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

Supreme Court of Wisconsin

June 26, 2018

Tetra Tech EC, Inc. and Lower Fox River Remediation LLC, Petitioners-Appellants-Petitioners,
v.
Wisconsin Department of Revenue, Respondent-Respondent.

          Oral Argument Date: December 1, 2017

          Circuit Court Brown County (L.C. No. 2015CV132) Marc A. Hammer Judge.

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

          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.

          DANIEL KELLY, J.

         ¶1 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 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 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 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 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 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');">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 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 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: "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 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');">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 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');">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 deference when it satisfies the Harnischfeger preconditions. See DOR v. A. 0. 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 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 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 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 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, 2 63 Wis. 529, 537b, 60 N.W.2d 383');">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');">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');">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');">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 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]

         ¶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. "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.

         ¶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');">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, 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');">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. 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 Harnischf eger, 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. 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 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, 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).

         ¶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-Q-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]

         ¶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 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. 0. 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. 0. 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.

         ¶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 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');">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 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 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)).

         ¶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');">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');">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) . 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)) (emphasis in original); see also Town of Holland v. Vill. of Cedar Grove, 230 Wis. 177, 190, 282 N.W. Ill. (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:

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 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 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]

         ¶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."); 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," Harnischf eger, 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 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 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. Ill. § l.[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 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 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'1 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 Ill's Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies." Id. (citing U.S. Const, art. Ill. § 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 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:

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]

         ¶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 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 ...


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