                                                              2015 WI 63

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2013AP1407
COMPLETE TITLE:         Wisconsin Realtors Association, Wisconsin
                        Builders
                        Association, Wisconsin Towns Association, John
                        E.
                        Morehouse, Sr. and Ervin E. Selk,
                                   Plaintiffs-Appellants-Petitioners,
                             v.
                        Public Service Commission of Wisconsin,
                                   Defendant-Respondent.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 353 Wis. 2d 554, 846 N.W. 2d 34)
                                  (Ct. App. 2014 – Unpublished)

OPINION FILED:          June 30, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 5, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Brown
   JUDGE:               William M. Atkinson

JUSTICES:
   CONCURRED:
   DISSENTED:           ROGGENSACK, C.J., ZIEGLER, J. dissent. (Opinion
                        Filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For        the   plaintiffs-appellants-petitioners,   there   were
briefs by John A. Kassner and von Briesen & Roper, S.C., Madison
and oral argument by John Kassner.




       For the defendant-respondent, there was a brief by Cynthia
E. Smith, Justin W. Chasco, and Public Service Commission of
Wisconsin, and oral argument by Cynthia E. Smith.
                                                                             2015 WI 63


                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.    2013AP1407
(L.C. No.   2012CV1203)

STATE OF WISCONSIN                                 :              IN SUPREME COURT

Wisconsin Realtors Association, Wisconsin
Builders Association, Wisconsin Towns
Association, John E. Morehouse, Sr. and Ervin
E. Selk,

             Plaintiffs-Appellants-Petitioners,
                                                                          FILED
      v.                                                             JUN 30, 2015

Public Service Commission of Wisconsin,                                 Diane M. Fremgen
                                                                     Clerk of Supreme Court

             Defendant-Respondent.




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


      ¶1     SHIRLEY S. ABRAHAMSON, J.                 This is a review of an

unpublished decision of the court of appeals affirming a summary
judgment    of    the    Circuit     Court   for   Brown       County,      William      M.
Atkinson, Judge, in favor of the defendant (the Public Service
Commission       of     Wisconsin)    and    against        the    plaintiffs         (the
Wisconsin        Realtors     Association,         the        Wisconsin         Builders
Association, the Wisconsin Towns Association, John E. Morehouse,
                                                                               No.     2013AP1407



Sr.,       and    Ervin    E.    Selk).1            We     refer    to    the         plaintiffs
collectively as the Wisconsin Realtors Association, or WRA.
       ¶2        The issue presented is whether Wis. Admin. Code ch.
PSC 128,2 titled "Wind Energy Systems" and sometimes referred to
herein as "the wind energy rules" or "the rules," is invalid
because      it    was    promulgated      by       the    Public   Service           Commission
"without compliance with statutory rule-making procedures."3
       ¶3        WRA   asserts    that     in       promulgating         the     wind    energy
rules, the Public Service Commission failed to comply with the
procedural        requirement      set    forth       at    Wis.    Stat.       § 227.115(2).
Under Wis. Stat. § 227.115(2), if any rule proposed by an agency
(including         the     Public        Service          Commission)          "directly       or

substantially          affects    the    development,         construction,            cost,   or
availability of housing in this state," then the Department of
Commerce shall prepare a report, referred to by the parties and
herein      as     a   "housing     impact      report,"       before          that     rule   is

       1
       Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407,
unpublished slip op. (Wis. Ct. App. Mar. 25, 2014).
       2
       Wisconsin Admin. Code Ch. PSC 128 has not changed since it
went into effect.   All references to ch. PSC 128 are therefore
to the current December 2012 version.
       3
       See Wis. Stat. § 227.40(4)(a) (2009-10) (providing that
the court shall declare an administrative rule invalid if it
finds that (1) the rule violates constitutional provisions; (2)
the rule exceeds the statutory authority of the agency; or (3)
the rule was promulgated without compliance with statutory rule-
making procedures).

     All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.



                                                2
                                                                             No.        2013AP1407



submitted to the Legislative Council staff.4                           WRA asserts that a
housing impact report was required for Wis. Admin. Code ch. PSC
128 as a matter of law.
     ¶4     Thus,       the    more    specific          issue    presented        is    whether
under Wis. Stat. § 227.115(2), the Department of Commerce was
required as a matter of law to prepare a housing impact report
before    Wis.    Admin.       Code    ch.     PSC       128     was   submitted         to    the
Legislative Council staff for review.                      To decide this issue, the
court must determine based only on the texts of the governing
statutes and the wind energy rules themselves whether the rules
directly or substantially affect the development, construction,
cost, or availability of housing in this state.

     ¶5     The    circuit          court   granted        summary      judgment         to   the
Public Service Commission on its motion, concluding that Wis.
Admin.    Code    ch.    PSC    128     does       not    directly      or   substantially
affect the development, construction, cost, or availability of
housing in this state and thus that a housing impact report was
not required.
     ¶6     The    court       of    appeals       affirmed,       stating:         "We       must
presume PSC 128 was duly promulgated, and [WRA] has not cited
any evidence to rebut that presumption."5


     4
       The version of Wis. Stat. § 227.115(2) applicable in the
instant case assigned the responsibility for preparing housing
impact reports to the Department of Commerce.      Responsibility
for preparing housing impact reports is now in the Department of
Administration.     See Wis. Stat. § 227.115(1)(a) (2011-12)
(defining "[d]epartment" as "the department of administration").



                                               3
                                                                   No.   2013AP1407



      ¶7    We   conclude    that    WRA   has    not   demonstrated      that   a
housing impact report was required as a matter of law for Wis.
Admin. Code ch. PSC 128.            The texts of the governing statutes
and the wind energy rules do not demonstrate as a matter of law
that the rules directly or substantially affect the development,
construction, cost, or availability of housing in this state.
      ¶8    We further conclude that invalidating Wis. Admin. Code
ch. PSC 128 under the circumstances presented in the instant
case would infringe on the role of the legislature, which we
decline to do.
      ¶9    Accordingly, WRA's challenge to Wis. Admin. Code ch.
PSC 128 fails.

      ¶10   Our analysis will proceed as follows.                  First, we set
forth the relevant facts and procedural history.               We then recite
the   applicable    standard    of    review.       Next,     we    examine    the
statutory    framework      underlying     this    dispute.         Finally,     we
determine that WRA has not demonstrated that a housing impact
report was required as a matter of law for Wis. Admin. Code ch.
PSC 128.
                                       I
      ¶11   The relevant facts are not in dispute.




      5
       Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407,
unpublished slip op., ¶23 (Wis. Ct. App. Mar. 25, 2014).



                                       4
                                                                          No.     2013AP1407



     ¶12     The        Public    Service     Commission       is    an         independent
regulatory agency with "jurisdiction to supervise and regulate
every public utility in this state . . . ."6
     ¶13     On September 30, 2009, the legislature enacted Wis.
Stat. § 196.378(4g)(b), which provides that "the [Public Service
Commission] shall, with the advice of the wind siting council,
promulgate     rules       that     specify       the   restrictions        a     political
subdivision may impose on the installation or use of a wind
energy system . . . ."7
     ¶14     The    statute       further     provides     that     the    rules     to    be
promulgated        by    the     Public   Service       Commission        shall     include
setback    requirements            for    wind      turbines      and      may      include

requirements for other aspects of wind energy systems, such as
their visual appearance, lighting, and electrical connections to
the power grid; the shadow flicker they produce; the noise they
produce and the proper means of measuring that noise; and their
interference with radio, telephone, or television signals.                                The
statute also states that the setbacks established by the Public
Service Commission shall "provide reasonable protection from any
health effects . . . ."8
     ¶15     Wisconsin Stat. § 196.378(4g)(b) provides in full as
follows:


     6
         Wis. Stat. § 196.02(1)
     7
         See 2009 Wis. Act 40, § 12.
     8
         Wis. Stat. § 196.378(4g)(b).



                                              5
                                                    No.   2013AP1407


     The commission shall, with the advice of the wind
     siting council, promulgate rules that specify the
     restrictions a political subdivision may impose on the
     installation or use of a wind energy system consistent
     with the conditions specified in s. 66.0401(1m)(a) to
     (c). The subject matter of these rules shall include
     setback    requirements    that   provide   reasonable
     protection from any health effects, including health
     effects from noise and shadow flicker, associated with
     wind energy systems.     The subject matter of these
     rules shall also include decommissioning and may
     include   visual   appearance,   lighting,  electrical
     connections to the power grid, setback distances,
     maximum audible sound levels, shadow flicker, proper
     means of measuring noise, interference with radio,
     telephone, or television signals, or other matters. A
     political subdivision may not place a restriction on
     the installation or use of a wind energy system that
     is more restrictive than these rules.9
     ¶16   The enactment of Wis. Stat. § 196.378(4g)(b) began a
three-year process that culminated in the promulgation of Wis.
Admin. Code ch. PSC 128.
     ¶17   Shortly after Wis. Stat. § 196.378(4g)(b) was enacted,
the Public Service Commission appointed the members of the Wind
Siting Council.    The Wind Siting Council was created by the

legislature to provide research and advice to the Public Service

Commission on the regulation of wind energy systems.10


     9
       See  also   Wis.  Stat.   § 66.0401(1m)  ("No   political
subdivision may place any restriction . . . on the installation
or use of a wind energy system that is more restrictive than the
rules promulgated by the [Public Service Commission] under s.
196.378(4g)(b).").
     10
       Wis. Stat. § 15.797(1)(b) ("There is created in the
public service commission a wind siting council that consists
of . . . members appointed by the public service commission for
3-year terms . . . .").



                                6
                                                                              No.     2013AP1407



        ¶18      Between March 29, 2010, and August 4, 2010, the Wind
Siting       Council         met   20   times    to    discuss       the    restrictions         a
political         subdivision        should     be    permitted      to     impose       on   wind
energy systems.                At three of these meetings, the Wind Siting
Council          spent       all   or   a    substantial          portion     of      its     time
considering            the    impact    of    wind     energy       systems      on      property
values.
        ¶19      The     Wind      Siting    Council       ultimately       concluded         that
there       is    no     causal     relationship       between      the     siting       of   wind
turbines and a measurable change in property values.                                  The Wind
Siting Council set forth this conclusion (along with various
other findings and recommendations) in its final recommendations

to the Public Service Commission dated August 9, 2010.
        ¶20      In     developing      the     wind       energy    rules,        the      Public
Service Commission considered the Wind Siting Council's findings
and   recommendations              in   conjunction        with     information          gathered
from various other sources, including:

        •        Wind-siting regulations and guidelines from a variety
                 of states, including those immediately adjacent to
                 Wisconsin;

        •        A wide variety of local ordinances                           and     community
                 agreements from throughout the state;

        •        Various white papers and best practices;

        •        Papers from a conference on wind-siting effects;

        •        Commission         experience       and    precedent       in      wind-siting
                 decisions;

        •        Environmental impact statements                     prepared         for     wind
                 energy projects in Wisconsin;


                                                 7
                                                             No.     2013AP1407


    •     Technical and scientific research and writing on wind
          siting;

    •     Presentations    and     lectures   given     on     wind-siting
          issues;

    •     Research by non-profit organizations and educational
          institutions on wind siting;

    •     Expert testimony on wind-siting issues;

    •     Other states'    investigations     and    precedent       on   wind
          siting;

    •     Advice from consulting professionals                with     public
          health experience in Wisconsin;

    •     Court cases on wind-siting issues;

    •     Joint development agreements between                wind     energy
          developers and political subdivisions;

    •     Lease agreements for wind energy developments;

    •     Complaint    resolution    documentation            from        past
          complaints about wind energy projects;

    •     The Public Service Commission's noise                measurement
          protocols, stray voltage protocols, and              application
          filing requirements;

    •     Federal     regulations     and    Federal     Aviation
          Administration processes, standards, and provisions;

    •     Other state agencies' processes           regarding       political
          subdivision decision-making; and

    •     Research, writing, and presentations by the federal
          government and national energy labs on wind-siting
          issues.
    ¶21   On   May   17,   2010,   the   Public     Service        Commission
submitted the first draft of its proposed wind energy rules to




                                   8
                                                                   No.    2013AP1407



the   Legislative     Council     staff.11     On     June   14,    2010,     after
reviewing     the    Public     Service      Commission's      proposal,        the
Legislative Council submitted a report to the Public Service
Commission suggesting specific changes to the rules.                     The Public
Service     Commission    incorporated        many     of    the     Legislative
Council's suggestions.
      ¶22    The Public Service Commission then held three public
hearings around the state on its proposed wind energy rules:
one in Fond du Lac on June 28, 2010; one in Tomah on June 29,
2010; and one in Madison on June 30, 2010.                   Written comments
from the public were accepted until noon on July 7, 2010.
      ¶23    On August 31, 2010, pursuant to Wis. Stat. § 227.19,

which provides for legislative review of proposed rules, the
Public     Service   Commission    submitted    its    proposed     wind     energy
rules to the legislature.
      ¶24    The proposed rules were accompanied by a report to the
legislature, as required by Wis. Stat. § 227.19(2).12




      11
       See Wis. Stat. § 227.15 ("Prior to a public hearing on a
proposed rule . . . an agency shall submit the proposed rule to
the legislative council staff for review.").      See also Wis.
Stat.   § 13.91   (creating   a   nonpartisan  bureau   entitled
"Legislative Council Staff" and setting forth its duty to review
proposed administrative rules).
      12
       Wisconsin Stat. § 227.19(2) provides that "[a]n agency
shall submit a notice to the chief clerk of each house of the
legislature when a proposed rule is in final draft form.     The
notice shall be submitted in triplicate and shall be accompanied
by a report in the form specified under sub. (3). . . ."

                                                                     (continued)
                                       9
                                                         No.    2013AP1407



     ¶25   The Public Service Commission did not submit a housing
impact report.     The Public Service Commission's report to the
legislature did, however, comment on the likely effect of the
proposed   rules   on   property   values.13   The   report    states   as
follows:

     Comments submitted by members of the public and
     government officials [c]ite studies, report individual
     experiences, and express fears that large wind energy
     systems    have    a   negative    impact   on    property
     values. . . . The property value impacts described
     included not being able to get a real estate company
     to list a property, a greatly reduced number of
     interested   buyers,    an  increased   length   of   time
     required to sell a property, and offers well below the
     appraised    value   of    the   property. . . . Existing
     property value studies contain insufficient data to
     quantify property value impacts to properties one-half
     mile and closer to turbines (emphasis added).


     Subsection (3)(g) lists numerous matters to be included in
the report an agency submits to the legislature with a proposed
rule, including "[t]he report of the department of commerce, as
required by s. 227.115, if a proposed rule directly or
substantially affects the development, construction, cost, or
availability of housing in this state." See note 4, supra.
     13
       See Wis. Stat. § 227.115(3)(a) (explaining that housing
impact reports shall contain information about the effect of a
proposed agency rule on housing in this state, including the
"policies, strategies and recommendations of the state housing
strategy plan," the "cost of constructing, rehabilitating,
improving or maintaining single family or multifamily dwellings,
the "purchase price of housing," the "cost and availability of
financing to purchase or develop housing," and "housing costs,"
as defined in Wis. Stat. § 560.9801(3)(a) and (b)).

     The state housing strategy plan, a comprehensive five-year
housing strategy plan, is governed by Wis. Stat. § 560.9802.
The plan is submitted to the governor, the legislature, and the
federal Department of Housing and Urban Development.



                                    10
                                                                             No.      2013AP1407



        ¶26     The proposed wind energy rules were then subject to a
lengthy legislative review process.14
        ¶27     The    Senate    Committee          on   Commerce,       Utilities,      Energy
and     Rail     considered          the     proposed      wind    energy       rules     at     a
Committee hearing held on October 13, 2010.                                At the hearing,
lobbyists        and     members       of     the    public      offered    criticism          and
suggested changes to the proposed rules.                           Representatives from
the     Wisconsin        Realtors       Association        and     the     Wisconsin      Towns
Association, two of the plaintiffs in the present case, were
among        those     who    shared        their    perspectives        with     the    Senate
Committee.
        ¶28     Based    on    its     review       of   the   proposed     rules       and    the

testimony presented, the Senate Committee voted to return the
proposed       rules     to    the     Public       Service    Commission       for     further
consideration and potential modification.
        ¶29     In a letter to the Public Service Commission dated
November 30, 2010, Senator Jon Erpenbach, a member of the Senate
Committee, "share[d] some perspective as to why" the proposed
rules were being returned to the Public Service Commission.                                    The
letter summarizes the concerns raised by various parties at the
Senate Committee hearing, including the concerns raised by the
Wisconsin        Realtors        Association             and     the     Wisconsin        Towns
Association.            The    letter        then    states:       "I     think    the    above



        14
       See Wis. Stat. § 227.19 (governing legislative review of
proposed administrative rules).



                                                11
                                                                    No.       2013AP1407



outline     gives    the   [Public     Service]       Commission        a    number    of
particular issues to re-examine within the rule[s]."
      ¶30    Senator Erpenbach's letter is silent about the failure
to   file   a    housing   impact    report     and   says   nothing         about    the
effect of the proposed wind energy rules on property values or
on housing generally.
      ¶31    In response to the legislature's concerns, the Public
Service Commission modified the proposed rules.                    The rules were
resubmitted to the legislature on December 9, 2010.
      ¶32    On February 28, 2011, after the legislature's review
period expired, the Public Service Commission promulgated its
wind energy rules by publication in the Wisconsin Administrative

Register.       The rules, codified as Wis. Admin. Code ch. PSC 128,
were to take effect the next day.
      ¶33    On the first day the rules became effective (March 1,
2011), the Joint Committee for Review of Administrative Rules
suspended       application   of     the    rules     pursuant     to       Wis.   Stat.
§ 227.26(2)(d).15
      ¶34    Suspension of a rule is temporary unless the rule is
repealed.16      Wisconsin Admin. Code ch. PSC 128 was not repealed.
Accordingly, Wis. Admin. Code ch. PSC 128 took effect on March

      15
       Wisconsin    Stat.   § 227.26(2)(d),   titled "Temporary
suspension of rules," provides that the Joint Committee for
Review of Administrative Rules "may suspend any rule by a
majority vote of a quorum of the committee. . . ."
      16
       See Wis. Stat. § 227.26(2)(i) (governing the repeal of a
suspended rule).



                                           12
                                                                        No.       2013AP1407



16, 2012.     Nearly three years had elapsed since the legislature
had   initially          directed       the    Public      Service     Commission        to
promulgate rules governing wind energy systems.
      ¶35    On June 6, 2012, WRA filed a lawsuit in the circuit
court (the subject of this review), seeking a declaration under
Wis. Stat. § 227.40(4)(a) that Wis. Admin. Code ch. PSC 128 is
invalid     because        it    was    promulgated       without     complying        with
statutory rule-making procedures
      ¶36    Both        WRA    and    the    Public     Service    Commission       filed
motions     for   summary        judgment.         The   circuit     court    heard     the
motions on April 29, 2013.                   At the conclusion of the hearing,
the circuit court granted the Public Service Commission's motion

for summary judgment, stating:

      I'm satisfied, when you look at the exact wording of
      the rule of 227.015 [sic], "If a proposed rule
      directly or substantially affects the development,
      construction costs, or availability of housing in the
      State," and it goes on, I'm satisfied that these wind
      siting rules——wind turbine siting rules do not and
      that there was no requirement to have a report.
      ¶37    In     an     unpublished        decision,     the    court     of    appeals
affirmed the circuit court's summary judgment ruling.                         The court
of appeals reasoned as follows:

      Wisconsin Stat. § 227.115(2) requires a housing impact
      report only when a proposed rule "directly or
      substantially affects the development, construction,
      cost,    or   availability   of    housing   in   this
      state[.]" . . . Although neither the [Public Service]
      Commission nor the wind siting council explicitly
      addressed § 227.115(2), both entities clearly found
      that wind energy systems do not substantially affect
      property values.   Based on that finding, the [Public
      Service] Commission could reasonably conclude its

                                              13
                                                    No.   2013AP1407


     proposed    rules . . . would     not    directly or
     substantially affect the development, construction,
     cost, or availability of housing in Wisconsin.

            . . . .

     We must . . . presume that [Wis. Admin. Code ch.] PSC
     128 was duly promulgated and that the [Public Service
     Commission] complied with Wis. Stat. § 227.115(2). In
     other words, we must presume no housing impact report
     was required . . . .17

                               II
     ¶38    We review the summary judgment in favor of the Public
Service Commission using the same standards and methods applied
by the circuit court.18    Under Wis. Stat. § 802.08(2), a moving
party is entitled to summary judgment if there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law.
     ¶39    In the instant case, the parties do not dispute the
facts.     The instant case raises only a question of law, namely
whether the wind energy rules were promulgated by the Public
Service Commission without compliance with statutory rule-making
procedures.19    More specifically, the question is whether under


     17
       Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407,
unpublished slip op., ¶¶12-13 (Wis. Ct. App. Mar. 25, 2014).
     18
       Pawlowski v. Am. Family Mut. Ins. Co., 2009 WI 105, ¶15,
322 Wis. 2d 21, 777 N.W.2d 67.
     19
       See Wis. Stat. § 227.40(4)(a) (providing that the court
shall declare an administrative rule invalid if it finds that
(1) the rule violates constitutional provisions; (2) the rule
exceeds the statutory authority of the agency; or (3) the rule
was promulgated without compliance with statutory rule-making
procedures).



                                    14
                                                                          No.     2013AP1407



Wis. Stat. § 227.115(2), the Department of Commerce was required
as a matter of law to prepare a housing impact report before
Wis. Admin. Code ch. PSC 128 was submitted to the Legislative
Council        staff       for     review.          As     WRA    acknowledges,         the
interpretation            and   application    of   statutes      ordinarily       present
questions of law this court decides independently of the circuit
court        and    the   court    of   appeals,    but     benefitting         from   their
analyses.20
                                             III
        ¶40        Before addressing whether a housing impact report was
required as a matter of law for Wis. Admin. Code ch. PSC 128, we
set   forth         the   statutory     framework        within   which   this     dispute

arises.
        ¶41        The instant case involves the 2009-10 version of the
Wisconsin Statutes.               We caution that the statutory landscape of
agency rule-making has since changed.                        See 2011 Wis. Act 21.
One commentator has summarized these changes as follows:

        2011 Wisconsin Act 21 significantly changes how
        administrative rules are promulgated.     Among other
        things,   it   narrows  state   agencies'  rule-making
        authority, gives the governor new powers to approve or
        prevent the adoption of rules, expands the economic-
        impact-analysis requirement to all agencies, and




        20
       Brown v. LIRC, 2003 WI 142, ¶11, 267 Wis. 2d 31, 671
N.W.2d 279.



                                              15
                                                                           No.    2013AP1407


      expands venue in declaratory judgment actions to all
      counties.21
      ¶42    None of the changes enacted in 2011 are at issue in

the instant case.           Thus, we turn to the 2009-10 statutes that
govern the present dispute.
      ¶43    We previously set forth the statutory provision that
directs      the   Public     Service      Commission          to     promulgate        rules
specifying the restrictions a political subdivision may impose
on the installation or use of a wind energy system.                               See Wis.
Stat. § 196.378(4g)(b), set forth in full at ¶15, above.                                     The
Public Service Commission adopted Wis. Admin. Code ch. PSC 128,
the   wind    energy    rules    at   issue,         pursuant       to   this    statutory
authority.
      ¶44    The     promulgation     of    a    rule     by     the     Public     Service
Commission     and    judicial    review        of   a   rule    promulgated        by       the
Public Service Commission are both governed by Chapter 227 of
the   Wisconsin      Statutes     (titled       "Administrative           Procedure          and
Review").      Several statutory provisions within this chapter are
relevant to the instant case.              We set them forth in turn.
      ¶45    Wisconsin        Stat.     § 227.40(1)             provides         that        the
exclusive     method    for     judicial     review      of     the      validity       of    an


      21
        Ronald Sklansky, Changing the Rules on Rulemaking, Wis.
Lawyer,      Aug.     2011,      at     10,      available     at
http://www.wisbar.org/newspublications/wisconsinlawyer/pages/wis
consin-lawyer.aspx?Volume=84&Issue=8.

     For a challenge to 2011 Wis. Act 21, see Coyne v. Walker,
2015 WI App 21, 361 Wis. 2d 225, ___ N.W.2d ___ (petition for
review filed Mar. 20, 2015).



                                           16
                                                                              No.       2013AP1407



agency rule is a declaratory judgment action challenging the
rule    filed      in        the   circuit      court.      The     text     of    Wis.       Stat.
§ 227.40(1) is as follows: "[T]he exclusive means of judicial
review      of    the        validity      of    a   rule   shall      be   an     action       for
declaratory judgment as to the validity of such rule brought in
the circuit court . . . ."22
       ¶46       WRA    sought      declaratory        relief     in   the    instant          case
pursuant to this statutory provision.
       ¶47       When a declaratory judgment action challenging a rule
is     filed,      Wis.        Stat.       § 227.40(4)(a)         governs         the    limited
circumstances under which a court grants relief.                                    Under Wis.
Stat. § 227.40(4)(a), a court shall declare a challenged rule

invalid if it finds that (1) the rule violates constitutional
provisions; (2) the rule exceeds the statutory authority of the
agency; or (3) the rule was promulgated without compliance with
statutory rule-making procedures.
       ¶48       Wisconsin         Stat.     § 227.40(4)(a)         states        in    full     as
follows:          "In        any   proceeding        pursuant     to   this       section       for
judicial review of a rule, the court shall declare the rule
invalid if it finds that it violates constitutional provisions
or     exceeds         the    statutory         authority    of     the     agency       or     was

       22
       See also Wis. Stat. § 227.01(13) (defining "rule" for
purposes of Wis. Stat. ch. 227 as "a regulation, standard,
statement of policy or general order of general application
which has the effect of law and which is issued by an agency to
implement, interpret or make specific legislation enforced or
administered by the agency or to govern the organization or
procedure of the agency").



                                                  17
                                                                No.        2013AP1407



promulgated      without      compliance     with   statutory        rule-making
procedures."
     ¶49    WRA does not assert that Wis. Admin. Code ch. PSC 128
violates    constitutional       provisions    or   exceeds    the     statutory
authority   of    the   Public     Service    Commission.23     Instead,         WRA
describes its challenge to Wis. Admin. Code ch. PSC 128 as a
"facial challenge to the rule[s]," arguing only that the rules
were promulgated without compliance with statutory rule-making
procedures.
     ¶50    Thus, we continue by setting forth the statutory rule-
making procedures that are relevant to the instant case.
     ¶51    Wisconsin      Stat.     § 227.20(1)     requires         an     agency

promulgating a rule to file a certified copy of the rule it is
promulgating     with   the     Legislative     Reference     Bureau.24          The
statute provides:        "An agency shall file a certified copy of
each rule it promulgates with the legislative reference bureau.




     23
       The Public Service Commission clearly had statutory
authority to promulgate Wis. Admin. Code ch. PSC 128.  Several
provisions within Wis. Stat. ch. 196 (titled "Regulation of
Public Utilities") authorize the Public Service Commission to
promulgate rules governing public utilities.     The provision
relevant here, which we discussed previously, is Wis. Stat.
§ 196.378(4g)(b) (directing the Public Service Commission to
promulgate rules governing wind energy systems).
     24
       The Legislative Reference Bureau is a nonpartisan bureau
established by the legislature to provide "reference services"
to the legislature, other government officials, and the public.
See Wis. Stat. § 13.92.



                                       18
                                                              No.    2013AP1407



No   rule     is     valid   until   the       certified   copy     has    been
filed. . . ."25
     ¶52    The Public Service Commission filed a certified copy
of the rules at issue with the Legislative Reference Bureau.
     ¶53    Filing a certified copy of a rule with the Legislative
Reference     Bureau     gives   rise     to    a   legislatively     enacted
presumption that the process by which the rules were promulgated
was proper.        More specifically, Wis. Stat. § 227.20(3) creates a
presumption that a rule filed with the Legislative Reference
Bureau was "duly promulgated" and that "all of the rule-making
procedures required by [Chapter 227] were complied with."
     ¶54    The full text of Wis. Stat. § 227.20(3) is as follows:

     (3)    Filing a certified copy of a rule with                   the
            legislative    reference    bureau   creates               a
            presumption of all of the following:

            (a)     That the rule was duly promulgated by the
                    agency.

            (b)     That the rule was filed and made available
                    for public inspection on the date and time
                    endorsed on it.

            (c)     That all of the rule-making procedures
                    required by this chapter were complied with.

            (d)     That the text of the certified copy of the
                    rule is the text as promulgated by the
                    agency.
     ¶55    Chapter 227 of the Wisconsin Statutes does not discuss
this presumption further.


     25
          Wis. Stat. § 227.20(1).



                                     19
                                                                            No.     2013AP1407



       ¶56    Finally, we return to the statute with which we began:
Wis. Stat. § 227.115(2), which governs housing impact reports.
The full text of Wis. Stat. § 227.115(2) is as follows:

       (2) Report on rules affecting housing. If a proposed
       rule    directly     or     substantially     affects   the
       development, construction, cost, or availability of
       housing    in    this     state,    the    department   [of
       administration] shall prepare a report on the proposed
       rule before it is submitted to the legislative council
       staff under s. 227.15. The department may request any
       information    from     other    state    agencies,   local
       governments or individuals or organizations that is
       reasonably necessary for the department to prepare the
       report.     The department shall prepare the report
       within 30 days after the rule is submitted to the
       department.
       ¶57    These statutes provide the foundation for our analysis
of the legal issue presented.
                                             IV
       ¶58    As     previously      explained,          the     issue      presented        is
whether       the     wind       energy    rules        were     promulgated         without

compliance         with    statutory       rule-making         procedures,        that       is,
whether      the    rules    were    promulgated         without     a     housing      impact

report in violation of the law.
       ¶59    We decide this issue as follows.

       ¶60    First,        we     explain        that        because       there       is    a
legislatively         enacted     presumption       that       the   wind    energy      rules
were     duly       promulgated      and     that       all    statutory         rule-making
procedures      were      complied    with,       and    because     WRA    is    the    party
challenging the validity of the rules, WRA bears the burden of
proof.       WRA must prove that a housing impact report was required



                                             20
                                                                      No.    2013AP1407



as a matter of law for the promulgation of Wis. Admin. Code ch.
PSC 128.
     ¶61    Second, we conclude that WRA has not fulfilled its
burden of proving that as a matter of law, Wis. Admin. Code ch.
PSC 128 was promulgated without compliance with statutory rule-
making procedures.
     ¶62    Third,    and      finally,     we     explain    that    this     court's
respect for the doctrine of separation of powers and the role of
the legislature counsels against our invalidating a chapter of
agency rules that survived the statutorily prescribed process of
legislative review.
     ¶63    For these reasons, we uphold Wis. Admin. Code ch. PSC

128 against WRA's challenge and declare on the basis of the
record before us that the rules at issue were not promulgated
without compliance with statutory rule-making procedures.
                                          A
     ¶64    Because WRA contests what showing it must make in the
instant case, we begin by explaining that WRA has the burden to
prove that a housing impact report was required as a matter of
law for Wis. Admin. Code ch. PSC 128.
     ¶65    The Public Service Commission stresses that it filed a
certified   copy     of     Wis.   Admin.        Code   ch.   PSC    128     with    the
Legislative Reference Bureau and therefore has the benefit of
the statutory presumption that it complied with all statutory

rule-making procedures.
     ¶66    The   text    of    Wis.   Stat.       § 227.20(3)       directs    us   to
presume that the rule was duly promulgated by the agency and
                                          21
                                                                                  No.       2013AP1407



that all statutory rule-making procedures have been followed,
including        those    pertaining          to       the    preparation        of     a    housing
impact        report.      The    statute          apparently        creates      a     rebuttable
presumption, similar in operation to the generally recognized
rebuttable presumption of the constitutionality of a statute; a
court is to presume that the agency that promulgated the rule
followed        the   statute     regarding            housing       reports,     but       a   party
challenging the rule may rebut that presumption.                                      The statute
also     requires        courts    to    respect             the    legislature's           role    in
reviewing and approving agency rules by presuming the validity
of rules that have survived the legislature's scrutiny.
        ¶67     In any event, as the party challenging the validity of

the    wind      energy     rules,      WRA    has       the       burden   of     proving         the
invalidity of the rules.26                    Thus, even without the statutory
presumption, WRA has the burden to prove that a housing impact
report was required as a matter of law for Wis. Admin. Code ch.
PSC 128.
                                                   B
        ¶68     WRA attempts to meet its burden of proof by setting
forth        unconvincing    interpretations                 of    Wis.   Stat.    § 227.115(2)

        26
       "The burdens of pleading and proof with regard to most
facts have been and should be assigned to the plaintiff who
generally seeks to change the present state of affairs and who
therefore naturally should be expected to bear the risk of
failure of proof or persuasion." 2 Kenneth S. Brown, McCormick
on Evidence § 337, at 648 (7th ed. 2013).     See also Loeb v.
Board of Regents, 29 Wis. 2d 159, 164, 138 N.W.2d 227 (1965);
Currie v. DILHR, 210 Wis. 2d 380, 387, 565 N.W.2d 253 (Ct. App.
1997).



                                               22
                                                                                   No.    2013AP1407



(governing            housing            impact         reports)        and        Wis.      Stat.
§ 196.378(4g)(b) (directing the legislature to promulgate wind
energy rules).
        ¶69     WRA first contends that a housing impact report is
required under Wis. Stat. § 227.115(2) whenever a proposed rule
relates to housing and that rules promulgated pursuant to Wis.
Stat.        § 196.378(4g)(b)            necessarily           relate   to    housing.           WRA
further argues that under Wis. Stat. § 227.115(5), the Public
Service        Commission          was    required          to,   but   did     not,      make    an
explicit determination of whether a housing impact report was
required.
        ¶70     We examine these arguments in turn.

        ¶71     WRA    asserts           that     in     the      context     of     Wis.    Stat.
§ 227.115(2), which requires the preparation of a housing impact
report for proposed rules that directly or substantially affect
the development, construction, cost, or availability of housing
in this state, "the word 'affect' should be interpreted to mean
'concern' or 'deal with.'"27
        ¶72     WRA    does    not       attempt       to    define     the   meaning       of   the
other words in the statute.                            WRA does not explain what the
phrase       "directly        or    substantially"             means,    what      it    means   to
affect the "cost" of housing, or what it means to affect housing
"in this state."




        27
             WRA's brief at 36.



                                                  23
                                                                                 No.   2013AP1407



        ¶73     WRA implies, however, that the housing impact report
requirement           is    far-reaching        and     that    Wis.     Stat.    § 227.115(2)
mandates        the    preparation         of    a    housing     impact    report      for    all
proposed rules that may in any way affect any kind of housing in
the state.
        ¶74     With       this      expansive        interpretation        of     Wis.      Stat.
§ 227.115(2) in mind, WRA next contends that any and all rules
promulgated           pursuant       to    Wis.        Stat.    § 196.378(4g)(b),            which
directs the Public Service Commission to promulgate wind energy
rules, require a housing impact report.28                         WRA reasons that rules
promulgated           pursuant        to     Wis.       Stat.     § 196.378(4g)(b)            will
necessarily "concern" or "deal with" housing because such rules

are intended to provide reasonable protection from the health
effects        of     wind    turbines,         because        "improper    [wind      turbine]
setback[s] could unreasonably affect the health of those living
near     wind       turbines,"29       and      because        such    unreasonable         health
effects could in turn affect property values.30
        ¶75     WRA also reasons that rules promulgated pursuant to
Wis. Stat. § 196.378(4g)(b) will necessarily "concern" or "deal
with"        housing       because    such      rules    limit     the    ability      of    local

        28
       "On its face, Wis. Stat. § 196.378(4g)(b) directed the
PSC to create a rule that the Legislature expected would 'affect
housing' in this state." WRA's brief at 18.
        29
             WRA's brief at 15.
        30
       "Logically, if living in houses located too close to wind
turbines would be unhealthy, that knowledge would affect the
desirability and value of such homes." WRA's brief at 38.



                                                  24
                                                                          No.    2013AP1407



governmental units to regulate the installation and use of wind
turbines   in    their     communities        for    the     purpose     of     protecting
housing.        Thus,     in   WRA's       view,    the     content      of     the   rules
established      pursuant         to      Wis.      Stat.        § 196.378(4g)(b)        is
irrelevant; a housing impact report is required no matter what
the rules provide.
     ¶76   Based on WRA's interpretation of these two statutes,
WRA concludes that all wind energy rules have the potential to
affect property values and, consequently, that a housing impact
report was required for the specific wind energy rules at issue.
     ¶77   WRA's reasoning is not convincing.
     ¶78   First, WRA seems to view Wis. Stat. § 227.115(2) as

requiring a housing impact report whenever a proposed rule in
any way relates to housing.               This reading of the statute ignores
the statutory text.            The statute uses the phrase "directly or
substantially," which demonstrates that not just any effect will
trigger the housing impact report requirement.                           WRA reads this
phrase out of the statute.
     ¶79   The court of appeals explained that "a housing impact
report is not required simply because the subject matter of a
proposed   rule         relates      to     housing,        or    because       the   rule
tangentially affects housing in some way."31                          We agree.         The
ordinary   meaning        of   the        phrase    "directly       or    substantially
affects" is not "affects in any way" or "relates to in some

     31
       Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407,
unpublished slip op., ¶14 (Wis. Ct. App. Mar. 25, 2014).



                                            25
                                                                                  No.       2013AP1407



way," as WRA seems to believe.                        Wisconsin Stat. § 227.115(2)
requires something more.
     ¶80     The    drafting             history      of     Wis.     Stat.        § 227.115(2)
supports     our    interpretation              of     the        housing     impact          report
requirement.       During the drafting process, the words "directly
or   indirectly"        were       replaced        with      the     words        "directly        or
substantially."         See 1995 A.B. 384, Assembly Substitute Am. 1.
We agree with the court of appeals that this modification of the
bill's language suggests that the legislature did not intend for
a housing impact report to be prepared every time a proposed
rule has some indirect or incidental effect on housing.
     ¶81     WRA's interpretation of Wis. Stat. § 196.378(4g)(b),

which directs the Public Service Commission to promulgate wind
energy rules, is equally implausible.                              Nothing in Wis. Stat.
§ 196.378(4g)(b)         states          explicitly         or     implicitly       that        rules
governing    wind       energy       systems         will        necessarily       directly        or
substantially       affect         the    development,            construction,          cost,     or
availability       of   housing          in   this    state,        such     that       a    housing
impact report will be required.
     ¶82     Wisconsin Stat. § 196.378(4g)(b) instructs the Public
Service    Commission         to    develop        rules     that     "provide          reasonable
protection    from      any    health         effects . . . associated                  with     wind
energy systems."         (Emphasis added.)                 There is no mention in Wis.
Stat. § 196.378(4g)(b) of protecting housing generally or of
protecting     property            values      specifically.                See     Wis.       Stat.
§ 196.378(4g)(b), set forth in full at ¶15, above.


                                               26
                                                                                No.    2013AP1407



        ¶83    A   review         of    Wis.      Stat.     § 13.099(2)         supports       our
conclusion         that     rules        promulgated        pursuant       to     Wis.       Stat.
§ 196.378(4g)(b)           do     not    necessarily        require    a    housing      impact
report.
        ¶84    Wisconsin Stat. § 13.099(2) requires a housing impact
report for any bill introduced in the legislature that "directly
or substantially affects the development, construction, cost or
availability of housing in this state . . . ."                             Thus, Wis. Stat.
§ 13.099(2)        creates        a     housing    impact     report       requirement         for
bills    similar       to    the        housing    impact     report       requirement         for
proposed rules.
        ¶85    When    the      legislature            introduced    the    bill      that     was

subsequently enacted as Wis. Stat. § 196.378(4g)(b), it did not
request a housing impact report and no housing impact report was
prepared.          The      strong,          unrebutted     implication         is    that     the
legislature        did      not    consider        introduction       of    the       bill    that
became Wis. Stat. § 196.378(4g)(b) (or the wind energy rules
that     would        be     promulgated           thereunder)        as     "directly          or
substantially affect[ing] the development, construction, cost or
availability of housing in this state."
        ¶86    There is, in sum, no foundation for WRA's assertion
that     the       legislature           "expected"         the     wind     energy          rules
promulgated         pursuant            to     Wis.      Stat.      § 196.378(4g)(b)            to
necessarily require a housing impact report under Wis. Stat.

§ 227.115(2).         WRA's interpretations of Wis. Stat. §§ 227.115(2)
and 196.378(4g)(b) are not cogent.


                                                  27
                                                                                   No.     2013AP1407



        ¶87        We turn next to WRA's argument that the wind energy
rules        were        necessarily      promulgated             without       compliance        with
statutory          rule-making        procedures            because     the      Public     Service
Commission          was     required      to,     but       did    not,     make     an    explicit
determination of whether a housing impact report was required.
        ¶88        According to WRA, the record shows that during the
time         the     Public       Service        Commission          was      engaged       in    the
promulgation of Wis. Admin. Code ch. PSC 128, neither the Public
Service        Commission         itself     nor       the    Wind    Siting       Council        ever
discussed          or     voted   upon    whether       a     housing       impact       report    was
necessary.               WRA apparently believes that an explicit, on-the-
record determination by the Public Service Commission regarding

whether a housing impact report is needed was required before
the wind energy rules could be promulgated.
        ¶89        WRA     does    not,     however,          point        to    any      statutory
provision mandating such an explicit determination by the Public
Service Commission or any other entity, and we find none.                                           We
decline to read a procedural requirement into the statutes that
the legislature opted not to impose.32
        ¶90        The      absence         of      an         explicit,           on-the-record
determination             regarding       whether       a     housing       impact       report     is
required is therefore not dispositive and it does not persuade



        32
       "We should not read into the statute language that the
legislature did not put in." State v. Matasek, 2014 WI 27, ¶20,
353 Wis. 2d 601, 846 N.W.2d 811 (quoting Brauneis v. LIRC, 2000
WI 69, ¶27, 236 Wis. 2d 27, 612 N.W.2d 635).



                                                  28
                                                                        No.    2013AP1407



us    that    the      wind    energy       rules     were     promulgated       without
compliance with statutory rule-making procedures.
      ¶91    In     sum,      WRA's        interpretations        of      Wis.     Stat.
§§ 227.115(2) and 196.378(4g)(b) are unconvincing, and we are
not persuaded that the Public Service Commission was required to
make an on-the-record determination regarding the necessity of a
housing impact report.                  WRA has not fulfilled its burden of
proving that a housing impact report was required as a matter of
law for Wis. Admin. Code ch. PSC 128.
                                               C
      ¶92    We turn to one final consideration that weighs against
our granting WRA relief in the present case.

      ¶93    Although WRA recognizes that Wis. Admin. Code ch. PSC
128   was    promulgated      after       an    active   and   lengthy    legislative
review process, WRA nevertheless asks this court to declare that
the   failure     to    submit      a    housing     impact    report   renders     Wis.
Admin. Code ch. PSC 128 invalid.
      ¶94    According        to    WRA,       the   Public     Service       Commission
"usurped the Legislature's power when it decided that it had
adequately protected the public [through Wis. Admin. Code ch.
PSC 128] and that no second opinion [in the form of a housing
impact report] [wa]s therefore required."33
      ¶95    Like WRA, we are concerned about usurpation of the
legislative function.              We conclude, however, that if we granted


      33
           WRA's brief at 15.



                                               29
                                                                        No.     2013AP1407



WRA   its    requested      relief    in    the     instant    case,     we    would     be
usurping the legislative function by striking down rules that
survived the legislature's scrutiny.
      ¶96    The separation of powers doctrine informs us in this
matter.      "The Wisconsin constitution creates three separate co-
ordinate branches of government, no branch subordinate to the
other, no branch to arrogate to itself control over the other
except as is provided by the constitution, and no branch to
exercise the power committed by the constitution to another."34
      ¶97    Chapter 227 of the Wisconsin Statutes governs agency
rule-making and legislative review of agency rules, among other
things.       These       statutes    comprise       a   system      devised     by     the

legislature        itself    to    govern     the   legislature's        role    in     and
oversight     of    agency     rule-making.          Chapter      227    provides       for
expansive      legislative         review     of    rules      both     before     their
promulgation35 and after their promulgation.36
      ¶98    Pursuant to these statutes, the legislature has the
opportunity        to    request    modifications        to   proposed      rules,37     to


      34
           State    v.    Holmes,    106    Wis. 2d 31,        42,    315     N.W.2d 703
(1982).
      35
       See Wis.           Stat.    § 227.19      ("Legislative       Review     Prior    to
Promulgation").
      36
       See Wis. Stat. § 227.26 ("Legislative Review After
Promulgation; Joint Committee for Review of Administrative
Rules").
      37
       See Wis. Stat. § 227.19(4)(b); Wis. Stat. § 227.19(4)(d);
Wis. Stat. § 227.19(5)(b).



                                            30
                                                                     No.    2013AP1407



prevent     the   promulgation      of   proposed       rules,38    to    temporarily
suspend     rules    that    have      been    promulgated,39       and    to   repeal
promulgated rules altogether.40
      ¶99    In   light     of   the    statutes'     providing      for    expansive
legislative       review    of   rules    and    limited    judicial       review   of
rules, it is incumbent upon the court to exercise both deference
and restraint in the present case.
      ¶100 The legislature did not merely passively permit the
promulgation of Wis. Admin. Code ch. PSC 128.                      On the contrary,
the legislature held a hearing on Wis. Admin. Code ch. PSC 128
prior to its promulgation and then sent the rules back to the
Public Service Commission for further consideration.

      ¶101 WRA had an opportunity to register its objections to
the rules before the legislature.                 The rules were modified in
response to the legislature's concerns, which encompassed WRA's
concerns.
      ¶102 Even after its promulgation, Wis. Admin. Code ch. PSC
128   was     temporarily        suspended      for   yet    another       round    of
legislative review.
      ¶103 In      sum,    the   legislature      had     ample     opportunity     to
express reservations about the proposed wind energy rules, to
request changes to the proposed rules, to prevent promulgation


      38
           Wis. Stat. § 227.19(5)(e); Wis. Stat. § 227.19(5)(f).
      39
           Wis. Stat. § 227.26(2)(d).
      40
           Wis. Stat. § 227.26(2)(f); Wis. Stat. § 227.26(2)(i).



                                          31
                                                                          No.    2013AP1407



of the proposed rules, and to suspend and even repeal the rules
after they were promulgated.
     ¶104 The     fact      is,    after    a    lengthy    and    active       period    of
review,   the    legislature       allowed       the    rules     set    forth    in    Wis.
Admin. Code ch. PSC 128 to go into effect.
     ¶105 The      Public     Service       Commission's          wind    energy       rules
survived the legislative review process and now have "the force
and effect of law in Wisconsin."41
     ¶106 In the instant case, the court's role is limited.                               We
may determine only whether the rules were promulgated without
compliance      with   statutory       rule-making         procedures.           WRA     has
failed to meet its burden of proving non-compliance.

     ¶107 Nonetheless, our opinion in the instant case should
not be read to imply that WRA's frustration with the process by
which Wis. Admin. Code ch. PSC 128 was promulgated is entirely
unwarranted.
     ¶108 WRA stated at oral argument that it greatly values
Wis. Stat. § 227.115(2).             In WRA's view, the second opinion a
housing impact report provides to the legislature constitutes a
necessary    check     in    the    process      of     promulgating      a     rule    that
affects housing.
     ¶109 WRA      also      stated        at    oral     argument       that     to     its
knowledge, no housing impact report has ever been requested or



     41
       See State ex rel. Staples v. DHSS, 115 Wis. 2d 363, 367,
340 N.W.2d 194 (1983).



                                            32
                                                                 No.     2013AP1407



produced under Wis. Stat. § 227.115(2).42               Thus, WRA believes a
critical step in the process of promulgating a rule that affects
housing has been routinely ignored and has been circumvented in
the instant case.
     ¶110 WRA's concerns, while understandable, do not persuade
us to grant it relief.
     ¶111 We    conclude     that    WRA    has   not   demonstrated      that    a
housing impact report was required as a matter of law for Wis.
Admin. Code ch. PSC 128.            The texts of the governing statutes
and the wind energy rules do not demonstrate as a matter of law
that the rules directly or substantially affect the development,
construction, cost, or availability of housing in this state.

     ¶112 We further conclude that invalidating Wis. Admin. Code
ch. PSC 128 under the circumstances presented in the instant
case would infringe on the role of the legislature, which we
decline to do.
     ¶113 Accordingly, WRA's challenge to Wis. Admin. Code ch.
PSC 128 fails.
     By   the   Court.—The    decision      of    the   court   of     appeals   is
affirmed.




     42
       We, too, have been unable to confirm that any housing
impact report has ever been prepared pursuant to Wis. Stat.
§ 227.115(2).



                                       33
                                                                No.   2013AP1407.pdr


     ¶114 PATIENCE                  DRAKE               ROGGENSACK,              C.J.
(dissenting).        Wisconsin         Realtors        Association,      Wisconsin
Builders     Association,         Wisconsin     Towns     Association,     Jon     E.
Morehouse,     Sr.    and    Ervin       E.     Selk    (hereinafter     Wisconsin
Realtors)     challenge      the       Public     Service    Commission's        (the
Commission) promulgation of Wis. Admin. Code ch. PSC 128 because
the Commission did not follow the required rule-making procedure
set out in Wis. Stat. § 227.115(2) (2009-10).1                     I conclude that
the Commission was obligated, as a matter of law, to obtain a

§ 227.115(2) housing report because ch. PSC 128 directly affects
housing.     The Commission failed to obtain a § 227.115(2) housing
report;     therefore,      ch.    PSC    128     is    invalid.       Wis.   Stat.
§ 227.40(4)(a).        Accordingly, I respectfully dissent from the
majority opinion.
                                  I.    BACKGROUND
     ¶115 This case reaches us on competing motions for summary
judgment in regard to whether Wis. Admin. Code ch. PSC 128 was

lawfully promulgated.             Chapter PSC 128 regulates wind energy
systems.     In relation to housing, it establishes the following:
maximum setbacks of wind turbines from dwellings; permissible
wind turbine noise levels, as measured at nearby dwellings; the
number of hours per year during which dwellings can be subjected
to shadow flicker cast by wind turbines.
     ¶116 The legislature was concerned that wind turbines may
affect both the health of Wisconsin citizens and housing.                        Wis.

     1
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.


                                            1
                                                                               No.   2013AP1407.pdr


Stat. § 196.378(4g)(e); Wis. Stat. § 227.115(2).                                     However, the
legislature did not want each local unit of government imposing
its     own    regulations,         which         could      unnecessarily            impede     the
development          of    wind   energy      in       Wisconsin.             Accordingly,       the
legislature         directed      the   Commission           to    promulgate         rules     that
would       reasonably       protect    people          in     their     homes       from   health
effects       and    reduced      property         values       that     could       result    from
nearby wind turbines, while at the same time creating a uniform
system of regulations for wind energy systems throughout the

state.       § 196.378(4g)(b).
        ¶117 In      promulgating       Wis.          Admin.      Code    ch.    PSC    128,     the
Commission was required to obtain a comprehensive housing report
from the Department of Commerce2 if its proposed rule "directly

or substantially affects the development, construction, cost, or
availability          of     housing         in       this      state."              Wis.      Stat.
§ 227.115(2).             The required housing report was to be prepared
"before       [the    proposed     rule]      is       submitted         to    the    legislative

council staff under s. 227.15."                    Id.
        ¶118 The record and arguments of the parties reveal that
the Commission never requested or obtained the required housing
report from the Department.                       Apparently, the Commission never
considered its obligations under Wis. Stat. § 227.115(2) because
§ 227.115       is    not    listed     in    the       Commission's           "Plain    Language

        2
       At the time Wis. Admin. Code ch. PSC 128 was created, the
Department of Commerce was to have prepared the housing report.
Wis.   Stat.   § 227.115(1)(a).      The  current   version   of
§ 227.115(1)(a) (2013-14) requires that the report be prepared
by the Department of Administration.


                                                  2
                                                                     No.    2013AP1407.pdr


Analysis" that it submitted to the Legislature and in which the
Commission mentioned other statutes.
                                 II.       DISCUSSION
     ¶119 The majority opinion employs three methods by which it
permits the Commission to ignore the command of the legislature.
First,     it    misunderstands        Wisconsin         Realtors'     argument,       and
therefore, never addresses it.                     Second, without deciding what
Wis. Stat. § 227.115(2) means, the majority opinion chooses not
to apply § 227.115(2) to Wis. Admin. Code ch. PSC 128.3                            In so

doing, it ignores the policy choice of the legislature, which
requires    a    housing   report         if   a     Commission     rule   directly     or
substantially       affects     housing.            Third,   the    majority     opinion
employs Wis. Stat. § 227.20(3) to create a presumption that the
Commission followed all applicable rule-making procedures based
on the Commission's filing of a certified copy of ch. PSC 128
with the Legislative Reference Bureau.4

                           A.    Standard of Review

     ¶120 We review summary judgment granted to the Commission
by the circuit court and affirmed by the court of appeals.                              We
review     independently,       as    a    matter       of   law,    whether     summary
judgment was properly granted.                     Grygiel v. Monches Fish & Game
Club, Inc., 2010 WI 93, ¶12, 328 Wis. 2d 436, 787 N.W.2d 6.                            Our
review centers on interpretation and application of statutes.
Statutory       interpretation       and   application       present       questions    of


     3
         Majority op., ¶7.
     4
         Id., ¶¶66-67.


                                               3
                                                                   No.    2013AP1407.pdr


law for our independent review; however, we benefit from the
reasoning of other courts' decisions.                   Richards v. Badger Mut.
Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581.
This       controversy       also     involves       the    interpretation             and
application      of     administrative         rules.       These        too     present
questions of law for our independent review.                       Brown v. Brown,
177 Wis. 2d 512, 516, 503 N.W.2d 280 (Ct. App. 1993).
                              B.    Rule Promulgation
                             1.     "Directly affects"

       ¶121 All parties agree that if Wis. Admin. Code ch. PSC 128
directly affects housing, the Commission was required to obtain
a housing report from the Department before it filed the rule
with the Legislative Reference Bureau.                     The parties' dispute
centers     on   the    meaning     of   "directly      affects"    in        Wis.    Stat.
§ 227.115(2).          This issue is clouded in the majority opinion
because it never bothers to interpret § 227.115(2) and tell the
reader what "directly affects" means.                It is also clouded by the

majority      opinion's      repeated     mischaracterization            of    Wisconsin
Realtors' argument.5
       ¶122 Determination of the meaning of "directly affects" is
informed by the meaning of Wis. Stat. § 196.378(4g)(b) because
§ 196.378(4g)(b)        is   the    enabling    legislation    for        Wis.       Admin.

       5
       For example, the majority asserts, that Wisconsin Realtors
"contends that a housing impact report is required under Wis.
Stat. § 227.115(2) whenever a proposed rule relates to housing."
Majority op., ¶69.    That is not an accurate representation of
Wisconsin Realtors' contention.      Rather, Wisconsin Realtors
contends that a housing report is required when a Commission's
rule directly or substantially affects housing.


                                           4
                                                                    No.    2013AP1407.pdr


Code ch. PSC 128.            Therefore, the Commission was required to
follow the legislative directives of § 196.378(4g)(b) when it
promulgated ch. PSC 128.             Wis. Hosp. Ass'n v. Natural Res. Bd.,
156 Wis. 2d 688, 706, 457 N.W.2d 879 (Ct. App. 1990) (explaining
that on review "court[s] should identify the elements of the
enabling statute and match the rule against those elements").
The    meaning      of     Wis.    Stat.     § 227.115(2)         also    informs       the
controversy before us because of the proximity of wind turbines
to housing.

       ¶123 I interpret Wis. Stat. § 196.378(4g)(b) and Wis. Stat.
§ 227.115(2) to ascertain their meaning.                     Kalal v. Circuit Court

for Dane Cnty., 2004 WI 58, ¶43, 271 Wis. 2d 633, 681 N.W.2d
110.     Scope, context and purpose are relevant to a plain meaning
analysis.      Id., ¶48.           I also note that "[a]n administrative
agency has only those powers which are expressly conferred or
can    be   fairly       implied     from        the   statutes     under      which     it
operates."       Oneida Cnty. v. Converse, 180 Wis. 2d 120, 125, 508

N.W.2d 416 (1993).
       ¶124 Wisconsin        Stat.    § 227.115(2)           addresses      rules      that
affect      housing        such      that,        together      with      Wis.       Stat.
§ 196.378(4g)(b),           they     establish            requirements         for      the
Commission's        promulgation      of     Wis.      Admin.   Code     ch.   PSC     128.
Furthermore, because these statutes bear on the same subject
matter,     here,    the    promulgation          of   administrative       rules      that
regulate wind turbines, they are construed in that context so
that they are consistent with one another.                        McDonough v. DWD,
227 Wis. 2d 271, 279, 595 N.W.2d 686 (1999).                        Accordingly, the

                                             5
                                                                      No.    2013AP1407.pdr


Commission      was     required     to    have     exercised         its     rule-making
authority within the framework established by these statutes.
       ¶125 I begin with the words chosen by the legislature in
its    enabling    legislation.            Wisconsin         Stat.    § 196.378(4g)(b)
provides in relevant part:

            The commission shall . . . promulgate rules that
       specify the restrictions a political subdivision may
       impose on the installation or use of a wind energy
       system consistent with the conditions specified in s.
       66.0401(1m)(a) to (c).    The subject matter of these
       rules shall include setback requirements that provide
       reasonable   protection   from   any   health   effects,
       including   health  effects   from   noise  and   shadow
       flicker, associated with wind energy systems.        The
       subject matter of these rules . . . may include . . .
       set-back distances, maximum audible sound levels,
       shadow flicker, proper means of measuring noise,
       interference with radio, telephone, or television
       signals, or other matters.     A political subdivision
       may not place a restriction on the installation or use
       of a wind energy system that is more restrictive than
       these rules.
       ¶126 The legislative grant of authority to the Commission
in     Wis.    Stat.    § 196.378(4g)(b)          described      the        legislature's
purpose and topics that the Commission was required to address

when     promulgating      Wis.    Admin.       Code    ch.     PSC    128.       Section
196.378(4g)(b)         plainly    states    that       the    rules    enacted       "shall
include setback requirements that provide reasonable protection
from any health effects, including health effects from noise and
shadow     flicker."        Section       196.378(4g)(b)         also       granted     the
Commission discretionary authority in other areas.
       ¶127 There are good reasons for the legislature's mandate
that     the    Commission        enact    setback       requirements          for     wind
turbines.      It is well known that wind turbines may be harmful to

                                            6
                                                            No.   2013AP1407.pdr


the health of those who live close to them and are sensitive to
the noise and shadow flicker they produce.              See Roy D. Jeffery,
et al., Adverse Health Effects of Industrial Wind Turbines, 59
Canadian    Family   Physician   473      (2013);   Jerry   Punch    &   Richard
James, Negative Health Effects of Noise from Industrial Wind
Turbines:                                    Some                   Background,
http://www.hearinghealthmatters.org/hearingviews/2014/wind-
turbine-health-problems-noise (last visited March 26, 2015).
     ¶128 Directly      connected    to     legislatively    focused      health

concerns,    Wis.    Admin.   Code   § PSC     128.13    establishes      siting
criteria for wind turbines in regard to setback distance and
height   requirements;    Wis.   Admin.     Code    § PSC   128.14    addresses
noise criteria;6 Wis. Admin. Code § PSC 128.15 addresses shadow

flicker.7     Accordingly,    the    Commission's       application      of   Wis.
Stat. § 196.378(4g)(b) is driven by wind turbines' effects on
the health of people who live or work in proximity to wind
turbines.




     6
       Wisconsin Admin. Code § PSC 128.14 provides in relevant
part: "[A]n owner shall operate the wind energy system so that
the noise attributable to the wind energy system does not exceed
50 dBA during daytime hours and 45 dBA during nighttime hours."
§ PSC 128.14(3)(a). The determination of noise level is made at
"the outside wall nearest to the closest wind turbine."    § PSC
128.14(4).
     7
       Wisconsin Admin. Code § PSC 128.15(1)(b) and (2) provides
in relevant part:     "An owner shall design the proposed wind
energy system to minimize shadow flicker at a residence or
occupied community building . . . [so it] does not cause more
than 30 hours per year of shadow flicker."


                                       7
                                                                              No.    2013AP1407.pdr


      ¶129 Wisconsin Admin. Code § PSC 128.13(1)(a) provides for
permissible setbacks, depending on the type of building that is
nearby.     The largest setback is 1,250 feet.                             The setback from
wind turbines generally is measured as the distance from the
wind turbine tower to the nearest point on the foundation of a
residence or occupied community building.                         § PSC 128.13(1)(b).
      ¶130 The setbacks of Wis. Admin. Code § PSC 128.13 lessen
the   noise      and     shadow       flicker          impacts     of     wind      turbines      on
residents and real estate that are as far away from the wind

turbines    as      § PSC      128.13(1)(a)            provides.          Stated         otherwise,
without    consideration             of    the     setbacks      of     § PSC       128.13,     wind
turbines      could       be     placed          in     the      middle       of     residential
communities with houses only a few feet away so long as no local
ordinance regulated placement.
      ¶131 Because            Wis.        Admin.       Code     ch.     PSC        128     prevents
placement      of      wind    turbines          that     are    inconsistent            with    its
provisions, ch. PSC 128 lessens the effects of wind turbines on

the health of people who reside nearby.                          Chapter PSC 128 does so
by subjecting the housing in which people live to less noise and
less shadow flicker.                 Stated otherwise, §§ PSC 128.13, 128.14
and   128.15     directly        affect          the    levels     of     noise      and     shadow
flicker that wind turbines inflict on nearby housing.
      ¶132 The effect of wind turbines on the health of people
living nearby was considered by the Wind Siting Council when ch.
PSC 128 was enacted.                 Furthermore, Wis. Stat. § 196.378(4g)(e)




                                                   8
                                                                  No.   2013AP1407.pdr


requires periodic review of wind turbines' effects on health.8
Because wind turbines have the potential to affect the health of
those who live nearby, wind turbines also will affect the market
for     those    properties     because       some    buyers     will     reject    the
properties because they believe that wind turbines will have a
negative effect on their health.               See, e.g., Nina Pierpont, Wind
Turbine      Syndrome:      A   Report    on    a    Natural    Experiment        (2009)
(available at http://www.windturbinesyndrome.com).
        ¶133 The    legislature       recognized        that      health      effects

associated with wind turbines may be connected to the distance
between wind turbines and housing when it required that setbacks
provide "reasonable protection from any health effects."                           Wis.
Stat.       § 196.378(4g)(b).        As   health      effects     caused     by    wind
turbines also affect the real estate market, the legislature
required the Commission to obtain a housing report while it was
in the process of promulgating Wis. Admin. Code ch. PSC 128.
Wisconsin       Stat.    § 227.115    specified        the     findings    that      the

Department was required to make in assessing a proposed rule's
effect on housing.        Section 227.115(3) provides:

             (a) The report of the department shall contain
        information about the effect of the proposed rule on
        housing in this state, including information on the
        effect of the proposed rule on all of the following:


        8
       The Wind Siting Council is required to "survey the peer-
reviewed scientific research regarding the health impacts of
wind energy systems."        Wis. Stat. § 196.378(4g)(e); see
Wisconsin Wind Siting Council, Wind Turbine Siting-Health Review
and Wind Siting Policy Update, 3-4, 14 (2014). The Wind Siting
Council addressed health concerns, not housing concerns.


                                          9
                                                                    No.    2013AP1407.pdr

          1. The policies, strategies and recommendations
     of the state housing strategy plan.

          2. The cost of constructing, rehabilitating,
     improving or maintaining single family or multifamily
     dwellings.

             3. The purchase price of housing.

          4. The cost and availability                      of   financing      to
     purchase or develop housing.

          5. Housing costs, as defined in s. 560.9801(3)(a)
     and (b).

          (b) The report shall analyze the relative impact
     of the effects of the proposed rule on low– and
     moderate– income households.
     ¶134 The legislature required the Commission to request a
housing report from the Department if a "proposed rule directly
or substantially affects the development, construction, cost, or
availability of housing" in Wisconsin.                  Wis. Stat. § 227.115(2).
Section 227.115(2) requires the Commission to do so before the
proposed   rule   is     forwarded    to        the   legislative     council        staff
under Wis. Stat. § 227.15.
     ¶135 Wisconsin       Stat.    § 227.115(2)'s           phrase,       "directly     or
substantially affects," is not defined in § 227.115, nor has it
been interpreted in prior cases.                 However, the phrase "directly

affects" has been interpreted in other contexts.                          For example,
Sausen v. Town of Black Creek Bd. of Review, 2014 WI 9, ¶3, 352
Wis. 2d    576,   843     N.W.2d     39,        concludes    that     an    assessor's
classification    of     property     "directly        affects"      the    property's
assessment     because     of   the    classification's             relationship        to
statutory percentages of assessment.                  State v. Long, 2009 WI 36,
¶51, 317 Wis. 2d 92, 765 N.W.2d 557, explains that proof of a


                                           10
                                                                      No.    2013AP1407.pdr


prior conviction "directly affects" a liberty interest because
such proof is relevant to the term of incarceration to which a
defendant    may     be   subjected.           City    of    Appleton        v.       Town    of
Menasha, 142 Wis. 2d 870, 879, 419 N.W.2d 249 (1988), concludes
that any illegal expenditure of public funds "directly affects"
taxpayers because taxpayers suffer a pecuniary loss as a result.
     ¶136 In each decision, "directly affects" has been defined
by a nexus between an act and the interest of a person that is
influenced by the act.            Accordingly, I conclude that the plain

meaning     of   "directly       affects"       in     Wis.     Stat.        § 227.115(2)
includes an act that has a nexus to housing.                      That is, in order
for a proposed rule to "directly affect" housing, there must be
a nexus between the proposed rule and housing.
     ¶137 As I have explained, Wis. Admin. Code ch. PSC 128 has
a nexus to housing due to the setbacks of § PSC 128.13, the
decibel noise levels of § PSC 128.14 and the minimization of
shadow    flicker    in   § PSC       128.15,    all    of     which    regulate         wind

turbines'    effects      on   nearby    housing.            Stated    otherwise,            the
plain meaning of "directly affects" in Wis. Stat. § 227.115(2)
includes     those    proposed        rules     that        regulate        wind      turbine
setbacks, noise levels and shadow flicker.
     ¶138 These       obvious     nexuses       are     the     core        of     Wisconsin
Realtors'    contention        from    which    it    concluded        that       a   housing




                                          11
                                                                                      No.      2013AP1407.pdr


report          was     required           by     Wis.            Stat.    § 227.115(2).9              Stated
otherwise,            it        is   the     position               of    Wisconsin     Realtors        that
§ 227.115(2) does not require that a rule have a negative effect
on housing before a housing report is required by § 227.115(2).10
Rather, the legislative threshold for requiring a housing report
under § 227.115(2) is triggered whenever housing is "directly
affected"          by      the       terms      of       a    proposed       rule.         I    agree   with
Wisconsin Realtors.                    The statute says nothing about obtaining a
housing          report         only    when         a       rule    negatively       or       inadequately

affects housing.
          ¶139 Furthermore,                Wis.          Stat.       § 196.378(4g)(b)            and    Wis.
Stat. § 227.115(2) must be read together because they bear on
the       same        subject          matter,               proposed        administrative            rules.
McDonough, 227 Wis. 2d at 279.                                When we do so, the nexus between

the       health        effects         of       wind         turbines        and     housing       becomes
apparent.
          ¶140 Wisconsin Admin. Code §§ PSC 128.13, 128.14 and 128.15

directly affect noise levels and shadow flicker to which housing
is subjected by the operation of wind turbines.                                        It follows then
as    a        matter      of    course         that         the    effect    of    wind       turbines    on

          9
       The majority opinion repeatedly misstates Wisconsin
Realtors' position.   See majority op., e.g., ¶¶69-76.     In so
doing, the majority opinion sets up straw men that it can knock
down.    However, more importantly, this device permits the
majority opinion to escape addressing Wisconsin Realtors' actual
argument about why Wis. Admin. Code ch. PSC 128 directly affects
housing.
          10
       If there was ever any doubt, Wisconsin Realtors' position
in this regard was clearly stated at oral argument under
questioning by the court.


                                                             12
                                                                       No.   2013AP1407.pdr


housing     is    central       to    carrying     out     the       plain    meaning    of
§ 196.378(4g)(b), which required the Commission to draft rules
that     addressed      wind     turbines'       effects       on    health.        Stated
otherwise,       housing    is   central      to   the     Commission's        compliance
with    § 196.378(4g)(b)         because   it      is    due    to   living    in   nearby
housing that the health of Wisconsin residents is most affected
by wind turbines.          Therefore, if the Commission's rules did not
directly affect housing, those rules would have a limited impact
on health, contrary to the enabling legislation for ch. PSC 128.

        ¶141 Both the court of appeals and the majority opinion
misunderstand Wisconsin Realtors' argument.                           For example, the
court of appeals said,

        To demonstrate that a housing impact report was
        required, [Wisconsin Realtors] must show that the
        setback,   noise,  and  shadow   flicker  restrictions
        imposed by PSC 128 are so inadequate that the rules
        will directly or substantially affect the development,
        construction, cost, or availability of housing in
        Wisconsin.
Wis.     Realtors       Ass'n    v.    Pub.      Serv.     Comm'n       of     Wis.,    No.

2013AP1407, unpublished slip op., ¶18 (Wis. Ct. App. March 25,
2014).
        ¶142 However,      no    showing      of    inadequacy         is    required    of
Wisconsin Realtors under Wis. Stat. § 227.115(2) in order to
demonstrate that Wis. Admin. Code ch. PSC 128 directly affects
housing.       The plain meaning of the words that the legislature
chose    for     Wis.   Stat.    § 227.115(2)       does       not   require    that    the
rules the Commission proposed be "inadequate" in order for those
rules to directly affect housing.                       All that is required is a


                                           13
                                                                 No.   2013AP1407.pdr


nexus between the proposed rules and their effect on housing.
It is beyond dispute that ch. PSC 128 has such a nexus.
      ¶143 Once      that   threshold     is    met,    a   housing      report   is
required.     It is the task of the Department, as it prepares the
housing report, to assess whether the administrative rules were
adequate or inadequate to protect housing.                      The Department's
assessment     and   report   was   to   be    done    during    the   rule-making
process.      Stated otherwise, the legislature gave the Department
the task of assessing whether proposed rules are adequate to

protect the housing of people who reside near wind turbines.11

The legislature did not give that task to persons whose health
and property values are impacted by the proposed rule.                     That was
a burden for government to shoulder, which the court of appeals12
and   the    majority   opinion13    have      mistakenly       placed    on   those
Wisconsin residents who live near wind turbines.




      11
           See supra note 2.
      12
       That the court of appeals added words to Wis. Stat.
§ 227.115(2) and thereby constructed a standard contrary to what
the legislature mandated is confirmed by the court's conclusion
that "[w]ithout presenting evidence that the restrictions
imposed by PSC 128 are insufficient, [Wisconsin Realtors] cannot
rebut the presumption that no housing impact report was
required."   Wis. Realtors Ass'n v. Pub. Serv. Comm'n of Wis.,
No. 2013AP1407, unpublished slip op., ¶18 (Wis. Ct. App.
March 25, 2014).
      13
           See majority op., ¶7.


                                         14
                                                                   No.    2013AP1407.pdr


                                2.        Presumption
     ¶144 The majority opinion also concludes that if all else
fails, Wis. Admin. Code ch. PSC 128 is saved by the presumption
of Wis. Stat. § 227.20(3), which provides in relevant part:

          (3) Filing a certified copy of a rule with the
     legislative reference bureau creates a presumption of
     all of the following:

     . . . .

          (c) That all of the rule-making procedures
     required by this chapter were complied with.
     ¶145 I take judicial notice that a certified copy of Wis.
Admin. Code ch. PSC 128 was filed with the Legislative Reference
Bureau.      However,    because          §§ PSC    128.13,    128.14      and    128.15
directly    affect    housing,        a     Wis.   Stat.     § 227.115(2)        housing
report was required.           All agree that the Commission did not
request    the    Department    to    prepare       a   housing   report,        and    the
Department provided no such report.                  Because the Commission was
required to request a housing report and did not do so, the
presumption of Wis. Stat. § 227.20(3)(c) has been rebutted.
     ¶146 Furthermore,         if     governmental         agencies      could    ignore
legislative directives simply by filing a certified copy of a
proposed rule with the Legislative Reference Bureau, there would
be a great temptation for busy agency employees not to bother
with fully complying with legislative directives during rule-
making.          Accordingly,         the        presumption      of      Wis.        Stat.
§ 227.20(3)(c)      cannot     save       the    Commission's     rules     that       were
enacted    with    disregard        for     the    express     directives        of    the
Legislature.       See Dane Cnty. v. DHSS, 79 Wis. 2d 323, 331-32,


                                            15
                                                                      No.     2013AP1407.pdr


255    N.W.2d       539    (1977)       (concluding       that    Dane      County    could
challenge      the     manner      in    which    the   Department       of    Health    and
Social Services had promulgated its rule).

                                    C.     Remedy
       ¶147 I have concluded that the plain meaning of Wis. Stat.
§ 227.115(2) required the Commission, as a matter of law, to
obtain a housing report from the Department when it promulgated
Wis. Admin. Code ch. PSC 128; that it failed to do so and that

its failure is not saved by Wis. Stat. § 227.20(3)(c).                                   The
question now becomes, what is the remedy for the Commission's
failure.
       ¶148 Wisconsin         Realtors       began      this     declaratory      judgment
action pursuant to Wis. Stat. § 227.40.                          Therefore, I look to
that       section's       provisions      for      guidance.         Wisconsin       Stat.
§ 227.40(4)(a) states:

            In any proceeding pursuant to this section for
       judicial review of a rule, the court shall declare the
       rule   invalid   if   it   finds   that   it   violates
       constitutional provisions or exceeds the statutory
       authority of the agency or was promulgated without
       compliance with statutory rule-making procedures.
It    is    under    the    last    provision:          the    rule   "was    promulgated
without      compliance      with       statutory    rule-making       procedures,"       on
which Wisconsin Realtors' claim lies.
       ¶149 Courts         have    reviewed       other       rules   that     have     been
promulgated without compliance with rule-making procedures and
have held such rules invalid.                 For example, in Cholvin v. DHFS,

2008 WI App 127, ¶¶32-34, 313 Wis. 2d 749, 758 N.W.2d 118, the
court of appeals held a directive that the Department of Health

                                             16
                                                                           No.    2013AP1407.pdr


and   Family     Services         had   given        to    Susan   Cholvin       was     invalid
because the Department did not employ statutorily required rule-
making to promulgate the directive.                            See also Heritage Credit
Union v. Office of Credit Unions, 2001 WI App 213, ¶24, 247
Wis. 2d 589, 634 N.W.2d 593 (explaining that failure to comply
with rule-making procedures is one ground for declaring a rule
invalid).
      ¶150 The         Commission        did        not     comply       with     Wis.     Stat.
§ 227.115(2), and as a matter of law, it was required to do so.

The   plain     meaning      of    Wis.       Stat.       § 227.40(4)(a)         provides    the
remedy:         "the      court         shall        declare       the     rule      invalid."
Accordingly, I follow that directive and conclude that ch. PSC
128 is invalid.
                                    III.       CONCLUSION
      ¶151 I conclude that the Commission was obligated, as a
matter    of    law,    to   obtain        a    Wis.      Stat.    § 227.115(2)          housing
report because Wis. Admin. Code ch. PSC 128 directly affects

housing.       The Commission failed to obtain a § 227.115(2) housing
report;     therefore,        ch.       PSC     128       is    invalid.          Wis.    Stat.
§ 227.40(4)(a).          Accordingly, I respectfully dissent from the
majority opinion.
      ¶152 I      am     authorized            to    state       that     Justice        ANNETTE
KINGSLAND ZIEGLER joins this dissent.




                                                17
    No.   2013AP1407.pdr




1
