GLLF ’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.
The brief focuses on the “error-correcting exception” to Chapter 227 rulemaking procedures. This loophole is so broad, if left to stand by the Supreme Court, it would assure widespread agency avoidance of Chapter 227 rulemaking requirements.