether deference is due,"

"what level of deference is due," and "the reasonableness of the

agency interpretation"). But providing the agency with even the

most exacting tutelage on how to exercise our power does not

change the fact that it is exercising our power. It is the fact

of cession, not its frequency or latitude, that implicates

separation of powers and due process concerns. The power within

the guardrails is part of our core, and so we may not parcel it

out in even the smallest of doses. Therefore, due weight

deference and great weight deference are structurally unsound

for the same reasons.

*

43

See UFE Inc., 201 Wis. 2d at 287 n.3 (stating that under

due weight deference, "an equally reasonable interpretation of a

statute should not be chosen over the agency's interpretation").

54

No. 2015AP2019

¶75 On the other hand, "due weight"——in its statutory

form——presents no such concerns. There are five provisions in

Wis. Stat. § 227.57 that address how we handle questions of law

in reviewing an agency's decision:

(3) The court shall separately treat disputed issues

of agency procedure, interpretations of law,

determinations of fact or policy within the agency's

exercise of delegated discretion.

. . . .

(5) The court shall set aside or modify the agency

action if it finds that the agency has erroneously

interpreted a provision of law and a correct

interpretation compels a particular action, or it

shall remand the case to the agency for further action

under a correct interpretation of the provision of

law.

. . . .

(8) The court shall reverse or remand the case to the

agency if it finds that the agency's exercise of

discretion is . . . in violation of a constitutional

or statutory provision; . . . .

. . . .

(10) Subject to sub. (11), upon such review due weight

shall be accorded the experience, technical

competence, and specialized knowledge of the agency

involved, as well as discretionary authority conferred

upon it.

(11) Upon review of an agency action or decision

affecting a property owner's use of the property

owner's property, the court shall accord no deference

to the agency's interpretation of law if the agency

action or decision restricts the property owner's free

use of the property owner's property.

Wis. Stat. § 227.57(3), (5), (8), (10)-(11).

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¶76 None of these provisions direct us to defer to an

agency's interpretation or application of the law. To the

contrary, subsection (3) tells us to treat questions of law

separately from all other matters in the case (reminiscent of

the analytical approach mentioned in Pabst); subsection (5)

recognizes the court, not the agency, as the law-declaring body;

and subsection (8) calls for us to test an agency's exercise of

discretion against relevant constitutional and statutory

provisions (without any suggestion that the agency is to decide

what those provisions mean).

¶77 We find the legislature's commendation of

administrative agencies in subsection (10). There, we learn we

are to give "due weight" (subject to subsection (11)——more about

that later) to the "experience, technical competence, and

specialized knowledge of the agency involved." From our

earliest days we have recognized that the state's agencies

develop a valuable perspective, unique to them, as they

administer the laws within their portfolios. See Harrington, 28

Wis. at 69 (finding it significant that "the office of attorney

general ha[d] been filled by nine different individuals, all of

them gentlemen of learning and accomplishment in their

profession"); see also Motor Transp. Co. v. Pub. Serv. Comm'n,

263 Wis. 31, 43, 56 N.W.2d 548 (1953) (recognizing that "the

Public Service Commission possesses wide experience and much

technical knowledge in the field of regulation of motor-carrier

transportation of property"). It was, in fact, our appreciation

for that collected wisdom that originally led to our deference

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doctrine. See Roggensack, supra ¶18, at 557 (referring to the

"oft-cited foundation for deferring to agency decisions,

administrative expertise").

¶78 Recognizing that administrative agencies can sometimes

bring unique insights to the matters for which they are

responsible, however, does not mean we should defer to them.

And there is nothing in Wis. Stat. § 227.57(10) that suggests we

should. We believe the Department accurately described the

meaning and effect of this provision. It acknowledged that

giving "due weight" to an agency's experience, technical

competence, and specialized knowledge will not "oust the court

as the ultimate authority or final arbiter" of the law.

Instead, it said, "due weight" means giving "respectful,

appropriate consideration to the agency's views" while the court

exercises its independent judgment in deciding questions of law.

We agree. "Due weight" is a matter of persuasion, not

deference.

¶79 But "due weight" is not a talisman that automatically

grants its bearer additional rhetorical power. If an agency

brings to court nothing but a rote recitation of its background

with the subject matter, it should not expect the statutory

directive to give its argument extra heft. The agency should be

prepared to explain how its experience, technical competence,

and specialized knowledge give its view of the law a

significance or perspective unique amongst the parties, and why

that background should make the agency's view of the law more

persuasive than others. As we assess the persuasiveness of the

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agency's perspective, we will consider the same types of factors

that formerly informed our deference doctrine, to wit:

(1) whether the legislature made the agency responsible for

administering the statute in question; (2) the length of time

the administrative agency's interpretation has stood; (3) the

extent to which the agency used its expertise or specialized

knowledge in developing its position; and (4) whether the

agency's perspective would enhance uniformity and consistency of

the law.

¶80 Before concluding our "due weight" analysis, we must

still account for the effect of Wis. Stat. § 227.57(11). This

provision says that "[u]pon review of an agency action or

decision affecting a property owner's use of the property

owner's property, the court shall accord no deference to the

agency's interpretation of law if the agency action or decision

restricts the property owner's free use of the property owner's

property." § 227.57(11). The plain meaning of this subsection

is that the court should forswear deference to an agency's

interpretation of the law in the identified circumstances. The

legislature added this subsection in 2015, and simultaneously

made subsection (10) subject to its provisions. 2015 Wis.

Act 391, §§ 30, 31. By doing so, the legislature necessarily

implied that it understood subsection (10) as allowing the court

to defer to an agency's interpretation of law. Even though the

text of that subsection says nothing about deference, there was

good reason to understand it that way. By the time

subsection (11) entered the statutes, our treatment of both

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"great weight" and "due weight" had long since matured into our

current deference doctrine. Adding subsection (11), therefore,

exempted the identified circumstances not from a statutory

command, but from the decision-avoidance effects of our

deference doctrine. Consequently, we understand subsection (11)

as a partial dismantling of our deference doctrine. Our

decision today completes the process.

¶81 By returning "due weight" to its statutory roots, and

ending our erstwhile deference, we honor the requirements of

Wis. Stat. § 227.57(10), the separation of powers, and the

parties' due process interests. We agree with now-Justice

Gorsuch's observations about the benefits of rejecting decision-

avoidance doctrines like ours:

[D]e novo judicial review of the law's meaning would

limit the ability of any agency to alter and amend

existing law. It would avoid the due process and

equal protection problems of the kind documented in

our decisions. It would promote reliance interests by

allowing citizens to organize their affairs with some

assurance that the rug will not be pulled from under

them tomorrow, the next day, or after the next

election.

Gutierrez-Brizuela, 834 F.3d at 1158 (Gorsuch, J., concurring).

6. Standard of Review

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¶82 We are mindful that our decision today represents a

significant break with the way we have reviewed agency decisions

since at least Harnischfeger, and in some respects, since Pabst.

The principle of stare decisis counsels that we depart from our

precedents only when circumstances unavoidably superannuate our

commitment to them. Typically, that occurs when:

(1) [c]hanges or developments in the law have

undermined the rationale behind a decision; (2) there

is a need to make a decision correspond to newly

ascertained facts; (3) there is a showing that the

precedent has become detrimental to coherence and

consistency in the law; (4) the prior decision is

"unsound in principle;" or (5) the prior decision is

"unworkable in practice."

Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91, ¶33, 293

Wis. 2d 38, 717 N.W.2d 216 (quoted source omitted).

¶83 We are leaving our deference doctrine behind because

it is unsound in principle. It does not respect the separation

of powers, gives insufficient consideration to the parties' due

process interest in a neutral and independent judiciary, and

"risks perpetuating erroneous declarations of the law."

Operton, 375 Wis. 2d 1, ¶73 (R. Grassl Bradley, J., concurring).

Although persistency of our precedents normally protects the

rule of law, sometimes "[w]e do more damage to the rule of law

by obstinately refusing to admit errors, thereby perpetuating

injustice, than by overturning an erroneous decision." See

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

¶¶97, 100, 264 Wis. 2d 60, 665 N.W.2d 257.

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¶84 Today, the core judicial power ceded by our deference

doctrine returns to its constitutionally-assigned residence.

Henceforth, we will review an administrative agency's

conclusions of law under the same standard we apply to a circuit

court's conclusions of law——de novo. See Mitchell Bank v.

Schanke, 2004 WI 13, ¶24, 268 Wis. 2d 571, 676 N.W.2d 849 ("We

review legal conclusions of the circuit court de novo."). As

with judicial opinions, we will benefit from the administrative

agency's analysis, particularly when they are supplemented by

the "due weight" considerations discussed above. Cf. Megal Dev.

Corp. v. Shadof, 2005 WI 151, ¶8, 286 Wis. 2d 105, 705

N.W.2d 645 ("While the review is de novo, this court benefits

from the analyses of the circuit court and the court of

appeals."). And, as always, we review the administrative

agency's decision, not that of the circuit court. Ho-Chunk

Nation v. DOR, 2009 WI 48, ¶12, 317 Wis. 2d 553, 766 N.W.2d 738

("In a case that involves a ruling by the Commission, we review

the Commission's decision rather than the decision of the

circuit court."). The facts in this case are undisputed, so we

address only questions of law. See Vogel v. Grant-Lafayette

Elec. Co-op., 201 Wis. 2d 416, 422, 548 N.W.2d 829 (1996)

("Whether the facts of a particular case fulfill a legal

standard is a question of law we review de novo.").

7. Discontinuing Deference for Administrative Reasons

¶85 We created our deference doctrine ex nihilo, and so it

is within our power to end it simply by declaring it at an end.

Some members of the court prefer that option——discard the

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doctrine not because the constitutional problems require its

abandonment, but merely because we have chosen to drop it.

However, just because we can do this does not make it wise.

Indeed, stare decisis exists as a principle for the sole purpose

of counseling against that option.

¶86 Justice Gableman provided a thoughtful account of why

he would end the deference doctrine on non-constitutional

grounds. Ultimately, however, his rationale still depends on

the separation of powers——sotto voce, to be sure, but

undeniably. Thus, for example, he says our deference doctrine

is unsound in principle because "deference (especially great

weight deference), if correctly and honestly applied, leads to

the perverse outcome of courts often affirming inferior

interpretations of statutes." Justice Gableman's concurrence,

¶166. That is indubitably true. But it is true only if one

already subscribes to the proposition that our interpretation

enjoys pride of place over that of the administrative agency.

We should not be surprised to learn, however, that an

administrative agency might believe its own interpretation is

superior to ours. Indeed, we should expect no less from an

agency engaged in a good faith effort to do its job. From the

agency's perspective, therefore, our deference doctrine creates

no perversity at all; instead, it gives the statute the best

possible interpretation: Its own. So when Justice Gableman

says that "[i]n our role as court of last resort, we should

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ensure that erroneous-but-reasonable legal conclusions are

corrected,"44 he is making a separation of powers assertion——to

wit, the court is the authoritative arbiter of the law in the

case before us, and our opinion must prevail over that of the

other branches. Without that constitutional impetus, there is

no fuel for his "unsound in principle" analysis.

¶87 Justice Gableman also says newly-ascertained facts

provide a non-constitutional basis for ending deference.45

Specifically, he notes that part of the justification for the

doctrine was the assumed subject-matter expertise of the agency

decision-makers. He questions whether they really do have such

expertise, and then concludes: "We may say that it is only a

matter of speculation that agency decision-makers possess less

expertise than courts when it comes to interpreting various

statutes. Importantly, it is equally a matter of speculation

that they possess more."46 So as Justice Gableman acknowledges,

these are not newly-ascertained facts, they are newly-

ascertained speculations. Our deference doctrine has defined

the relationship between administrative agencies and the

judiciary for over two decades now. Speculation about a hearing

44

Justice Gableman's concurrence, ¶166.

45

Id., ¶167.

46

Id.

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examiner's expertise seems an especially diaphanous

justification for upending this settled history.47

¶88 The members of the court who would end our deference

doctrine for administrative reasons do so out of a desire to

avoid a constitutional analysis. But as Justice Gableman's

concurrence demonstrates, it is impossible to describe a

substantive reason for ending the doctrine without at least an

unspoken appeal to constitutional principles. We do no good

service by avoiding an analysis that so obviously demands our

attention.

*

¶89 Justice Ziegler would also prefer dispensing with our

deference doctrine for administrative reasons because she is

concerned about how our decision will affect the finality of

past cases. The source of her concern is not entirely clear——

this decision is incapable of reopening cases that have already

been decided.48 If they were final upon release of this opinion,

their finality will go on undisturbed by our decision today.

Relief from the judgment of a case is governed by Wis. Stat.

47

Justice Gableman also says our deference doctrine has not

delivered on promised gains in judicial efficiency. Id., ¶165.

But the court has not been made aware of any study performing a

differential analysis of litigative effort before and after

Harnischfeger. So this, too, is a matter of speculation.

48

Justice Ann Walsh Bradley shares Justice Ziegler's

concern about the effect of our decision on the finality of

previously decided cases. See Justice Ann Walsh Bradley's

concurrence, ¶131.

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§ 806.07. Justice Ziegler thinks our rationale would allow a

party to successfully reopen a case for several of the reasons

mentioned in that statute, including "[m]istake" (para. (a)), or

because "[t]he judgment is void" (para. (d)), or because "[a]

prior judgment upon which the judgment is based has been

reversed" (para. (f)), or for "[a]ny other reasons justifying

relief from the operation of the judgment" (para. (h)). Justice

Ziegler's concurrence, ¶139 n.3. She cites no authority for

this proposition, nor could she.

¶90 Justice Ziegler's concern cannot be realized here for

the same reason it has never been realized when we overrule one

of our prior decisions. That has never occurred because

overruling a case does not expose to collateral attack any of

the intervening decisions that were based on the overruled case.

"To the contrary," Justice Ziegler says, "overruling one of our

prior decisions[] can quite obviously have significant impact on

other cases." Id. But for over twenty years the impossibility

of her concern has been black-letter law: "The statute

[§ 806.07] does not authorize relief from a judgment on the

ground that the law applied by the court in making its

adjudication has been subsequently overruled in an unrelated

proceeding." Schauer v. DeNeveu Homeowner's Ass'n, Inc., 194

Wis. 2d 62, 75, 533 N.W.2d 470 (1995).49 True, as Justice

Ziegler observed, Schauer specifically addressed the

49

By "black-letter law," we mean that Schauer appears in

the annotations for Wis. Stat. § 806.07.

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circumstance in which "[a] prior judgment upon which the

judgment is based has been reversed." See Wis. Stat.

§ 806.07(1)(f); Justice Ziegler's concurrence, ¶139 n.3. But

that's why the case is so instructive. The whole point of

Schauer's analysis was that when a court enters judgment in

reliance on specific case precedent, the judgment's finality is

entirely unaffected if the precedent is subsequently reversed.

That's exactly the concern that Justice Ziegler expressed, and

Schauer says "don't worry."

¶91 The other provisions of Wis. Stat. § 806.07 provide no

cause for worry either. If a reversed precedent cannot stand in

for a prior reversed judgment, there is no logical process——no

matter how much it might resemble a Rube Goldberg machine——by

which it could stand in for a "void judgment" under

paragraph (d). And the catch-all "[a]ny other reasons

justifying relief" is not worry-inducing because "[t]he general

rule is that 'a change in the judicial view of an established

rule of law is not an extraordinary circumstance which justifies

relief from a final judgment under [Wis. Stat.

§ 806.07(1)(h)].'" Allstate Ins. Co. v. Brunswick Corp., 2007

WI App 221, ¶7, 305 Wis. 2d 400, 740 N.W.2d 888 (alteration in

original) (quoted source omitted) (capitalization omitted);

accord Schwochert v. Am. Family Mut. Ins. Co., 166 Wis. 2d 97,

103, 479 N.W.2d 190 (Ct. App. 1991), aff'd, 172 Wis. 2d 628, 494

N.W.2d 201 (1993) (same). Finally, the "[m]istake" provision of

§ 806.07(1)(a) can raise no alarm because it is never a mistake

(within the meaning of this statute) for a court to rely on our

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precedent. Subsequently overruling the precedent cannot, to a

metaphysical certainty, make an intervening court's reliance on

the precedent a "mistake"——unless, that is, we are to presume

the intervening court's ability to look forward in time to espy

our change before we make it.

¶92 Justice Ziegler's concern is unknown to the law. And

she has identified no mechanism by which this unrealizable fear

could possibly come to pass.

¶93 Justice Ann Walsh Bradley and Justice Ziegler are also

concerned about whether our decision will adversely affect the

precedential authority of cases decided pursuant to our now-

discarded deference doctrine. To the extent a court favored an

agency's conclusion of law over its own, that conclusion is now

part of the judgment of the case and an inextricable part of the

opinion. Consequently, its precedential and controlling effect

will be the same as if the court had based the decision on its

own interpretation. The only future effect of our decision is

that courts, rather than administrative agencies, will decide

questions of law. If that prospect is sufficient to raise an

alarm against impending "tumult" (see Justice Ann Walsh

Bradley's concurrence, ¶120), then we have more to worry about

than a deference doctrine.

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B. "Processing" River Sediments

¶94 Now that we have identified the proper standard of

review, we can address the petitioners' argument that they are

not subject to the tax imposed by Wis. Stat. § 77.52(2). This

statute provides that:

For the privilege of selling, performing or furnishing

the services described under par. (a) at retail in

this state to consumers or users, a tax is imposed

upon all persons selling, performing or furnishing the

services at the rate of 5% of the gross receipts from

the sale, performance or furnishing of the services.

§ 77.52(2). The services to which this provision refers include

the following:

The producing, fabricating, processing, printing or

imprinting of tangible personal property for a

consideration for consumers who furnish directly or

indirectly the materials used in the producing,

fabricating, processing, printing or imprinting. This

subdivision does not apply to the printing or

imprinting of tangible personal property that results

in printed material, catalogs, or envelopes that are

exempt under s. 77.54(25) or (25m).

§ 77.52(2)(a)11.

¶95 The parties agree that, in this case, the petitioners

are liable for the tax imposed by the Department only if

Stuyvesant Dredging received compensation for "processing"

tangible personal property it received (directly or indirectly)

from the petitioners. The parties also agree that the river

sediment comprised tangible personal property, that Stuyvesant

Dredging received compensation for the work it performed on the

river sediment, and that the river sediment was furnished by the

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petitioners.50 Therefore, the only question is whether

Stuyvesant Dredging's work constituted "processing."

¶96 Because this case turns on the meaning of the term

"processing" in Wis. Stat. § 77.52(2)(a)11., our task involves

discerning the meaning of statutory text. We discover a

statute's meaning in its text, context, and structure.

"[S]tatutory interpretation begins with the language of the

statute," and we give that language its "common, ordinary, and

accepted meaning." State ex rel. Kalal v. Circuit Court for

Dane Cty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110

(internal mark and quoted source omitted) ("Context is important

to meaning. So, too, is the structure of the statute in which

the operative language appears. Therefore, statutory 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; . . . ."). In

performing this analysis, we carefully avoid ascribing an

unreasonable meaning to the text. See id., ¶46 ("[S]tatutory

language is interpreted . . . reasonably, to avoid absurd or

unreasonable results."). If we determine the statute's plain

meaning through this methodology, we go no further. Id., ¶¶45-

46 ("If the meaning of the statute is plain, we ordinarily stop

the inquiry." (internal mark and quoted source omitted)). See

50

Tetra Tech engaged J.F. Brennan Co., Inc. to dredge the

contaminated sediments and deliver them to Stuyvesant Dredging

for separation.

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generally Daniel R. Suhr, Interpreting Wisconsin Statutes, 100

Marq. L. Rev. 969 (2017).

¶97 Our statutes do not define the term "processing."

Consequently, the Commission turned to a dictionary to assist

its analysis, stating "[t]he dictionary definition of

'processing' is 'to put through the steps of a prescribed

procedure; or, to prepare, treat, or convert by subjecting to a

special process.'" The petitioners reject this definition,

arguing that it is so broad it transforms a narrow and selective

tax statute into a general tax on all services related to

tangible personal property. They would instead have us find the

term's meaning in the Administrative Code. Specifically, they

propose Wis. Admin. Code § Tax 11.38(2) (June 1993), which

provides:

Fabricating and processing services, where materials

are furnished directly or indirectly by the customer,

that are subject to Wisconsin sales or use tax

include, except as provided in sub. (1)(a) through

(c):

(a) Application of coating to pipe.

(b) Assembling kits to produce a completed product.

(c) Bending glass tubing into neon signs.

(d) Bookbinding.

(e) Caterer's preparation of food for consumption on

or off the caterer's premises.

(f) Cleaning used oil.

(g) Cutting lumber to specifications and producing

cabinets, counter tops or other items from lumber for

customers, often called "millending."

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(h) Cutting or crushing stones, gravel or other

construction materials.

(i) Drying, planing or ripping lumber.

(j) Dyeing or fireproofing fabric.

(k) Fabricating steel which may involve cutting the

steel to length and size, bending and drilling holes

in the steel to specifications of a particular

construction job.

(L) Firing of ceramics or china.

(m) Heat treating or plating.

(n) Laminating identification cards.

(o) Making a fur coat from pelts, gloves or a jacket

from a hide.

(p) Making curtains, drapes, slip covers or other

household furnishings.

(q) Production of a sound recording or motion picture.

(r) Retreading tires.

(s) Tailoring a suit.

(t) Threading pipe or welding pipe.

Wis. Admin. Code § Tax 11.38(2)(a)-(t).

¶98 Although we conclude that Stuyvesant Dredging

"processed" the river sediment into its constituent parts, we do

not believe either party provided a satisfactory definition of

the term. The petitioners rely on Wis. Admin. Code § Tax

11.38(2) as an exhaustive recitation of "processing" services

subject to Wisconsin's sales and use tax. Because the

separation of river sediment does not appear in this list, they

conclude that the principle expressio unius est exclusio

alterius excludes Stuyvesant Dredging's services from the

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statute's reach. This canon of statutory construction would be

helpful if the list of services were meant to be exhaustive,

rather than illustrative. But this is a tool of elucidation

only——it has no power to contradict the code's text. And by its

own terms, § Tax 11.38(2) contains an illustrative list, not a

comprehensive one. The operative language says: "Fabricating

and processing services, . . . that are subject to Wisconsin

sales or use tax include, . . . ." Id. (emphasis added). The

term "include" tells us that what follows is not exhaustive.

See State v. James P., 2005 WI 80, ¶26, 281 Wis. 2d 685, 698

N.W.2d 95 ("[G]enerally, the word 'includes' is to be given an

expansive meaning, indicating that which follows is but a part

of the whole." (quoting Wis. Citizens Concerned for Cranes &

Doves v. DNR, 2004 WI 40, ¶17 n.11, 270 Wis. 2d 318, 677

N.W.2d 612)). Further, even if it wished to, it is doubtful

that the Department could restrict the scope of Wis. Stat.

§ 77.52(2) through the promulgation of § Tax 11.38(2). The

petitioners identify no authority giving the Department power to

either broaden or constrict the types of services subject to

sales and use taxes. So it does not appear there is any way in

which we could read § Tax 11.38(2) as a complete definition of

"processing."

¶99 As an illustrative list, Wis. Admin. Code § Tax

11.38(2) is similarly unhelpful to the petitioners' cause. The

petitioners say they purchased services that involved nothing

more than "separating" tangible personal property into its

components. But this could be said of cleaning used oil, too,

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which presumably involves separating contaminants from the oil.

See § Tax 11.38(2)(f). The petitioners also say that Stuyvesant

Dredging's work cannot be understood as "processing" because it

neither added nor subtracted anything from the personal property

on which it performed its services. This could be said with

equal accuracy of those who crush stones, and yet that service

is part of the Department's illustrative list. See § Tax

11.38(2)(h). So § Tax 11.38(2) does not advance the

petitioners' argument because it is not an exclusive list of

"processing" activities, and because, as an illustrative list,

it describes activity analogous to Stuyvesant Dredging's work.

¶100 But the petitioners have a legitimate concern about

the breadth of the Commission's definition of "processing."

That term stands cheek by jowl with "producing," "fabricating,"

"printing," and "imprinting" in Wis. Stat. § 77.52(2)(a)11. If

"processing" really comprehends everything that puts tangible

physical property "through the steps of a prescribed procedure,"

or applies a "special process" to "prepare, treat, or convert"

it, then the term swallows all of its sentence-mates. For

example, "producing" means "to make or manufacture (a product or

commodity) from components or raw materials." Producing, The

Oxford English Dictionary (2d ed. 1989) (definition 3.e.).

Manufacturing something would certainly involve putting tangible

property through the steps of a prescribed procedure.

Similarly, "fabricating" means "[t]o make anything that requires

skill; to construct, manufacture." Fabricating, The Oxford

English Dictionary (2d ed. 1989) (definition 1.a.).

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Fabricating, like producing, puts property through a prescribed

procedure. And "printing" means "[t]o make or produce (text, a

book, a picture, etc.) by a mechanical process involving the

transfer of characters or designs on to paper, vellum, etc."

Printing, The Oxford English Dictionary (2d ed. 1989)

(definition II.8.a.). And finally, "imprinting" means "[t]o

mark by pressure; to impress, stamp," "[t]o impress (letters or

characters) on paper or the like by means of type," and "[t]o

make an impression or impressed figure upon; to stamp or impress

(something) with a figure, etc." Imprinting, The Oxford English

Dictionary (2d ed. 1989) (definitions 1.a., 2., and 4.a.,

respectively). Each of these companion terms could fairly be

understood as specific examples of the Commission's definition

of "processing." But ascribing such a broad meaning to that

word would make surplusage of all the companion terms. Whenever

possible, we avoid reading statutory language in a fashion that

leaves some of it with no work to do. Kalal, 271 Wis. 2d 633,

¶46 ("Statutory language is read where possible to give

reasonable effect to every word, in order to avoid

surplusage.").

¶101 Therefore, we must understand "processing" to bear a

meaning that does not displace all of the other descriptors in

Wis. Stat. § 77.52(2)(a)11. We begin with the purpose of

subdivision 11., which is to identify categories of services

performed on tangible personal property that are subject to

Wisconsin's sales and use tax. As we pursue the proper meaning

of "processing," its companion terms provide invaluable

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assistance. The noscitur a sociis canon of construction

(literally, "it is known from its associates") instructs that

"[w]hen two or more words or phrases are listed together, the

general terms . . . may be defined by the other words and

understood in the same general sense." Schill v. Wis. Rapids

Sch. Dist., 2010 WI 86, ¶66, 327 Wis. 2d 572, 786 N.W.2d 177;

accord State v. Quintana, 2008 WI 33, ¶35, 308 Wis. 2d 615, 748

N.W.2d 447 ("[A]n unclear statutory term should be understood in

the same sense as the words immediately surrounding or coupled

with it." (quoted source omitted)). Because the structure of

the text indicates that the terms are of equal dignity, we will

not read any one of them to swallow the others. Although the

types of services may share some (and even many) common

characteristics, each will retain an independent meaning so long

as it has at least one attribute distinct from the others. With

these principles in mind, we can discern a meaning for

"processing" that is informed by, and consistent with, its

associates.

¶102 Based on the definitions above, we see that

"fabricating" is distinct from its associates in that it

requires skill in the construction or manufacture of a final

product. "Producing" contemplates the creation of a final

product from the combination of components or raw materials, a

characteristic that is not necessarily encompassed by

"fabricating," which could describe the manufacture of

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