On December 19, 2019, in a unanimous decision, the Wisconsin Supreme Court said state agencies must promulgate as a rule changes to their policies. GLLF filed an amicus brief on behalf of five Wisconsin associations. We also participated in oral argument before the Supreme Court.
In this case, Wisconsin Department of Transportation (DOT) violated Wisconsin law when ordering the uncompensated removal of an outdoor sign because it changed its mind on what the law means. As we noted in our press release:
Agreeing with us and writing for the court, Justice Kelly notes that “from time to time an administrative agency changes its interpretation of a statute in a manner that adversely affects a regulated activity.” In this instance, DOT must “promulgate a rule containing the new statutory interpretation before applying it against the sign owner.”
This isn’t about one sign, or one agency. It is a clear directive to all state agencies that they cannot impose their changing views of the law without providing the due process procedural protections we all deserve.
Our interest in this case stems from agency avoidance of Chapter 227 rulemaking and the so-called “error-correcting exception” coined by the Wisconsin Court of Appeals (District IV-Madison). Under the error-correcting exception, an agency does not need to promulgate a rule if it “administers the statute according to its plain terms.” If upheld, this exception would allow agencies to govern Wisconsin’s regulated community by regulatory edicts without any of the Chapter 227 rulemaking protections.
In a 7-0 opinion, the Wisconsin Supreme Court reversed the Court of Appeals and threw out this unlawful exception to Chapter 227.
The fact this decision was unanimous makes it all the more significant. Requiring agencies to follow the law is of vital importance to all Wisconsin citizens, not just businesses. Seven justices on the Wisconsin Supreme Court agree.
Why This Case is Important
The Foundation’s interest in this case stems from agency avoidance of Chapter 227 rulemaking and the so-called “error-correcting exception” coined by the Wisconsin Court of Appeals (District IV). Under the error-correcting exception, an agency does not need to promulgate a rule if it “administers the statute according to its plain terms.” (Lamar Cent. Outdoor, LLC v. DHA, 2019 WI App 1, ¶76). The error-correcting exception rests awkwardly on a strained reading of an over forty-year-old Wisconsin Supreme Court case: Schoolway Transp. Co., Inc. v. DMV. Not only does it misapply Schoolway’s holding, the error-correcting exception creates a judicially-mandated exception that would allow agencies to avoid rulemaking in almost every instance. This would severely limit the protections afforded Wisconsin’s regulated community.
Key Documents
Lamar Central Outdoor, LLC v. DHA: Supreme Court Opinion (December 19, 2019)
Lamar Central Outdoor, LLC v. DHA: GLLF Amicus Brief (July 12, 2019)
Lamar Central Outdoor, LLC v DHA: GLLF Motion to File Amicus Brief (July 5, 2019)
Lamar Central Outdoor, LLC v. DHA: Supreme Court Lamar Reply Brief (July 1, 2019)
Lamar Central Outdoor, LLC v. DHA: Supreme Court DHA Response Brief (June 20, 2019)
Lamar Central Outdoor, LLC v. DHA: Supreme Court Lamar Opening Brief (May 9, 2019)
Lamar Central Outdoor, LLC v. DHA: Court of Appeals Opinion (November 29, 2018)
