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Government Agencies Free to Abuse Power

Written By: Jerry Hanson  |  Posted: Monday, December 31st, 2012

Wisconsin Supreme Court            Who bestowed unrestrained power upon the following agencies: the Department of Natural Resources (DNR), the Department of Agriculture Trade and Consumer Protection (DATCP), the Department of Children and Families (DCF), the Department of Child Protective Services, the Department of Planning and Development, and so on? In Wisconsin there are a plethora of state and county agencies, which seem to think they are the final authority on everything from how to farm your land, to how to raise your children. They also seem to exercise unbridled power to stop or restrict you from fully exercising your God given liberties in almost every area of life, if they so choose. There are innumerable ordinances, regulations and laws; some, or many, of which we all have violated, or are violating, unbeknownst to us. 

            Get hauled into court by one of these agencies and you inevitably lose. Even if you can afford to appeal the court's decision, you will lose again. Even if you appeal on reasonable grounds to the Wisconsin Supreme Court, you will likely lose again. Why? The Wisconsin Legislature has vested in these agencies undue power, even to the point of restricting the power of judicial review. This is according to the opinion of three of Wisconsin's Supreme Court Justices in their 2006 decision in Hilton v DNR.

            Three Justices, Jon Wilcox, Patience Drake Roggensack, and David Prosser, in their consenting opinion written by Justice David Prosser, state, "This case epitomizes the growth of agency power, the decline of judicial review, and the tenuous state of property rights in the 21st Century." The Justices cite Wisconsin Statute 227.57 in combination with "judicially created avoidance doctrines" as causing litigants to "lose the right to meaningful appellate review...."

            Pursuant to Wis. Stat. 227.57, the courts "...shall affirm the agency's action." and the "court must grant great weight deference to an agency's interpretation of law...even if an equal or more reasonable interpretation is offered." When such affirmation to an agency's actions, and when such deference to an agency's interpretation of law is invoked, "...there is no reasoned decision (by the court) about whether the law was correctly applied or interpreted." (parenthesis added). This expectation that the courts will "rubber-stamp" an agency's decision, except in cases of obvious misinterpretation, has emboldened these agencies and intimidated and humiliated those they are appointed to serve.

            Since these unaccountable and unelected agencies have come to expect elected judges to give their decisions great weight deference, they seldom fear their actions will be viewed critically by the court. Instead they rely on the court as an unquestioning and uncritical enforcement tool. The agencies' actions are almost always upheld by the courts. And the courts, by adopting "avoidance doctrines," save themselves all the time and hard work of fully considering all the issues raised. When a court affords great deference to these agencies, it is practicing "decision-avoidance" in place of providing reasoned decisions on the merits of the issues presented.

            Justice Prosser also questions the wisdom of agency decisions being given deference because of the presumed experience and expertise of the agency. He illustrates that, at times, agencies are in conflict with each other. At other times these agencies have been very inconsistent in the application of their own rules. "Expertise... can become a monster which rules with no practical limits on its discretion." Quoted from Burlington Truck Lines v. United States.  

            What can we do to turn the tide of these unrestrained agencies? Encourage your state legislators to re-write Wis. Stat. 227.57 and other applicable statutes to require the courts to not give agencies such deference, and restore liberty to the people.

            Jerry Hanson is an owner and a writer for the US Journal.  Email: jerry@eauclairejournal.com.

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