                                                          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
                                                               No.    2015AP2019



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.


                                       3
                                                                                  No.     2015AP2019



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
                                                                                  No.      2015AP2019



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
                                                                            No.   2015AP2019



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
                                                                         No.    2015AP2019



"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
                                                                      No.    2015AP2019



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
                                                                             No.      2015AP2019



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).


                                             11
                                                                        No.     2015AP2019



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


                                           12
                                                                   No.    2015AP2019



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




                                       13
                                                                         No.      2015AP2019



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").


                                             14
                                                                        No.        2015AP2019



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).


                                           15
                                                                                No.     2015AP2019



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
                                                 16
                                                                              No.    2015AP2019



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)).


                                             17
                                                                   No.    2015AP2019



       ¶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
                                                                           No.     2015AP2019



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
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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.


                               46
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       ¶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
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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
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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
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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
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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
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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


                                            52
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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)).


                                        53
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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
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    ¶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).



                                      55
                                                                           No.    2015AP2019



       ¶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
                                               56
                                                                              No.    2015AP2019



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
                                               57
                                                                                No.      2015AP2019



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
                                               58
                                                                        No.   2015AP2019



"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




                                             59
                                                                   No.     2015AP2019



    ¶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.




                                       60
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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
                                                 61
                                                                          No.     2015AP2019



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




                                            62
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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.


                                            63
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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.


                                        64
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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.


                                             65
                                                                                 No.    2015AP2019



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
                                                   66
                                                       No.     2015AP2019



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.




                                  67
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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



                                       68
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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.


                                               69
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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."

                                            70
                                                                        No.     2015AP2019


      (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

                                          71
                                                                       No.     2015AP2019



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,
                                            72
                                                                                No.    2015AP2019



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.).
                                                73
                                                                             No.     2015AP2019



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
                                              74
                                                                                   No.       2015AP2019



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 a product

out of a single resource.                    "Printing" differs from the other
categories in that it involves "the transfer of characters or
                                                  75
                                                              No.   2015AP2019



designs" onto a medium.          And finally, "imprinting" is unique

even from "printing" in that characters or designs are impressed

on a medium through pressure (as, for example, metal stamping in

which     the   medium   is   deformed    to   depict   the   character    or

design).51

     51
       Justice Ziegler's concurrence, to the extent it addresses
whether "processing" encompasses the activity at issue here, is
based in large part on a mistaken impression that the
legislature defined "printing" and "imprinting."     It did not.
She refers to Wis. Stat. § 77.51(11), which says (in full):
"'Printing'     and     'imprinting'     include     lithography,
photolithography, rotogravure, gravure, letterpress, silk screen
printing,     multilithing,     multigraphing,     mimeographing,
photostating, steel die engraving and similar processes." This
is not a definition. It is an incomplete list of examples. It
is not a definition for the same reason we do not consider Wis.
Admin. Code § Tax 11.38(2) a definition of "processing," which
similarly contains an incomplete list of examples.

     Nonetheless, Justice Ziegler finds significance in the
title of section 77.51, "Definitions."  But this means, quite
literally, nothing:    "The titles to subchapters, sections,
subsections, paragraphs and subdivisions of the statutes and
history notes are not part of the statutes."       Wis. Stat.
§ 990.001(6).

     And the fact that the legislature did not feel the need to
say which category encompasses which activities does not mean
printing and imprinting are the same thing (as Justice Ziegler
suggests). See Justice Ziegler's, concurrence, ¶143. It means
the legislature did not care to separate them into their proper
categories, a fact from which no useful information can be
drawn.   It is theoretically possible to use this illustrative
list to develop a definition of "printing" or "imprinting." But
that would involve first defining each of the listed activities,
and   then  extrapolating   the  constituent   elements  into  a
definition for the two terms. Even at that, the result would be
uncertain because there is no way to identify the category to
which each listed activity belongs.    Consequently, recourse to
Wis. Stat. § 77.51(11) simply isn't helpful in discovering a
definition for "printing" or "imprinting."


                                     76
                                                                              No.    2015AP2019



       ¶103 Turning now to the proper meaning of "processing," we

know it must contain at least one attribute that is distinct

from    those       described        above     if   it   is   not      to     displace       its

neighbors.          The       Oxford     English     Dictionary        says    "processing"

means, in pertinent part, "[t]o subject to or treat by a special

process; to operate on mechanically or chemically."                             Processing,

The Oxford English Dictionary (2d ed. 1989) (definition 3.a.).

It is poor form to use the defined word in its own definition,

mostly       because          such   a    construct       provides          little     to     no

information.         Here, this infraction means the first clause tells

us nothing but that processing is "special," which is entirely

unhelpful.              The     second     clause,       however,       is     instructive.

Applying that material to the term "processing" as it appears in

Wis.        Stat.       § 77.52(2)(a)11.            yields    a        meaning       with      a

characteristic distinct from its companions.                            We conclude that

"processing"        encompasses          the   performance        of    a    mechanical       or

chemical operation on tangible personal property, a task that

can be completed without transforming the property into a new
product, or adding anything to it that was not already there.52

"Fabricating" and "producing" both necessarily contemplate the

creation      of    a    new     product,      which     makes    them       distinct       from


       52
       Our opinion should not be interpreted as an attempt to
comprehensively define "processing," "fabricating," "producing,"
"printing," or "imprinting."   With respect to "processing," we
conclude the term is at least as broad as we have described.
Whether it is more extensive than this is a question we need not
answer to resolve this case.


                                               77
                                                                    No.   2015AP2019



"processing."       And both "printing" and "imprinting" require the

addition of something to the property that was not there before,

which is not a requirement of "processing."                   Therefore, because

we are able to identify a characteristic of "processing" that is

distinct     from   its   companions,    we     have    confirmed     that   it   is

capable of carrying a meaning that cannot subsume or be subsumed

by the others.53

      ¶104 Understood in this fashion, "processing" encompasses

Stuyvesant     Dredging's    separation       of     river    sediment    into    its

component parts.          The Commission's Ruling and Order described

how   this    was   accomplished.            After    going    through    scalping

screens, slurry holding tanks, and slurry thickener tanks, the


      53
        Justice Ziegler would adopt a definition of "processing"
without reference to the other terms in the statute, and
apparently without much concern for whether this creates
surplusage or results in an extraordinarily broad definition.
See Justice Ziegler's concurrence, ¶¶146-53.          This loose
approach to statutory construction might be acceptable in other
contexts, but it is entirely inappropriate when addressing a tax
statute, especially this one.     Section 77.52 of our statutes
covers the sale of both goods and services.       See Wis. Stat.
§ 77.52(1) (goods), (2) (services). With respect to the former,
the statute is all-encompassing; in contrast, this statute taxes
services only if they are listed.       Compare § 77.52(1), with
§ 77.52(2)(a) ("The tax imposed herein applies to the following
types of services: . . . ."). We must make our best effort at
determining the specific meaning of the listed types of service
because, as we have said before, "a tax cannot be imposed
without clear and express language for that purpose, . . . ."
DOR v. Milwaukee Ref. Corp., 80 Wis. 2d 44, 48, 257 N.W.2d 855
(1977).   Justice Ziegler dispenses with those restrictions and
safeguards by accepting any definition that might encompass
Tetra Tech's activities.    Perhaps the legislature will one day
adopt that approach, but this is not that day.


                                        78
                                                                            No.    2015AP2019



sediment enters the coarse and fine sand separation operations.

The coarse separation operation physically separates, washes,

and dewaters sand particles larger than 150 microns from the

sludge.     The fine sand separation operation does the same for

sand particles between 63 and 150 microns.                             The petitioners

confirm that everything Stuyvesant Dredging receives from them

is    returned.         The   only    difference         is   that    the    property     is

separated into its components.                  No new product has been created;

no chemical transformation has occurred; and the property is

still just as contaminated as when Stuyvesant Dredging received

it.       The    work     described        by     the    Commission         reflects     the

performance of a mechanical operation on the river sediments.

Therefore, petitioners are subject to the sales and use tax of

Wis.    Stat.     § 77.52(2)         because       Stuyvesant        Dredging      received

compensation for "processing" river sediment received from the

petitioners.

       ¶105 It    is     unlikely     that      our     definition     of    "processing"

will    upset     the     petitioners'          reasonable      expectations.            The
Commission      said     that    Tetra     Tech's       vice-president        of    project

engineering testified that Stuyvesant Dredging "processed" the

river sediment.           Similarly, an operations manager who oversaw

LFR    Remediation's          work    on     the      Fox     River    testified        that

Stuyvesant Dredging "processed" the river sediment.                                And the

Commission observed that, "[a]t various points in the affidavits

and    depositions       of   Petitioner's         general     manager      and    experts,

they refer to what SDI [Stuyvesant Dredging] does as a 'process'
or as 'processing.'             That language is also used in many of the
                                             79
                                                                              No.        2015AP2019



contracts   between        Tetra      Tech    and    SDI."          Although        we    do    not

derive the meaning of a statutory term from a party's subjective

understanding, we recount this history as confirmation that our

analysis    has    not     ventured      outside         the    realm        of    what        those

subject to the statute might reasonably anticipate.

    ¶106 As       is    apparent       from       this     analysis,     we       gave     little

weight     to     the      Commission's            understanding             of     the        term

"processing."            We   recognize            the     legislature            charged       the

Commission with the duty to decide contested cases involving the

application of Wis. Stat. § 77.52(2).                           However, there is no

indication the Commission has a long-standing interpretation of

what "processing" means for purposes of § 77.52(2)(a)11.                                        Nor

does the record intimate that it used any particular experience,

technical   competence,          or    specialized          knowledge        to     develop      an

understanding      of    that    term——it          relied      on   a   dictionary.               It

necessarily follows that the Commission did not bring a unique

perspective     or      significance         to    the     meaning      of    "processing."

Consequently,        the      "due      weight"          calculus       of        Wis.         Stat.
§ 227.57(10)      did      not     increase          the     persuasiveness               of    the

Commission's conclusion of law.




                                              80
                                                                       No.     2015AP2019



                                  III.   Conclusion

     ¶107 The petitioners paid Stuyvesant Dredging to                           process

river      sediment        within        the    meaning         of     Wis.       Stat.

§ 77.52(2)(a)11., so they are liable for the sales and use tax

imposed    by    § 77.52(2).         Therefore,     we    affirm     the      court     of

appeals.

     ¶108 We have also decided to end our practice of deferring

to   administrative        agencies'      conclusions      of     law.         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.



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

affirmed.




                                          81
                                                                 No.   2015AP2019.awb


         ¶109 ANN WALSH BRADLEY, J.             (concurring).     I concur in the

mandate of the court because I agree that the term "processing"

as       used   in    Wis.    Stat.    § 77.52(2)(a)11.          encompasses       the

separation of river sediment into its component parts.                             See

majority/lead op., ¶3.1             Such a result is compelled whether we




         1
       I refer to Justice Kelly's opinion as a "majority/lead"
opinion to assist litigants and courts in understanding its
precedential value.     Justice Kelly's opinion is a majority
opinion with regard to the statutory analysis of the term
"processing" presented in Section II.B of the majority/lead
opinion and the conclusions presented in Section III. See State
v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249 (1995) (explaining
that "a majority of the participating judges must have agreed on
a particular point for it to be considered the opinion of the
court.").   As set forth in footnote 4 of the majority/lead
opinion, it also constitutes a majority in:

        Section     I,   setting   forth       the   facts   (which   are   not   in
         issue),

        Section II.A.1., providing a review of the current standard
         for review of agency decisions (which is not subject to
         reasonable dispute), and

        Section II.A.2., going through the history of the deference
         doctrine (which is, again, not in issue).

     In contrast, "a lead opinion is one that states (and agrees
with) the mandate of a majority of the justices, but represents
the reasoning of less than a majority of the participating
justices." State v. Lynch, 2016 WI 66, ¶143, 371 Wis. 2d 1, 885
N.W.2d 89 (Abrahamson & Ann Walsh Bradley, J.J., concurring in
part, dissenting in part) (citing Hoffer Props., LLC v. State,
Dep't of Transp., 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 553);
In re Disciplinary Proceedings Against Riley, 2016 WI 70, ¶¶92-
95,   371    Wis. 2d 311,  882   N.W.2d 820   (Abrahamson,   J.,
concurring).

                                                                       (continued)
                                            1
                                                                      No.    2015AP2019.awb


give the agency's interpretation great weight, due weight, or no

weight at all.

       ¶110 Further,         I    agree    with   the    concurrences        of    Justices

Ziegler    and       Gableman      that,    consistent        with    our   doctrine    of

constitutional avoidance, the court need not reach the issue of

whether        our     deference          framework     violates       the        Wisconsin

Constitution.

       ¶111 I write separately, however, for two reasons.                           First,

the majority/lead opinion ignores controlling precedent to reach

a      result        that     upends        decades      of     administrative          law

jurisprudence.            Similarly, the concurrences of Justices Ziegler

and Gableman, while not reaching the constitutional issue, would

toss away a framework that has served courts well for decades.

Second, the court's misguided wholesale changes create possible

unintended consequences and a great deal of uncertainty.

       ¶112 The court should not so cavalierly discard our past

practice.       Additionally, its apparent lack of concern for what

will    become       of     the    jurisprudence        that    has    arisen      through
deference gives rise to more questions than it answers.                                Are

cases     in     which       courts       afforded      deference      to     an    agency

interpretation still good law?                 Or do some of these issues need

to be relitigated under the new standard of review the court


     A majority of justices do not embrace the reasoning or
constitutional analysis set forth in Sections II.A.3 through
II.A.6 of the majority/lead opinion. See majority/lead op., ¶3
n.4.    The reasoning the majority/lead opinion presents for
dispatching with our deference doctrine represents the reasoning
of Justices Rebecca Grassl Bradley and Daniel Kelly only.


                                              2
                                                                            No.   2015AP2019.awb


announces today?             The majority/lead opinion's assurances are of

little comfort.         See Justice Ziegler's concurrence, ¶139 n.3.

      ¶113 Because I would not jettison a past practice that has

served us well, I respectfully concur.

                                                I

      ¶114 At      the       outset,       I    observe         that    the       impetus    for

dismantling years of administrative law jurisprudence did not

come from any party, but from this court.                            The issue of whether

our      agency        deference          doctrine         violates         the      Wisconsin

Constitution was not raised by any party to this case before the

circuit court, court of appeals, or in the petition for review

here.     It was this court, sua sponte, that asked that the issue

be addressed in the first instance.

      ¶115 Having        raised      the       issue,     the     majority/lead         opinion

fails to follow established precedent when addressing it.                                    Had

the majority/lead opinion adhered to our precedent, it would not

have arrived at a result that creates such uncertainty.                                 To the

contrary,     it       would       have    reached        the     conclusion         that    our
deference doctrine comports with the Wisconsin Constitution.                                  By

concluding that our deference doctrine removes the interpretive

role of the judiciary, the majority/lead opinion commits legal

error.

      ¶116 Indeed, this court previously examined a very similar

question.         In   Borgnis       v.    Falk     Co.,    147      Wis.     327,   358,    133

N.W. 209    (1911),          the    court      addressed        an     argument      that    the

workers' compensation law "is unconstitutional because it vests
judicial    power       in    a    body    which     is    not    a    court      and   is   not

                                                3
                                                               No.    2015AP2019.awb


composed of men elected by the people, in violation of those

clauses of the state Constitution which vest the judicial power

in certain courts and provide for the election of judges by the

people . . . ."

      ¶117 Rejecting the argument, the Borgnis court stated that

the   commission    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."         Id. (second emphasis added).               The court

added:

      While acting within the scope of its duty, or its
      jurisdiction, as it is sometimes called, such 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.
Id. at 359.

      ¶118 Borgnis is on point here.            In response to the argument

made over a century ago, the Borgnis court suggested that only

clear violations of law, i.e. unreasonable interpretations, are

outside    the   jurisdiction     of    an    agency.      This      is    the   same

foundation underlying our deference framework.                 Although Borgnis

addressed certiorari review, the same principle would apply to

review of any administrative decision.

      ¶119 Further,      contrary       to    the    majority/lead         opinion's

assertion, agency deference does not remove from the court its
interpretive     role    and    cede     it    to    the   agency.          In   its


                                         4
                                                                         No.    2015AP2019.awb


application,      deference         does        not    mean     accepting      an     agency's

interpretation without a critical eye.                          Racine Harley-Davidson,

Inc. v. State, Div. of Hearings and Appeals, 2006 WI 86, ¶15,

292 Wis. 2d 549, 717 N.W.2d 184.                        Rather, "[t]he court itself

must     always        interpret          the         statute      to     determine        the

reasonableness         of    the    agency           interpretation."           Id.       Only

reasonable interpretations are worthy of deference.                            Id.

       ¶120 Not only does the majority/lead opinion throw tumult

into a previously well-settled area of the law, but it does so

based on a legal error.                   I would not upset the finality and

consistency of our past decisions.

                                                II

       ¶121 I     write      next        to     call    attention        to    the    unknown

consequences      of     the     court's         decision.         The    court's       result

represents a tectonic shift in the administrative law landscape.

See    Operton    v.     LIRC,      2017       WI     46,   ¶71,   375    Wis. 2d 1,       894

N.W.2d 426      (Ziegler,        J.,     concurring)         ("There     is    little    doubt

that   ending     the       court's      practice       of    according        deference   to
agency interpretations of statutes would constitute a sea change

in Wisconsin law[.]").              But on the topic of what this vast and

sweeping change means for our prior cases, the majority/lead

opinion provides precious little guidance.

       ¶122 Compounding            its        error,    the     majority/lead          opinion

unwinds our three-tiered system of deference by declaring it

unconstitutional where, as Justices Ziegler and Gableman aptly

observe,   the     use      of   the     court's        administrative         powers    would
suffice.        In doing so, the majority/lead opinion ignores our

                                                 5
                                                                 No.    2015AP2019.awb


usual practice of constitutional avoidance.                   See State v. Hale,

2005 WI 7, ¶42, 277 Wis. 2d 593, 691 N.W.2d 637 ("Normally this

court will not address a constitutional issue if the case can be

disposed   of   on    other    grounds.").         Again,      the     majority/lead

opinion is silent as to the ramifications of constitutionalizing

the question.     However, even making a decision on administrative

grounds, we must consider the ramifications of such a decision.

    ¶123 The principle of stare decisis militates against the

court's conclusion.           Stare decisis is based in part on "the

desirability that the law furnish a clear guide for conduct of

individuals, to enable them to plan their affairs with assurance

against    untoward     surprise[.]"            Johnson       Controls,     Inc.    v.

Employers Ins. of Wausau, 2003 WI 108, ¶95, 264 Wis. 2d 60, 665

N.W.2d 257 (quoting Moragne v. States Marine Lines, Inc., 398

U.S. 375, 403 (1970)).           Parties appearing before agencies and

those   appealing     agency    decisions    now    enter      uncharted     waters.

With no guide, they could be subject to conflicting statutory

interpretations      that   will   make    it    nearly       impossible    to     plan
their affairs with any certainty.

    ¶124 This court, the court of appeals, and circuit courts

throughout the state have applied great weight deference and due

weight deference going back decades.               What is the precedential

value of these cases now?          Are the principles they divine still

good law even though they were reached through the application

of a deference doctrine the court eschews today?

    ¶125 As     an    example,     let's    examine       a    case    involving     a
question of statutory interpretation similar to that at issue

                                       6
                                                       No.   2015AP2019.awb


here.     In Zip Sort, Inc. v. Wis. DOR, 2001 WI App 185, ¶1, 247

Wis. 2d 295, 634 N.W.2d 99, the court of appeals addressed an

agency interpretation of the term "manufacturing property" as

used in Wis. Stat. § 70.995.2




     2
         Wis. Stat. § 70.995 (1993-94) provides in relevant part:

             (1) APPLICABILITY. (a)    In     this    section
             "manufacturing property"   includes all lands,
             buildings, structures and other real property
             used in manufacturing, assembling, processing,
             fabricating, making or milling tangible personal
             property for profit . . .

         . . .

                 (d) Except for the activities under sub.
                 (2),    activities     not classified    as
                 manufacturing in the standard industrial
                 classification     manual, 1987    edition,
                 published by the U.S. office of management
                 and budget are not manufacturing for this
                 section.

             (2) FURTHER CLASSIFICATION. In addition to the
             criteria set forth in sub. (1), property shall be
             deemed prima facie manufacturing property and
             eligible for assessment under this section if it
             is included in one of the following major group
             classifications   set  forth   in  the   standard
             industrial classification manual, 1987 edition,
             published by the U.S. office of management and
             budget. . . . :

         . . .

                 j)   27—Printing,       publishing   and    allied
                 industries.

         . . .

                 (v) 39—Miscellaneous manufacturing industries.


                                     7
                                                                    No.    2015AP2019.awb


       ¶126 The    question          presented       was     whether       Zip     Sort's

activities entitled it to a "manufacturing property" designation

for tax purposes.         Zip Sort's primary business was to make mail

machine-sortable through the addition of a bar code.                        Id., ¶3.

       ¶127 The    Department          of     Revenue      determined       that     such

activity    did     not        entitle       Zip    Sort     to    a      manufacturing

classification for its property, and the Tax Appeals Commission

agreed.     Id., ¶10.      In examining this determination, the court

of appeals initially set about to determine the proper level of

deference to accord to the Department's interpretation of the

term    "manufacturing         property."          Id.,     ¶¶11-22.        The     court

declined to "determine whether the proper standard of review is

due    weight   deference       or   great       weight    deference      because    [it]

conclude[d] that the commission's conclusions under § 70.995 at

least met the due weight deference standard."                     Id., ¶22.

       ¶128 Pursuant      to    such     a   standard,      the   court     of    appeals

determined that the commission's interpretation was reasonable,

and that Zip Sort's interpretation was "no more reasonable."
Id., ¶34.       Accordingly, it affirmed the commission's decision.

Id.    Whether the commission's interpretation was correct did not

enter the analysis.

       ¶129 If it applied a de novo standard of review, would the

Zip Sort court reach the same result?                     I do not know.         However,

the Zip Sort decision was reached through the methodology that a

majority of this court now disowns (and that several members

suggest is contrary to the Wisconsin Constitution).                        Is what was
a settled point of law since 2001 now unsettled?                       Can businesses

                                             8
                                                                     No.   2015AP2019.awb


and agencies rely on our past decisions in planning their future

activities?        The majority/lead opinion's assurances that they

can   provide     little    comfort       and   are    thinly    supported.           See

Justice Ziegler's concurrence, ¶139 n.3.

       ¶130 Zip Sort is not the only case where an appellate court

has applied our three-tiered deference methodology.                          It serves

as    but   one   example   of   the      myriad      cases    where       courts    have

faithfully applied the deference jurisprudence as set forth by

this court.

       ¶131 The court has significantly upset the finality of our

past cases.       "[F]requent and careless departure from prior case

precedent     undermines     confidence         in   the   reliability         of   court

decisions."       Johnson Controls, 264 Wis. 2d 60, ¶95.                   "When legal

standards 'are open to revision in every case, deciding cases

becomes a mere exercise of judicial will, with arbitrary and

unpredictable results.'"         State v. City of Oak Creek, 2000 WI 9,

¶55 n.27, 232 Wis. 2d 612, 605 N.W.2d 526 (citations omitted).

       ¶132 Our three-tiered deference scheme has suited us well
over the past decades.              In unnecessarily disowning our well-

developed     jurisprudence,        the    court      should    at     least    provide

guidance for the future.              Litigants, circuit courts and the

court of appeals should not be left adrift to redefine what has

previously been well-settled.

       ¶133 For the above stated reasons, I respectfully concur.

       ¶134 I     am   authorized    to    state      that     Justice      SHIRLEY   S.

ABRAHAMSON joins this concurrence.



                                           9
                                                                               No.    2015AP2019.akz


       ¶135 ANNETTE KINGSLAND ZIEGLER, J.                          (concurring).           I agree

with       the    result    the     court     reaches.              I     concur       and     write

separately because the analysis that the lead opinion employs to

reach its conclusions is concerning.                            First, in my view, it is

both       unnecessary      and     inadvisable            to    rely     on     constitutional

grounds for ending our practice of deferring to administrative

agencies'        conclusions        of    law.         Deference          to     administrative

agencies was a court-created doctrine and, thus, is one that can

be court eliminated.               We need not reach for the constitution to

so act.

       ¶136 Second, in interpreting the statute here, the court1

relies on ordinary meaning to define all of five terms, even

though two of them have statutory definitions.                                       Additionally,

the    court       relies     on    the     surplusage            canon    as        grounds     for

selectively defining necessarily broad terms, even though the

complete         overlap    between       the        two    statutorily-defined                 terms

indicates        that   the    legislature            may       well    have         intended    for

overlap among the undefined terms as well.
       ¶137 Nevertheless, I agree that "'processing' encompasses

Stuyvesant        Dredging's       separation          of       river   sediment         into    its

component         parts."          Majority          op.,       ¶104.          Accordingly,        I

respectfully concur.


       1
       We refer to the opinion as a lead opinion in Part I
because its constitutional analysis has not garnered the support
of a majority of the court. We refer to the opinion as that of
"the court" or as the "majority opinion" in Part II because its
statutory analysis does have the support of a majority of the
court.


                                                 1
                                                      No.   2015AP2019.akz

               I.     INTERPRETING AND APPLYING THE LAW
    ¶138 The     lead     opinion   reaches   for   the     constitution

unnecessarily.      It states as follows:

         As the deference doctrine developed . . . [we did
    not] 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 . . . .
Lead op., ¶42.      As the lead opinion acknowledges, our deference

doctrine was a policy of judicial administration,2 and, as such,
it is not essential to draw on constitutional principles to

overturn it.     See State v. Castillo, 213 Wis. 2d 488, 492, 570

N.W.2d 44 (1997) ("An appellate court should decide cases on the

narrowest possible grounds."); Gabler v. Crime Victims Rights

Bd., 2017 WI 67, ¶¶51-53, 376 Wis. 2d 147, 897 N.W.2d 384 ("This

court does not normally decide constitutional questions if the

case can be resolved on other grounds.").           I depart with the

lead opinion because the doctrine of constitutional avoidance

requires that we act with restraint.          In accordance with this

principle, I would not rely on the constitution to overturn our

judicially-created administrative deference doctrine.



    2
       See, e.g., lead op., ¶34 ("[Great weight deference]
developed    as     a    home-grown    doctrine     within   the
judiciary . . . ."); id., ¶70 ("[G]reat weight deference is a
creature of our own making . . . ."); id., ¶40 ("[J]ust 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."); id., ¶3 ("We have [] decided to end our practice of
deferring to administrative agencies' conclusions of law.").


                                    2
                                                                 No.    2015AP2019.akz


       ¶139 Moreover,      departing   from         deference   on   the   basis     of

judicial       administration     would       not    call   into       question     the

continuing validity of the decades of cases that have relied on

the deference doctrine.           In this regard, I disagree with the

lead opinion's assertions that "[i]f [a decision] [was] final

upon       release   of   this   opinion,      [its]     finality       will   go    on

undisturbed by our decision today";3 and that "[c]onsequently


       3
       The lead opinion cites Wis. Stat. § 806.07 in support of
this assertion, concluding that no paragraph of that statute
would allow a party to reopen a final judgment based on this
decision.    Lead op., ¶¶89-91.     To the contrary, the lead
opinion's conclusion that deference is unconstitutional could
support an argument for relief from a final judgment under
§ 806.07(1)(a), on the basis of "mistake"; under para. (1)(d),
on the basis that "[t]he judgment is void"; under para. (1)(f),
on the basis that "[a] prior judgment upon which the judgment is
based has been reversed"; or under para. (1)(h), on the basis
that "[a]ny other reasons justifying relief from the operation
of the judgment." § 806.07(1)(a), (d), (f), (h).

     The lead opinion attempts to bolster its interpretation of
§ 806.07 by quoting Schauer v. DeNeveu Homeowners Ass'n, Inc.,
194 Wis. 2d 62, 75, 533 N.W.2d 470 (1995), for the proposition
that "'[§ 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.'"   Lead op., ¶90 (alteration in original).    To the
contrary, the court in Schauer concluded that "sec. 806.07(1)(f)
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,
194 Wis. 2d at 66.     Thus, the lead opinion's implication-by-
alteration that this case interpreted § 806.07 broadly is error.
Moreover, Schauer was a case where the parties had reached a
settlement regarding the scope of an easement wherein they
allegedly relied on later-overruled case law in reaching the
settlement.      Thus,  while   arguably   Schauer  decided   the
application of § 806.07(1)(f) under those circumstances, it does
not address other subsections of the statute, nor does it
address every possible application of § 806.07(1)(f).

                                                                         (continued)
                                          3
                                                                     No.   2015AP2019.akz


[the] precedential and controlling effect [of past cases] will

be the same as if the court had based the decision on its own

interpretation."       Lead op., ¶¶89, 93.              The lead opinion provides

no support for these assertions and the constitutional tenor of

its    analysis    suggests    exactly     the     opposite.          Accordingly,     I

agree with Justice Ann Walsh Bradley's concurrence that the lead

opinion fails to adequately account for the effect its analysis

will have on prior decisions.

       ¶140 Additionally,       it    is       inadvisable      to     turn     to   the

constitution and address the "core powers" of the judiciary in

this case.        The lead opinion's "core powers" analysis proceeds

as    follows:    judicial    power   is       vested    in   the    judiciary;4     the

doctrine of separation of powers is fundamental to government;5

the powers of each branch of government fall into one of two

categories——shared         powers     or        exclusive/core         powers;6      the

judiciary      has   the     "'exclusive         responsibility            to   exercise

judgment in cases and controversies arising under the law'";7


     Additionally, the lead opinion's assertion that "overruling
a case does not expose to collateral attack any of the
intervening decisions that were based on the overruled case" is
subject to question.      Lead op., ¶90.      To the contrary,
overruling one of our prior decisions, can quite obviously have
significant impact on other cases.
       4
           See lead op., ¶42 (citing Wis. Const. art. VII, § 2).
       5
       See lead op., ¶44 (citing Gabler v. Crime Victims Rights
Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384).
       6
       See lead op., ¶46 (citing State v. Horn, 226 Wis. 2d 637,
643, 594 N.W.2d 772 (1999)).
       7
           Lead op., ¶54 (quoting Gabler, 376 Wis. 2d 147, ¶37).


                                           4
                                                                      No.    2015AP2019.akz


exercising judgment "encompasses interpreting and applying the

law to the case . . . ";8 therefore, "only the judiciary may

authoritatively interpret and apply the law in cases before our

courts."9         In other words, the judiciary has constitutionally-

conveyed jurisdiction to interpret and apply the law in cases

and controversies before the courts.

       ¶141 This conclusion is either quite remarkable or quite

unremarkable;         that     is,    if    the    lead     opinion   is    breaking     new

ground       in     defining     the       power       of   the   judiciary,     that    is

remarkable, but if it is not, there is no need to remark on the

court's role here because it is not disputed.                           Given that the

lead       opinion    feels     the    need       to    so-remark,    however,    I     feel

compelled to caution that its comments should not be read more

broadly       for     the     proposition          that     the   judiciary     possesses

exclusive authority to interpret and apply the law generally in

all arenas.          Although the lead opinion appears to agree that the

power to interpret and apply the law more generally is shared

among the branches,10 its definition of the judiciary's "core

       8
            Lead op., ¶54.
       9
            Id.
       10
            For example, the lead opinion states as follows:

       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,
                                                       (continued)
                                 5
                                                                 No.    2015AP2019.akz


power," see supra ¶140, is applied more broadly at times such

that it could be read to abrogate the shared nature of the power

to interpret and apply the law.11               This lead opinion is not to be

read so broadly.

       ¶142 In sum, I would not reach the constitutional issue

because     reversal      on   judicial    administration        grounds    is   more

appropriate: that which the court administratively gives, the

court can administratively take away, and doing so on the basis

of    judicial     administration       would    not   require    undermining     the

decades     of    cases    that   did     rely    on    the   deference     doctrine

because, at the time, it was our policy to do so.                      Additionally,

the    lead      opinion's     conclusions       on    constitutional      grounds——

regarding the judiciary's core powers——should be read as limited

to    the     unremarkable      reiteration       of    our   responsibility       to

interpret and apply the law in cases and controversies before

the courts.


       J., concurring) ("It is undoubtedly true that the
       other branches of Government have the authority and
       obligation to interpret the law . . . .").

Lead op., ¶53.
       11
       See, e.g., lead op., ¶54 (citing Operton v. LIRC, 2017 WI
46, ¶73, 375 Wis. 2d 1, 894 N.W.2d 426 (R. Grassl Bradley, J.,
concurring)) ("'[T]he court's duty to say what the law is'
constitutes a 'core judicial function.'"); id., ¶70 (citing Wis.
Stat. § 227.57(5)) ("[T]he statute says the court is to decide
whether the agency has 'erroneously interpreted a provision of
law.' And the court is to determine the 'correct interpretation
of the provision of law.'       This formulation recognizes the
proper residence of our core judicial powers."); id., ¶¶73-74
(implying that an agency's interpretation and application of the
law is an exercise of "our power.").


                                           6
                                                                        No.    2015AP2019.akz


      II.    INTERPRETING AND APPLYING WIS. STAT. § 77.52(2)(a)11.

       ¶143 I also write because I do not agree with the court's

redefining terms that the legislature has statutorily defined.

Specifically,            the        legislature            defines      "printing"         and

"imprinting."                 See      Wis.     Stat.          § 77.51(11).          Without

acknowledging            or     attempting           to        incorporate     these       two

statutorily-defined             terms    into       its    analysis,    the    court   first

turns to ordinary meaning (i.e., dictionaries) in interpreting

and    applying       Wis.     Stat.     § 77.52(2)(a)11.              While    it    is   not

improper      for     the      court    to    turn        to   the   dictionary      for   the

undefined terms, I take issue with the court turning to the

dictionary       to      redefine       "printing"         and    "imprinting"——the        two

statutory terms.              In so doing, the court also overstates the

necessity of avoiding surplusage because the legislature here

has    defined      at    least     some      terms——printing         and    imprinting——to

entirely overlap.              In the end, this is a taxation statute; it

could very well be that the legislature wanted to leave little

room for exclusion from taxation.


        A.    Specially-Defined Terms:                Printing and Imprinting

       ¶144 The legislature provided definitions for two of the

five    terms    at      issue——printing            and    imprinting——and       those     two




                                                7
                                                              No.    2015AP2019.akz


statutorily-defined terms completely overlap.12                However, in an

effort    to   ensure   that    each   term    "retain[s]      an     independent

meaning," that is, "has at least one attribute distinct from the

others," majority op., ¶101, the court makes no mention of the

legislatively-provided          definitions,      but        instead      selects

dictionary definitions that support its analysis.                   Majority op.,

¶100.     I find that to be contrary to our prescribed method of

statutory interpretation.

     ¶145 To start, Wis. Stat. § 990.01(1) provides:                   "All words

and phrases shall be construed according to common and approved

usage; but technical words and phrases and others that have a

peculiar meaning in the law shall be construed according to such

meaning."      Similarly, State ex rel. Kalal v. Circuit Court for

Dane County states:        "Statutory language is given its common,

ordinary,      and   accepted    meaning,     except    that        technical   or

specially-defined words or phrases are given their technical or

special     definitional       meaning."       2004     WI     58,     ¶45,     271

Wis. 2d 633, 681 N.W.2d 110; see also Antonin Scalia & Bryan A.


     12
        The five terms at issue are "processing," "producing,"
"fabricating," "printing," and "imprinting."       "Printing" and
"imprinting" are defined by statute, see Wis. Stat. § 77.51(11);
"processing," "producing," and "fabricating" are not. The court
argues that § 77.51(11), despite being a subsection of the
"Definitions" section of the statute, does not provide a
definition    because   it  provides   no  "useful   information."
Majority op., ¶102 n.51.     As noted below, see infra ¶145, note
14, the fact that the court finds the statutory definition
unhelpful in conducting its preferred analysis is not a reason
to ignore it.      Moreover, to the contrary, § 77.51(11) does
provide    useful   information,   namely,  a   measure   of   the
legislature's comfort with overlap. See infra ¶149.


                                       8
                                                                    No.   2015AP2019.akz


Garner, Reading Law: The Interpretation of Legal Texts 69-77

(2012) ("Ordinary-Meaning Canon") ("Words are to be understood

in     their    ordinary,       everyday       meanings——unless           the    context

indicates that they bear a technical sense.").

       ¶146 Under      the   statute,     "printing"      and      "imprinting"      are

specially       defined:        "'Printing'       and     'imprinting'           include

lithography,           photo-lithography,             rotogravure,              gravure,

letterpress, silk screen printing, multilithing, multigraphing,

mimeographing,      photostating,         steel   die    engraving        and    similar

processes."      Wis. Stat. 77.51(11) (2007-08).13                 Nevertheless, the

court states as follows:

       "[P]rinting" 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.). . . . "[I]mprinting" 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).
Majority op., ¶100.             This reliance on ordinary meaning (i.e.,

dictionaries)     is     contrary    to    statute      and   to    the    common    law

because "printing" and "imprinting" are specially defined.                           See

Wis.    Stat.   § 990.01(1);        Kalal,     271    Wis. 2d 633,        ¶45.      But,

despite the clarity of the law in this area, the court gives no

consideration       to    the     synonymous,        statutory      definition       and

       13
       "Printing" and "imprinting" are also specially defined in
this manner in the 2005-06 version of the statute. See majority
op., ¶2 n.2.


                                           9
                                                                     No.     2015AP2019.akz


instead favors dual dictionary definitions.                       Doing so does aid

its   analysis   in    at     least     two      ways,14    but   the      legislatively

defined terms cannot be ignored for the sake of convenience.

Moreover,     further        analysis       reveals        that    relying         on   the

synonymous statutory definitions is not fatal to the court's

result     because    such    overlap       is    likely    what     the     legislature

intended.

                                 B.     Surplusage
      ¶147 The court understandably struggles with distinguishing

"processing,"    "producing,"         and     "fabricating."            As    an   initial

matter, these terms are not statutorily defined.                           And, although

normally this would not present great difficulty——as resort to

dictionaries for ordinary meaning is appropriate where terms are

not statutorily defined——here, even the dictionary definitions

have significant overlap.             (How would one produce or fabricate

something without putting it through a process?)                        But instead of

acknowledging    this    overlap,       the      court     reaches      to   distinguish

these terms in order to avoid surplusage.                          Such artifice is

unnecessary in my view.           First, surplusage need not be avoided

      14
       First, the statutory definition is illustrative rather
than descriptive.   Thus, reliance on the statutory definition
would impair the court's analysis because it would not provide a
useful   comparison  to   the  court's   descriptive  dictionary
definitions of "producing" and "fabricating." See majority op.,
¶100.   Second, the statute defines "printing" and "imprinting"
as synonyms, that is, their statutory definition overlaps in its
entirety.    Thus, reliance on the statutory definition would
impair the court's analysis because it would contravene the
court's conclusion that each term "retain[s] an independent
meaning" because "it has at least one attribute distinct from
the others." Majority op., ¶101.


                                            10
                                                                             No.   2015AP2019.akz


at     all     costs.        Second,      not        all       overlap       is     surplusage,

particularly where, as here, the plain meaning of the terms and

the synonymous nature of coordinate, legislatively-defined terms

invites overlapping interpretations.                           Third, regardless of the

amount of overlap, Stuyvesant Dredging's actions fall within the

definition of "processing."               Again, in a taxation statute, where

generally the legislature is trying to include, not exclude,

those who will be subject to taxation, such a broad sweep is

unsurprising.

       ¶148 While         avoiding       surplusage             is     generally       favored,

surplusage need not be avoided at all costs.                                   Kalal states:

"Statutory language is read where possible to give reasonable

effect       to   every    word,    in   order           to   avoid     surplusage."         271

Wis. 2d 633, ¶46 (emphasis added); see also Scalia & Garner,

supra ¶144 at 174-79 ("Surplusage Canon") ("If possible, every

word     and      every    provision      is        to    be     given      effect . . . .")

(emphasis added).           Thus, it is not true that "we must understand

'processing' to bear a meaning that does not displace all of the
other        descriptors . . . ."              Majority              op.,    ¶101     (emphasis

added).15

       ¶149 Additionally, in my view, it may not be possible to

avoid       complete      overlap    among      "processing,"               "producing,"     and


       15
       In this regard, I do not disagree that "[w]e must make
our best effort at determining the specific meaning," majority
op., ¶103 n.51 (emphasis added); rather, in my view, no effort——
other than one to rewrite the statute——can overcome the plain
and broad meaning of the terms used by the legislature here.
See infra ¶¶148, 150-153.


                                               11
                                                                   No.   2015AP2019.akz


"fabricating," because the ordinary meaning of "processing" is

so   broad.16       But    the    fact    that    an    abstract     definition     of

"processing"       could    encompass     the    abstract   definitions       of   the

other statutory terms does not necessarily displace them, as

their use might be more appropriate in certain contexts.                           For

example, on the one hand, we think of films as being "produced"

and some stories as being "fabricated," even though no one would

dispute that making a film or making up a story is a process.

On   the   other    hand,    we   think    of    some    foods——American       cheese

slices, for example——as being "processed."

      ¶150 In other words, surplusage is not to be assumed merely

because the legislature has used a broad term.                  See Pawlowski v.

Am. Family Mut. Ins. Co., 2009 WI 105, ¶22, 322 Wis. 2d 21, 777

N.W.2d 67 ("The use of different words joined by the disjunctive

connector 'or' normally broadens the coverage of the statute to

reach distinct, although potentially overlapping sets.")                           This

is perhaps particularly true where, as here, the legislature has

invited     such     overlapping         interpretations       by        specifically
defining two of the terms as synonyms.                  See Georgina G. v. Terry

M., 184 Wis. 2d 492, 540, 516 N.W.2d 678 (1994) (Bablitch, J.,

dissenting) ("The legislature at times, as here, deliberately


      16
       In this regard, I note that the court's conclusion that
"processing" is "a task       that can be completed without
transforming the property into a new product, or adding anything
to it that was not already there" does not avoid displacing
"producing" and "fabricating."      Majority op., ¶103.     Just
because "processing" encompasses tasks that are not "producing"
or   "fabricating"   does   not   mean   that   "producing"  and
"fabricating" are not subordinate forms of "processing."


                                          12
                                                                  No.   2015AP2019.akz


paints    with    a   very    broad . . . brush.");         see    also      Scalia   &

Garner, supra ¶144 at 174 ("[I]t is no more the court's function

to revise by subtraction than by addition.").

    ¶151 Regardless of the amount of overlap, under a plain

meaning        analysis      Stuyvesant     Dredging's       work        constituted

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

§ 77.52(2)(a)11.           We begin with the language of the statute.

Kalal, 271 Wis. 2d 633, ¶45.               The statute states in relevant

part as follows:

         (2) 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.

         (a)    The tax imposed herein                     applies      to     the
    following types of services: . . .

         11.    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.

    ¶152 "Processing"          is   not    defined    in    the    statute,      thus,

resort    to    dictionary     definitions    is     not   inappropriate.            See

Kalal, 271 Wis. 2d 633, ¶45 ("Statutory language is given its

common, ordinary, and accepted meaning . . . .").                       "Processing"
is defined in dictionaries as follows: (1) "to subject to a

special process or treatment"; "to subject to or handle through
                               13
                                                                  No.    2015AP2019.akz


and established usually routine set of procedures";17 (2) "to put

through     the   steps    of    a    prescribed     procedure";        "to   prepare,

treat, or convert by subjecting to a special process";18 (3)

"[t]o subject to or treat by a special process; to operate on

mechanically or chemically."19

     ¶153 In       my   view,        Stuyvesant      Dredging's    separation       of

dredged materials plainly falls under any of these definitions

of "processing."          "If the meaning of the statute is plain, we

ordinarily stop the inquiry."               Kalal, 271 Wis. 2d 633, ¶45.           And

I   would    reiterate      that      the     fact   that   the    definition       of

"processing" is broad does not mean that it is ambiguous, nor

does it render the statute meaningless.                     See Kernz v. J. L.

French    Corp.,    2003    WI       App    140,   ¶16,   266   Wis. 2d 124,       667

N.W.2d 751 ("[A] phrase is not ambiguous simply because it is

general or broad."); see also Zarnstorff v. Neenah Creek Custom

Trucking, 2010 WI App 147, ¶21, 330 Wis. 2d 174, 792 N.W.2d 594

(quoting Lawver v. Boling, 71 Wis. 2d 408, 422, 238 N.W.2d 514

(1976)) ("[A]n otherwise unambiguous provision is not rendered
ambiguous simply because it is difficult to apply to the facts

of a particular case.").




     17
       Process merriam-webster.com, (search "processing") (verb)
(last visited May 11, 2018).
     18
       Process ahdictionary.com, (search "processing") (tr. v.)
(last visited May 11, 2018).
     19
       Majority op., ¶103 (quoting Processing The Oxford English
Dictionary (2d ed. 1989) (definition 3.a.)).


                                            14
                                                                                No.    2015AP2019.akz


      ¶154 In sum, the plain language of the statute compels the

conclusion        that,          in     the     Venn            diagram        of     definitions,

"processing"          is    the       paper   on     which       overlapping           circles    for

"producing" and "fabricating" are drawn.                                 This, however, does

not mean that Stuyvesant Dredging's work cannot be understood as

falling within the plain meaning of "processing."

                                        IV.    CONCLUSION
      ¶155 I agree with the result the court reaches.                                      I concur

and write separately because the analysis that the lead opinion

employs to reach its conclusions is concerning.                                       First, in my

view,     it     is    both       unnecessary            and     inadvisable          to   rely    on

constitutional grounds for ending our practice of deferring to

administrative             agencies'      conclusions            of     law.          Deference    to

administrative agencies was a court-created doctrine and, thus,

is one that can be court eliminated.                            We need not reach for the

constitution to so act.

      ¶156 Second, in interpreting the statute here, the court

relies on ordinary meaning to define all of five terms, even

though two of them have statutory definitions.                                        Additionally,

the     court     relies         on    the     surplusage          canon       as     grounds     for

selectively defining necessarily broad terms, even though the

complete        overlap       between         the        two    statutorily-defined              terms

indicates       that       the    legislature             may    well     have        intended    for

overlap among the undefined terms as well.

      ¶157 Nevertheless, I agree that "'processing' encompasses

Stuyvesant       Dredging's            separation         of     river    sediment         into   its



                                                    15
                                                  No.   2015AP2019.akz


component   parts."    Majority    op.,   ¶104.   Accordingly,      I

respectfully concur.

    ¶158 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK joins Part I of this concurrence.




                                  16
                                                                   No.    2015AP2019.mjg


       ¶159 MICHAEL J. GABLEMAN, J.                 (concurring).        I agree that

we    should   no   longer    give    deference       to    administrative      agency

conclusions of law and that the services provided by Stuyvesant

Dredging constitute "processing" under Wis. Stat.                         § 77.52(2).

However, unlike the lead opinion, I would apply the doctrine of

constitutional avoidance and eliminate deference by withdrawing

the language in Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650,

539   N.W.2d 98     (1995),    that      indicated     deference     is     mandatory.

Specifically, I would withdraw the following two sentences:                          (1)

"courts        should      defer      to       an     administrative          agency's

interpretation of a statute in certain situations," id. at 660;

and (2) "[o]nce it is determined under Lisney that great weight

deference      is   appropriate,      we    have      repeatedly     held     that   an

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

be sustained,"          id. at 661.1           I would withdraw this language

because the Harnischfeger court's use of the word "should" in

the    first    sentence     did   not     expose     the   mandatory       nature   of

deference, which does not appear until the second sentence with
its use of the word "must."              In so doing, I would thereby avoid

addressing the issue on constitutional grounds.2




       1
       By implication, which I now make express, my analysis and
conclusion apply just as strongly to due weight deference.
       2
       Accordingly, I join the following parts of the majority
opinion: ¶¶1-3, I, II (intro), II.A. (intro), II.A.1., II.A.2.,
II.A.6., II.B., III, and the mandate.   To the extent the first
sentence of ¶84 implies a holding on constitutional grounds, I
do not join it.


                                           1
                                                                    No.    2015AP2019.mjg


       ¶160 Constitutional avoidance is a subset of the axiom that

"[a]n    appellate      court   should     decide      cases    on    the     narrowest

possible grounds."        State v. Castillo, 213 Wis. 2d 488, 492, 570

N.W.2d 44 (1997).        "Consistent with this rule is the recognition

that a court will not reach constitutional issues where the

resolution of other issues disposes of an appeal."                         Id.    In the

present case, we need not determine whether our constitution

prohibits deference because deference is nothing more than a

judicial    construct      based    on     our    misreading         of    Wis.    Stat.

§ 227.57(10).      See lead op., ¶¶27-32.

       ¶161 As    the   lead    opinion       aptly    explains,      the     deference

doctrine is a beast of our creation——neither the legislature nor

executive purported to require that we apply deference.                               See

lead op., ¶¶18-33.          Therefore, we are free to dispense with

deference as simply as we adopted it.                  See Holytz v. Milwaukee,

17 Wis. 2d 26, 37, 115 N.W.2d 618 (1962), superseded by statute,

Wis. Stat. § 893.80.

       ¶162 We created deference through a continued misreading of
Wis.    Stat.    § 227.57(10),     which      culminated       in    our    holding   in

Harnischfeger, 196 Wis. 2d at 661, that deference is required,

not merely an aid in statutory interpretation.                        See lead op.,

¶¶27-33.    We can (and therefore should) remedy this misreading

without invoking the constitution.                    Johnson Controls, Inc. v.

Emplrs. Ins., 2003 WI 108, ¶99, 264 Wis. 2d 60, 665 N.W.2d 257;

see also lead op., ¶¶82-83.

       ¶163 The lead opinion briefly states the five traditional
factors we use when deciding whether to overrule one of our

                                          2
                                                                  No.    2015AP2019.mjg


prior    decisions,       lead   op.,    ¶82,    and     then    just     as    briefly

concludes that our prior decisions regarding deference must be

overruled based solely on their unconstitutional holdings, id.,

¶83.      Our     authority      to   withdraw        language    from    our     prior

decisions alone is sufficient to the task and the lead opinion's

invocation of the constitution in this context is an unnecessary

and imprudent addition to its substantive analysis.

I.     THE TRADITIONAL FIVE CIRCUMSTANCES FOR OVERTURNING PRECEDENT

       ¶164 We are "more likely to overturn a prior decision when

one or more of the following circumstances is present":

       (1) Changes 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     (quoting       Johnson     Controls,        264

Wis. 2d 60, ¶¶98-99).            I discuss these five "circumstances" in

order of how strongly they apply to deference.

          A.    The Prior Decision is "Unsound in Principle"

       ¶165 The    fourth     circumstance       is    especially       present     with

regard    to    deference     and     strongly    supports       our     decision    to

eliminate it.           Deference is simply unsound in principle.                    In

theory, deference should make courts' decision-making easier and
more efficient.          See The Honorable Patience Drake Roggensack,

                                          3
                                                                 No.     2015AP2019.mjg


Elected to Decide: Is the Decision-Avoidance Doctrine of Great

Weight Deference Appropriate in This Court of Last Resort?, 89

Marq. L. Rev. 541, 544 (2006).             In practice, however, deference

does not save significant court resources.                  Because the level of

deference afforded is often outcome-determinative, id. at 559,

parties and courts often expend just as much effort arguing and

deciding the proper level of deference as they would the merits,

see, e.g., Emmpak Foods, Inc. v. LIRC, 2007 WI App 164, ¶¶3-8,

303 Wis. 2d 771, 737 N.W.2d 60.               Thus, deference often hinders

rather than helps meaningful judicial review while providing no

corresponding benefit.           See generally Brown v. LIRC, 2003 WI

142, ¶¶10-19, 267 Wis. 2d 31, 671 N.W.2d 279 ("Our analysis in

this case centers around the standard of review.").

      ¶166 Importantly,         deference       (especially         great        weight

deference),    if   correctly      and    honestly     applied,     leads      to   the

perverse      outcome      of     courts       often        affirming         inferior

interpretations of statutes.              See, e.g., id., ¶44 ("Were this

court reviewing the order of LIRC de novo, the result might very
well be different.").           In our role as court of last resort, we

should   ensure     that   erroneous-but-reasonable            legal     conclusions

are   corrected.        See    Hilton    v.    DNR,    2006    WI   84,     ¶54,    293

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

doctrine   that     allows     erroneous      legal   conclusions        to   survive

unscathed is unsound in principle.

 B.   The Need to Make a Decision Correspond to Newly Ascertained
                               Facts
      ¶167 The    second      circumstance     also    applies      in    this    case,

though to a lesser extent.               Deference is based on the theory
                                          4
                                                                      No.       2015AP2019.mjg


that administrative agencies develop expertise in their realm.

Barron Elec. Coop. v. PSC, 212 Wis. 2d 752, 759, 569 N.W.2d 726

(Ct.     App.       1997)        ("[A]n . . . important                   principle        of

administrative law is that, in recognition of the expertise and

experience possessed by agencies, courts will defer to their

interpretation of statutes in certain situations."); see also

DOR v. Menasha Corp., 2008 WI 8, ¶¶48-50, 311 Wis. 2d 579, 754

N.W.2d 95.        However,       we     do    not     scrutinize      whether         agency

decision-makers actually possess any expertise.                             For example,

some agency decisions are made by a single hearing examiner——of

unknown expertise or experience.                   Roggensack, supra ¶7, at 557.

Further, under the erstwhile deference construct, it is possible

for    multi-member       agency      review        boards    to    lack        substantial

experience or expertise.              Id. at 558 (questioning whether LIRC

commissioners who served, on average, 3.7 years each between

1979 and 2004 possessed more expertise in interpreting statutes

than   courts).          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.       Such is not the kind of foundation upon which

sound judicial doctrines are built.

                          C.    The Other Circumstances

       ¶168 The    first,       third,       and     fifth   circumstances           do   not

substantially apply in this case.                    Though, for purposes of the

first circumstance, we may be able to infer that the legislature
disapproves of deference based on its enactment of Wis. Stat.

                                              5
                                                                           No.   2015AP2019.mjg


§ 227.57(11),       such     an     inference          is     too     weak       to     support

overruling     decades      of    prior        decisions.             As    to    the     third

circumstance, deference is intended to maintain consistency in

the   law,   though   it     is     a    matter       of    reasonable       debate      as   to

whether it achieves that goal.                      Hilton, 293 Wis. 2d 1, ¶¶64-65

(Prosser, J., concurring).                    Finally, despite its many flaws,

deference is certainly workable in practice for purposes of the

fifth circumstance.

                                  II.     CONCLUSION

      ¶169 Clearly, "one or more of the [listed] circumstances is

present"     such   that     we     can       and    should    end     our       practice     of

deferring to administrative agency conclusions of law without

invoking the constitution.               Bartholomew, 293 Wis. 2d 38, ¶33.                     I

would,   therefore,        follow       the    law    and     apply    the       doctrine     of

constitutional avoidance in order to decide this case on the

narrowest     possible      grounds.            For    the     foregoing         reasons,      I

respectfully concur.

      ¶170 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this concurrence.




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