                                                             2017 WI 46

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2015AP1055
COMPLETE TITLE:        Lela M. Operton,
                                  Plaintiff-Appellant,
                            v.
                       Labor and Industry Review Commission,
                                  Defendant-Respondent-Petitioner,
                       Walgreen Co. Illinois,
                                  Defendant.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                                369 Wis. 2d 166, 880 N.W.2d 169
                                 (2016 WI App 37 – Published)

OPINION FILED:         May 4, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         November 10, 2016

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Dane
   JUDGE:              John C. Albert

JUSTICES:
   CONCURRED:          ABRAHAMSON, J. concurs, joined by BRADLEY, A.
                       W., J. (opinion filed).
                       ZIEGLER, J. concurs (opinion filed).
                       BRADLEY, R. G., J. concurs, joined by GABLEMAN,
                       J. and KELLY, J. (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-respondent-petitioner, there was a brief
by    William       Sherlin   Sample    and     Labor   &   Industry   Review
Commission, Madison, and oral argument by William Sherlin Sample


       For the plaintiff-appellant, there was a brief by Marilyn
Townsend, and Law Offices of Marilyn Townsend, Madison, and oral
argument by Marilyn Townsend.
    For Amicus Curiae Wisconsin Employment Lawyers Association,
a brief was filed by Victor Forberger, Madison.


    For   Amicus   Curiae   Wisconsin   State   AFL-CIO,   a   brief   was
filed by Matthew R. Robbins, Sara J. Geenen and The Previant Law
Firm, Milwaukee.




                                  2
                                                                          2017 WI 46
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.       2015AP1055
(L.C. No.    2014CV3050)

STATE OF WISCONSIN                              :            IN SUPREME COURT

Lela M. Operton,

              Plaintiff-Appellant,

      v.
                                                                       FILED
Labor and Industry Review Commission,                              MAY 4, 2017

              Defendant-Respondent-Petitioner,                       Diane M. Fremgen
                                                                  Clerk of Supreme Court

Walgreen Co. Illinois,

              Defendant.




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

cause remanded.

      ¶1      PATIENCE DRAKE ROGGENSACK, C.J.              This is a review of

a published decision of the court of appeals1 reversing a circuit

court     order   that     affirmed   a   determination      by    the    Labor     and

Industry Review Commission (LIRC).2             LIRC determined that Lela

Operton      (Operton)      was   ineligible   for      unemployment         benefits

because she was terminated for substantial fault.
      1
       Operton v. LIRC, 2016 WI App 37, 369 Wis. 2d 166, 880
N.W.2d 169.
      2
          The Honorable John C. Albert of Dane County presided.
                                                                               No.    2015AP1055



       ¶2        We     conclude    that     LIRC     incorrectly         denied       Operton

unemployment           benefits.         Operton    was    entitled       to    unemployment

benefits because her actions do not fit within the definition of

substantial              fault      as       set         forth      in         Wis.         Stat.

§ 108.04(5g)(a)(2013-14)3.                   Stated       more    fully,        Operton      was

terminated         for    committing       "One     or     more   inadvertent          errors"

during the course of her employment, and therefore pursuant to

Wis.       Stat.       § 108.04(5g)(a)2.,          she     was    not     terminated         for

substantial fault.                We further conclude that, as a matter of

law, Operton's eight accidental or careless cash-handling errors

over       the     course    of     80,000    cash-handling            transactions          were

inadvertent.

       ¶3        Accordingly, we affirm the court of appeals and remand

to LIRC to determine the amount of unemployment compensation

Operton is owed.

                                      I.    BACKGROUND

       ¶4        The     following       undisputed        facts,       unless       otherwise

noted, are based on the findings of the Department of Workforce
Development's           (DWD)     administrative         law   judge     (ALJ)       that    LIRC

adopted.         From July 17, 2012 to March 24, 2014, Operton worked

as     a    full-time        service       clerk     for       Walgreens.            Operton's

employment            sometimes    entailed        more    than     one    hundred          cash-

handling transactions in a day during the twenty months she was



       3
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                               2
                                                                               No.       2015AP1055



employed full-time by Walgreens.                          She completed an estimated

80,000 cash-handling transactions4 throughout her employment.

       ¶5         During her period of employment, Operton made various

cash-handling            errors.       First,       on    October       19,   2012,       Operton

accepted a Women, Infants, and Children (WIC) check for $8.67

when       the    check      should    have   been        for    $5.78.       As     a    result,

Walgreens         lost       $2.89    and   gave     Operton      a     verbal      warning     as

punishment for her mistake.

       ¶6         Next, on February 12, 2013, Operton accepted a WIC

check for $14.46, but did not get the customer's signature on

the check.            On March 6, 2013, she gave a $16.73 check back to a

customer, and Walgreens suffered a $16.73 monetary loss as a

result.          Walgreens was unable to process these two checks and

gave Operton a written warning for these two errors.

       ¶7         A    few   months    later,       Operton      took    a    WIC    check     for

$27.63 before the date on which it was valid.                                  Walgreens was

unable       to       process   the    check,       and    Operton      received         a   final

written warning.
       ¶8         On January 1, 2014, Operton returned a WIC check for

$84.95 back to a customer that the customer had tried to use to

purchase $84.95 worth of goods.                      Walgreens suffered a monetary

loss       of    $84.95      because    of    this       error    and     gave      Operton     an

additional final written warning.                         And, on January 29, 2014,

Operton received another final written warning as well as a two-

       4
       Neither side disputes that this is roughly the number of
cash-handling transactions that Operton completed.


                                                3
                                                                                No.    2015AP1055



day suspension after she accepted a check for $6.17 even though

it   was    valid     for       $6.00,     thereby       causing        Walgreens      to   lose

seventeen cents.               Soon after, a customer attempted to pay for

$9.26 worth of items using a food share debit card, but the

customer left the store without completing the transaction on

the pin pad, which caused Walgreens to suffer a monetary loss of

$9.26.      Operton was issued another final written warning, which

stated that any additional cash-handling errors would lead to

her termination.

      ¶9     Furthermore,           on    March        22,    2014,     Operton       allowed   a

customer     to     use    a    credit     card    to        purchase    $399.27       worth    of

items,     but      did    not    check     the        customer's       identification          in

violation      of     Walgreen's         policy        that    employees       must    check    a

customer's identification on credit card purchases over $50.                                    As

a    result,      Walgreens         suffered       a     monetary       loss     of    $399.27.

Walgreens later found out that the credit card was stolen when a

manager was contacted by police.

      ¶10    As a result, on March 24, 2014, Walgreens terminated
Operton's      employment.            Walgreens         indicated        that    Operton       was

terminated due to multiple cash-handling errors as well as her

inability        to       improve        despite        the     accompanying          warnings.

Walgreens did not contend that any of Operton's errors were

intentional or malicious.

      ¶11    After being terminated, Operton filed for unemployment

benefits.         Walgreens contested her request and contended that

she was terminated due to an inability to perform her job.                                  And,


                                               4
                                                                                    No.    2015AP1055



initially, the DWD denied Operton unemployment benefits based on

misconduct.

       ¶12       Operton       appealed      and       an     ALJ      for    the   DWD        held   an

evidentiary hearing.                  At the hearing, the ALJ concluded that

Operton was ineligible for unemployment benefits.                                   The ALJ found

that there was "no evidence that the employee intentionally or

willfully disregarded the employer's interests by continuing to

make cash-handling errors.                    Additionally, her actions were not

so    careless        or      negligent      so    as       to    manifest       culpability          or

wrongful intent."5                 Accordingly, the ALJ concluded that Operton

had not committed "misconduct connected with her employment."6

       ¶13       However, the ALJ denied Operton unemployment benefits

and concluded that Operton was terminated for substantial fault.

The    ALJ       reasoned          that    Operton       "did       not       dispute     that        the

transactions            for     which       she    was        given       disciplinary          action

occurred, nor did she provide any testimony to establish that

she did not have reasonable control over the actions that led to

her    discharge.              She    was    aware       of      the     employer's       policies,
including         the      cash-handling          and       WIC     check       procedures,           but

continued        to     make       cash-handling            errors       resulting        in    actual

financial         loss        to     the    employer,            after       receiving     multiple

warnings."7

       5
       In the matter of Lela Operton, Hearing No. 14001606MD
(June 4, 2014).
       6
           Id.
       7
           Id.


                                                   5
                                                                       No.    2015AP1055



     ¶14     On September 19, 2014, LIRC adopted the findings and

conclusions of the ALJ.                Referring to the instance in which

Operton     failed    to     check    an     individual's      identification        when

processing a credit card payment, LIRC stated:                           "This major

infraction,        taken    together       with   the    final     warning   regarding

earlier     cash    transactions,        persuades       the   commission     that    the

employee's discharge was due to substantial fault."8

     ¶15     The circuit court affirmed LIRC's decision.                      In doing

so, the circuit court deferred to LIRC in its entirety.

     ¶16     The court of appeals set aside LIRC's decision.                          The

court     concluded        that   LIRC     "erred       in   its   construction       and

application of 'substantial fault' to the facts presented."9                          The

court of appeals reasoned that LIRC was owed no deference, and

therefore     de    novo     review    was    appropriate.          Next,    the    court

concluded, consistent with Wis. Stat. § 108.04(5g)(a), that an

employee's multiple errors do not automatically transform the

errors from inadvertent into intentional.10

     ¶17     This court granted LIRC's petition for review.                        We now
affirm the court of appeals and remand to LIRC to determine the

amount of unemployment compensation Operton is owed.




     8
       Lela Operton v. Walgreen Co., ERD No. 14001606MD (LIRC,
September 19, 2014).
     9
          Operton, 369 Wis. 2d 166, ¶1.
     10
          Id., ¶32.


                                             6
                                                                No.    2015AP1055



                                 II.    DISCUSSION

                            A.   Standard of Review

    ¶18        "When there is an appeal from a LIRC determination, we

review LIRC's decision rather than the decision of the circuit

court."    Masri v. LIRC, 2014 WI 81, ¶20, 356 Wis. 2d 405, 850

N.W.2d 298.        "LIRC's findings of fact are upheld if they are

supported by substantial and credible evidence."                    Brauneis v.

LIRC, 2000 WI 69, ¶14, 236 Wis. 2d 27, 612 N.W.2d 635 (citing

Hagen v. LIRC, 210 Wis. 2d 12, 23, 563 N.W.2d 454 (1997)).

    ¶19        In contrast, this court is "not bound by an agency's

interpretation of a statute."             Harnischfeger Corp. v. LIRC, 196

Wis. 2d 650, 659, 539 N.W.2d 98 (1995).               However, "depending on

the circumstances, an agency's interpretation of a statute is

entitled to one of the following three levels of deference:

great weight deference, due weight deference or no deference."

Cty. of Dane v. LIRC, 2009 WI 9, ¶14, 315 Wis. 2d 293, 759

N.W.2d 571.

    ¶20        "Which   level      is    appropriate     'depends      on    the
comparative institutional capabilities and qualifications of the

court and the administrative agency.'"                UFE Inc. v. LIRC, 201

Wis. 2d 274, 284, 548 N.W.2d 57 (1996) (quoting State ex rel.

Parker    v.    Sullivan,    184    Wis. 2d    668,    699,   517   N.W.2d   449

(1994)).       "Our basis for giving even due weight deference to an

agency's statutory interpretation is bottomed on two required

assumptions:        the statute is one that the agency was charged

with administering and the agency has at least some expertise in
the interpretation of the statute in question."                Racine Harley-
                                          7
                                                                       No.    2015AP1055



Davidson, Inc. v. Wis. Div. of Hearings & Appeals, 2006 WI 86,

¶107,     292   Wis. 2d      549,       717     N.W.2d 184        (Roggensack,         J.,

concurring).

     ¶21    "In according due weight deference, we defer to an

agency's    statutory      interpretation         only    when    we   conclude       that

another interpretation of the statute is not more reasonable

than that chosen by the agency."                Id., ¶105.        As such, under due

weight deference, the court is tasked with determining whether

there is a more reasonable interpretation of the statute.                             "In

order to decide that question, we make a comparison between the

agency's    interpretation        and    alternate       interpretations.             This

comparison requires us to construe the statute ourselves."                        Id.

     ¶22    "We note here that there is little difference between

due weight deference and no deference, since both situations

require us to construe the statute ourselves.                       In so doing, we

employ    judicial      expertise    in       statutory     construction,       and    we

embrace    a    major     responsibility         of   the    judicial        branch    of

government, deciding what statutes mean."                   Cty. of Dane, 2009 WI
9, ¶19 (internal quotations omitted).

     ¶23    In the present case, the level of deference we afford

LIRC is inconsequential as LIRC did not provide an articulated

interpretation       of    Wis.     Stat.       § 108.04     in    denying      Operton

unemployment benefits.11            LIRC adopted the conclusions of the

     11
       It is not entirely clear what role the substance of an
agency's interpretation does or should play in determining the
level of deference. Many of our cases discussing the levels of
deference focus not on the presence or substance of an agency's
interpretation;  rather,   they  focus  on   the  institutional
                                                    (continued)
                                            8
                                                                  No.    2015AP1055



DWD's ALJ.      But the ALJ did not describe its interpretation of

the statute at issue, Wis. Stat. § 108.04(5g)(a).

     ¶24     Specifically,     there   are       three    types     of    actions

exempted from the definition of substantial fault.                 However, the

ALJ concluded that Operton's conduct did not fall within any of

these     categories    without   reasoning       through     each       provision

individually.      Importantly,     the    ALJ    never   examined       Operton's

errors to determine if the errors were "inadvertent" under Wis.

Stat. § 108.04(5g)(a)2.12       The ALJ stated that "Operton was aware

of the employer's policies, including the cash-handling and WIC

check     procedures,   but   continued    to    make    cash-handling      errors

resulting in financial loss to the employer, after receiving




capabilities of the agency as well as factors that pertain to
the nature of the legal issue before the court.        For this
reason, perhaps our standard of review analysis in cases
involving an agency's interpretation of a statute should include
a threshold determination of whether the agency has articulated
its interpretation of the statute.      If the agency has not
provided the court with an articulated interpretation of the
statute, then the level of deference the agency is afforded is
not at issue; we simply interpret and apply the statute.
However, if the agency provided an articulated interpretation of
the statute, we would proceed under our well-established
framework to determine the level of deference to which the
agency is entitled.      Such a requirement seems intuitive.
Nevertheless, we need not address this tension for purposes of
the present case.
     12
       As   discussed   more   in   depth   below,  Wis.   Stat.
§ 108.04(5g)(a)2. exempts inadvertent errors by an employee from
the type of conduct included in substantial fault.


                                       9
                                                         No.   2015AP1055



multiple warnings."13     It is unclear which prong of Wis. Stat.

§ 108.04(5g)(a) the ALJ was considering.

     ¶25   LIRC's decision adopting the findings and conclusions

of the ALJ provided no clarification.          Importantly, LIRC also

did not discuss whether the errors that Operton committed were

inadvertent and therefore a type of error exempted from the

definition of substantial fault.       LIRC merely stated:

     The employee did not offer any explanation for not
     checking the ID which would lead the commission to
     conclude that she lacked the ability to conform her
     conduct to the employer's reasonable requirement to
     check ID for large credit card transactions.      This
     major infraction, taken together with the final
     warning regarding earlier cash transactions, persuades
     the commission that the employee's discharge was due
     to substantial fault.[14]
Absent from this reasoning is any discussion of "inadvertent

errors" or the conduct the legislature explicitly exempted from

the definition of substantial fault.

     ¶26   Accordingly,   LIRC   did    not   provide   an   articulated

interpretation of the statute that it then applied.            As such,

whether we afford LIRC due weight deference or no deference is
of no consequence.   See deBoer Transp., Inc. v. Swenson, 2011 WI

64, ¶36, 335 Wis. 2d 599, 804 N.W.2d 658 ("However, we agree

with the court of appeals that we need not decide the applicable


     13
       In the matter of Lela Operton, Hearing No. 14001606MD
(June 4, 2014).
     14
       Lela Operton v. Walgreen Co., ERD No. 14001606MD (LIRC,
September 19, 2014).


                                  10
                                                                                     No.     2015AP1055



standard of review here because LIRC's statutory interpretation

and   application            is    unreasonable,             and    therefore,        it    will    not

withstand        any        level       of    deference."                (citation         omitted)).

Therefore,        we        interpret        Wis.        Stat.          § 108.04      under       well-

established principles of statutory interpretation to clearly

explain the law.

            B.    Statutory Interpretation, General Principles

      ¶27    It        is        axiomatic    that           "the       purpose      of     statutory

interpretation is to determine what the statute means so that it

may be given its full, proper, and intended effect."                                         State ex

rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271

Wis. 2d 633, 681 N.W.2d 110.                      "We assume that the legislature's

intent is expressed in the statutory language."                                      Id.     For this

reason, "statutory interpretation 'begins with the language of

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

ordinarily stop the inquiry.'"                           Id., ¶45          (quoting        Seider    v.

O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).

"Statutory language is given its common, ordinary, and accepted
meaning,     except         that       technical        or    specially-defined             words    or

phrases     are        given       their     technical             or    special      definitional

meaning."        Id., ¶45.

      ¶28    "Context             is    important            to     meaning."              Id.,    ¶46.

Accordingly, "statutory language is interpreted in the context

in which it is used; not in isolation but as part of a whole; in

relation     to    the           language    of     surrounding            or     closely-related

statutes;        and    reasonably,           to        avoid       absurd      or    unreasonable
results."        Id. (citations omitted).
                                                   11
                                                                            No.     2015AP1055



       ¶29    Moreover,      we    need   not       consult       extrinsic       sources     of

interpretation if there is no ambiguity in the statute.                                      Id.

And,    "a    statute     is      ambiguous         if    it     is    capable     of    being

understood by reasonably well-informed persons in two or more

senses."      Id., ¶47 (citing Bruno v. Milwaukee Cty., 2003 WI 28,

¶19, 260 Wis. 2d 633, 660 N.W.2d 656).                         After all, "the court is

not    at    liberty    to   disregard         the       plain,    clear    words       of   the

statute."      Id. (quoting State v. Pratt, 36 Wis. 2d 312, 317, 153

N.W.2d 18 (1967)).

       ¶30    These     principles         guide           our        interpretation         and

application of Wis. Stat. § 108.04 in the present case.

        C.    LIRC'S Interpretation of Wis. Stat. § 108.04(5g)

       ¶31    Wisconsin's unemployment compensation statutes embody

a strong public policy in favor of compensating the unemployed.

This policy is codified in Wis. Stat. § 108.01, which provides:

"In good times and in bad times unemployment is a heavy social

cost, directly affecting many thousands of wage earners.                                     Each

employing unit in Wisconsin should pay at least a part of this
social cost, connected with its own irregular operations, by

financing benefits for its own unemployed workers."                               Wis. Stat.

§ 108.01(1).

       ¶32    Consistent       with     this    policy,         Wis.    Stat.     ch. 108      is

"liberally       construed         to     effect          unemployment          compensation

coverage for workers who are economically dependent upon others

in respect to their wage-earning status."                         Princess House, Inc.

v. DILHR, 111 Wis. 2d 46, 62, 330 N.W.2d 169 (1983).


                                               12
                                                                      No.   2015AP1055



     ¶33    Nevertheless,        not   all     employees      are      entitled    to

unemployment benefits.           Under Wis. Stat. § 108.04, an individual

may be disqualified from receiving unemployment benefits.

     ¶34    In     2013,   the    legislature       changed     the    standard    an

employer    must    meet   to    disqualify    an     employee    from      receiving

benefits.    The legislative amendment created a two-tier system

for determining when an employee is disqualified from receiving

unemployment benefits.           See Wis. Stat. § 108.04(5) & (5g).               The

first tier, disqualification for misconduct, existed prior to

these amendments and is codified in § 108.04(5).                    This provision

operates to prevent any employee discharged for misconduct from

obtaining    unemployment         benefits.          The   legislature        defined

misconduct as:

     one or more actions or conduct evincing such willful
     or wanton disregard of an employer's interests as is
     found in deliberate violations or disregard of
     standards of behavior which an employer has a right to
     expect of his or her employees, or in carelessness or
     negligence of such degree or recurrence as to manifest
     culpability, wrongful intent, or evil design of equal
     severity to such disregard, or to show an intentional
     and substantial disregard of an employer's interests,
     or an employee's duties and obligations to his or her
     employer.
§   108.04(5).       The statute then provides examples of several

actions that constitute misconduct.                 § 108.04(5)(a)-(g).        If an

employee is terminated as a result of any of the statutorily

delineated       actions    or     under      the     general     definition       of

misconduct, then the employee's termination was for misconduct,

and the employee is ineligible for unemployment benefits.



                                        13
                                                                         No.    2015AP1055



      ¶35    After the legislative amendments to the unemployment

benefits statutes in 2013,15 an employee who has not committed

misconduct        may     nevertheless     be     ineligible       for    unemployment

compensation.           Stated otherwise, when an employee's conduct does

not rise to the level of misconduct, the employee may be denied

unemployment        benefits     if   the       employee     was    terminated        for

substantial fault.            See Wis. Stat. § 108.04(5g).                 The statute

provides:

      An employee whose work is terminated by an employing
      unit for substantial fault by the employee connected
      with the employee's work is ineligible to receive
      benefits until 7 weeks have elapsed since the end of
      the week in which the termination occurs and the
      employee earns wages after the week in which the
      termination occurs equal to at least 14 times the
      employee's weekly benefit rate under s. 108.05(1) in
      employment or other work covered by the unemployment
      insurance law of any state or the federal government.
      For   purposes  of   requalification, the  employee's
      benefit rate shall be the rate that would have been
      paid had the discharge not occurred.
§ 108.04(5g)(a).

      ¶36    Wisconsin Stat. § 108.04(5g) defines substantial fault
broadly.         It includes "acts or omissions of an employee over

which      the    employee     exercised        reasonable     control         and   which

violate     reasonable       requirements       of   the   employee's          employer."

Id.     However, the legislature did not disqualify every employee

who commits such errors from receiving unemployment benefits.



      15
       Though enacted in 2013, these amendments became effective
on January 5, 2014.


                                           14
                                                                           No.        2015AP1055



       ¶37    Instead,    the      legislature         provided      three        types      of

conduct      that   are   explicitly       exempt       from    the    definition            of

substantial fault.           Under the statute, substantial fault does

not include:

            1. One or more minor infractions of rules unless
       an infraction is repeated after the employer warns the
       employee about the infraction.

            2. One or more inadvertent errors made by the
       employee.

            3. Any failure of the employee to perform work
       because of insufficient skill, ability, or equipment.
Wis.   Stat.    § 108.04(5g)(a).            Accordingly,        if    an    employee         is

terminated for conduct that falls within any of the types of

actions described by the legislature in para. (a), an employee's

termination     was   not     due    to    the    "substantial        fault"           of   the

employee.      § 108.04(5g)(a)1-3.

       ¶38    The   burden    is     on   the    employer       to    show        that      the

termination was due to the substantial fault of the employee.

This    is    consistent      with    our       past    cases      interpreting             the

unemployment benefits statutes in which we have held that "the

party (the employer here) resisting payment of benefits has the

burden of proving that the case comes within the disqualifying

provision of the law. . . ."              Brauneis, 236 Wis. 2d 27, ¶22; see

also Consolidated Const. Co., Inc. v. Casey, 71 Wis. 2d 811,

820,   238    N.W.2d 758     (1976)       (reasoning      the     burden         is    on   the

employer to show that "some disqualifying provision . . . should

bar the employee's claim." (citing Kansas City Star Co. v. ILHR
Dep't, 60 Wis. 2d 591, 602, 211 N.W.2d 488 (1973)).


                                           15
                                                                          No.     2015AP1055



      ¶39   Each    of   the   provided-for          exceptions      are        similar     in

nature insofar as they remove a type of conduct from what is

considered substantial fault.               Specifically, the statute exempts

from the definition of substantial fault conduct that suggests

the employee was prone to accidental errors or simply unable to

adequately perform his or her job.

      ¶40   A review of the three types of actions the legislature

exempted from substantial fault gives context to the definition

of substantial fault.          Wisconsin Stat. § 108.04(5g)(a)1. removes

minor infractions from the type of conduct that is substantial

fault, unless the employee had previously been warned about the

infraction.        An analysis of the proposed changes by the DWD

states   that   this     exception      was       intended     to    exempt       "[m]inor

violations of rules unless employee repeats the violation after

receiving   a   warning."           Department       of    Workforce       Development,

Analysis of Proposed UI Law Change, D12-01 (October 24, 2012).

As such, employees who are terminated for a repetitive type of

minor    violation       are   not     at        substantial      fault         for    their
termination.       If, however, the employee is warned about minor

violations of an employer's rules and continues to commit the

same violation, then the employee's termination may be due to

the substantial fault of the employee.

      ¶41   Likewise, Wis. Stat. § 108.04(5g)(a)3. provides that

an   employee   was      not   at    substantial          fault     for    his        or   her

termination if the employee was incapable of performing the work

the employment required.            By its plain language, this provision


                                            16
                                                                          No.    2015AP1055



includes employees who are terminated for a lack of skill as

well as employees who are not able to master job performance.

      ¶42   Operton does not contend that her conduct is exempt

from substantial fault under either Wis. Stat. § 108.04(5g)(a)1.

or § 108.04(5g)(a)3.            Rather, Operton contends that her conduct

does not fall within the definition of substantial fault because

the   errors     for    which       she   was    discharged     were      "inadvertent"

errors.

      ¶43   Accordingly, at issue in the present case is LIRC's

interpretation of Wis. Stat.                § 108.04(5g)(a)2., which exempts

from substantial fault, "One or more inadvertent errors made by

the employee."         As discussed above, LIRC's decision contains no

articulated interpretation of this subparagraph.                            Accordingly,

we determine the proper meaning of the statutory provision in

order to apply the law.

      ¶44   Under      Wis.     Stat.      § 108.04(5g)(a)2.,          an       employee's

termination      is    not    for    substantial       fault   if   the      termination

resulted from one or more inadvertent errors.                        Inadvertence is
defined     as    "[a]n        accidental         oversight;        the      result     of

carelessness."         Inadvertence, Black's Law Dictionary, 827 (9th

ed. 2009); see also Queen Ins. Co. of America v. Kaiser, 27

Wis. 2d 571,     577,    135     N.W.2d 247       (1965)      (concluding        that   "an

inadvertent act of omission" was only "passive negligence" or

"the failure to do something that should have been done").                              The

DWD's comment about these substantial fault provisions explained

that this paragraph exempts "[u]nintentional mistakes made by
the   employee"        from     the       definition     of    substantial         fault.
                                            17
                                                                                 No.     2015AP1055



Department of Workforce Development, Analysis of Proposed UI Law

Change, D12-01 (October 24, 2012).                        Consequently, the words of

the    statute          require     courts       to       examine     the        circumstances

surrounding an employee's error to determine if it was careless

or unintentional.16

       ¶45    It is important to view Wis. Stat. § 108.04(5g)(a)2.

in    context      to    ascertain        the    types      of   conduct         to     which    it

applies.          Notably, § 108.04(5g)(a)1. makes a distinction that

§ 108.04(5g)2.           does     not.           Specifically,           § 108.04(5g)(a)1.

provides that one or more minor infractions does not constitute

substantial        fault       unless     an    infraction       is    repeated          and    the

employer       has       previously          warned       the    employee              about    the

infraction.         In contrast, § 108.04(5g)(a)2. contains a different

definition.         There, an employer's warning is not dispositive of

whether errors were inadvertent under § 108.04(5g)(a)2.                                   That is

not   to     say    an       employer's      warning      can    never      be    relevant       to

whether      an    employee's       error        was      inadvertent.            However,       an

employee      who       is    warned    about        an   inadvertent        error        is    not
necessarily         terminated         for      substantial         fault        even     if    the

employee subsequently makes another error.

       ¶46    Finally, the statute does not state whether there is a

limitation on the number of inadvertent errors an employee may

commit before the employee's errors are no longer inadvertent.

       16
       This definition of inadvertent is not inconsistent with
the way in which the court of appeals defined inadvertent in
Easterling v. LIRC, 2017 WI App 18, ___ Wis. 2d ___, ___ N.W.2d
___.


                                                18
                                                                                  No.    2015AP1055



However, we need not determine if a numerical limit exists.

Under      the    facts          of   this   case,      it   suffices       to    interpret     the

statute to mean that multiple inadvertent errors, even if the

employee has been warned about the errors, does not necessarily

constitute substantial fault.

                  D.        Application of Wis. Stat. § 108.04(5g)

      ¶47        In        the    present     case,      we       must     determine      whether

Operton's errors are exempted from the statutory definition of

substantial           fault.          Specifically,          we    must    determine      whether

Operton was terminated by Walgreens for "one or more inadvertent

errors" during the course of her employment.                                 We conclude that

she   was,       and        therefore        her   actions        are     exempted      from    the

definition            of     substantial       fault,        and     she     is    entitled      to

unemployment compensation.

      ¶48        At the outset, we note that LIRC's findings of fact

within its misconduct analysis support our conclusion.                                         LIRC

found that none of Operton's errors was intentional or willful.

Specifically, LIRC found that "there is no evidence that the
employee intentionally or willfully disregarded the employer's

interests         by        continuing        to     make     cash        handling      errors."17

Moreover, LIRC also found that Operton's "actions were not so

careless or negligent so as to manifest culpability or wrongful

intent."18            As discussed below, there is nothing in the record
      17
       Lela Operton v. Walgreen Co., ERD No. 14001606MD (LIRC,
September 19, 2014) (adopting DWD administrative law judge's
findings).
      18
           Id.


                                                   19
                                                    No.   2015AP1055



that suggests these findings are erroneous.   Accordingly, LIRC's

factual findings support our conclusion that Operton's conduct

falls within the "one or more inadvertent errors" provision, and

therefore was the type of conduct the legislature exempted from

the definition of substantial fault.

    ¶49   However, despite these findings, LIRC concluded that

Operton was not entitled to unemployment compensation because

she was terminated from Walgreens for substantial fault.19     LIRC

cited Operton's eight cash-handling errors and reasoned that she

was aware of Walgreen's procedures but continued to make errors.

    ¶50   However, Operton's eight cash-handling errors were not

so egregious as to warrant the conclusion that the errors were

transformed from inadvertent to reckless or intentional under

the facts of this case.     Her errors occurred over a 21-month

time period when Operton completed approximately 80,000 cash-

handling transactions.    Accordingly, we conclude that Operton's

eight accidental or careless errors were, as a matter of law,

"inadvertent errors" because Operton made these errors over the
course of 80,000 cash-handling transactions during a 21-month

period.

    ¶51   The length of time between Operton's errors supports

this conclusion.   Operton went months without making an error.


    19
       We agree with LIRC that Operton's actions fall within the
general definition of substantial fault before the exceptions
are considered.   Operton exercised reasonable control over the
cash-handling transaction, and Walgreens' expectation that she
handle such transactions properly was reasonable.


                                20
                                                                          No.     2015AP1055



For example, after Operton's cash-handling error on October 19,

2012, she did not commit another error until February 12, 2013.

Likewise, after her cash-handling error on July 26, 2013, she

did not commit another error until January 1, 2014.                             Therefore,

there      were    substantial         periods        of    time    in    which     Operton

performed the duties of her job error-free.

      ¶52    Moreover, Operton was not repeatedly making the same

error.20      Yes, the errors were similar in nature; all of the

errors were cash-handling mistakes.                         Yet, for the most part,

Operton     violated     different            rules    or    procedures      each      time.

Operton's first error occurred when she accepted a WIC check for

$8.67 worth of items even though the check was worth only $5.78.

Operton committed a different type of error when she accidently

gave a check back to a customer who had made a purchase for

which the check was to serve as payment.                      This was the only time

during her employment when she made this type of error.                             And, on

a   different      occasion,       a    customer      left    without     finishing         the

transaction       on   the   pin       pad.     Again,       this   was   not     an   error
Operton made more than once.                   Finally, the error that she was

ultimately        terminated   for——not          checking      identification          of    an

individual using a credit card for a purchase over $50——was a

different type of error than those she had previously made.




      20
       It is worth noting that LIRC found that Operton was a
conscientious employee, and her supervisor offered to serve as a
reference for her following her termination from Walgreens.


                                               21
                                                                          No.    2015AP1055



       ¶53    Accordingly, the length of Operton's employment, the

number       of     transactions          Operton         handled      throughout       her

employment, and the variety of the errors she committed compels

the conclusion that she was not terminated from Walgreens for

substantial fault.            While all of the errors fell within the same

general cash-handling duties of her employment, the errors were,

nevertheless, inadvertent.

       ¶54    Consequently, as a matter of law, Operton's errors are

the type of conduct the legislature intended to exempt from

substantial        fault.21        And,   as     a   result,     the   LIRC     improperly

denied Operton unemployment benefits.

                                   III.    CONCLUSION

       ¶55    In    light     of    the   foregoing,        we   conclude       that   LIRC

incorrectly denied Operton unemployment benefits.                             Operton was

entitled to unemployment benefits because her actions did not

fit within the definition of substantial fault as set forth in

Wis.    Stat.      §    108.04(5g).         Stated        more   fully,    Operton      was

terminated        for   committing        "One       or   more   inadvertent      errors"
during the course of her employment, and therefore pursuant to

Wis.     Stat.     § 108.04(5g)(a)2.,               she   was    not   terminated      for

substantial fault.             We further conclude that, as a matter of

law, Operton's eight accidental or careless cash-handling errors


       21
       We leave open whether there is a point at which the
number of errors that seem inadvertent in isolation cease to be
inadvertent when viewed in their totality. Because we conclude
that, under the facts of this case, Operton's eight errors were
inadvertent, we need not reach this issue.


                                               22
                                                          No.   2015AP1055



over    the    course   of   80,000   cash-handling   transactions   were

inadvertent.

       ¶56    Accordingly, we affirm the court of appeals and remand

to LIRC to determine the amount of unemployment compensation

Operton is owed.

       By the Court.—The court of appeals is affirmed, and the

cause is remanded to the Labor and Industry Review Commission.




                                      23
                                                                 No.   2015AP1055.ssa




      ¶57   SHIRLEY S. ABRAHAMSON, J.              (concurring).          Wisconsin

was   the   first   state   in   the    nation     to    have    an    unemployment

compensation law.1     We should get this decision right.

      ¶58   I agree with the court's mandate.                   The employer has

the burden of proving that Lela Operton is not eligible for

unemployment    benefits.        It    has   not   met    this    burden.       Lela

Operton wins.

      ¶59   I do not join the majority opinion for two principal

reasons:    (1) This is a "no deference" case.2                  (2) The majority

opinion injects extra-statutory considerations into its analysis

of Wis. Stat. § 108.04(5g)(a)2.

                                       (1)

      ¶60   This is a "no deference" case.               The court of appeals

got it right:       De novo review is appropriate because LIRC "is

applying a new statute to a new concept."                Operton v. LIRC, 2016

WI App 37, ¶20, 369 Wis. 2d 166, 880 N.W.2d 169.3                       This court

      1
       See Brief of Amicus Curiae Wisconsin State AFL-CIO; Brief
of Amicus Curiae Wisconsin Employment Lawyers Association.
      2
       I have difficulty with footnote 12 of the majority
opinion.   I do not understand the nature and scope of the
majority opinion's reference to the "facts that pertain to the
nature of the legal issue" or to the "substance of an agency's
interpretation," which it refers to as a "threshold question."
Nothing suggestive of this remark has been raised or briefed in
the instant case.
      3
       See also Racine Harley-Davidson, Inc. v. State, Div. of
Hearings & Appeals, 2006 WI 86, ¶20, 292 Wis. 2d 549, 565–66,
717 N.W.2d 184 (footnotes omitted):

      Thus, due weight deference             and no deference to an
      agency's interpretation of             a statute are similar.
                                                              (continued)
                                        1
                                                                            No.       2015AP1055.ssa


independently         decides            how         to         interpret            Wis.      Stat.

§ 108.04(5g)(a)2.            Regardless          of       the     deference          issue,       LIRC

erred.

                                               (2)

       ¶61   The     majority           opinion's          analysis        of        Wis.      Stat.

§ 108.04(5g)(a)2. significantly strays from the statutory text.

It injects two extra-statutory considerations into its analysis

of § 108.04(5g)(a)2.

       ¶62   The     first       statutory       misstep          is    that      the       majority

opinion      adds     the        idea     of        a     "warning"         to        Wis.     Stat.

§ 108.04(5g)(a)2.          The court of appeals got it right, concluding

that     "[t]he     ALJ    and     LIRC        erred       in     merging        the     'warning'

component      set        forth     in         the        'infraction'           exception          in

§ 108.04(5g)(a)1.          with     the    'inadvertent                error'     exception         in

§ 108.04(5g)(a)2. . . . Inadvertent                        errors,        warnings           or     no

warnings,     never       meet    the    statutory          definition          of     substantial

fault."      Operton, 369 Wis. 2d 166, ¶¶24, 28.



       Under both due weight deference and no deference, the
       reviewing court may adopt, without regard for the
       agency's interpretation, what it views as the most
       reasonable interpretation of the statute.     When due
       weight deference is accorded an agency, however, a
       reviewing   court   will  not  reverse   the   agency's
       statutory    interpretation   when    an    alternative
       interpretation is equally reasonable. In contrast, in
       a no deference review of an agency's statutory
       interpretation, the reviewing court merely benefits
       from the agency's determination and may reverse the
       agency's interpretation even when an alternative
       statutory interpretation is equally reasonable to the
       interpretation of the agency.


                                                2
                                                                     No.   2015AP1055.ssa


       ¶63    Although      the    majority       opinion      concedes       that      the

"inadvertent errors" language in § 108.04(5g)(a)2. (in contrast

with the language in § 108.04(5g)(a)1.)4 contains no language

regarding      warnings     to    employees,      the   majority       opinion       tells

readers, with a straight face, that "an employer's warnings" are

"relevant" in § 108.04(5g)(a)2.              Majority op., ¶45.

       ¶64    I agree with Judge Lundsten's concurrence in the court

of appeals:       "Warnings are not relevant under the 'inadvertent

errors' alternative."             Operton, 369 Wis. 2d 166, ¶45 (Lundsten,

J., concurring).

       ¶65    The second statutory misstep occurs when the majority

opinion "leave[s] open whether there is a point at which the

number of errors that seem inadvertent in isolation cease to be

inadvertent      when    viewed     in    their   totality. . . . "             Majority

op., ¶54 n.21.          By reserving this question, and thus including

this extra-statutory consideration in its analysis, see majority

op.,       ¶¶51-53,   the    majority      opinion      once    again        performs    a

statutory      analysis     that     is    not    tethered      to     the     statutory
language.


       4
       Compare Wis. Stat. § 108.04(5g)(a)1. (Substantial fault
does not include "[o]ne or more minor infractions of rules
unless an infraction is repeated after the employer warns the
employee   about  the   infraction.")   (emphasis  added)   with
§ 108.04(5g)(a)2. (Substantial fault does not include "[o]ne or
more inadvertent errors made by the employee.").       See also
Operton, 369 Wis. 2d 166, ¶45 (Lundsten, J., concurring) ("This
omission [of warnings], on the heels of express warning language
in the rules infractions alternative, supports the conclusion
that warnings are not relevant under the 'inadvertent errors'
"alternative.").


                                            3
                                                                 No.    2015AP1055.ssa


     ¶66    The statutory language provides that substantial fault

does not include "one or more inadvertent errors . . . ."                        Wis.

Stat.     § 108.04(5g)(a)2.           According         to     this     text,     the

"inadvertent errors" analysis contains no numerical limits.

     ¶67    I agree with Judge Lundsten's concurrence in the court

of appeals:       "[T]he statute tells us that, if all we have is

repeated . . . 'inadvertent errors,' we do not have 'substantial

fault.'"5

     ¶68    These missteps demonstrate that the majority opinion

does not apply the rule that the unemployment compensation law

is   to     be    "liberally       construed       to       effect     unemployment

compensation coverage for workers who are economically dependent

upon others in respect to their wage-earning status."                       Princess

House, Inc. v. DILHR, 111 Wis. 2d 46, 62, 330 N.W.2d 169 (1983).

     ¶69    For    the   reasons    set       forth,    I    conclude    that    Lela

Operton prevails, but I do not join the majority opinion.

     ¶70    I    am   authorized    to    state    that       Justice    ANN    WALSH

BRADLEY joins this opinion.




     5
         Operton, 369 Wis. 2d 166, ¶43 (Lundsten, J., concurring).


                                          4
                                                                    No.    2015AP1055.akz



       ¶71   ANNETTE KINGSLAND ZIEGLER, J.                (concurring).               I join

the    court's     opinion.      I    write     separately      to    make        a    brief

observation about agency deference.                  While the subject of agency

deference may currently be a "hot button" issue, the law in

Wisconsin     on    the    subject    is     well-established:            under       proper

circumstances this court will defer, to varying degrees, to an

agency's     interpretation      of    a    statute.         See,   e.g.,     Wisconsin

Dep't of Revenue v. Menasha Corp., 2008 WI 88, ¶¶47-50, 311

Wis. 2d 579, 754 N.W.2d 95.                The parties in this case did not

ask the court to address whether changes to that approach are

warranted.         There   is   little      doubt     that    ending       the    court's

practice     of    according    deference       to   agency    interpretations            of

statutes would constitute a sea change in Wisconsin law, and

many    interested        parties     would     likely       wish    to     weigh        in.

Consequently, I would want to see the issue set forth, briefed,

and argued before expressing an opinion on the merits of such a

change.

       ¶72   For the foregoing reasons, I respectfully concur.




                                            1
                                                                             No.    2015AP1055.rgb


       ¶73    REBECCA GRASSL BRADLEY, J.                       (concurring).         Although I

join    the       majority    opinion,       I       write      separately         to     question

whether       this     court's        practice            of        deferring       to     agency

interpretations         of        statutes       comports            with     the       Wisconsin

Constitution,        which    vests     judicial          power        in   this     court——not

administrative         agencies.         The          Labor          and    Industry        Review

Commission         (LIRC)    asks     this       court         to    give    "great       weight"

deference to its interpretation of the term "substantial fault"

in Wis. Stat. § 108.04(5g)(a) (2013-14).                             Because "LIRC did not

provide      an    articulated      interpretation              of    § 108.04       in    denying

Operton unemployment benefits," the majority properly conducts

an     independent       interpretation              of      § 108.04        without        giving

deference to LIRC.                Majority op., ¶¶23-26.                    The doctrine of

deference to agencies' statutory interpretation is a judicial

creation that circumvents the court's duty to say what the law

is and risks perpetuating erroneous declarations of the law.

Because the court in this case fulfills its interpretive duty, I

join the majority opinion but urge the court to reconsider its
decades-long abdication of this core judicial function.

       ¶74    This court's current deference framework arises out of

two cases from the mid-1990s.                    In Harnischfeger Corp. v. LIRC,

196    Wis. 2d 650,         539    N.W.2d 98         (1995),         the    court       identified

"three distinct levels of deference to agency interpretations:

great weight, due weight and de novo review."                                  Id. at 659-60

(citing Jicha v. DILHR, 169 Wis. 2d 284, 290, 485 N.W.2d 256

(1992)).      "Great weight" deference applies when four conditions
are met:

                                                 1
                                                                      No.       2015AP1055.rgb

      (1) the agency was charged by the legislature with the
      duty of administering the statute; (2) [] the
      interpretation of the agency is one of long-standing;
      (3)   []  the   agency  employed   its   expertise  or
      specialized knowledge in forming the interpretation;
      and (4) [] the agency's interpretation will provide
      uniformity and consistency in the application of the
      statute.
Id. at 660 (citing Lisney v. LIRC, 171 Wis. 2d 499, 505, 493

N.W.2d 14 (1992)).          If an agency's interpretation of a statute

qualifies for great weight deference, then the "interpretation

must [] merely be reasonable for it to be sustained," and an
interpretation is unreasonable only "if it directly contravenes

the words of the statute, [] is clearly contrary to legislative

intent or [] is without rational basis."                     Id. at 661-62.

      ¶75    In UFE Inc. v. LIRC, 201 Wis. 2d 274, 548 N.W.2d 57

(1996),     this   court    elaborated       on    the       "due   weight"        deference

standard.      "Under the due weight standard, 'a court need not

defer to an agency's interpretation which, while reasonable, is

not the interpretation which the court considers best and most

reasonable.'"      Id. at 286 (quoting Harnischfeger, 196 Wis. 2d at

660 n.4).      Courts give due weight deference when an agency has

"some experience" interpreting a statute but not so much as to

"develop[] the expertise which necessarily places it in a better

position"     than    a    court      "to       make    judgments       regarding         the

interpretation."          Id.    An agency lacking special knowledge or

expertise     nevertheless      might       receive      some       deference       if   "the

legislature has charged the agency with the enforcement of the

statute in question."           Id.    A court giving due weight deference
to   an   agency   interpretation       "will          not   overturn       a    reasonable

agency decision that comports with the purpose of the statute
                                            2
                                                                         No.    2015AP1055.rgb


unless the court determines that there is a more reasonable

interpretation available."              Id. at 286-87.

       ¶76   Examination       of       the     pre-Harnischfeger              standard        for

reviewing agency interpretations of statutes suggests that the

Harnischfeger court did not simply apply existing law——it recast

it.1       Before    Harnischfeger,           this      court    often     articulated           a

slightly     different       standard         of   review:         "[I]t        is    a     well-

established       principle        of        statutory        construction           that      the

construction        and    interpretation          of    a    statute     adopted         by   an

administrative agency charged with the duty of applying the law

is     entitled      to    great    weight."                 Schwartz     v.     DILHR,         72

Wis. 2d 217,        221,     240    N.W.2d 173            (1976).          Tracing           that

principle's         development         in     Wisconsin        law      backwards          from

Harnischfeger leads to its source:                   Harrington v. Smith, 28 Wis.

43 (1871).2

       ¶77   Harrington presented this court with a dispute over

the interpretation of a statute.                   Observing that "[t]he statute

       1
       For   a  more   complete   evaluation   of  the   court's
characterization of existing law in Harnischfeger Corp. v. LIRC,
196 Wis. 2d 650, 539 N.W.2d 98 (1995), see Patience Drake
Roggensack, Elected to Decide: Is the Decision-Avoidance
Doctrine of Great Weight Deference Appropriate in This Court of
Last Resort?, 89 Marq. L. Rev. 541, 548-61 (2006).
       2
       See, e.g., Lisney v. LIRC, 171 Wis. 2d 499, 505-06, 493
N.W.2d 14 (1992); West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1,
12, 357 N.W.2d 534 (1984); Pigeon v. DILHR, 109 Wis. 2d 519,
524-25,   326   N.W.2d 752  (1982);  Schwartz   v.   DILHR,  72
Wis. 2d 217, 221, 240 N.W.2d 173 (1976); City of Milwaukee v.
WERC, 43 Wis. 2d 596, 599-601, 168 N.W.2d 809 (1969); Mednis v.
Indus. Comm'n, 27 Wis. 2d 439, 444, 134 N.W.2d 416 (1965);
Trczyniewski v. City of Milwaukee, 15 Wis. 2d 236, 240, 112
N.W.2d 725 (1961).


                                               3
                                                               No.     2015AP1055.rgb


in question was enacted and has been continuously interpreted,

understood and acted upon by the executive department of the

government,        the   officers    appointed     by    law    to      carry    its

provisions into effect, . . . for a period of over twenty-one

years,     and     during   twelve   successive     administrations         of    the

state," the court concluded that "[g]reat weight is undoubtedly

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

Id.   at   68-69.        Accordingly,   the     Harrington     court    explained:

"Long and uninterrupted practice under a statute, especially by

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

of its construction, and such practical construction will be

adhered to, even though, were it res integra,[3] it might be

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

support    of     that   proposition,    this    court   cited,      among      other

authorities, Edwards' Lessee v. Darby, 25 U.S. (12 Wheat.) 206

(1827), which stated that, "[i]n the construction of a doubtful

and ambiguous law, the contemporaneous construction of those who

were called upon to act under the law, and were appointed to
carry its provisions into effect, is entitled to very great

respect."        Id. at 210.4


      3
       Latin for "an entire thing," as a legal term res integra
refers to an "undecided question of law" or a "case of first
impression." Res Integra, Black's Law Dictionary 1503 (10th ed.
2014) (citing Res Nova, id. at 1504).
      4
       In Chevron U.S.A. Inc. v. Natural Resources Defense
Counsel, Inc., 467 U.S. 837 (1984), the Supreme Court also cited
Edwards' Lessee v. Darby, 25 U.S. (12 Wheat.) 206 (1827), among
many other cases, when constructing the two-step framework that
has become the cornerstone of judicial review of agency
determinations at the federal level.   Chevron, 467 U.S. at 844
                                                     (continued)
                                4
                                                                  No.    2015AP1055.rgb


     ¶78    By recognizing the value of executive interpretations

without entirely ceding interpretive authority to the executive,

these    older    cases    reflect      a   more    nuanced   appreciation         for

judicial     interaction         with   agency      interpretation        than     this

court's    post-Harnischfeger           deference    standards      permit.         The

prevailing    scheme      of     deference    hamstrings      a   court      of   last

resort——with         self-imposed            shackles——from             independently

interpreting      the     law,    thereby     thwarting     the     constitutional

structure    of    dispersing       power    among    the   three       branches    of

government.       Because this structure has long been recognized as

the essential safeguard of individual rights and liberty,5 this


n.14. Although I will not, in this writing, endeavor to conduct
a comprehensive review comparing federal agency deference to
Wisconsin law, it suffices for now to note that federal
administrative deference under Chevron seems to raise separation
of powers concerns under the United States Constitution similar
to those I identify in Wisconsin.     See, e.g., Michigan v. EPA,
135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring) (arguing
that transferring "ultimate interpretive authority" to the
Executive "is in tension with Article III's Vesting Clause,
which vests the judicial power exclusively in Article III
courts, not administrative agencies"); City of Arlington v. FCC,
133 S. Ct. 1863, 1879 (2013) (Roberts, C.J., dissenting) ("It
would be a bit much to describe the result as 'the very
definition of tyranny,' but the danger posed by the growing
power of the administrative state cannot be dismissed."); see
also Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152 (10th Cir.
2016) (Gorsuch, J., concurring) ("Transferring the job of saying
what   the  law   is   from  the   judiciary   to  the   executive
unsurprisingly invites the very sort of due process (fair
notice) and equal protection concerns the framers knew would
arise   if   the   political   branches   intruded   on   judicial
functions.").
     5
       "In  the  compound   republic  of  America,   the  power
surrendered by the people is first divided between two distinct
governments, and then the portion allotted to each subdivided
among distinct and separate departments.       Hence a double
                                                    (continued)
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court should reinforce that structure as a check against the

concentration of power in the executive branch.                           "The doctrine

of separation of powers, a fundamental principle of American

constitutional government, is embodied in the clauses of the

Wisconsin    Constitution          providing       that     the     legislative          power

shall be vested in a senate and assembly, the executive power in

a governor . . . , and the judicial power in the courts."                                State

v.   Washington,    83       Wis. 2d 808,         816,      266     N.W.2d 597        (1978)

(citations omitted).              No less than in the federal system, in

Wisconsin "[i]t is emphatically the province and duty of the

judicial department to say what the law is."                        State v. Williams,

2012 WI 59, ¶36 n.13, 341 Wis. 2d 191, 814 N.W.2d 460 (quoting

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)); see also

State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 436-37,

424 N.W.2d 385 (1988).

     ¶79    Acknowledging               respect        for          a         longstanding

interpretation     of    a    statute      is     a   far     cry    from      a   judicial

doctrine    of   "great       weight"      deference        that     relinquishes          the
court's     responsibility         to    independently            interpret        statutes.

Equally     troubling        is    the    possibility         that       seven       elected

justices——or,     indeed,         any    elected      judge       accountable       to    the

people of Wisconsin——might give "great weight" deference to an

agency decision by a single, unelected administrative law judge

or hearing examiner against whom the people have no recourse.

Administrative rulemaking already shifts some lawmaking power to

security arises to the rights of the people."      The Federalist
No. 51 (James Madison) (Clinton Rossiter ed., 1961).


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unelected officials and away from the processes of passage and

presentment       contemplated       by        our     constitution.                 Judicial

deference to executive interpretations further widens the gap

between the people and the laws that govern them.

      ¶80   The    framers     of   our    constitutions         chose          to    disperse

authority within the federal Republic and our state because they

recognized that "[t]he accumulation of all powers, legislative,

executive, and judiciary, in the same hands . . . may justly be

pronounced      the    very   definition       of    tyranny."            The    Federalist

No. 47 (James Madison) (Clinton Rossiter ed., 1961).                                  As this

court has recognized since Harrington, no harm comes to that

separation      when    the   judicial     branch       treats       a     well-developed

executive interpretation of a statute as "some evidence of what

the   law   is."        Harrington,       28    Wis.    at     69.         But       when   the

legislature delegates broad authority to an executive agency,

which in turn interprets and enforces that delegated authority,

the judiciary risks the liberty of all citizens if it abdicates

its    constitutional          responsibility             to         check           executive
interpretations of the law.               Because no such abdication occurs

here, I join the majority opinion and respectfully concur.

      ¶81   I   am     authorized    to    state       that    Justices          MICHAEL    J.

GABLEMAN and DANIEL KELLY join this concurrence.




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