Service Employees International Union (SEIU), Local 1 v. Robin Vos , 2020 WI 67 ( 2020 )

2020 WI 67
SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP614-LV & 2019AP622
COMPLETE TITLE: Service Employees International Union (SEIU),
Local 1,
SEIU Healthcare Wisconsin, Milwaukee Area
Service and
Hospitality Workers, AFT-Wisconsin, Wisconsin
Federation
of Nurses and Health Professionals, Ramon
Argandona, Peter
Rickman, Amicar Zapata, Kim Kohlhaas, Jeffrey
Myers,
Andrew Felt, Candice Owley, Connie Smith and
Janet Bewley,
Plaintiffs-Respondents,
v.
Robin Vos, in his official capacity as Wisconsin
Assembly
Speaker, Roger Roth, in his official capacity as
Wisconsin
Senate President, Jim Steineke, in his official
capacity
as Wisconsin Assembly Majority Leader and Scott
Fitzgerald, in his official capacity as
Wisconsin Senate
Majority Leader,
Defendants-Appellants,
Josh Kaul, in his official capacity as Attorney
General of
the State of Wisconsin and Tony Evers, in his
official
capacity as Governor of the State of Wisconsin,
Defendants-Respondents.
REVIEW OF AN ORDER OF THE COURT OF APPEALS
(2019 – unpublished)
OPINION FILED: July 9, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 18, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Frank D. Remington
JUSTICES:
The opinion of the court is being announced in two writings.
HAGEDORN, J., delivered a majority opinion of the Court
addressing all issues other than the provisions of 2017 Wis. Act
369 concerning guidance documents. This is a majority opinion
of the Court with respect to Part II.E.2.-4., in which all
Justices joined; and a majority opinion of the Court with
respect to Parts I, II.A.-D., II.E.1., and III, in which
ROGGENSACK, C.J., ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY,
JJ., joined. KELLY, J., delivered a majority opinion of the
Court with respect to the provisions of 2017 Wis. Act 369
concerning guidance documents, in which ANN WALSH BRADLEY,
REBECCA GRASSL BRADLEY, and DALLET, JJ., joined. ROGGENSACK,
C.J., filed an opinion concurring in part and dissenting in
part. DALLET, J., filed an opinion concurring in part and
dissenting in part, in which ANN WALSH BRADLEY, J., joined.
HAGEDORN, J., filed an opinion concurring in part and dissenting
in part, in which ZIEGLER, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-appellants, there were briefs filed by
Misha Tseytlin and Troutman Sanders LLP, Chicago, Illinois, and
Eric M. McLeod, Lisa M. Lawless and Husch Blackwell LLP, Madison.
There was an oral argument by Misha Tseytlin.
For the plaintiffs-respondents, there was a brief filed by
Nicole G. Berner, Claire Prestel, John M. D’Elia and Service
Employees International Union, Washington, D.C.; Timothy E. Hawks,
Barbara Z. Quindel and Hawks Quindel, S.C., Milwaukee; Jeremy P.
Levinson, Stacie H. Rosenzweig and Halling & Cayo, S.C., Milwaukee;
David Strom and American Federation of Teachers, Washington, D.C.;
and Matthew Wessler and Gupta Wessler PLLC, Washington, D.C. There
was an oral argument by Matthew Wessler.
For the defendants-respondents, there were briefs filed by
Lester A. Pines, Tamara B. Packard, Christa O. Westerberg, Leslie
A. Freehill, Beauregard W. Patterson and Pines Bach LLP, Madison;
Joshua L. Kaul, attorney general, Thomas C. Bellavia, assistant
2
attorney general and Colin T. Roth, assistant attorney general.
There was an oral argument by Joshua L. Kaul and Lester A. Pines.
An amicus curiae brief was filed on behalf of Wisconsin Law
and Liberty, Inc. by Richard M. Esenberg, CJ Szafir, Lucas T.
Vebber and Anthony LoCoco, Milwaukee.
An amicus curiae brief was filed on behalf of Wisconsin
Manufacturers & Commerce by Corydon J. Fish, Madison.
3
2020 WI 67
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP614-LV & 2019AP622
(L.C. No. 2019CV302)
STATE OF WISCONSIN : IN SUPREME COURT
Service Employees International Union (SEIU),
Local 1, SEIU Healthcare Wisconsin, Milwaukee
Area Service and Hospitality Workers, AFT-
Wisconsin, Wisconsin Federation of Nurses and
Health Professionals, Ramon Argandona, Peter
Rickman, Amicar Zapata, Kim Kohlhaas, Jeffrey
Myers, Andrew Felt, Candice Owley, Connie Smith
and Janet Bewley,
Plaintiffs-Respondents,
v.
Robin Vos, in his official capacity as FILED
Wisconsin Assembly Speaker, Roger Roth, in his
official capacity as Wisconsin Senate JUL 9, 2020
President, Jim Steineke, in his official
capacity as Wisconsin Assembly Majority Leader Sheila T. Reiff
and Scott Fitzgerald, in his official capacity Clerk of Supreme Court
as Wisconsin Senate Majority Leader,
Defendants-Appellants,
Josh Kaul, in his official capacity as Attorney
General of the State of Wisconsin and Tony
Evers, in his official capacity as Governor of
the State of Wisconsin,
Defendants-Respondents.
The opinion of the court is being announced in two writings.
HAGEDORN, J., delivered a majority opinion of the Court addressing
all issues other than the provisions of 2017 Wis. Act 369
concerning guidance documents. This is a majority opinion of the
Court with respect to Part II.E.2.-4., in which all Justices
joined; and a majority opinion of the Court with respect to Parts
I, II.A.-D., II.E.1., and III, in which ROGGENSACK, C.J., ZIEGLER,
REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. KELLY, J.,
delivered a majority opinion of the Court with respect to the
provisions of 2017 Wis. Act 369 concerning guidance documents, in
which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ.,
joined. ROGGENSACK, C.J., filed an opinion concurring in part and
dissenting in part. DALLET, J., filed an opinion concurring in
part and dissenting in part, in which ANN WALSH BRADLEY, J.,
joined. HAGEDORN, J., filed an opinion concurring in part and
dissenting in part, in which ZIEGLER, J., joined.
APPEAL from an order of the Circuit Court of Dane County,
Frank D. Remington, Circuit Court Judge. Affirmed in part,
reversed in part, injunction vacated in part, cause remanded.
¶1 BRIAN HAGEDORN, J. Under our constitutional order,
government derives its power solely from the people. Government
actors, therefore, only have the power the people consent to give
them. The Wisconsin Constitution is the authorizing charter for
government power in Wisconsin. And that document describes three—
—and only three——types of government power: legislative,
executive, and judicial. See Wis. Const. art. IV, § 1; id. art.
V, § 1; id. art. VII, § 2. Legislative power is the power to make
the law, to decide what the law should be. Executive power is
power to execute or enforce the law as enacted. And judicial power
is the power to interpret and apply the law to disputes between
parties.
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Nos. 2019AP614-LV & 2019AP622
¶2 The constitution then provides that each type of power
is "vested" in a corresponding branch of government. The
legislative power is vested in two elected bodies——the senate and
the assembly. Id. art. IV, § 1. The executive power is vested in
the governor. Id. art. V, § 1. And the judicial power——being
exercised in this very writing——is vested in a "unified court
system" headed by the supreme court. Id. art. VII, §§ 2-3. With
some exceptions, the general rule is that this diffusion of power
into three separate branches creates a concomitant separation of
powers requiring each branch to exercise only the power vested in
it by the people of Wisconsin.
¶3 This case arises from enactment of 2017 Wis. Act 369 and
2017 Wis. Act 370. These acts were passed by the legislature and
signed by the governor following the 2018 election, but before the
newly elected legislature, governor, and attorney general were
sworn into office. In response, several labor organizations and
individual taxpayers (the Plaintiffs) filed suit against the
leaders of both houses of the legislature (the Legislative
Defendants), the Governor, and the Attorney General. The
Plaintiffs broadly claimed that many of the enacted provisions
violate the separation of powers. In particular, the Plaintiffs
argued these new laws either overly burden the executive branch or
took executive power and gave it to the legislature.
¶4 The complaint unequivocally presents a facial attack on
all the laws challenged. That is, the Plaintiffs seek to strike
down application of the challenged laws in their entirety, rather
than as applied to a given party or set of circumstances. Briefing
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Nos. 2019AP614-LV & 2019AP622
below and to this court confirms this. By presenting their
challenge this way, the Plaintiffs face a tall task. Under our
well-established law, a facial challenge succeeds only when every
single application of a challenged provision is unconstitutional.
¶5 The procedural history is a bit complicated, but in
short, the Legislative Defendants moved to dismiss the entire
complaint, which the circuit court denied in full. In the same
order, the circuit court granted a temporary injunction against
enforcement of some of the provisions, most notably, laws requiring
legislative approval of settlements by the attorney general, a
provision allowing multiple suspensions of administrative rules,
and a set of statutes defining and regulating administrative agency
communications called "guidance documents." We took jurisdiction
of this case, and therefore review the circuit court's denial of
the motion to dismiss and its partial grant of a temporary
injunction.
¶6 The court's opinion in this case is being announced in
two writings. Justice Kelly's opinion constitutes the majority
opinion of the court on all of the guidance document provisions.
This writing constitutes the majority opinion of the court on all
other issues raised in this case.
¶7 In light of the procedural posture of this case and the
briefing before us, our analysis in this opinion rests on our
review of the circuit court's denial of the Legislative Defendants'
motion to dismiss. Our task is to determine whether the complaint
states a valid legal claim against the challenged laws assuming
the allegations in the complaint are true. Accordingly, this is
4
Nos. 2019AP614-LV & 2019AP622
purely a question of law and requires no factual development. See
infra, ¶26.
¶8 While the Legislative Defendants moved to dismiss the
entire complaint, they have not sufficiently briefed or developed
arguments regarding several challenged provisions. Where the
party seeking dismissal has not developed arguments on a legal
issue, we will not develop arguments for them. See infra, ¶24.
Therefore, we offer no opinion on the merits of these undeveloped
claims——none of which were enjoined by the circuit court——and they
may proceed in the ordinary course of litigation on remand.
¶9 All of the enjoined claims, as well as several other
related claims, were sufficiently briefed and argued. We conclude
that with respect to each of these claims, other than those
separately addressed in Justice Kelly's opinion for the court, the
Plaintiffs have not met their high burden to demonstrate that the
challenged provisions are unconstitutional in all of their
applications. Each of these provisions can be lawfully enforced
as enacted in at least some circumstances. Accordingly, the motion
to dismiss the facial challenges to these claims should have been
granted. This therefore means the temporary injunction is vacated
in full except as otherwise instructed in Justice Kelly's opinion
for the court.
¶10 Specifically, the provisions regarding legislative
involvement in litigation through intervention and settlement
approval authority in certain cases prosecuted or defended by the
attorney general are facially constitutional. The legislature may
have an institutional interest in litigation implicating the
5
Nos. 2019AP614-LV & 2019AP622
public purse or in cases arising from its statutorily granted right
to request the attorney general's participation in litigation.
These institutional interests are sufficient to allow at least
some constitutional applications of these laws, and the facial
challenge asking us to declare the laws unenforceable under any
circumstances necessarily fails.
¶11 In a similar vein, the provision permitting legislative
committee review of any proposed changes to security at the State
Capitol has at least some constitutional applications with respect
to security of legislative space. It follows that a facial
challenge to this provision must fail.
¶12 Likewise, the provision allowing multiple suspensions of
administrative rules plainly has constitutional applications under
Martinez v. DILHR, where we held that one three-month suspension
is constitutionally permissible. 165 Wis. 2d 687, 702, 478
N.W.2d 582 (1992). No party asks us to revisit Martinez or its
principles. We conclude that if one three-month suspension passes
constitutional muster, two three-month suspensions surely does as
well. Therefore, the facial challenge to this provision fails.
¶13 Finally, the provision partially codifying our holding
in Tetra Tech is also clearly constitutional in many, if not all,
applications. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382
Wis. 2d 496, 914 N.W.2d 21. The facial challenge to this provision
cannot survive.
¶14 With this summary in view, our analysis begins with how
we got here.
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Nos. 2019AP614-LV & 2019AP622
I. BACKGROUND
¶15 In December 2018, both houses of the Wisconsin
legislature passed and the governor signed into law 2017 Wis. Act
369 and 2017 Wis. Act 370. The specific provisions challenged——
because there are many——will be discussed in more detail below.
For now, we give a high-level overview of the somewhat complicated
procedural posture.
¶16 Two months after Act 369 and Act 370 became law——and
after the new legislature, governor, and attorney general were
sworn in——the Plaintiffs brought the complaint underlying this
appeal in Dane County Circuit Court.1 They sued the Legislative
Defendants,2 Attorney General Josh Kaul, and Governor Tony Evers—
—all in their official capacities. The complaint sought
declaratory and injunctive relief from enforcement of numerous
The Plaintiffs are: Service Employees International Union
1
(SEIU), Local 1; SEIU Healthcare Wisconsin; Milwaukee Area Service
and Hospital Workers; AFT-Wisconsin; Wisconsin Federation of
Nurses and Health Professionals; Ramon Argandona; Peter Rickman;
Amicar Zapata; Kim Kohlhaas; Jeffrey Myers; Andrew Felt; Candice
Owley; Connie Smith; and Janet Bewley.
The Honorable Frank D. Remington, Dane County Circuit Court,
presided.
The Legislative Defendants, all sued in their official
2
capacities, are: Wisconsin Assembly Speaker Robin Vos; Wisconsin
Senate President Roger Roth; Wisconsin Assembly Majority Leader
Jim Steineke; and Wisconsin Senate Majority Leader Scott
Fitzgerald.
7
Nos. 2019AP614-LV & 2019AP622
provisions of these acts. Concurrent with the filing of their
complaint, the Plaintiffs also moved for a temporary injunction.3
¶17 The Legislative Defendants responded with a motion to
dismiss the entire complaint, arguing all challenged provisions
were consistent with the Wisconsin Constitution.
¶18 Although a defendant in his official capacity, the
Governor supported the Plaintiffs' arguments and took them a step
further. The Governor brought his own motion for a temporary
injunction seeking to enjoin additional provisions not raised in
the Plaintiffs' temporary injunction motion.4 The Governor also
filed a cross-claim joining the complaint in full and requesting
his own declaratory and injunctive relief with respect to the
additional provisions he sought to enjoin.5
¶19 The Attorney General was also sued in his official
capacity, but did not render a substantive defense of the laws.
Rather, the Attorney General largely supported the Plaintiffs, and
3 The Plaintiffs' motion was styled as a request for a
temporary restraining order; however, the circuit court, by
agreement of the parties, construed the motion as one for a
temporary injunction.
4 The Governor's motion was similarly titled a motion for a
temporary restraining order and construed as a motion for a
temporary injunction.
5 We observe that the Governor, who was sued in his official,
not personal, capacity, signed these bills into law. We leave for
another day whether the governor of Wisconsin may sue the
legislature over laws that the legislature passed, and here, ones
the governor himself in his official capacity signed into law. We
also leave for another day whether the legislature may be sued by
the governor for passing laws the governor at some point thereafter
believes are inconsistent with the constitution.
8
Nos. 2019AP614-LV & 2019AP622
asked the circuit court to strike down multiple laws impacting his
authority.
¶20 On March 25, 2019, the circuit court heard arguments on
all pending motions, and it provided its decision and order the
following day. The circuit court denied in full the Legislative
Defendants' motion to dismiss the complaint. It also granted the
motions for temporary injunction in part and denied them in part.
The laws enjoined concern legislative involvement in state-related
litigation; the ability of the Joint Committee for Review of
Administrative Rules to suspend an administrative rule multiple
times; and various provisions regarding a newly defined category
of agency communications called guidance documents.6
¶21 The Legislative Defendants then sought appellate review
of both the denial of the motion to dismiss and the order granting
6 The circuit court enjoined the following sections: 2017
Wis. Act 369, § 26 (Wis. Stat. § 165.08(1) (2017-18)); § 30 (Wis.
Stat. § 165.25(6)(a)1.); § 31 (Wis. Stat. § 227.01(3m)); § 33
(Wis. Stat. § 227.05); § 38 (Wis. Stat. § 227.112); § 64 (Wis.
Stat. § 227.26(2)(im)); § 65 (Wis. Stat. § 227.40(1)); § 66 (Wis.
Stat. § 227.40(2)(intro.)); § 67 (Wis. Stat. § 227.40(2)(e)); § 68
(Wis. Stat. § 227.40(3)(ag)); § 69 (Wis. Stat. § 227.40(3)(ar));
§ 70 (Wis. Stat. § 227.40(3)(b) & (c)); § 71 (Wis. Stat.
§ 227.40(4)(a)); and §§ 104-05.
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
9
Nos. 2019AP614-LV & 2019AP622
injunctive relief.7 On April 19, 2019, this court assumed
jurisdiction over the appeal of the temporary injunction. And on
June 11, 2019, we assumed jurisdiction over and granted the
Legislative Defendants' interlocutory appeal of the denial of the
motion to dismiss. On the same date, we issued an order imposing
a stay on the temporary injunction issued by the circuit court
with respect to all but one provision.8
II. DISCUSSION
A. Scope of Review
¶22 Because of the procedural posture of this case, we have
two categories of claims before us. The first category comprises
claims raised by the Plaintiffs in their complaint and challenged
by the Legislative Defendants' in their motion to dismiss the
entire complaint. Some of these were enjoined by the circuit
court, some were not. But the motion to dismiss, which includes
all issues raised in the complaint, is before us on review.
¶23 The second category of claims are new issues raised in
the Governor's cross-claim and in the Governor's motion for a
temporary injunction. These are, with one exception, not properly
7 Originally, the Legislative Defendants filed one appeal
requesting review of both the denial of the motion to dismiss and
the order granting injunctive relief. However, this appeal was
split into two separate appeals——No. 2019AP622 is the appeal as of
right from the temporary injunction while No. 2019AP614-LV is the
petition for leave to file an interlocutory appeal from the circuit
court's denial of the motion to dismiss.
8 We did not stay the circuit court's temporary injunction of
2017 Wis. Act 369, § 38 with respect to Wis. Stat. § 227.112(7)(a).
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Nos. 2019AP614-LV & 2019AP622
before us on review. The exception is 2017 Wis. Act 369, § 33
(Wis. Stat. § 227.05), a guidance document provision addressed in
Justice Kelly's opinion for the court.
¶24 Although the Legislative Defendants seek dismissal of
the entire complaint, several provisions challenged by the
Plaintiffs either were not argued at all or were only perfunctorily
raised in briefing before us. We do not step out of our neutral
role to develop or construct arguments for parties; it is up to
them to make their case. State v. Pal, 2017 WI 44, ¶26, 374
Wis. 2d 759, 893 N.W.2d 848. If they fail to do so, we may decline
to entertain those issues. See State v. Lepsch, 2017 WI 27, ¶42,
374 Wis. 2d 98, 892 N.W.2d 682 ("We dismiss Lepsch's
argument . . . as undeveloped."). Because the Legislative
Defendants failed to set forth sufficient arguments on several
challenged provisions, these claims may proceed in the ordinary
course of litigation on remand. We express no opinion on the
merits of those claims.9
¶25 This opinion therefore addresses only the provisions
properly raised in the complaint and substantively argued in the
circuit court and before us. Accordingly, we will address all
9Provisions raised in the complaint that we do not address
are 2017 Wis. Act 369, § 87 (Wis. Stat. § 238.399(3)(am)); 2017
Wis. Act 370, § 10 (Wis. Stat. § 20.940), and § 11 (Wis. Stat.
§ 49.175(2)(a)). In the course of briefing, the parties reference
many additional and often related provisions. We similarly decline
to opine on any additional provisions not explicitly addressed in
either this or Justice Kelly's opinion for the court.
11
Nos. 2019AP614-LV & 2019AP622
claims enjoined by the circuit court along with several additional
provisions not enjoined but nonetheless argued by the parties.
B. Standard of Review
¶26 A motion to dismiss tests the legal sufficiency of the
complaint. Data Key Partners v. Permira Advisers LLC, 2014 WI 86,
¶19, 356 Wis. 2d 665, 849 N.W.2d 693. For purposes of our review,
we treat all allegations in the complaint as true. Id., ¶18.
"However, legal conclusions asserted in a complaint are not
accepted, and legal conclusions are insufficient to withstand a
motion to dismiss." Id. Thus, our focus is on the factual
allegations, not on any additional claims or arguments asserted by
the parties. We then determine whether the facts alleged in the
complaint state a viable cause of action. This is a legal question
we review de novo, and one requiring no further factual
development. Id., ¶17.
¶27 Granting injunctive relief is a discretionary decision
that we review for an erroneous exercise of discretion. Werner v.
A.L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 519, 259 N.W.2d 310
(1977). Here, we conclude the circuit court should have granted
the motion to dismiss with respect to the enjoined provisions
discussed in this opinion and direct it to do. By necessity, the
temporary injunction based on these to-be-dismissed claims must be
vacated as well.
¶28 This case raises questions requiring interpretation of
constitutional and statutory provisions. These are questions of
law we review de novo. League of Women Voters of Wis. v. Evers,
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Nos. 2019AP614-LV & 2019AP622
2019 WI 75, ¶13, 387 Wis. 2d 511, 929 N.W.2d 209. It is the text
of statutes that reflects the policy choices of the legislature,
and therefore "statutory interpretation focus[es] primarily on the
language of the statute." State ex rel. Kalal v. Circuit Court
for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.
The text of the constitution reflects the policy choices of the
people, and therefore constitutional interpretation similarly
focuses primarily on the language of the constitution. See League
of Women Voters, 387 Wis. 2d 511, ¶¶16-18. "It is the enacted
law, not the unenacted intent, that is binding on the public."10
State ex rel. Kalal, 271 Wis. 2d 633, ¶44.
¶29 Our analysis begins in Part C with an overview of the
separation of powers under the Wisconsin Constitution. In Part D,
we address the standards governing facial and as-applied
challenges. Finally, in Part E, we apply these principles claim
by claim.
10For this reason, in statutory interpretation, we generally
do not resort to extrinsic aids like legislative history unless
the statute is ambiguous. State ex rel. Kalal v. Circuit Court
for Dane Cty., 2004 WI 58, ¶51, 271 Wis. 2d 633, 681 N.W.2d 110.
Resort to these extrinsic aids is likewise unnecessary where
the constitutional text is plain. See League of Women Voters of
Wis. v. Evers, 2019 WI 75, ¶18, 387 Wis. 2d 511, 929 N.W.2d 209
(determining a historical review was unnecessary because the
meaning of the constitutional text was clear). But where
necessary, helpful extrinsic aids may include the practices at the
time the constitution was adopted, debates over adoption of a given
provision, and early legislative interpretation as evidenced by
the first laws passed following the adoption. See State v. City
of Oak Creek, 2000 WI 9, ¶18, 232 Wis. 2d 612, 605 N.W.2d 526.
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Nos. 2019AP614-LV & 2019AP622
C. Separation of Powers Under the Wisconsin Constitution
¶30 "If men were angels, no government would be necessary.
If angels were to govern men, neither external nor internal
controls on government would be necessary." The Federalist No.
51, at 319 (James Madison) (Clinton Rossiter ed. 1961). James
Madison's sober assessment of human nature and government power
was rooted in the reality that fear of tyranny was not far from
the men who risked their lives in the service of liberty. It was
these men who drafted our country's Constitution and established
a system where power is diffused to different branches. We are
more than two centuries into the American constitutional
experiment, but the separation of powers is not an anachronism
from a bygone era. Our founders believed the separation of powers
was not just important, but the central bulwark of our liberty.
See Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J.,
dissenting) ("The Framers of the Federal Constitution . . . viewed
the principle of separation of powers as the absolutely central
guarantee of a just Government.").
¶31 The Wisconsin Constitution, adopted in 1848, was born of
these same beliefs. Government power is divided into three
separate branches, each "vested" with a specific core government
power. Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶11, 376
Wis. 2d 147, 897 N.W.2d 384. By "vesting" the respective powers,
our constitution "clothe[s]" that branch with the corresponding
power; each branch is "put in possession of" a specific
governmental power. Noah Webster, An American Dictionary of the
English Language (1828). "The legislative power shall be vested
14
Nos. 2019AP614-LV & 2019AP622
in a senate and assembly"; "The executive power shall be vested in
a governor"; and "The judicial power of this state shall be vested
in a unified court system." Wis. Const. art. IV, § 1; id. art. V,
§ 1; id. art. VII, § 2. To exercise this vested power, the
legislature is tasked with the enactment of laws; the governor is
instructed to "take care that the laws be faithfully executed";
and courts are empowered to adjudicate civil and criminal disputes
pursuant to the law. Id. art. IV, § 17; id. art. V, § 4; id. art.
VII, §§ 3, 5, 8, 14.
¶32 While the separation of powers is easy to understand in
theory, it carries with it not-insignificant complications.
Notably, the Wisconsin Constitution itself sometimes takes
portions of one kind of power and gives it to another branch. For
example, the governor is granted the power "to convene the
legislature on extraordinary occasions" and is required to
"communicate to the legislature, at every session, the condition
of the state, and recommend such matters to them for their
consideration as he may deem expedient." Id. art. V, § 4. And
while the legislature generally makes the law, the supreme court
has authority over the practice of law, which requires us to
establish normative rules and guidelines that, although not
legislation as such, have the same prescriptive effect. Id. art.
VII, § 3(1); see also Wis. Stat. § 751.12 (detailing the supreme
court's authority to "regulate pleading, practice, and procedure
in judicial proceedings in all courts"); Rao v. WMA Sec., Inc.,
2008 WI 73, ¶35, 310 Wis. 2d 623, 752 N.W.2d 220 ("A rule adopted
by this court in accordance with Wis. Stat. § 751.12 is numbered
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Nos. 2019AP614-LV & 2019AP622
as a statute, is printed in the Wisconsin Statutes, may be amended
by both the court and the legislature, has been described by this
court as 'a statute promulgated under this court's rule-making
authority,' and has the force of law." (footnotes omitted)).
¶33 That said, these are exceptions to the default rule that
legislative power is to be exercised by the legislative branch,
executive power is to be exercised by the executive branch, and
judicial power is to be exercised by the judicial branch. "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." State v. Holmes, 106 Wis. 2d 31,
42, 315 N.W.2d 703 (1982).
¶34 Nevertheless, determining "where the functions of one
branch end and those of another begin" is not always easy. Id. at
42-43. Thus, we have described two categories of powers within
each branch——exclusive or core powers, and shared powers. See
Gabler, 376 Wis. 2d 147, ¶30.
¶35 A separation-of-powers analysis ordinarily begins by
determining if the power in question is core or shared. Core
powers are understood to be the powers conferred to a single branch
by the constitution. State v. Horn, 226 Wis. 2d 637, 643, 594
N.W.2d 772 (1999). If a power is core, "no other branch may take
it up and use it as its own." Tetra Tech, 382 Wis. 2d 496, ¶48
(Kelly, J.). Shared powers are those that "lie at the
intersections of these exclusive core constitutional powers."
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Nos. 2019AP614-LV & 2019AP622
Horn, 226 Wis. 2d at 643. "The branches may exercise power within
these borderlands but no branch may unduly burden or substantially
interfere with another branch." Id. at 644 (citing State ex rel.
Friedrich v. Circuit Court for Dane Cty., 192 Wis. 2d 1, 14, 531
N.W.2d 32 (1995) (per curiam)).
¶36 This legal framework is our starting point, but it must
be filtered through the type of challenge before us. The
Plaintiffs brought what is known as a facial challenge to all the
statutory provisions in dispute. This is key to our disposition
of the issues before us, and worthy of some extended examination.
D. Facial and As-Applied Challenges
¶37 Challenges to the constitutionality of a statute are
generally defined in two manners: as-applied and facial. League
of Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97,
¶13, 357 Wis. 2d 360, 851 N.W.2d 302. As-applied challenges
address a specific application of the statute against the
challenging party. Id. With that focus, the reviewing court
considers the facts of the particular case in front of it to
determine whether the challenging party has shown that the
constitution was actually violated by the way the law was applied
in that situation. Id.
¶38 In a facial challenge, however, the challenging party
claims that the law is unconstitutional on its face——that is, it
operates unconstitutionally in all applications. Id. We have
repeatedly reaffirmed that to successfully challenge a law on its
face, the challenging party must show that the statute cannot be
17
Nos. 2019AP614-LV & 2019AP622
enforced "under any circumstances." Id.; see also State v. Wood,
2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63 ("If a challenger
succeeds in a facial attack on a law, the law is void 'from its
beginning to the end.'" (quoted source omitted)).11
¶39 This is no small wall to scale. Proving a legislative
enactment cannot ever be enforced constitutionally "is the most
difficult of constitutional challenges" and an "uphill endeavor."
League of Women Voters, 357 Wis. 2d 360, ¶15; State v. Dennis H.,
2002 WI 104, ¶5, 255 Wis. 2d 359, 647 N.W.2d 851.
¶40 The United States Supreme Court has described facial
challenges as "disfavored," and the type of constitutional attack
11See also Gabler v. Crime Victims Rights Bd., 2017 WI 67,
¶29, 376 Wis. 2d 147, 897 N.W.2d 384 (explaining "the standard for
a facial challenge" is that the law "'cannot be constitutionally
enforced' . . . 'under any circumstances'" (quoted source
omitted)); Soc'y Ins. v. LIRC, 2010 WI 68, ¶26, 326 Wis. 2d 444,
786 N.W.2d 385 ("[A] facial constitutional challenge attacks the
law itself as drafted by the legislature, claiming the law is void
from its beginning to the end and that it cannot be
constitutionally enforced under any circumstances . . . ."); State
v. Cole, 2003 WI 112, ¶30, 264 Wis. 2d 520, 665 N.W.2d 328 ("A
'facial' challenge to the constitutionality of a statute means
that the 'challenger must establish, beyond a reasonable doubt,
that there are no possible applications or interpretations of the
statute which would be constitutional.'" (quoted source omitted)).
18
Nos. 2019AP614-LV & 2019AP622
that raises the risk of judicial overreach.12 Wash. State Grange
v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). This
is so in part because claims of facial invalidity often rest on
speculation about what might occur in the future. Id. They raise
the serious risk of calling on courts to interpret statutes
prematurely and decide legal questions before they must be decided.
Id. at 450-51. Striking down a law facially "threaten[s] to short
circuit the democratic process by preventing laws embodying the
will of the people from being implemented in a manner consistent
with the Constitution." Id. at 451. Thus, caution in the face of
a facial challenge shows due respect to the other branches of
government——allowing the legislature to legislate and the
executive to execute——which gives them space to carry out their
own constitutional duties.
¶41 And beyond respect for other branches, facial challenges
raise the risk of the judiciary overstepping its own constitutional
authority. The United States Supreme Court has explained the
solemnity of exercising the judicial power:
12 This court has previously acknowledged that requiring
facial challenges to show a law cannot be enforced "under any
circumstances" mirrors the standard enunciated by the United
States Supreme Court in United States v. Salerno, 481 U.S. 739
(1987). League of Women Voters of Wis. Educ. Network, Inc. v.
Walker, 2014 WI 97, ¶15, 357 Wis. 2d 360, 851 N.W.2d 302; see also
id., ¶60 n.1 (Crooks, J., concurring) (citing Salerno as the
applicable framework of law for facial challenges). In Salerno,
the Court explained that "[a] facial challenge to a legislative
Act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." 481
U.S. at 745.
19
Nos. 2019AP614-LV & 2019AP622
This Court, as is the case with all federal courts, "has
no jurisdiction to pronounce any statute, either of a
State or of the United States, void, because
irreconcilable with the constitution, except as it is
called upon to adjudge the legal rights of litigants in
actual controversies. In the exercise of that
jurisdiction, it is bound by two rules, to which it has
rigidly adhered: one, never to anticipate a question of
constitutional law in advance of the necessity of
deciding it; the other never to formulate a rule of
constitutional law broader than is required by the
precise facts to which it is to be applied." Kindred to
these rules is the rule that one to whom application of
a statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might also
be taken as applying to other persons or other situations
in which its application might be unconstitutional.
United States v. Raines, 362 U.S. 17, 21 (1960) (citation omitted).
¶42 Judicial modesty, then, counsels that "courts should not
nullify more of a . . . law than necessary." Wash. State Grange,
552 U.S. at 456 (citation omitted). It also ensures that courts
stay in their lane by prohibiting only unconstitutional
applications of laws. If a law can only be applied
unconstitutionally, it is our duty to say so. But if it can be
applied constitutionally, it would be an overstep on our part to
strike down a legislative enactment with constitutional
applications.13
In her partial dissent, Justice Dallet suggests that
13
subjecting broad statutes to piecemeal, as-applied litigation
invites this court to engage in policymaking. Justice Dallet's
concurrence/dissent, ¶¶178-179. Quite the contrary. Requiring a
party to prove a law is unconstitutionally applied to the facts of
a given case is precisely how as-applied challenges work. Our
decision here invites no more policymaking than any other as-
applied challenge that a court entertains. Justice Dallet's
alternative proposal to sweep aside more of a law than is necessary
to quickly settle a matter is not, by any definition, a more modest
route.
20
Nos. 2019AP614-LV & 2019AP622
¶43 It is with this understanding and appreciation of a
modest judicial power that this court has continually required a
party bringing a facial challenge to prove that the statute cannot
be constitutionally enforced "under any circumstances." This has
not been a principle selectively applied; it is not optional.14
Parties casting the widest possible net and seeking the broadest
possible remedy must make the maximum possible showing.
¶44 At oral argument, the Attorney General asserted that
this standard should not apply to the laws affecting him because
the facial challenge doctrine is applied only in cases involving
private litigants. The Attorney General described the doctrine as
a matter of standing, and claimed that because every controversy
14The United States Supreme Court has recognized the validity
of facial challenges premised on general claims of statutory
overbreadth; however, the circumstances in which such challenges
may be raised are very limited and not applicable here. See Sabri
v. United States, 541 U.S. 600, 609–10 (2004). This court has
taken a similar approach. See State v. Konrath, 218 Wis. 2d 290,
305, 577 N.W.2d 601 (1998) ("With the exception of a challenge
under the First Amendment to the United States Constitution, a
party does not have standing to raise a facial challenge that a
statute is overbroad.").
In the face of our precedent, Justice Dallet dispenses with
well-established law and instead chooses to adopt and apply the
overbreadth standard to two legislative approval provisions. As
an initial matter, Justice Dallet raises this sua sponte; no party
argued that we should adopt overbreadth in place of our standard
facial challenge framework. Moreover, in a case with many
separation-of-powers questions, Justice Dallet does not argue that
this new standard should apply across the board. It is unclear
why. One is left to surmise that Justice Dallet's approach is a
tacit, if not explicit, admission that current law does not support
her conclusion on these issues. We see no need to change our law
to fit this case. We will stick with and apply the law as it
exists.
21
Nos. 2019AP614-LV & 2019AP622
arising from the legislative approval provisions would involve the
same public parties, the traditionally recognized concerns with
facial-challenge adjudication are not at issue here. Hence, the
Attorney General contends these provisions may be facially
challenged because every application will implicate his office and
interested parties in the legislature. No such argument was made
in briefing. And when pressed for supporting authority at oral
argument, the Attorney General cited only to our decision in
Gabler, 376 Wis. 2d 147.
¶45 Gabler plainly does not stand for the propositions
advanced by the Attorney General. In that case, the Crime Victims
Rights Board issued a decision that Judge Gabler had violated a
victim's constitutional right to speedy disposition of the
proceedings. Id., ¶21. Judge Gabler challenged the
constitutionality of certain provisions under Wis. Stat. ch. 950
as they applied to judges. Id., ¶29. We agreed with him that the
provisions could never be constitutionally applied against judges.
Id., ¶60. In so doing, we recognized that the label of a
challenging party's claim "is not what matters"; rather it is the
"claim and the relief that would follow" that dictate the relevant
standard of constitutional review. Id., ¶¶28-29 (quoting Doe v.
Reed, 561 U.S. 186, 194 (2010)). The statutory challenge in Gabler
included characteristics of both a facial and an as-applied claim.
Id., ¶29. Namely, Judge Gabler sought to invalidate the challenged
provisions insofar as they could ever be applied against judges——
that is, he brought a broad challenge to a specific category of
applications. Id., ¶29. In a challenge of this kind, we explained
22
Nos. 2019AP614-LV & 2019AP622
that the challenging party is still required to demonstrate that,
as to the specific category of applications, the statute could not
be constitutionally enforced under any circumstances. Id. Judge
Gabler had to show that the provisions could never be
constitutionally applied against judges, even if it could be
constitutionally applied to others. The statutory provisions in
Gabler were neither challenged nor struck down in their entirety.
In no way did our decision change the basic difference between a
facial and an as-applied challenge.
¶46 In contrast, under the Attorney General's theory, so
long as the relief requested does not reach beyond the parties
before the court, a facial challenge can be subject to a more
lenient standard of constitutional review. The Attorney General's
approach would allow a court to order far broader relief than
necessary to alleviate any unconstitutional applications of the
law simply because litigation involves the same two public parties.
¶47 The Attorney General has acknowledged the existence of
constitutional applications of the challenged provisions (more on
this below), yet still asks that we strike down the laws in their
entirety. As we have explained, this is contrary to an appropriate
exercise of judicial power. The facial versus as-applied
distinction is not merely a question of standing or whether the
parties are public or private litigants. It goes to the
appropriate reach of the judicial power to say what the law is,
23
Nos. 2019AP614-LV & 2019AP622
and to craft a remedy appropriately tailored to any constitutional
violation.15
¶48 In short, our law is clear and of long standing. A
facial challenge requires a showing that all applications of the
law are unconstitutional. It is the burden of the party bringing
the challenge to prove this. And to the extent a party challenges
the application of a law, it is the burden of that party to show
that the specific application or category of applications is
unconstitutional.
¶49 Before us, no arguments have been developed by any party
setting forth challenges to specific applications or categories of
applications. The parties arguing against the constitutionality
of the provisions ask that we prohibit enforcement of the laws in
their entirety. Therefore, we analyze each of the challenged
provisions as facial challenges.
E. Application to Challenged Provisions
1. Legislative Involvement in Litigation
¶50 Several challenged provisions give the legislature or
its committees power to participate in litigation involving the
State. As a general rule, prior to 2017 Wis. Act 369, Wisconsin
law authorized the attorney general to represent the State in
15Furthermore, the default rule in Wisconsin is that statutes
are severable. See Wis. Stat. § 990.001(11) ("If any provision of
the statutes or of a session law is invalid, or the application of
either to any person or circumstance is invalid, such invalidity
shall not affect other provisions or applications which can be
given effect without the invalid provision or application.").
24
Nos. 2019AP614-LV & 2019AP622
litigation and to settle cases in the State's best interest.
Provisions of 2017 Wis. Act 369 substantially changed that. See
§ 5 (Wis. Stat. § 13.365); § 26 (Wis. Stat. § 165.08(1)); § 30
(Wis. Stat. § 165.25(6)(a)1.); and § 97 (Wis. Stat. § 803.09(2m)).
¶51 Previously, the legislature had limited power to
intervene in litigation. Now, Wis. Stat. § 13.365 and Wis. Stat.
§ 803.09(2m) give three state legislative committees, each acting
on behalf of a particular legislative entity——the assembly, the
senate, and the whole legislature, respectively——the power to
intervene in an action in state or federal court when a party
argues a state statute is unconstitutional or "preempted by federal
law," "or otherwise challenges [the statute's] construction or
validity."16
16 Wisconsin Stat. § 13.365 provides:
Pursuant to [Wis. Stat. §] 803.09(2m), when a party to
an action challenges in state or federal court the
constitutionality of a statute, facially or as applied,
challenges a statute as violating or preempted by
federal law, or otherwise challenges the construction or
validity of a statute, as part of a claim or affirmative
defense:
(1) The committee on assembly organization may intervene
at any time in the action on behalf of the assembly.
The committee on assembly organization may obtain legal
counsel other than from the department of justice, with
the cost of representation paid from the appropriation
under [Wis. Stat. §] 20.765(1)(a), to represent the
assembly in any action in which the assembly intervenes.
(2) The committee on senate organization may intervene
at any time in the action on behalf of the senate. The
committee on senate organization may obtain legal
counsel other than from the department of justice, with
the cost of representation paid from the appropriation
25
Nos. 2019AP614-LV & 2019AP622
¶52 In addition, prior to Act 369, the attorney general had
the power in many cases to settle litigation impacting the State
as he thought in the best interest of the State. In Wis. Stat.
§ 165.08(1) and Wis. Stat. § 165.25(6)(a)1., much of that
unilateral power has been removed and is now subject to legislative
approval.
¶53 Wisconsin Stat. § 165.08(1) provides that the Department
of Justice (DOJ), the agency headed by the attorney general, cannot
settle or discontinue a case prosecuted by the attorney general
unless either the legislative intervenor approves, or if the
legislature has not intervened, DOJ receives approval from the
under [Wis. Stat. §] 20.765(1)(b), to represent the
senate in any action in which the senate intervenes.
(3) The joint committee on legislative organization may
intervene at any time in the action on behalf of the
legislature. The joint committee on legislative
organization may obtain legal counsel other than from
the department of justice, with the cost of
representation paid from the appropriation under [Wis.
Stat. §] 20.765(1)(a) or (b), as determined by the
cochairpersons, to represent the legislature in any
action in which the joint committee on legislative
organization intervenes.
While Wis. Stat. § 803.09(2m) states:
When a party to an action challenges in state or federal
court the constitutionality of a statute, facially or as
applied, challenges a statute as violating or preempted
by federal law, or otherwise challenges the construction
or validity of a statute, as part of a claim or
affirmative defense, the assembly, the senate, and the
legislature may intervene as set forth under [Wis. Stat.
§] 13.365 at any time in the action as a matter of right
by serving a motion upon the parties as provided in [Wis.
Stat. §] 801.14.
26
Nos. 2019AP614-LV & 2019AP622
Joint Committee on Finance (JFC). Further, if DOJ wishes to
concede the validity of a statute, "it must first get permission
from the joint committee on legislative organization before asking
the joint committee on finance." § 165.08(1).17
¶54 Wisconsin Stat. § 165.25(6)(a)1. amends the power of the
attorney general to settle actions seeking injunctive relief or
involving a proposed consent decree. In such cases, the attorney
general must obtain the approval of any legislative intervenor.
If no legislative entity has intervened, the new law establishes
a multi-phase approval process with JFC. DOJ must first submit a
plan to JFC. The JFC co-chairs, in turn, have 14 working days to
notify the attorney general that the committee will meet to review
the plan. If the attorney general receives notification from the
committee of a meeting, the attorney general is required to obtain
permission from JFC in order to settle. Moreover, the attorney
17 Wisconsin Stat. § 165.08(1) states:
Any civil action prosecuted by the department by
direction of any officer, department, board, or
commission, or any civil action prosecuted by the
department on the initiative of the attorney general, or
at the request of any individual may be compromised or
discontinued with the approval of an intervenor under
[Wis. Stat. §] 803.09(2m) or, if there is no intervenor,
by submission of a proposed plan to the joint committee
on finance for the approval of the committee. The
compromise or discontinuance may occur only if the joint
committee on finance approves the proposed plan. No
proposed plan may be submitted to the joint committee on
finance if the plan concedes the unconstitutionality or
other invalidity of a statute, facially or as applied,
or concedes that a statute violates or is preempted by
federal law, without the approval of the joint committee
on legislative organization.
27
Nos. 2019AP614-LV & 2019AP622
general cannot submit a plan that concedes "the
unconstitutionality or other invalidity of a statute, facially or
as applied, or concedes that a statute violates or is preempted by
federal law," without first getting approval from the Joint
Committee on Legislative Organization. § 165.25(6)(a)1.18
18 Wisconsin Stat. § 165.25(6)(a)1. now provides:
At the request of the head of any department of state
government, the attorney general may appear for and
defend any state department, or any state officer,
employee, or agent of the department in any civil action
or other matter brought before a court or an
administrative agency which is brought against the state
department, or officer, employee, or agent for or on
account of any act growing out of or committed in the
lawful course of an officer's, employee's, or agent's
duties. Witness fees or other expenses determined by
the attorney general to be reasonable and necessary to
the defense in the action or proceeding shall be paid as
provided for in [Wis. Stat. §] 885.07. The attorney
general may compromise and settle the action as the
attorney general determines to be in the best interest
of the state except that, if the action is for injunctive
relief or there is a proposed consent decree, the
attorney general may not compromise or settle the action
without the approval of an intervenor under [Wis. Stat.
§] 803.09(2m) or, if there is no intervenor, without
first submitting a proposed plan to the joint committee
on finance. If, within 14 working days after the plan
is submitted, the cochairpersons of the committee notify
the attorney general that the committee has scheduled a
meeting for the purpose of reviewing the proposed plan,
the attorney general may compromise or settle the action
only with the approval of the committee. The attorney
general may not submit a proposed plan to the joint
committee on finance under this subdivision in which the
plan concedes the unconstitutionality or other
invalidity of a statute, facially or as applied, or
concedes that a statute violates or is preempted by
federal law, without the approval of the joint committee
on legislative organization.
28
Nos. 2019AP614-LV & 2019AP622
¶55 The Plaintiffs argue (and the Governor and Attorney
General agree) that this takes a core executive power and gives it
to the legislature in violation of the separation of powers.19
Specifically, they maintain that such a requirement impermissibly
limits the governor's duty to "take care that the laws be
faithfully executed." Wis. Const. art. V, § 4. If deemed a shared
power, the Plaintiffs and Attorney General argue that these
provisions substantially burden the executive branch in violation
of the separation of powers. The Legislative Defendants offer two
main defenses, and we take each in turn.
¶56 First, the Legislative Defendants argue these provisions
are constitutional because the attorney general has no inherent
constitutional powers, and the powers that are statutorily granted
are therefore entirely subject to legislative modification. With
this, they argue that because the attorney general is not the
governor (whom the Wisconsin Constitution specifically "vests"
with the executive power), any modifications to the attorney
general's power cannot implicate the separation of powers.
¶57 We disagree. Our constitution describes only three
types of power——legislative, executive, and judicial. When
pressed to say at oral argument what exactly the attorney general
is doing if not executing the law, the Legislative Defendants had
no good answer. There is none. The attorney general is assuredly
19"Legislative power, as distinguished from executive power,
is the authority to make laws, but not to enforce them." Koschkee
v. Taylor, 2019 WI 76, ¶11, 387 Wis. 2d 552, 929 N.W.2d 600
(quoting Schuette v. Van De Hey, 205 Wis. 2d 475, 480-81, 556
N.W.2d 127 (Ct. App. 1996)).
29
Nos. 2019AP614-LV & 2019AP622
a member of the executive branch whose duties consist in executing
the law.
¶58 The constitution itself plainly acknowledges officers
other than the governor who may permissibly deploy executive power.
Article IV, Section 28 requires "Members of the legislature, and
all officers, executive and judicial, except such inferior
officers as may be by law exempted," to take an oath before
entering upon the duties of their office. Wis. Const. art. IV,
§ 28 (emphasis added). The only fair reading of this is that there
are other executive officers besides the governor.
¶59 Article VI of the constitution covers administrative
officers. This article establishes three statewide officers——the
secretary of state, the treasurer, and the attorney general.
Id. art. VI, §§ 2, 3. It also establishes various county officers,
including coroners, registers of deeds, district attorneys,
sheriffs, and chief executive officers. Id. art. VI, § 4. But
these administrative officers do not constitute a separate
"administrative" branch of government carrying out something
called "administrative" power. We have repeatedly recognized that
the constitution describes only three types of government power
and creates only three branches of government. Panzer v. Doyle,
2004 WI 52, ¶48, 271 Wis. 2d 295, 680 N.W.2d 666 ("Our state
constitution has created three branches of government, each with
distinct functions and powers."), overruled on other grounds by
Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295
Wis. 2d 1, 719 N.W.2d 408; Gabler, 376 Wis. 2d 147, ¶11 (same);
30
Nos. 2019AP614-LV & 2019AP622
State v. Washington, 83 Wis. 2d 808, 816, 825, 266 N.W.2d 597
(1978) (same).
¶60 While the constitution vests executive power in the
governor and also places primary responsibility on the governor to
see that the laws are faithfully executed (Wis. Const. art. V,
§§ 1, 4), our cases have made clear that these "administrative"
officers carry out executive functions. In 1855, just a few short
years after adoption of the Wisconsin Constitution, Justice Abram
Smith observed "that sheriffs, coroners, registers of deeds, and
district attorneys . . . are a part of the executive department."
Attorney Gen. ex rel. Bashford v. Barstow, 4 Wis. 567, 795 (1855).
Just last term we held that the superintendent of public
instruction "has the executive constitutional function to
supervise public instruction." Koschkee v. Taylor, 2019 WI 76,
¶¶2, 25-29, 387 Wis. 2d 552, 929 N.W.2d 600. We have also said
that state administrative agencies "are considered part of the
executive branch." Id., ¶14. DOJ, through which the attorney
general carries out his functions, is such an administrative agency
and therefore part of the executive branch. See Wis. Stat.
§ 15.01(5) and Wis. Stat. § 15.25 (creating the "executive branch"
agency, the department of justice, "under the direction and
supervision of the attorney general"). And we have explicitly
made this point with reference to the attorney general himself,
calling him "a high constitutional executive officer." State v.
Woodington, 31 Wis. 2d 151, 167, 142 N.W.2d 810 (1966); see also
Milo M. Quaife, The Struggle Over Ratification 1846-47, at 456
("The subordinate executive, or as they are called, administrative
31
Nos. 2019AP614-LV & 2019AP622
officers, are a secretary of state who is ex officio auditor, a
treasurer, and an attorney general . . . .").
¶61 The Legislative Defendants also hang their hat on Oak
Creek where we held that the attorney general has no
constitutionally granted powers. State v. City of Oak Creek, 2000
WI 9, ¶¶24, 55, 232 Wis. 2d 612, 605 N.W.2d 526. The powers the
attorney general does have, we explained, "are prescribed only by
statutory law," and the attorney general "has no common-law powers
or duties." Id., ¶¶21, 24 (quoted source omitted); see also State
v. Snyder, 172 Wis. 415, 417, 179 N.W. 579 (1920) ("In this state
the attorney general has no common-law powers or duties.").
¶62 This principle is true, but inapplicable to the case at
hand. The question in this case is not whether the legislature
may give or take powers away from the attorney general; it may.
The question is whether the legislature may participate in carrying
out the executive branch functions previously assigned to the
attorney general. Or said another way, the question is not whether
the legislature may circumscribe the attorney general's executive
powers, but whether it may assume them, at least in part, for
itself. Thus, Oak Creek is inapposite to the separation-of-powers
argument at the heart of this case.
¶63 The Legislative Defendants offer a second argument, this
one with more traction. They argue that the attorney general's
power to litigate on behalf of the State is not, at least in all
circumstances, within the exclusive zone of executive authority.
We agree. While representing the State in litigation is
predominately an executive function, it is within those
32
Nos. 2019AP614-LV & 2019AP622
borderlands of shared powers, most notably in cases that implicate
an institutional interest of the legislature.
¶64 One kind of institutional interest is reflected in the
statutory language authorizing the attorney general to represent
the State or state officials at the request of the legislature.
Wis. Stat. § 165.25(1m). Early enactments following the adoption
of the constitution are appropriately given special weight. Oak
Creek, 232 Wis. 2d 612, ¶18. This is because these enactments are
likely to reflect the original public meaning of the constitutional
text. See id., ¶¶29-31; Koschkee, 387 Wis. 2d 552, ¶32. In that
vein, the attorney general was granted the power, even the duty,
to represent the legislature or to represent the State at the
request of the legislature from our state's earliest days.
¶65 When the Wisconsin Constitution created the office of
attorney general, it specified that his duties "shall be prescribed
by law." Oak Creek, 232 Wis. 2d 612, ¶15 (quoting Wis. Const.
art. IV, § 3 (1846) (proposed)); Wis. Const. art. VI, § 3. So the
first legislature of our new state went about prescribing those
duties by statute. In 1848, the same year the constitution was
adopted, the legislature enacted a law requiring the attorney
general to "appear for the state in any court or tribunal in any
other causes criminal or civil in which the state may be a party
or be interested," and this was to occur "when required by the
governor or either branch of the legislature." An Act concerning
the Attorney General, Wis. Laws 1848 (emphasis added). This
language was modified in 1849: "[W]hen requested by the governor
or either branch of the legislature," the attorney general was
33
Nos. 2019AP614-LV & 2019AP622
required to "appear for the people of this state, and prosecute or
defend in any other court, or before any officer, in any cause or
matter, civil or criminal, in which the people of this state may
be a party or interested." Wis. Stat. ch. 9, § 36 (1849) (emphasis
added).
¶66 This language remains substantially the same today. See
Wis. Stat. § 165.25(1m).20 Therefore, under the law since our
state's founding, the attorney general may defend a legislative
official, employee, or body. And either house of the legislature
can request the attorney general to "prosecute or defend in any
court or before any officer, any cause or matter, civil or
20 Wisconsin Stat. § 165.25(1m) provides:
The department of justice shall:
. . . .
(1m) REPRESENT STATE IN OTHER MATTERS. If requested by
the governor or either house of the legislature, appear
for and represent the state, any state department,
agency, official, employee or agent, whether required to
appear as a party or witness in any civil or criminal
matter, and prosecute or defend in any court or before
any officer, any cause or matter, civil or criminal, in
which the state or the people of this state may be
interested. The joint committee on legislative
organization may intervene as permitted under [Wis.
Stat. §] 803.09(2m) at any time. The public service
commission may request under [Wis. Stat. §] 196.497(7)
that the attorney general intervene in federal
proceedings. All expenses of the proceedings shall be
paid from the appropriation under [Wis. Stat.
§] 20.455(1)(d).
(Emphasis added.)
34
Nos. 2019AP614-LV & 2019AP622
criminal, in which the state or the people of this state may be
interested." Id.
¶67 These early prescriptions, adopted nearly
contemporaneously with the adoption of our state constitution,
reflect an understanding that the attorney general's role is not,
at least in all cases, a core executive function. The
legislature's institutional interest as a represented party, and
as one that can authorize the attorney general to prosecute cases,
puts at least some of these cases within the zone of shared powers.
¶68 Another on-point institutional interest of the
legislature is spelled out in the constitution. Article VIII,
Section 2 states in relevant part, "No money shall be paid out of
the treasury except in pursuance of an appropriation by law." Wis.
Const. art. VIII, § 2. The legislature, of course, is the branch
granted the power to enact laws. Id. art. IV, § 17.
¶69 The takeaway is that the constitution gives the
legislature the general power to spend the state's money by
enacting laws. Therefore, where litigation involves requests for
the state to pay money to another party, the legislature, in at
least some cases, has an institutional interest in the expenditure
of state funds sufficient to justify the authority to approve
certain settlements. The Attorney General himself conceded during
oral argument that Wis. Stat. § 165.25(6)(a)1. has constitutional
applications where the power of the purse is implicated.
¶70 Other state legislatures appear to have this power as
well under various circumstances. See Ariz. Rev. Stat. Ann. § 41-
621(N) (2019) (requiring approval of some settlements by joint
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Nos. 2019AP614-LV & 2019AP622
legislative budget committee after reaching certain dollar
threshold); Conn. Gen. Stat. Ann. § 3-125a(a) (2019) (requiring
approval of settlements exceeding certain dollar threshold by the
legislature); Neb. Rev. Stat. § 81-8,239.05(4) (2018) (requiring
legislative approval in order to pay punitive damages); Okla. Stat.
Ann. tit. 51 § 200(A)(1) (2019) (requiring legislative approval
for settlement or consent decrees above certain dollar threshold);
Utah Code Ann. § 63G-10-202 (2018) (same). Although the practice
of other states is not determinative of the constitutional
questions before us, this generally reflects a shared
understanding that legitimate institutional, even constitutional,
legislative interests may be implicated when the attorney general
purports to enter settlement agreements affecting state
appropriations.
¶71 These institutional interests of the legislature are
sufficient to defeat the facial challenge to the provisions
authorizing legislative intervention in certain cases, and those
requiring legislative consent to defend and prosecute certain
cases. Namely, where a legislative official, employee, or body is
represented by the attorney general, the legislature has, in at
least some cases, an institutional interest in the outcome of that
litigation. Similarly, where a legislative body is the principal
authorizing the attorney general's representation in the first
place, the legislature has an institutional interest in the outcome
of that litigation in at least some cases. This is true where the
attorney general's representation is in defense of the legislative
official, employee, or body, or where a legislative body is the
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Nos. 2019AP614-LV & 2019AP622
principal authorizing the prosecution of a case. And in cases
where spending state money is at issue, the legislature has a
constitutional institutional interest in at least some cases
sufficient to allow it to require legislative agreement with
certain litigation outcomes, or even to allow it to intervene.
¶72 Because this is a facial challenge, and there are
constitutional applications of these laws, that challenge cannot
succeed. In at least some cases, the legislature may permissibly
give itself the power to consent to an agreement where the action
involves injunctive relief or a proposed consent decree (Wis. Stat.
§ 165.25(6)(a)1.), or in the compromise or discontinuance of a
matter being prosecuted (Wis. Stat. § 165.08). In at least some
cases, we see no constitutional violation in allowing the
legislature to intervene in litigation concerning the validity of
a statute, at least where its institutional interests are
implicated.21 See Wis. Stat. § 13.365; Wis. Stat. § 803.09(2m).
As we have explained, because the Plaintiffs have not met their
burden to prove these provisions may not be constitutionally
The legislature, or its committees or members, have
21
litigated cases in Wisconsin impacting potential institutional
interests throughout the history of the state. See Risser v.
Klauser, 207 Wis. 2d 176, 180, 558 N.W.2d 108 (1997) (original
action brought by several legislators against the governor);
Citizens Util. Bd. v. Klauser, 194 Wis. 2d 484, 487-88, 534
N.W.2d 608 (1995) (original action brought by citizens utility
board and several legislators against the governor and the
secretary of the Department of Administration); State ex rel. Wis.
Senate v. Thompson, 144 Wis. 2d 429, 433, 424 N.W.2d 385 (1988)
(original action brought by, among other petitioners, the senate
and assembly against the governor).
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Nos. 2019AP614-LV & 2019AP622
applied under any circumstances, the motion to dismiss the
Plaintiffs' facial challenge should have been granted.22
¶73 We stress that this decision is limited. We express no
opinion on whether individual applications or categories of
applications may violate the separation of powers, or whether the
legislature may have other valid institutional interests
supporting application of these laws. But the facial challenge
seeking to strike down Wis. Stat. § 13.365; Wis. Stat. § 165.08(1);
Wis. Stat. § 165.25(6)(a)1.; and Wis. Stat. § 803.09(2m) in their
entirety——the only claim developed before us——does not succeed.
Given this, the order enjoining these provisions is vacated as
well.
2. Capitol Security
¶74 The Plaintiffs also challenge the constitutionality of
2017 Wis. Act 369, § 16 (Wis. Stat. § 16.84(2m)), which grants the
Joint Committee of Legislative Organization (JCLO) the authority
to review and approve changes proposed by the Department of
Administration (DOA) to security at the Capitol.23 This new
22 As explained above, the attorney general's litigation
authority is not, in at least some cases, an exclusive executive
power. These types of cases fall under a shared powers analysis.
Where the legislature has appropriate institutional interests,
legislative exercise of this shared power in at least some cases
does not unduly burden or substantially interfere with the attorney
general's executive authority. Hence, the facial challenge gets
nowhere under an "unduly burdensome" shared powers analysis.
23This provision, Wis. Stat. § 16.84(2m), which was not
enjoined by the circuit court, states as follows:
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provision requires DOA to notify JCLO of any proposed security
changes. § 16.84(2m). If JCLO does not notify DOA within 14 days
that a meeting has been scheduled to discuss the proposed changes,
DOA may implement those changes. Id. However, if JCLO schedules
a meeting to discuss the proposal, DOA may proceed with the
proposed changes only with the approval of JCLO. Id. The statute
also provides an exception if there is risk of imminent danger.
Id.
¶75 The Legislative Defendants contend this section is
squarely permissible within the framework of J.F. Ahern Co. v.
Wisconsin State Building Commission, 114 Wis. 2d 69, 336
N.W.2d 679 (Ct. App. 1983), and Martinez, 165 Wis. 2d 687.
Specifically, the Legislative Defendants maintain this is "a
cooperative venture" with the "proper standards or safeguards" to
Send notice to the joint committee on legislative
organization of any proposed changes to security at the
capitol, including the posting of a firearm restriction
under [Wis. Stat. §] 943.13 (1m)(c)2. or 4. If, within
14 working days after the date of the notice, the
cochairpersons of the joint committee on legislative
organization do not notify the department that the
committee has scheduled a meeting to review the
department's proposal, the department may implement the
changes as proposed in the notice. If, within 14 working
days after the date of the department's notice, the
cochairpersons of the committee notify the department
that the committee has scheduled a meeting to review the
department's proposal, the department may implement the
proposed changes only upon approval of the committee.
If there is a risk of imminent danger, the department
may take any action related to security at the capitol
that is necessary to prevent or mitigate the danger and
the cochairpersons may review the action later if the
cochairpersons determine review is necessary.
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avoid a separation-of-powers violation. Ahern, 114 Wis. 2d at
108; Martinez, 165 Wis. 2d at 701 (quoted source omitted). The
Plaintiffs characterize this section as an impermissible
legislative veto that violates bicameralism and presentment as
well as the constitution's quorum requirement. See Wis. Const.
art. IV, § 7; id. art. V, § 10.
¶76 Ahern correctly noted that the construction and
maintenance of public buildings is an executive function. 114
Wis. 2d at 106. In fact, the legislature created DOA and granted
it broad duties to construct and repair state buildings, among
other tasks. Wis. Stat. § 15.10; Wis. Stat. § 16.85. See
generally Wis. Stat. ch. 16. However, before the enactment of
Wis. Stat. § 16.84(2m), the legislature, by statute, created and
implemented limitations on DOA's authority. For example, Wis.
Stat. § 16.843 denotes where and how vehicles may park around the
Capitol. Likewise, even before § 16.84(2m) was enacted, DOA's
authority to use state buildings for public events did not include
the areas of the Capitol reserved for use by the legislature. See
Wis. Admin. Code § DOA 2.04(1) (July 2014).
¶77 We conclude that control of at least legislative space
in the Capitol is a shared power between the legislature and
executive branches. It logically follows that if the legislature
can control the use of legislative space, as it already does in
many ways, it can also control the security measures put in place
for use of that space. Because there are at the very least some
constitutional applications of this provision, the facial
challenge to Wis. Stat. § 16.84(2m) cannot succeed.
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3. Multiple Suspensions of Administrative Rules
¶78 The Plaintiffs also challenge 2017 Act 369, § 64 (Wis.
Stat. § 227.26(2)(im)), which allows the Joint Committee for
Review of Administrative Rules (JCRAR) to suspend a rule more than
once.24
¶79 Wisconsin agencies are required to promulgate rules for
"each statement of general policy and each interpretation of a
statute which it specifically adopts to govern its enforcement or
administration of that statute." Wis. Stat. § 227.10(1). When
promulgated as required by statute, rules have "the force of law."
Wis. Stat. § 227.01(13). Current statutory law authorizes JCRAR
to review rules prior to promulgation, and to suspend rules
following promulgation. See Wis. Stat. § 227.19; Wis. Stat.
§ 227.26. The legislature can establish the procedures by which
an agency promulgates rules, and can even take away rulemaking
authority altogether. Koschkee, 387 Wis. 2d 552, ¶20.
Additionally, the legislature may limit or retract its delegation
of rulemaking authority, review rules prior to implementation, and
determine the methods agencies must use to promulgate rules. Id.
¶80 In Martinez, this court addressed the constitutionality
of this temporary rule suspension power. 165 Wis. 2d at 691. We
upheld the ability of JCRAR to temporarily suspend a rule for three
months, reasoning that "[i]t is appropriate for the legislature to
24This new paragraph states: "Notwithstanding pars. (i) and
(j), the committee may act to suspend a rule as provided under
this subsection multiple times." Wis. Stat. § 227.26(2)(im).
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delegate rule-making authority to an agency while retaining the
right to review any rules promulgated under the delegated power."
Id. at 698. In so doing, we also stressed the importance of the
temporary nature of the suspension. Id. at 699-700. To
permanently repeal a suspended rule, the legislature must pass a
bill in both houses and have it signed by the governor. Id. If
no repeal occurs, the rule remains in effect and cannot be
suspended again. Id. at 700. This structure, we concluded, did
not violate the separation of powers. Id. at 700-01.
¶81 Under the new legislative changes, the legislature may
impose the temporary three-month suspension addressed in Martinez
multiple times. The parties do not ask us to revisit Martinez or
any of its conclusions. Under Martinez, an endless suspension of
rules could not stand; there exists at least some required end
point after which bicameral passage and presentment to the governor
must occur. Id. at 700. But also under Martinez, a single
temporary three-month suspension is permissible.
¶82 Accepting these boundary markers, if one three-month
suspension is constitutionally permissible, two three-month
suspensions are as well. Under such a scenario, the six-month
(rather than three-month) delay would still be followed by
acceptance of the rule or repeal through bicameral passage and
presentment. This fits comfortably within the unchallenged
reasoning of Martinez——a modest suspension that is temporary in
nature.
¶83 Again, this case comes to us as a facial challenge. To
succeed, every application of this law must be found
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unconstitutional. Because this provision has constitutional
applications, the facial challenge must necessarily fail. To
strike down all applications of this law, or to draw a line in the
future under which an additional suspension is too long is exactly
the sort of speculation that counsels caution and a narrow
application of Martinez in the context of a facial challenge. The
facial challenge to Wis. Stat. § 227.26(2)(im) must be dismissed
on remand, and the order enjoining this provision is thereby
vacated as well.
4. Agency Deference Provision
¶84 The Plaintiffs also challenge the constitutionality of
2017 Wis. Act 369, § 35 (Wis. Stat. § 227.10(2g)), which provides:
"No agency may seek deference in any proceeding based on the
agency's interpretation of any law." This provision partially
codifies our holding in Tetra Tech where we ended "our practice of
deferring to administrative agencies' conclusions of law." 382
Wis. 2d 496, ¶108. Given our own decision that courts should not
defer to the legal conclusions of an agency, a statute instructing
agencies not to ask for such deference is facially constitutional.
III. CONCLUSION
¶85 This writing constitutes the majority opinion of the
court on all issues raised in this case other than the guidance
document provisions, which are addressed in Justice Kelly's
opinion for the court. With respect to the issues addressed in
this opinion, we conclude as follows.
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¶86 For all provisions where arguments were sufficiently
developed, the Legislative Defendants have successfully shown that
the motion to dismiss the facial challenge to these laws should
have been granted. On remand, we direct the circuit court to grant
the motion to dismiss with respect to these provisions.25 We also
vacate the temporary injunction in full for all provisions
addressed in this opinion.26 We stress that we pass no judgment
on the constitutionality of individual applications or categories
of applications of these laws. The judicial power is at once
immense, yet modest. While it is our solemn obligation to say
what the law is, that power extends to deciding only the cases and
claims actually presented. And that is what we do today.27
By the Court.—The judgment of the circuit court is affirmed
in part and reversed in part, the temporary injunction is vacated
in part, and the cause is remanded for further proceedings
Specifically, we reverse the circuit court's order denying
25
the motion to dismiss with respect to: 2017 Wis. Act 369, § 5
(Wis. Stat. § 13.365); § 16 (Wis. Stat. § 16.84(2m)); § 26 (Wis.
Stat. § 165.08(1)); § 30 (Wis. Stat. § 165.25(6)(a)1.); § 35 (Wis.
Stat. § 227.10(2g)); § 64 (Wis. Stat. § 227.26(2)(im)); and § 97
(Wis. Stat. § 803.09(2m)).
The circuit court's temporary injunction is vacated with
26
respect to the following provisions: 2017 Wis. Act 369, § 26 (Wis.
Stat. § 165.08(1)); § 30 (Wis. Stat. § 165.25(6)(a)1.); § 64 (Wis.
Stat. § 227.26(2)(im)).
Following oral argument, the Attorney General moved
27 to
modify the stay of the temporary injunction that we imposed on
June 11, 2019. As we remand this case for the circuit court to
issue an order vacating its temporary injunction order in part, we
deny the Attorney General's motion.
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Nos. 2019AP614-LV & 2019AP622
consistent with this opinion and the opinion of Justice Daniel
Kelly.
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¶87 DANIEL KELLY, J. The great Justice Joseph Story once
said "the three great powers of government . . . should for ever
be kept separate and distinct." 2 Joseph Story, Commentaries on
the Constitution of the United States § 519, at 2-3 (Boston,
Hilliard, Gray, & Co. 1833). We agree. As a consequence, we
conclude that when the legislature prohibited the executive branch
from communicating with the public through the issuance of guidance
documents without first going through a pre-clearance process and
including legislatively-mandated content, it invaded the executive
branch's exclusive province to "take care that the laws be
faithfully executed." Wis. Const. art. V, § 4.
¶88 This opinion is the opinion of the court with respect to
2017 Wis. Act 369, §§ 31, 33, 38, 65-71, and 104-105, all of which
address (at least in part) the subject of guidance documents.
Here, we explain why § 33 (to the extent it applies to guidance
documents) and § 38 unconstitutionally intrude on power the
constitution vested in the executive branch of government. We
also describe why § 31 (which defines what a guidance document
is), §§ 65-71 (to the extent they provide judicial review of
guidance documents), and §§ 104-05 (which describe the
applicability and effective date of § 33) are not facially
unconstitutional.
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I. BACKGROUND1
¶89 "Guidance documents" are not conceptually new to
administrative agencies, although they had no statutory definition
until the Act created Wis. Stat. § 227.01(3m) (2017-18)2 to read
as follows:
(a) "Guidance document" means, except as provided in
par. (b), any formal or official document or
communication issued by an agency, including a manual,
handbook, directive, or informational bulletin, that
does any of the following:
1. Explains the agency's implementation of a statute or
rule enforced or administered by the agency, including
the current or proposed operating procedure of the
agency.
2. Provides guidance or advice with respect to how the
agency is likely to apply a statute or rule enforced or
administered by the agency, if that guidance or advice
is likely to apply to a class of persons similarly
affected.
2017 Wis. Act. 369, § 31 (Wis. Stat. § 227.01(3m)).
¶90 The Act regulates guidance documents in several ways,
the following two of which implicate the boundaries between the
executive and legislative branches. The first is § 33, which
requires administrative agencies (with some exceptions) to
identify existing law that supports a guidance document's
contents:
1 The part of the court's opinion authored by Justice Brian
Hagedorn provides the broad background strokes necessary to
consider SEIU's claims. In this part of the court's opinion, we
provide some additional context for our treatment of the "guidance
document" provisions of 2017 Wis. Act 369.
2 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
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Agency publications. An agency, other than the
Board of Regents of the University of Wisconsin System,
the Technical College System Board, or the department of
employee trust funds, shall identify the applicable
provision of federal law or the applicable state
statutory or administrative code provision that supports
any statement or interpretation of law that the agency
makes in any publication, whether in print or on the
agency's Internet site, including guidance documents,
forms, pamphlets, or other informational materials,
regarding the laws the agency administers.
2017 Wis. Act. 369, § 33 (Wis. Stat. § 227.05). The second is
§ 38, which describes the procedure an administrative agency must
follow when creating a guidance document.
(1)(a) Before adopting a guidance document, an agency
shall submit to the legislative reference bureau the
proposed guidance document with a notice of a public
comment period on the proposed guidance document under
par. (b), in a format approved by the legislative
reference bureau, for publication in the register. The
notice shall specify the place where comments should be
submitted and the deadline for submitting those
comments.
(b) The agency shall provide for a period for public
comment on a proposed guidance document submitted under
par. (a), during which any person may submit written
comments to the agency with respect to the proposed
guidance document. Except as provided in par. (c), the
period for public comment shall end no sooner than the
21st day after the date on which the proposed guidance
document is published in the register under s.
35.93(2)(b)3.im. The agency may not adopt the proposed
guidance document until the comment period has concluded
and the agency has complied with par. (d).
(c) An agency may hold a public comment period shorter
than 21 days with the approval of the governor.
(d) An agency shall retain all written comments
submitted during the public comment period under par.
(b) and shall consider those comments in determining
whether to adopt the guidance document as originally
proposed, modify the proposed guidance document, or take
any other action.
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(2) An agency shall post each guidance document that the
agency has adopted on the agency's Internet site and
shall permit continuing public comment on the guidance
document. The agency shall ensure that each guidance
document that the agency has adopted remains on the
agency's Internet site as provided in this subsection
until the guidance document is no longer in effect, is
no longer valid, or is superseded or until the agency
otherwise rescinds its adoption of the guidance
document.
(3) A guidance document does not have the force of law
and does not provide the authority for implementing or
enforcing a standard, requirement, or threshold,
including as a term or condition of any license. An
agency that proposes to rely on a guidance document to
the detriment of a person in any proceeding shall afford
the person an adequate opportunity to contest the
legality or wisdom of a position taken in the guidance
document. An agency may not use a guidance document to
foreclose consideration of any issue raised in the
guidance document.
(4) If an agency proposes to act in any proceeding at
variance with a position expressed in a guidance
document, it shall provide a reasonable explanation for
the variance. If an affected person in any proceeding
may have relied reasonably on the agency's position, the
explanation must include a reasonable justification for
the agency's conclusion that the need for the variance
outweighs the affected person's reliance interest.
(5) Persons that qualify under s. 227.12 to petition an
agency to promulgate a rule may, as provided in s.
227.12, petition an agency to promulgate a rule in place
of a guidance document.
(6) Any guidance document shall be signed by the
secretary or head of the agency below the following
certification: "I have reviewed this guidance document
or proposed guidance document and I certify that it
complies with sections 227.10 and 227.11 of the
Wisconsin Statutes. I further certify that the guidance
document or proposed guidance document contains no
standard, requirement, or threshold that is not
explicitly required or explicitly permitted by a statute
or a rule that has been lawfully promulgated. I further
certify that the guidance document or proposed guidance
document contains no standard, requirement, or threshold
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that is more restrictive than a standard, requirement,
or threshold contained in the Wisconsin Statutes."
(7)(a) This section does not apply to guidance documents
adopted before the first day of the 7th month beginning
after the effective date of this paragraph . . . [LRB
inserts date], but on that date any guidance document
that has not been adopted in accordance with sub. (1) or
that does not contain the certification required under
sub. (6) shall be considered rescinded.
(b) This section does not apply to guidance documents or
proposed guidance documents of the Board of Regents of
the University of Wisconsin System, the Technical
College System Board, or the department of employee
trust funds.
(8) The legislative council staff shall provide agencies
with assistance in determining whether documents and
communications are guidance documents that are subject
to the requirements under this section.
2017 Wis. Act. 369, § 38 (Wis. Stat. § 227.112).
¶91 SEIU alleges § 38 violates the separation of powers, and
Governor Tony Evers alleges that, to the extent it addresses
guidance documents, § 33 does the same. For the following reasons,
we agree.
II. STANDARD OF REVIEW
¶92 We are reviewing the circuit court's denial of the
Legislative Defendants'3 motion to dismiss the plaintiffs'
complaint, as well as the temporary injunction the circuit court
granted with respect to §§ 31, 33, 38, 65-71, and 104-05. The
motion to dismiss asserted that the plaintiffs' complaint failed
to state a claim upon which relief could be granted. "Whether a
3 The "Legislative Defendants," who were sued in their
official capacity, are Wisconsin Assembly Speaker Robin Vos,
Wisconsin Senate President Roger Roth, Wisconsin Assembly Majority
Leader Jim Steineke, and Wisconsin Senate Majority Leader Scott
Fitzgerald.
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complaint states a claim upon which relief can be granted is a
question of law for our independent review[.]" Data Key Partners
v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849
N.W.2d 693. The motion puts at issue whether the guidance document
provisions of 2017 Wis. Act 369 are facially unconstitutional. A
statute is facially unconstitutional only when it "cannot be
enforced 'under any circumstances.'" Mayo v. Wisconsin Injured
Patients & Families Comp. Fund, 2018 WI 78, ¶24, 383 Wis. 2d 1,
914 N.W.2d 678 (quoted source omitted).
¶93 A circuit court may issue a temporary injunction if:
"(1) the movant is likely to suffer irreparable harm if a temporary
injunction is not issued; (2) the movant has no other adequate
remedy at law; (3) a temporary injunction is necessary to preserve
the status quo; and (4) the movant has a reasonable probability of
success on the merits." Milwaukee Deputy Sheriffs' Ass'n v.
Milwaukee Cty., 2016 WI App 56, ¶20, 370 Wis. 2d 644, 883
N.W.2d 154 (citing Werner v. A.L. Grootemaat & Sons, Inc., 80
Wis. 2d 513, 520–21, 259 N.W.2d 310 (1977)). We review the circuit
court's decision to issue a temporary injunction for an erroneous
exercise of discretion. Id.
III. ANALYSIS
¶94 Our inquiry into the constitutionality of the Act's
guidance document provisions requires that we determine whether
the creation of such a document represents the exercise of
executive as opposed to legislative power. We then assess whether
the Act's guidance document provisions impermissibly encroach on
the executive branch's authority to promulgate those documents.
6
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A. The Nature of Executive and Legislative Powers
¶95 It is common knowledge that the Wisconsin Constitution
organizes our government in a tripartite structure. Goodland v.
Zimmerman, 243 Wis. 459, 466-67, 10 N.W.2d 180 (1943)
("[G]overnmental powers are divided among the three departments of
government, the legislative, the executive, and judicial[.]"). At
the risk of oversimplification, the legislature's authority
comprises the power to make the law,4 whereas the executive's
authority consists of executing the law.5 The distinction between
the two has been described as the difference between the power to
prescribe and the power to put something into effect:
In 1792, Jacques Necker, the famous French
statesman, neatly summed up the function and
significance of the executive power. Of the function:
"[I]f by a fiction we were for a moment to personify the
legislative and the executive powers, the latter in
speaking of the former might . . . say: All that this
man has talked of, I will perform." Of the significance:
"The laws would in effect be nothing more than counsels,
than so many maxims more or less sage, without this
active and vigilant authority, which assures their
empire and transmits to the administration the motion of
which it stands in need."
Saikrishna Prakash, The Essential Meaning of Executive Power, 2003
U. Ill. L. Rev. 701, 819 (2003) (quoted source omitted). This
commentator concluded that, "[i]n the late-eighteenth century,
someone vested with the executive power and christened as the chief
executive enjoyed the power to control the execution of law." Id.
4"The legislative power shall be vested in a senate and
assembly." Wis. Const. art. IV, § 1.
5"The executive power shall be vested in a governor." Wis.
Const. art. V, § 1.
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¶96 The executive, however, is not a legislatively-
controlled automaton. Before executing, he must of necessity
determine for himself what the law requires him to do. As
Alexander Hamilton said, "[h]e who is to execute the laws must
first judge for himself of their meaning." See Alexander Hamilton,
Letters of Pacificus No. 1 (June 29, 1793), reprinted in 4 The
Works of Alexander Hamilton 438 (Henry Cabot Lodge ed. 1904). This
is intrinsic to the very nature of executive authority.
The executive must certainly interpret and apply the
law; it would be impossible to perform his duties if he
did not. After all, he must determine for himself what
the law requires (interpretation) so that he may carry
it into effect (application). Our constitution not only
does not forbid this, it requires it.
Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶53, 382 Wis. 2d 496, 914
N.W.2d 21 (Kelly, J., lead op.). See also Wis. Const. art. V, § 1
("The executive power shall be vested in a governor . . . .");
Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 119 (2015) (Thomas,
J., concurring) ("It is undoubtedly true that the other branches
of Government have the authority and obligation to interpret the
law . . . .").
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¶97 The executive oftentimes carries out his functions
through administrative agencies.6 Although agencies have sometimes
been criticized as a "headless fourth branch of government,"7 they
are not——we have only three. Agencies must belong to one of them,
and we have said before that they are one manifestation of the
executive. Koschkee v. Taylor, 2019 WI 76, ¶14, 387 Wis. 2d 552,
929 N.W.2d 600 ("Agencies are considered part of the executive
6 See, e.g., Util. Air Regulatory Grp. v. E.P.A., 573
U.S. 302, 327 (2014) ("Under our system of government, Congress
makes laws and the President, acting at times through
agencies . . . 'faithfully execute[s]' them." (quoting U.S. Const.
art. II, § 3 (alterations in original))); State ex rel. Wisconsin
Dev. Auth. v. Dammann, 228 Wis. 147, 159, 277 N.W. 278 on reh'g,
228 Wis. 147, 280 N.W. 698 (1938) ("It is fundamental that under
our constitutional system the governmental power to execute the
laws is vested in the executive department of the state, and can
be exercised only by duly constituted officers thereof."); DOR v.
Nagle-Hart, Inc., 70 Wis. 2d 224, 226–27, 234 N.W.2d 350 (1975)
("It is for the department[s] to implement and carry out the
mandate of the legislative enactments . . . and stop at the limits
of such legislative mandate or direction."); Black & Decker, Inc.
v. DILHR, No. 1988AP0409, unpublished slip op. (Sept. 15, 1988)
(Wherein the court of appeals described the function of an agency
as one of carrying out and implementing a legislative act.).
7 Peter L. Strauss Agencies' Place in Government, 84
Colum. L. Rev. 573, 578 (1984) (internal marks and quoted source
omitted).
9
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branch.").8 This understanding is not unique to Wisconsin.9 And
when an administrative agency acts (other than when it is
exercising its borrowed rulemaking function), it is exercising
executive power. See, e.g., Jones v. United States, 137 U.S. 202,
217 (1890) ("[T]here can be no doubt that it [the power "conferred
on the president of the United States"] may be declared through
the department of state, whose acts in this regard are in legal
contemplation the acts of the president." (emphasis added));
Wolsey v. Chapman, 101 U.S. 755, 769 (1879) ("[T]he acts of the
heads of departments, within the scope of their powers, are in law
the acts of the President."); Mistretta v. United States, 488
U.S. 361, 424 (1989) (Scalia, J., dissenting) ("Although the
This is also apparent from the fact that the governor
8
appoints agency secretaries, all of whom serve at the governor's
pleasure. Wis. Stat. § 15.05(1)(a) ("If a department is under the
direction and supervision of a secretary, the secretary shall be
nominated by the governor, and with the advice and consent of the
senate appointed, to serve at the pleasure of the governor.").
See, e.g., Town of Walkerton v. New York, C. & St. L. R.
9
Co., 18 N.E.2d 799, 803 (Ind. 1939) ("Under our form of government
an administrative agency belongs to the executive department.");
Barrett v. Tennessee Occupational Safety & Health Review Comm'n,
284 S.W.3d 784, 789 (Tenn. 2009) ("Administrative agencies are
part of the executive branch of government."); Meyers v. Chapman
Printing Co., 840 S.W.2d 814, 820 (Ky. 1992) ("Decisionmaking
performed by an administrative agency is an executive function.");
Judges of 74th Judicial Dist. v. Bay Cty., 190 N.W.2d 219, 226
(Mich. 1971) ("Administrative agencies are a part of the executive
branch of government. While they often act in a quasi-judicial
capacity, it is recognized that they are established to perform
essentially executive functions."); Matter of Kallen, 455
A.2d 460, 463 (N.J. 1983) ("Administrative agencies are the arms
of the executive branch of government that implement the laws
passed by the Legislature."); Muddy Boys, Inc. v. Dep't of
Commerce, 440 P.3d 741, 747 (Ut. Ct. App. 2019)
("[A]dministrative agencies are part of the executive.").
10
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Constitution says that '[t]he executive Power shall be vested in
a President of the United States of America,' [U.S. Const.] Art.
II, § 1, it was never thought that the President would have to
exercise that power personally. He may generally authorize others
to exercise executive powers, with full effect of law, in his
place." (alterations in original)).; Frank B. Cross, Executive
Orders 12,291 and 12,498: A Test Case in Presidential Control of
Executive Agencies, 4 J.L. & Pol. 483, 507 (1988) ("Obviously, one
person cannot execute all the functions of government personally.
In order to carry out his constitutional responsibility, the
president must delegate his authority to other executive
officers.").
¶98 In addition to the executive power that agencies
exercise as a consequence of their placement in the executive
branch, they also exercise some limited legislative power. This
second type of authority depends entirely on the legislature's
delegation of the power to promulgate rules that have the force
and effect of law. Wis. Stat. § 227.11(2) ("Rule-making authority
is expressly conferred on an agency[.]"); Kieninger v. Crown Equip.
Corp., 2019 WI 27, ¶16 n.8, 386 Wis. 2d 1, 924 N.W.2d 172
("Administrative rules enacted pursuant to statutory rulemaking
authority have the force and effect of law in Wisconsin." (quoted
source omitted)). We have recognized before that when an agency
promulgates a rule, it is exercising "a legislative power[.]"
Koschkee, 387 Wis. 2d 552, ¶39. An agency, however, "has no
inherent constitutional authority to make rules . . . ." Martinez
v. DILHR, 165 Wis. 2d 687, 698, 478 N.W.2d 582 (1992). To the
11
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extent it exists, it comes solely through express delegation from
the legislature. Because this capability is only on loan,10
agencies necessarily "remain subordinate to the legislature with
regard to their rulemaking authority." Koschkee, 387 Wis. 2d 552,
¶18.
¶99 The constitutional authority of the executive
encompasses determining what the law requires as well as applying
it (preferably in that order). Because the executive's power is
supplemented by a legislatively-delegated authority to promulgate
rules that have the force and effect of law, we must determine
what manner of authority an agency uses to create guidance
documents before we can evaluate the legislature's right to control
them. If it is a delegated rulemaking authority, then the
legislature's power to dictate their content and manner of
promulgation would be almost beyond question. If, however, the
authority to create guidance documents is executive, then we must
consider whether the legislature's reach extends far enough to
control how members of the executive branch explain statutes and
provide guidance or advice about how administrative agencies are
likely to apply them.
¶100 Our analysis on this point necessarily begins with the
undisputed understanding that a guidance document does not have
the force or effect of law. The Act explicitly says so: "A
guidance document does not have the force of law and does not
provide the authority for implementing or enforcing a standard,
"As a legislative creation, [an agency's] . . . rule-
10
making powers can be repealed by the legislature." Martinez v.
DILHR, 165 Wis. 2d 687, 698, 478 N.W.2d 582 (1992).
12
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requirement, or threshold, including as a term or condition of any
license." 2017 Wis. Act. 369, § 38 (Wis. Stat. § 227.112(3)).
That's an important place to start because right away it
establishes that, unlike a rule,11 the executive branch needs no
borrowed authority from the legislature to create a guidance
document. In fact, the executive was creating them long before
the legislature passed the Act and gave them that name. The Act
implicitly recognizes this by not even purporting to delegate the
authority to create such documents to the executive——it assumed
the power already resided there.
¶101 Having established that guidance documents are not
rules, we must determine what manner of thing they are. The Act
describes them as:
[A]ny formal or official document or communication
issued by an agency, including a manual, handbook,
directive, or informational bulletin, that does any of
the following:
1. Explains the agency's implementation of a statute or
rule enforced or administered by the agency, including
the current or proposed operating procedure of the
agency.
2. Provides guidance or advice with respect to how the
agency is likely to apply a statute or rule enforced or
administered by the agency, if that guidance or advice
is likely to apply to a class of persons similarly
affected.
2017 Wis. Act 369, § 31 (Wis. Stat. § 227.01(3m)(a)1.-2.).12
11Koschkee v. Taylor, 2019 WI 76, ¶18, 387 Wis. 2d 552, 929
N.W.2d 600 (Executive "agencies ha[ve] no inherent constitutional
authority to make rules[.]" (some alterations in original)).
12 The Act also describes what a guidance document is not:
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(b) "Guidance document" does not include any of the
following:
1. A rule that has been promulgated and that is currently
in effect or a proposed rule that is in the process of
being promulgated.
2. A standard adopted, or a statement of policy or
interpretation made, whether preliminary or final, in
the decision of a contested case, in a private letter
ruling under s. 73.035, or in an agency decision upon or
disposition of a particular matter as applied to a
specific set of facts.
3. Any document or activity described in sub. (13) (a)
to (zz), except that "guidance document" includes a
pamphlet or other explanatory material described under
sub. (13) (r) that otherwise satisfies the definition of
"guidance document" under par. (a).
4. Any document that any statute specifically provides
is not required to be promulgated as a rule.
5. A declaratory ruling issued under s. 227.41.
6. A pleading or brief filed in court by the state, an
agency, or an agency official.
7. A letter or written legal advice of the department of
justice or a formal or informal opinion of the attorney
general, including an opinion issued under s. 165.015
(1).
8. Any document or communication for which a procedure
for public input, other than that provided under s.
227.112 (1), is provided by law.
9. Any document or communication that is not subject to
the right of inspection and copying under s. 19.35(1).
2017 Wis. Act. 369, § 31 (Wis. Stat. § 227.01(3m)(b)1.-9.).
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¶102 The Act's plain language allows us to discern the
following essential attributes of guidance documents.13 They are
not law, they do not have the force or effect of law, and they
provide no authority for implementing or enforcing standards or
conditions. They simply "explain" statutes and rules, or they
"provide guidance or advice" about how the executive branch is
"likely to apply" a statute or rule. They impose no obligations,
set no standards, and bind no one. They are communications about
the law——they are not the law itself. They communicate intended
applications of the law——they are not the actual execution of the
law. Functionally, and as a matter of law, they are entirely
inert. That is to say, they represent nothing more than the
knowledge and intentions of their authors. It is readily apparent,
therefore, that the executive need not borrow any legislative
authority, nor seek the legislature's permission, to create
guidance documents. It could hardly be otherwise. This creative
power is necessarily inherent to the executive because no other
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
13
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 ("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.").
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branch of government has even the theoretical ability to know the
executive's mind with respect to the law he is to execute.14
B. May the Legislature Regulate the Executive's Guidance
Documents?
¶103 Because the executive branch has the native authority to
create and disseminate guidance documents, we must next determine
whether the legislature may nonetheless prescribe the content or
method of disseminating such documents. The answer depends on
whether the creation of guidance documents represents an exercise
of the executive's core function, or merely a power shared with
the legislature.
The separation of powers doctrine "envisions a system of
separate branches sharing many powers while jealously
guarding certain others, a system of 'separateness but
interdependence, autonomy but reciprocity.'" State ex
rel. Friedrich v. Circuit Court for Dane Cty., 192
Wis. 2d 1, 14, 531 N.W.2d 32 (1995) (quoting Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)
(Jackson, J., concurring)). "The constitutional powers
of each branch of government fall into two categories:
exclusive powers and shared powers." State v. Horn, 226
Wis. 2d 637, 643, 594 N.W.2d 772 (1999). "Shared powers
lie at the intersections of these exclusive core
constitutional powers," and "[t]hese '[g]reat
borderlands of power' are not exclusive to any one
branch." Id. at 643-44 (quoting Friedrich, 192
Wis. 2d at 14); see also State v. Holmes, 106
Wis. 2d 31, 42–43, 315 N.W.2d 703 (1982). Although the
"branches may exercise [shared] power within these
borderlands," they "may [not] unduly burden or
14 Chief Justice Roggensack suggests that this is a "change
in the law[.]" See Chief Justice Roggensack's
concurrence/dissent, ¶150. But she does not say what it is a
change from. We have never said that the creative power to make
a guidance document resides somewhere other than the executive
branch, and the Chief Justice cites no authority suggesting we
have.
16
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substantially interfere with another branch." Horn, 226
Wis. 2d at 644.
Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶46 (alterations in
original).
¶104 A branch's core powers are those that define its
essential attributes.15 With respect to these, we have previously
recognized that "[e]ach branch has exclusive core constitutional
powers, into which the other branches may not intrude." Flynn v.
DOA, 216 Wis. 2d 521, 545, 576 N.W.2d 245. "Core powers," as has
been previously observed, "are not for sharing." Tetra Tech EC,
Inc., 382 Wis. 2d 496, ¶47. "Shared powers[, however,] lie at the
intersections of these exclusive core constitutional powers," and
"[t]hese '[g]reat borderlands of power' are not exclusive to any
one branch." Horn, 226 Wis. 2d at 643-44 (quoting Friedrich, 192
Wis. 2d at 14 (alterations in original)). "Although the 'branches
may exercise [shared] power within these borderlands,' they 'may
[not] unduly burden or substantially interfere with another
branch.'" Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶46 (quoting Horn,
226 Wis. 2d at 644 (alterations in original)). So if guidance
documents fall somewhere in the realm of shared powers, the
legislature would conceivably retain some claim of right to govern
15The Chief Justice's concurrence says there is no basis for
this definition of core powers. See Chief Justice Roggensack's
concurrence/dissent, ¶152. That is simply not true; the
constitution itself constitutes the source. First, we know that
"[e]ach branch has exclusive core constitutional powers[.]" State
v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999). These core
powers are the "zones of authority constitutionally established
for each branch of government[.]" State ex rel. Fiedler v.
Wisconsin Senate, 155 Wis. 2d 94, 100, 454 N.W.2d 770 (1990). In
other words, a core power is a power vested by the constitution
that distinguishes that branch from the other two.
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their content and dissemination. But if they lie within the
executive's core authority, the legislature must retain a
constitutionally-respectful distance.
¶105 We conclude that the creation and dissemination of
guidance documents fall within the executive's core authority.
Guidance documents, as the legislature has defined them,
necessarily exist outside of the legislature's authority because
of what they are and who creates them. As we explained above, a
guidance document is something created by executive branch
employees through the exercise of executive authority native to
that branch of government. Creation of a guidance document
requires no legislative authority and no legislative personnel. A
guidance document cannot affect what the law is, cannot create a
policy, cannot impose a standard, and cannot bind anyone to
anything.
¶106 This is all true because guidance documents merely
explain statutes and rules, or provide guidance or advice about
how the executive is likely to apply them. Thought must precede
action, of course, and guidance documents are simply the written
record of the executive's thoughts about the law and its execution.
They contain the executive's interpretation of the laws, his
judgment about what the laws require him to do. Because this
intellectual homework is indispensable to the duty to "take care
that the laws be faithfully executed," Wis. Const. art. V, § 4, it
is also inseparable from the executive's constitutionally-vested
power. It is all one, and has been one since the creation of our
tripartite form of government centuries ago. See Hamilton, supra,
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¶96; see also Kendall v. U.S. ex rel. Stokes, 37 U.S. 524, 600
(1838) ("If, therefore, the executive be clearly satisfied as to
the meaning of such a law, it is his bounden duty to see that the
subordinate officers of his department conform with fidelity to
that meaning; for no other execution, however pure the motive from
which it springs, is a faithful execution of the law." (emphasis
added)); Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶53 ("The executive
must certainly interpret and apply the law; it would be impossible
to perform his duties if he did not. After all, he must determine
for himself what the law requires (interpretation) so that he may
carry it into effect (application)."); State v. Whitman, 196
Wis. 472, 220 N.W. 929 (1928) ("Every executive officer in the
execution of the law must of necessity interpret it in order to
find out what it is he is required to do.").
¶107 Sections 33 and 38 of the Act are problematic, therefore,
because they insert the legislature as a gatekeeper between the
analytical predicate to the execution of the laws and the actual
execution itself. The legislature may see itself as a benign
gatekeeper between the two, but that is entirely irrelevant. The
question is whether it may install a gate at all. If the
legislature can regulate the necessary predicate to executing the
law, then the legislature can control the execution of the law
itself. Such power would demote the executive branch to a wholly-
owned subsidiary of the legislature. Capturing the executive's
ability to communicate his knowledge, intentions, and
understanding of the laws he is to execute makes him a drone
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without the energy or independent wherewithal to act as a co-equal
member of government.16
¶108 The legislature may enact the laws the executive is duty-
bound to execute. But it may not control his knowledge or
intentions about those laws. Nor may it mute or modulate the
communication of his knowledge or intentions to the public.
Because there are no set of facts pursuant to which § 33 (to the
extent it applies to guidance documents) and § 38 would not
impermissibly interfere with the executive's exercise of his core
constitutional power, they are in that respect facially
unconstitutional.
C. Challenges to The Remaining Guidance Document Provisions
¶109 The plaintiffs' challenge to the guidance document
provisions of 2017 Wis. Act 369 goes beyond §§ 33 and 38, but as
it reaches §§ 31, 65-71, and 104-05, the focus of their argument
becomes so diffuse that the justification for declaring them
unconstitutional appears to rely almost entirely on their
association with §§ 33 and 38. As we now explain, the plaintiffs
have not established that these remaining provisions "cannot be
The problem is especially acute because this regulation on
16
the executive's pre-execution analysis and communication is
infinitely recursive. That is, if he wished to publish a bulletin
about his understanding of 2017 Wis. Act 369, §§ 33 and 38 or how
he intends to implement them, that bulletin itself would have to
go through the legislatively-mandated pre-clearance procedure.
And if he wished to communicate about the communication he was
required to submit to the legislative mandate, that communication
too would be subject to pre-clearance. Ultimately, the Act's
guidance document provisions prohibit the executive branch of
government from publicizing his thoughts, knowledge, and
intentions about the laws he is to execute without first
surmounting the legislature's hurdles.
20
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enforced 'under any circumstances.'" Mayo, 383 Wis. 2d 1, ¶24
(quoted source omitted).
¶110 Section 31 of 2017 Wis. Act 369 defines the term
"guidance document" (see supra, ¶90). It is conceivable that the
legislature might introduce an unneeded and even unwanted entry
into our legal glossary, but the parties do not describe how that
could even potentially impose upon or detract from any part of the
executive's vested authority. SEIU's brief acknowledged creation
of this definition, noted the circuit court's global lack of faith
in the utility of any of the guidance document provisions, and
asserted that this provision (in conjunction with all the other
guidance document provisions) "improperly intrude on the
Governor's authority to implement state law." The Governor said
pretty much the same thing, and the Attorney General did not
specifically mention § 31 at all. The parties, therefore, have
identified no basis for asserting that there is no constitutional
application of § 31, and we see none.
¶111 Sections 65-7117 make guidance documents reviewable by
the courts in the same fashion as administrative rules. Each of
17 Sections 65 to 71 of the Act provide:
Section 65. 227.40 (1) of the statutes is amended to
read: 227.40 (1) Except as provided in sub. (2), the
exclusive means of judicial review of the validity of a
rule or guidance document shall be an action for
declaratory judgment as to the validity of the rule or
guidance document brought in the circuit court for the
county where the party asserting the invalidity of the
rule or guidance document resides or has its principal
place of business or, if that party is a nonresident or
does not have its principal place of business in this
state, in the circuit court for the county where the
dispute arose. The officer or other agency whose rule
21
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or guidance document is involved shall be the party
defendant. The summons in the action shall be served as
provided in s. 801.11 (3) and by delivering a copy to
that officer or, if the agency is composed of more than
one person, to the secretary or clerk of the agency or
to any member of the agency. The court shall render a
declaratory judgment in the action only when it appears
from the complaint and the supporting evidence that the
rule or guidance document or its threatened application
interferes with or impairs, or threatens to interfere
with or impair, the legal rights and privileges of the
plaintiff. A declaratory judgment may be rendered
whether or not the plaintiff has first requested the
agency to pass upon the validity of the rule or guidance
document in question.
Section 66. 227.40 (2) (intro.) of the statutes is
amended to read: 227.40 (2) (intro.) The validity of
a rule or guidance document may be determined in any of
the following judicial proceedings when material
therein:
Section 67. 227.40 (2) (e) of the statutes is amended to
read: 227.40 (2) (e) Proceedings under s. 66.191, 1981
stats., or s. 40.65 (2), 106.50, 106.52, 303.07 (7) or
303.21 or ss. 227.52 to 227.58 or under ch. 102, 108 or
949 for review of decisions and orders of administrative
agencies if the validity of the rule or guidance document
involved was duly challenged in the proceeding before
the agency in which the order or decision sought to be
reviewed was made or entered.
Section 68. 227.40 (3) (intro.) of the statutes is
renumbered 227.40 (3) (ag) and amended to read: 227.40
(3) (ag) In any judicial proceeding other than one set
out above under sub. (1) or (2), in which the invalidity
of a rule or guidance document is material to the cause
of action or any defense thereto, the assertion of such
that invalidity shall be set forth in the pleading of
the party so maintaining the invalidity of such the rule
or guidance document in that proceeding. The party so
asserting the invalidity of such the rule or guidance
document shall, within 30 days after the service of the
pleading in which the party sets forth such the
invalidity, apply to the court in which such the
proceedings are had for an order suspending the trial of
said the proceeding until after a determination of the
22
Nos. 2019AP614-LV & 2019AP622.dk
validity of said the rule or guidance document in an
action for declaratory judgment under sub. (1) hereof.
Section 69. 227.40 (3) (a) of the statutes is renumbered
227.40 (3) (ar) and amended to read: 227.40 (3) (ar)
Upon the hearing of such the application, if the court
is satisfied that the validity of such the rule or
guidance document is material to the issues of the case,
an order shall be entered staying the trial of said
proceeding until the rendition of a final declaratory
judgment in proceedings to be instituted forthwith by
the party asserting the invalidity of such the rule or
guidance document. If the court shall find finds that
the asserted invalidity of a the rule or guidance
document is not material to the case, an order shall be
entered denying the application for stay.
Section 70. 227.40 (3) (b) and (c) of the statutes are
amended to read: 227.40 (3) (b) Upon the entry of a
final order in said the declaratory judgment action, it
shall be the duty of the party who asserts the invalidity
of the rule or guidance document to formally advise the
court of the outcome of the declaratory judgment action
so brought as ordered by the court. After the final
disposition of the declaratory judgment action the court
shall be bound by and apply the judgment so entered in
the trial of the proceeding in which the invalidity of
the rule or guidance document is asserted.
(c) Failure to set forth the invalidity of a rule or
guidance document in a pleading or to commence a
declaratory judgment proceeding within a reasonable time
pursuant to such the order of the court or to prosecute
such the declaratory judgment action without undue delay
shall preclude such the party from asserting or
maintaining such that the rule or guidance document is
invalid.
Section 71. 227.40 (4) (a) of the statutes is amended to
read: 227.40 (4) (a) In any proceeding pursuant to
this section for judicial review of a rule or guidance
document, the court shall declare the rule or guidance
document invalid if it finds that it violates
constitutional provisions or exceeds the statutory
authority of the agency or was promulgated or adopted
without compliance with statutory rule-making or
adoption procedures.
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these sections does little more than add the term "guidance
document" to various subsections of Wis. Stat. § 227.40, which
formerly applied only to rules. The parties do not make any
particularized argument against judicial review of guidance
documents, and we see no reason why the legislature's provision
for such review differs so profoundly from judicial review of
administrative rules that the former would necessarily be
unconstitutional under any circumstances, while the latter is not.
Mayo, 383 Wis. 2d 1, ¶24 (A statute is facially unconstitutional
only when it "cannot be enforced 'under any circumstances.'"
(quoted source omitted)).
¶112 The final two provisions of 2017 Wis. Act 369 that
implicate guidance documents are §§ 104 and 105. Section 104
establishes the initial applicability of § 33. It says: "(1)
Agency publications. The treatment of [Wis. Stat. § ]227.05 with
respect to printed publications first applies to guidance
documents, forms, pamphlets, or other informational materials that
are printed 60 days after the effective date of this subsection."
Section 105 is similarly unremarkable in that it simply determines
the effective date of the Act's provisions: "(1) Agency
publications. The treatment of [§] 227.05 and Section 104 (1)
takes effect on the first day of the 7th month beginning after
publication." None of the respondents provide any reason to
believe these provisions are facially unconstitutional, and no
such reason immediately presents itself to us.
IV. THE CONSEQUENCES
2017 Wis. Act. 369, §§ 65-71 (amending Wis. Stat. § 227.40).
24
Nos. 2019AP614-LV & 2019AP622.dk
¶113 Sections 33 and 38 are before us today on different
procedural footings. The latter is here on a straightforward
review of the circuit court's denial of a motion to dismiss.
Section 33, however, presents in a somewhat awkward posture for
two reasons. First SEIU does not claim this provision is
unconstitutional. That allegation appears in the Governor's
cross-claim. The Legislative Defendants' answer to the cross-
claim asserts the Governor does not have standing to challenge the
constitutionality of a law. However, the Legislative Defendants
did not advance that argument in this court, and they fully briefed
their position on the section's constitutionality. Because
standing is a matter of judicial prudence, Milwaukee District
Council 48 v. Milwaukee County, 2001 WI 65, ¶38 n.7, 244
Wis. 2d 333, 627 N.W.2d 866 ("[S]tanding is generally a matter of
judicial policy rather than a jurisdictional prerequisite."), and
it was not argued here, we will not apply it. State v. Chamblis,
2015 WI 53, ¶54 n.15, 362 Wis. 2d 370, 864 N.W.2d 806 ("We choose
not to address that argument because it was not briefed by the
parties."). We do not opine on whether the Governor actually has
standing; we simply do not address it.
¶114 The second postural oddity with respect to § 33 is that
we are reviewing it in the context of determining whether the
circuit court properly issued a temporary injunction against its
enforcement. That is to say, this section was not included in the
Legislative Defendants' motion to dismiss. That means our task is
to determine whether the circuit court erroneously exercised its
discretion in issuing the temporary injunction. Such
25
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interlocutory relief is available when: "(1) the movant is likely
to suffer irreparable harm if a temporary injunction is not issued;
(2) the movant has no other adequate remedy at law; (3) a temporary
injunction is necessary to preserve the status quo; and (4) the
movant has a reasonable probability of success on the merits."
Milwaukee Deputy Sheriffs' Ass'n, 370 Wis. 2d 644, ¶20 (citing
Werner, 80 Wis. 2d at 520–21).
¶115 We conclude the circuit court did not erroneously
exercise its discretion in issuing the temporary injunction with
respect to §§ 33 and 38 because those provisions are
unconstitutional, and it would therefore be unlawful to enforce
them. Justice Hagedorn, however, does not believe this ends the
inquiry: "The majority could have determined the claim is likely
to be successful, and gone on to analyze the remaining factors."
Justice Hagedorn's concurrence/dissent, ¶211 n.6.
¶116 Justice Hagedorn acknowledges that one aspect of the
temporary injunction test is the likelihood of success on the
merits. The merits in this case depend entirely on whether the
challenged portions of the Act are unconstitutional. Consequently,
our review unavoidably requires us to inquire into the
constitutionality of the enjoined provisions, including §§ 33 and
38. We performed that inquiry, and have concluded that both of
those provisions are unconstitutional.
¶117 Justice Hagedorn's insistence that we analyze the
remaining factors makes sense only if there are circumstances under
which it would be appropriate to continue enforcing a law we have
already decided is unconstitutional. If we concluded that the
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movant would not suffer irreparable harm, would that make it
acceptable for the executive to enforce an unconstitutional law?
If there were an alternative legal remedy, would we tell the
circuit court that the continued application of an
unconstitutional law is legally warranted? If the status quo would
not change without a temporary injunction, would that mean the
unconstitutional law could remain in effect? Obviously not.
¶118 Justice Hagedorn's concerns grow out of a failure to
account for the supreme court's position in the judiciary. If we
were the circuit court, or the court of appeals, he would be
correct——consideration of each of the remaining factors would be
necessary because the relief sought would be interlocutory. That
is to say, when the case was pending in the circuit court, the
merits of the plaintiffs' claims were in question because a
declaration of unconstitutionality was subject to judicial review.
Once this court opines on a state statute's fidelity to the state
constitution, however, the ultimate result is no longer in doubt
because there is no further judicial review of our decision (unless
it implicates federal law, which this does not).18 So the only
purpose in considering the remaining temporary injunction factors
would be if we would consider remanding the case to the circuit
court to decide whether a law we declared unconstitutional should
18J. C. Penney Co. v. Wisconsin Tax Comm'n, 238 Wis. 69, 72,
298 N.W. 186 (1941), overruled in part on different grounds by
Wisconsin Dep't of Taxation v. Nash-Kelvinator Corp., 250 Wis.
533, 27 N.W.2d 889 (1947) ("As we understand the law, our
construction of the state statute is conclusive upon the Supreme
Court of the United States.").
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nevertheless be enforced. We believe such a result would be
anomalous and contrary to law.
¶119 Accordingly, we conclude that the circuit court erred in
denying the Legislative Defendants' motion to dismiss with respect
to 2017 Wis. Act 369, §§ 31, 65-71, and 104-05 because the
plaintiffs have not established that they cannot be enforced under
any set of circumstances. Further, because the interlocutory
relief rested on their asserted unconstitutionality, which we have
now rejected, the temporary injunction can have no further force
or effect with respect to those provisions. However, because we
have declared that 2017 Wis. Act 369, §§ 33 and 38 are
unconstitutional, there can be no reason to further consider
whether the circuit court erroneously exercised its discretion in
granting the temporary injunction with respect to these
provisions.
V. THE DISSENTS
¶120 Justice Hagedorn says our reasoning "is wrong on the
facts and runs contrary to the plain language of the laws the
legislature passed. This means its constitutional conclusion is
similarly faulty." Justice Hagedorn's concurrence/dissent, ¶191.
But he never identifies any error in our understanding of the laws
the legislature passed. In fact, there appears to be no
disagreement at all with respect to what §§ 33 and 38 actually do.
Instead, the disagreement is over what the constitution requires.
It is also about Justice Hagedorn's misunderstanding of what we
said about the constitution, which he mischaracterizes as having
rejected §§ 33 and 38 "on the thinnest of foundations——its
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misguided determination that guidance documents regulate executive
branch thought." Id. At the risk of repeating what we have
already said, this is not just about regulating the executive's
thought——it is about interfering in the relationship between the
executive branch's interpretation of the law, its communication of
that interpretation to the public, and its execution of the law.
¶121 Then, after selectively ignoring our analysis, Justice
Hagedorn announces that "[g]uidance documents regulate executive
branch communications with the public——a permissible and
longstanding area of legislative regulation." Id. But how would
he know this is constitutionally permissible? His opinion makes
no effort to determine what lies within the executive branch's
core authority, or how the statutory definition of "guidance
document" might relate to that authority. He simply asserts that
"[b]y enacting the guidance document provisions, the legislature
is carrying out its function of determining what the law should be
by passing laws pursuant to its constitutional authority." Id.,
¶198. If this is the correct standard for determining whether the
legislature invaded the executive's exclusive zone of authority
(and his opinion contains no further exploration of this concept),
then there can be no structural limitations on the scope of laws
the legislature may adopt. Of course §§ 33 and 38 are laws the
legislature adopted under its constitutional authority to make the
law. That is not the question. The question is whether, in making
this law, the legislature legislated on something the constitution
says it may not.
The Constitution is either a superior, paramount law,
unchangeable by ordinary means, or it is on a level with
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ordinary legislative acts, and, like other acts, is
alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a
legislative act contrary to the Constitution is not law;
if the latter part be true, then written Constitutions
are absurd attempts on the part of the people to limit
a power in its own nature illimitable.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Ultimately,
because Justice Hagedorn offers no constitutional analysis, his
opinion is little more than an invitation to place our faith in
his personal pronouncement about what is and is not within the
executive branch's core authority.
¶122 We part ways with Justice Hagedorn's belief that the
legislature's power to command the executive branch to create and
disseminate a document is coextensive with the power to ban the
executive branch from creating and disseminating a document unless
it complies with the legislature's content (§ 33) and publication
(§ 38) requirements. There is no logical correlation between those
two concepts, and Justice Hagedorn's opinion does nothing to link
them. Nonetheless, the bulk of his opinion is simply an extended
discussion of statutes that require the executive branch to create
certain documents, followed by his assumption that this confers on
the legislature the power to prevent the executive branch from
creating and disseminating documents unless they comply with the
legislature's content and publication requirements. Justice
Hagedorn introduces this part of his analysis by accusing the court
of resting its analysis on "its mistaken interpretation of what
guidance documents are." Justice Hagedorn's concurrence/dissent,
¶192. He then proceeds to essentially repeat the statute's
definition of guidance documents, a definition on which we based
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our entire analysis. As relevant here, a guidance document
"[e]xplains the agency's implementation of a statute or rule[,]"
or "[p]rovides guidance or advice with respect to how the agency
is likely to apply a statute or rule[.]" See 2017 Wis. Act 369,
§ 31 (Wis. Stat. § 227.01(3m)(a)1.-2.). Because the executive
branch (through its agencies) creates and issues guidance
documents, it necessarily follows that they contain the
executive's explanations, or the executive's guidance or advice.
Naturally, that means the explanations, guidance, and advice must
originate in the minds of executive branch employees, which further
means guidance documents are nothing but the written
manifestations of the executive branch's thought processes. But
if the legislature can "determine the content" of a guidance
document, then it is no longer the executive's explanation, or the
executive's guidance or advice——it is the legislature's
explanation, guidance, or advice. So, to the extent the
legislature commands production of a document, or determines the
content of a guidance document, it simply is no longer a guidance
document. The failure to make that distinction explains his
assertions that "determining the content and timing of executive
branch communications are not the exclusive prerogative of the
executive," and that "nothing in the constitution suggests the
legislature cannot, at least in some circumstances, make laws that
determine the content of certain formal communications from the
government to the public." Justice Hagedorn's
concurrence/dissent, ¶198. His assertions are correct with
respect to documents the legislature has the power to command.
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But they are not correct with respect to guidance documents,
because having not been commanded, they belong entirely to the
executive. Nothing in Justice Hagedorn's opinion describes how
the power to command the former translates into the power to ban
the latter unless they comply with the legislature's content and
publication requirements.
¶123 Justice Hagedorn says he does not see why there is any
difference between: (a) commanding the creation of a document
and; (b) preventing the executive branch from creating a certain
class of documents unless they comply with the legislature's
requirements. "For example," he says, "if an executive agency
must by legislative command create a youth hunting bulletin and
cite the relevant law, this is a reflection of the executive
branch's understanding of the law no less than if the executive
chooses to do the same thing in the absence of such a command."
Id., ¶206. In the absence of a legislative command, of course,
the document would belong to the executive department. Justice
Hagedorn's reasoning works only if the executive branch has no
authority to create or disseminate guidance documents, and depends
on legislative permission to do so. This, of course, is not true
and Justice Hagedorn does not even attempt to demonstrate
otherwise.
¶124 But the really instructive aspect of Justice Hagedorn's
discussion of this bulletin is its revelation that his paramount
concern is with the amount of the executive's authority the
legislature pre-empts, rather than with whether the legislature
may pre-empt it at all. He says "Wisconsin Stat. § 227.05 requires
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that a guidance document cite the applicable laws. But the
majority opinion holds that this is too much for the legislature
to demand of the executive branch because it controls executive
branch thought." Id., ¶210. The question is not whether the
legislature demanded too much, but whether it had the right to
demand at all. Now, it is obviously true that the legislature
could require the Department of Natural Resources to issue a
bulletin citing the law applicable to the youth hunting season.
It would simply need to pass a law mandating such a bulletin and
require the citation. But that authority does not translate into
the power to ban executive guidance documents on that subject
unless they meet the legislature's content and process
requirements.
¶125 To these errors Justice Hagedorn adds a metaphysical
impossibility. He says the legislature can, and regularly does,
co-opt the executive's thought processes that go into creating
what are now known as guidance documents: "The legislature has
long regulated . . . the executive branch's understanding of what
the law is . . . and how the executive branch intends to execute
the law going forward." Justice Hagedorn's concurrence/dissent,
¶199. That, of course, is not and cannot be true. The legislature
may tell executive branch employees what the law is and what to do
with it, but regulating the employees' understanding of the law or
their intentions with respect to the execution of the law is
entirely beyond the legislature's reach——not as a matter of
separation of powers, but as an epistemological recognition that
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one person cannot control another's understanding or intentions.19
He says "[t]he clearest example [of this phenomenon] may be the
mandatory creation of certain executive branch reports," such as
Wis. Stat. § 15.04(1)(d), which he says requires the executive
agencies to "include what the agency has done, how it operates,
and its goals and objectives moving forward." Justice Hagedorn's
concurrence/dissent, ¶199. Commanding the executive to divulge
its understanding of the law and intentions with respect to the
law is not the same thing as regulating the executive's
understanding and intentions. So the dispositive difference
between this and the guidance document provisions is really not
that hard to spot. The legislature may command the executive to
speak, and even provide content to include in that speech. But
absent a command to produce a document, the document is the
executive's own, and the legislature cannot, as an epistemological
matter, control how the executive understands the law he is
addressing, or his intentions with respect to that law. Justice
19Another epistemological error shows up in Justice
Hagedorn's reversal of our observation that "[t]he constitutional
authority of the executive encompasses determining what the law
requires as well as applying it (preferably in that order)."
Supra, ¶99. He says this is "wrong on the facts, and therefore,
wrong on the law" because guidance documents "are the result of,
rather than the necessary predicate to, executing the law."
Justice Hagedorn's concurrence/dissent, ¶203. But this
formulation——act first, do the intellectual homework later——cannot
possibly be correct. Creating a guidance document does not reflect
the execution of any law. It is simply a written record of the
executive branch's thoughts about how it will——future tense——
execute the law, or how others ought to——future tense——conform
themselves to the law. In the relationship between guidance
documents and execution of the law, therefore, guidance documents
come first as a definitional and epistemological matter.
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Hagedorn could probably provide an endless list of examples in
which he believes this type of legislative control over the
executive branch would be a good idea and minimally intrusive (and
he makes a good start on it (see id., ¶207)), but that would be to
entirely miss the point. With respect to core powers, the
constitutionality of the legislature's reach into the executive
branch is not determined by the wisdom of what it would do once
there, or the relative lack of discomfort to those exercising core
powers. It is determined by whether the legislature is exercising
that control at all. But for Justice Hagedorn, there is no
difference between: (a) a mandatory report describing an agency's
understandings and intentions and; (b) a law that attempts to
regulate the executive branch's "understanding of what the law is"
and how it "intends to execute the law." Id., ¶199. The former
is clearly lawful and achievable; the latter is impossible because
the executive branch's thought processes about the implementation
of the law, and its guidance and advice, are (by definition) its
own.
¶126 These are some of the granular reasons we believe Justice
Hagedorn's analysis is incorrect. But taking a step back to get
an overall picture of the legislature's assertion of power in §§ 33
and 38 reveals why, as a structural matter, it simply cannot work.
To the extent Justice Hagedorn's opinion contains a constitutional
analysis, it rests solely on the proposition that because the
legislature can command the executive to produce certain
documents, it may ban those that do not follow the legislature's
content and publication requirements. Because his analysis
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focuses on the legislature's power, without any reference to what
might lie within the executive's core authority, there is no reason
his analysis would not be equally applicable to the judiciary.
Would Justice Hagedorn be as sanguine about §§ 33 and 38 if they
applied to us? Would he pick up our "constitutional penalty flag,"
Justice Hagedorn's concurrence/dissent, ¶190, if the legislature
told us that, prior to publishing our opinions, we must submit
them to a public comment process, and then take those comments
into consideration before finalizing and publishing our work?
Would he find it constitutionally unobjectionable if the
legislature were to mandate that "draft [court opinions] be posted
for 21 days before they are officially issued"? Id., ¶211. Would
he quizzically ask why "[p]osting a draft before issuance of some
[court opinions] is now denominated a regulation of [judicial]
branch thought and invades core [judicial] power"? Id. Would he
say that "[t]he legislature is not invading the [judiciary]'s
ability to read the law or think about the law when it regulates
how [the courts] officially communicate to the public about what
the law is and where in the statutes the law may be found"? Id.,
¶204. Would he conclude that the legislature may mandate the
content and publication process of our opinions because "[b]y the
time [the court's opinion] has been reduced to writing, the
thinking and analyzing has been done"? Id., ¶203. Would he be
mollified if we could reduce the pre-clearance time period to
something inconsequential?
¶127 One could do this with the entirety of Justice Hagedorn's
analysis. And even though the answers are so obvious they make
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the questions rhetorical, he has no substantive response to any of
this. But he does reject it on the sweeping basis that "the
legislature's relationship to the judiciary is far different than
its relationship to the branch charged with the constitutional
duty to execute the laws the legislature passes." Id., ¶204 n.5.
A long time ago the notion that the branches of government are co-
equal passed into the realm of common knowledge. But Justice
Hagedorn's assertion, coming as it does with no explanation,
carries a suggestion that the executive is less than equal in its
relationship with the legislature.20 Perhaps it is because his
guiding principle (as far as he says in his opinion, at least) is
simply that, so long as "the legislature is carrying out its
function of determining what the law should be by passing laws
pursuant to its constitutional authority," there are no structural
limitations on the scope of that law. Id., ¶198. He certainly
provides no analysis of the legislature's limits, nor does he even
attempt to describe what might be included in the executive's core
20Justice Hagedorn apparently misses the import of these
illustrations. He says:
Moreover, the majority's criticisms ring hollow because
the majority says the legislature can pass laws that do
the very things it cites; the legislature just has to
enact laws regarding specific documents (create a youth
hunting bulletin, for example). So the majority's
criticisms apply just as forcefully to its own
reasoning, which is to say, not much at all.
Justice Hagedorn's concurrence/dissent, ¶204 n.5. The whole point
of putting the "very things" we cite in the judicial context is to
illustrate why the legislature may not do what Justice Hagedorn
thinks it may. So, to be clear, the illustrations identify things
Justice Hagedorn says the legislature may do with respect to the
executive, but which we say the legislature may not do.
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powers. And yet without doing any of this work, he says "[our]
analysis falls far short of the mark," id., ¶201, even though the
constitutional principles informing our analysis are well-
documented and fundamental to the separation of powers established
under our constitution more than 170 years ago.
*
¶128 And now a few closing words about Chief Justice
Roggensack's partial concurrence and partial dissent. She says
our analysis is flawed because it does not recognize that the
legislature has plenary authority over administrative agencies,
and that they may do nothing without legislative permission. This
is so, she says, because of the nature of administrative agencies
within our constitutional structure: "[A]dministrative agencies
have no constitutional core powers because they are not a branch
of government in our tripartite system." Chief Justice
Roggensack's concurrence/dissent, ¶148. She also asserts that we
have previously said that administrative agencies can do nothing
but what the legislature tells them to do: "[A]dministrative
agencies are creations of the legislature and that they can
exercise only those powers granted by the legislature." Id., ¶150
(quoting Martinez, 165 Wis. 2d at 697).
¶129 But this is only partly true. With respect to what
agencies are, it is certainly true that they are not "a branch of
government" in the sense of being discrete from the standard three.
But as we said just last term, "they are considered part of the
executive branch." Koschkee, 387 Wis. 2d 552, ¶14. The Chief
Justice agrees, or at least she did last year. See id.
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("[A]gencies are part of the executive branch once
established[.]"). And the executive, at times, acts through
administrative agencies to fulfill his constitutional obligation
that the laws be faithfully executed. Util. Air Regulatory Grp.
v. E.P.A., 573 U.S. 302, 327 (2014) ("Under our system of
government, Congress makes laws and the President, acting at times
through agencies . . . 'faithfully execute[s]' them." (quoted
source omitted; alterations in original)); see also supra, ¶97.
¶130 With respect to the granting of power to administrative
agencies, the Chief Justice mistakes the import of our analysis in
Martinez. There, we said "administrative agencies are creations
of the legislature and . . . they can exercise only those powers
granted by the legislature." Martinez, 165 Wis. 2d 20 at 697.
From this the Chief Justice concludes that because agencies are
created by the legislature they are subject to its plenary control.
Chief Justice Roggensack's concurrence/dissent, ¶147. That,
however, overlooks the fact that agencies exercise both executive
and legislative powers. Our observations in Martinez related to
the legislature's ability to govern the rule-making authority——
that is, the legislative power——it delegates to administrative
agencies. So our statements on the legislature's ability to limit
the legislative authority the agencies exercise say nothing about
its ability to limit the agencies' exercise of executive authority.
Nor does the Chief Justice find any authority for the proposition
that an agency's exercise of that executive authority arises from
or is dependent on the legislature. The legislature undeniably
has plenary authority to govern administrative agencies' exercise
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of their delegated rule-making power because the legislature could
simply choose to revoke it altogether. Martinez, 165 Wis. 2d at
698. It naturally follows that if the legislature may eliminate
the power it conferred, it may also condition the exercise of that
power. Koschkee, 387 Wis. 2d 552, ¶20. But the legislature does
not confer on administrative agencies the ability to exercise
executive power; that comes by virtue of being part of the
executive branch. The Chief Justice cites no authority nor
presents any argument suggesting the legislature's authority over
an agency's exercise of legislative power is necessarily (or even
potentially) co-extensive with its authority over an agency's
exercise of executive power.
¶131 This is a dangerous path the Chief Justice is pursuing.
The Wisconsin Constitution provides for a circuit court, but does
not say how many circuit court judges there shall be. So the
existence of any given circuit court judge is dependent entirely
on the legislature's choice to create the position. The Chief
Justice says the power to create includes the ability to control
the exercise of authority in that position, even when the
legislature is not the source of the authority the employee
exercises. If that logic is sound, the legislature could tell
circuit court judges how to exercise their judicial power on the
grounds that it did not have to create the circuit court position
in the first place and could eliminate it.
¶132 The Chief Justice also says the executive's authority to
explain the law, or give guidance or advice about it, is not core
to the executive:
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While the executive may interpret laws so that he can
"faithfully execute" them, it does not follow that
interpretation of the law is a constitutional core power
of the executive. Many elected and appointed persons
interpret the law in order to carry out their assigned
duties, be they constitutional functions or otherwise.
Chief Justice Roggensack's concurrence/dissent, ¶137. In support,
she quotes Justice Clarence Thomas, who said:
[t]he judicial power was understood [at the time of the
founding of the United States] to include the power to
resolve ambiguities over time. Alexander Hamilton
lauded this power, arguing that '[t]he interpretation of
the laws is the proper and peculiar province of the
courts.' It is undoubtedly true that the other branches
of Government have the authority and obligation to
interpret the law, but only the judicial interpretation
would be considered authoritative in a judicial
proceeding."
Id., ¶138 (quoting Perez, 575 U.S. at 119–20 (Thomas, J.,
concurring) (some alterations in original; internal citations
omitted)). Justice Thomas, of course, was careful to note that
the judiciary's interpretation of the law is authoritative "in a
judicial proceeding." Perez, 575 U.S. at 120. He made no claim
that our interpretation would be authoritative in the executive
branch's determination of what the law requires. As Alexander
Hamilton said: "He who is to execute the laws must first judge
for himself of their meaning." See Hamilton, supra, ¶96 (emphasis
added).
¶133 The question here is not whether the executive branch
alone may interpret the law. The question is whether interpreting
the law within the executive branch is an exercise core to the
executive and his employees. The Chief Justice says this is a
shared power, but does not indicate how that could possibly be.
The general power to interpret the law is "shared" in the sense
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that each of the branches must perform that function while
performing their vested responsibilities, but the Chief Justice
does not explain how the interpretation of the law within the
executive branch could be shared with any other branch. She simply
concludes that "[i]f explaining what the law means through guidance
documents actually were a constitutional core power of the
executive, courts could not strike down such an interpretation."
Chief Justice Roggensack's concurrence/dissent, ¶154. But we
don't strike down executive interpretations of the law. We strike
down the executive's application of the law in specific cases. A
guidance document is not an application of the law, it is simply
the executive branch's understanding of what the law requires.21
¶134 Finally, the Chief Justice says that, "[e]ven though
guidance documents do not have the force of law as rules of
administrative agencies do, employees of agencies apply them to
the public's interaction with the agency. Sometimes those
interactions result in litigation when a person against whom a
guidance document is being enforced objects to enforcement." Chief
Justice Roggensack's concurrence/dissent, ¶141. She also cautions
The Chief Justice says we ignored State v. Unnamed
21
Defendant, 150 Wis. 2d 352, 441 N.W.2d 696 (1989), as an example
of the judiciary properly invading the executive's interpretation
of the law. Chief Justice Roggensack's concurrence/dissent, ¶151.
There, as the Chief Justice notes, "an acting district attorney
concluded that he could not prove a sexual assault occurred beyond
a reasonable doubt, and, therefore, decided not to commence
criminal proceedings." Id. (citing Unnamed Defendant, 150
Wis. 2d at 356). We ultimately approved the circuit court's order
authorizing issuance of a complaint under Wis. Stat. § 968.02(3).
But this does not illustrate what the Chief Justice thinks it does.
We didn't countermand the district attorney's interpretation of
the law, we countermanded his exercise of discretion.
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that "[g]uidance documents can have a practical effect similar to
an unpromulgated rule," noting that "historically, administrative
agencies have relied on guidance documents to circumvent
rulemaking." Id., ¶¶142-43. Now that the legislature has
specifically defined a guidance document as something that cannot
be a rule, impose any obligations, set no standards, or bind
anyone, it is no longer even conceptually possible for them to be
"applied" or "enforced" against a person in accordance with the
law. However, should an administrative employee treat a guidance
document as a source of authority, that employee would be making
a mistake, not defining the nature of a guidance document. So
although the Chief Justice accurately describes how guidance
documents were used prior to adoption of 2017 Wis. Act 369, they
may no longer be lawfully used in that manner. We expect, as
befits a co-equal branch of government, that executive branch
employees will respect that change in the law. But if they should
mistakenly use them as before, their mistakes are subject to
judicial review pursuant to §§ 65-71, as we explained above. The
Chief Justice's concern that executive branch employees will
misuse guidance documents in the future is not a justification for
allowing the legislature to overstep its constitutional boundaries
in order to check those transgressions. Procedural safeguards
enacted by the legislature, even those that respond to the
executive's historical misuse of guidance documents, must comport
with the constitution. Sections 33 and 38 do not.
VI. CONCLUSION
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¶135 We affirm the circuit court's judgment that 2017 Wis.
Act 369 § 33 (to the extent it addresses guidance documents) and
§ 38 are facially unconstitutional because they intrude on power
the Wisconsin Constitution vests in the executive branch of
government. However, we reverse the circuit court's judgment with
respect to 2017 Wis. Act 369, §§ 31, 65-71, 104-05.
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No. 2019AP614-LV & 2019AP622.pdr
¶136 PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part,
dissenting in part). I conclude that 2017 Wis. Act 369's
regulation of guidance documents does not invade the executive's
core powers. I write to point out the fundamental flaw that
underlies Justice Kelly's reasoning and on which he bases his
conclusion that "the creation and dissemination of guidance
documents fall within the executive's core authority." Justice
Kelly's majority op., ¶105.
¶137 The executive's constitutional core power is to "take
care that the laws be faithfully executed." Wis. Const. art. V,
§ 4. Justice Kelly gets to the conclusion he seeks by adding
interpretation of the law to Article V, § 4's core power of
execution of the law. Justice Kelly's majority op., ¶¶105–06.
While the executive may interpret laws so that he can "faithfully
execute" them, it does not follow that interpretation of the law
is a constitutional core power of the executive. Many elected and
appointed persons interpret the law in order to carry out their
assigned duties, be they constitutional functions or otherwise.
¶138 In judicial proceedings, interpretation of the law is
the constitutional core power of the courts. Wis. Const. art.
VII, § 2; State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110 ("It is, of course, a
solemn obligation of the judiciary to faithfully give effect to
the laws enacted by the legislature, and to do so requires a
determination of statutory meaning."). When an executive's
interpretation of a law has been challenged in court, it is the
court's interpretation that prevails, not the executive's. State
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v. Unnamed Defendant, 150 Wis. 2d 352, 360, 441 N.W.2d 696 (1989);
see also Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 119–20 (2015)
(Thomas, J., concurring) ("The judicial power was understood [at
the time of the founding of the United States] to include the power
to resolve these ambiguities over time. Alexander Hamilton lauded
this power, arguing that '[t]he interpretation of the laws is the
proper and peculiar province of the courts.' It is undoubtedly
true that the other branches of Government have the authority and
obligation to interpret the law, but only the judicial
interpretation would be considered authoritative in a judicial
proceeding." (Internal citations omitted.)).
¶139 Outside of judicial proceedings, interpreting the law is
a power that is shared by many governmental actors, e.g., state
executive agency employees, state legislative employees, county
agency employees, court employees and municipal employees, to name
only a few who must interpret the law in order to perform their
functions. Martinez v. DILHR, 165 Wis. 2d 687, 696, 478 N.W.2d
582 (1992). Although the executive interprets laws, such
interpretation does not convert a shared power into a
constitutional core power of the executive. Rather, outside of
court proceedings, interpreting the law remains a shared function.
Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶140–41, 382 Wis. 2d 496,
914 N.W.2d 21 (Ziegler, J., concurring).
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I. BACKGROUND
¶140 2017 Wis. Act 369 has several provisions that affect
guidance documents. Section 31 generally defines guidance
documents; § 33 addresses required content of guidance documents;
§ 38 regulates creation of guidance documents and §§ 65-71 set out
how litigation may proceed when guidance documents are at issue.1
Justice Kelly has concerns with only §§ 33 and 38. Justice Kelly's
majority op., ¶88. He has concluded that the other guidance
document provisions are facially constitutional. Id.
II. DISCUSSION
A. The Remedial Nature of 2017 Wis. Act 369
¶141 Guidance documents explain agencies' interpretations of
provisions in statutes and administrative agency rules. They
explain how the agency that created the guidance document likely
will apply the law, often giving factual examples in the guidance
document. Guidance documents include such things as handbooks,
"how to" instructions for meeting various agency requirements and
many other suggestions for successful interactions with the
agency. Even though guidance documents do not have the force of
law as rules of administrative agencies do, employees of agencies
apply them to the public's interaction with the agency. Sometimes
those interactions result in litigation when a person against whom
a guidance document is being enforced objects to enforcement.
Newcap, Inc. v. DHS, 2018 WI App 40, ¶3, 383 Wis. 2d 515, 916
N.W.2d 173.
Sections 104–05 address
1 the initial applicability and
effective date of § 33.
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¶142 Guidance documents can have a practical effect similar
to an unpromulgated rule. To explain, "[a]gency
guidance . . . can have similar effect to an enforcement action or
regulation——imposing norms on regulated entities or the
beneficiaries of regulatory programs. Moreover, the individual
interests subject to agency guidance frequently are no less
important than those interests regulated through administrative
enforcement actions and regulations." Jessica Mantel, Procedural
Safeguards for Agency Guidance: A Source of Legitimacy for the
Administrative State, 61 Admin. L. Rev. 343, 345 (2009).
¶143 Given the rule-like practical effects of guidance
documents, we should not be surprised that, historically,
administrative agencies have relied on guidance documents to
circumvent rulemaking. Andrew C. Cook, Extraordinary Session
Laws: New Limits on Governor and Attorney General, 92 Wis. Law.
26, 27 (2019) (discussing the problem created when "guidance
documents contain new interpretations that operate essentially as
administrative rules but without going through the proper
rulemaking process"); Written Testimony of Senator David Craig on
Senate Bill 745 Before the Senate Committee on Labor and Regulatory
Reform (Feb. 6, 2018), https://docs.legis.
wisconsin.gov/misc/lc/hearing_testimony_and_materials/2017/sb745
/sb0745_2018_02_06.pdf (explaining that guidance documents have
been used "to avoid the deliberative process of rulemaking") (last
visited June 25, 2020); Floor Speech by Andre Jacque Floor Session
on 2017 Assembly Bill 1072 (2017 Wis. Act 369), at
3:25, https://wiseye.org/2018/12/05/assembly-floor-session-part-
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2-8/ (last visited June 25, 2020) (explaining the assemblyman
"frequently heard from constituents, small businesses [and] local
government" about "how guidance documents have been abused as a
vehicle to actually change the law" and how they are sometimes
"hidden from sight or dusted off after decades").
¶144 Wisconsin's troublesome history with guidance documents
is not unique.2 The D.C. Circuit summarized the problem well in
2000:
The phenomenon we see in this case is familiar. Congress
passes a broadly worded statute. The agency follows
with regulations containing broad language, open-ended
phrases, ambiguous standards and the like. Then as years
pass, the agency issues circulars or guidance or
memoranda, explaining, interpreting, defining and often
expanding the commands in the regulations. One guidance
document may yield another and then another and so on.
Several words in a regulation may spawn hundreds of pages
of text as the agency offers more and more detail
regarding what its regulations demand of regulated
entities. Law is made, without notice and comment,
without public participation, and without publication in
the Federal Register of the Code of Federal Regulations.
Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1020 (D.C. Cir.
2000) (emphasis added).
¶145 Justice Kelly ignores the remedial nature of 2017 Wis.
Act 369. He argues that "should an administrative agency employee
treat a guidance document as a source of authority, that employee
would be making a mistake, not defining the nature of a guidance
2 Hale Melnick, Comment, Guidance Documents and Rules:
Increasing Executive Accountability in the Regulatory World, 44
B.C. Environmental Affairs L. Rev. 357, 364 (2017) ("By issuing
guidance documents, agencies circumvent the costly and time-
consuming——but democratically important——notice-and-comment
requirements.").
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document. . . . [T]heir mistakes are subject to judicial review."
Justice Kelly's majority op., ¶134.
¶146 I cannot ignore the history that led to the enactment of
2017 Wis. Act 369 simply because judicial review is available.
Recently, we explained that judicial review is, by itself, an
inadequate protection against the deprivation of the people's
liberty. Wis. Legislature v. Palm, 2020 WI 42, ¶¶32–35, 391
Wis. 2d 497, 942 N.W.2d 900. As we explained, "[j]udicial review
does not prevent oppressive conduct from initially occurring."
Id., ¶35. The legislature has a legitimate interest in providing
effective procedural safeguards. Id. Justice Kelly should not be
so quick to dismiss the history that led to the enactment of 2017
Wis. Act 369.
B. Agencies
¶147 While agencies are part of the executive branch once
established, it is the legislature that creates agencies and grants
them "power as is necessary to carry into effect the general
legislative purpose." Koschkee v. Taylor, 2019 WI 76, ¶12, 387
Wis. 2d 552, 929 N.W.2d 600. An administrative agency has only
those powers as are expressly conferred by the statutory provisions
under which it operates.3 State ex rel. Castaneda v. Welch, 2007
3 2011 Wis. Act 21 affected the authority of agencies by
imposing an "explicit authority requirement" on agency authority.
See generally Kirsten Koschnick, Comment, Making "Explicit
Authority" Explicit: Deciphering Wis. Act 21's Prescriptions for
Agency Rulemaking Authority, 2019 Wis. L. Rev. 993. This
requirement is set out in Wis. Stat. § 227.10(2m), which provides:
No agency may implement or enforce any standard,
requirement, or threshold, . . . unless that standard,
requirement, or threshold is explicitly required or
explicitly permitted by statute or by a rule that has
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WI 103, ¶26, 303 Wis. 2d 570, 735 N.W.2d 131 (quoting Brown Cty.
v. DHSS, 103 Wis. 2d 37, 43, 307 N.W.2d 247 (1981)); see also
Schmidt v. Dep't of Res. Dev., 39 Wis. 2d 46, 56, 158 N.W.2d 306
(1968) ("The very existence of the administrative agency or
director is dependent upon the will of the legislature; its or his
powers, duties and scope of authority are fixed and circumscribed
by the legislature and subject to legislative change."); Gray Well
Drilling Co. v. Wis. State Bd. of Health, 263 Wis. 417, 419, 58
N.W.2d 64 (1953) (explaining that administrative agencies are not
required to follow rules governing judicial proceedings unless a
statute requires otherwise because "rules of procedure for
administrative bodies" are a "function" that "belongs to the
legislature"); State ex rel. Wis. Inspector Bureau v. Whitman, 196
Wis. 472, 508, 220 N.W. 929 (1928) ("[A]dministrative agencies are
the creatures of the legislature and are responsible to it.
Consequently the legislature may withdraw powers which have been
granted, prescribe the procedure through which granted powers are
to be exercised, and if necessary wipe out the agency entirely.").
¶148 I agree that separation of powers is a doctrine that is
firmly established under Wisconsin law. Martinez, 165 Wis. 2d at
696 n.8 (explaining that the Wisconsin Constitution "art. IV.,
sec. 1 vests legislative power in the senate and assembly; art.
V., sec. 1 vest[s] executive power in the governor and lieutenant
been promulgated in accordance with this subchapter[.]
Section 227.10(2m) clearly limits agency authority from what
courts had held in the past. Wis. Legislature v. Palm, 2020 WI
42, ¶52, 391 Wis. 2d 497, 942 N.W.2d 900. Justice Kelly never
mentions the explicit authority requirement of § 227.10(2m).
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governor; and art. VII, sec. 2 vest[s] judicial power in a unified
court system"); see also Unnamed Defendant, 150 Wis. 2d at 360.
However, administrative agencies have no constitutional core
powers because they are not a branch of government in our
tripartite system. Martinez, 165 Wis. 2d at 696 n.8. Stated
otherwise, the core power of the executive resides with the
governor and lieutenant governor; it does not reside with
administrative agencies, which are merely "creatures of statute."
Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54, ¶23, 335 Wis. 2d 47,
799 N.W.2d 73; see also Koschkee, 387 Wis. 2d 552, ¶47 (R. Grassl
Bradley, J., concurring) ("Article V, Section 1 'vest[s]' the
'executive power . . . in a governor' . . . . These
constitutional 'grants are exclusive,' which has been understood
to mean 'only the vested recipient of that power can perform it.'"
(alterations in the original) (internal citations omitted)).
¶149 Justice Kelly reasons that creating guidance documents
is a core power of the executive because the power to create
guidance documents does not come from the legislature: "[A]
guidance document is something created by the executive branch
employees through the exercise of executive authority native to
that branch of government." Justice Kelly's majority op., ¶105.
Justice Kelly asserts that "unlike a rule, the executive branch
needs no borrowed authority from the legislature to create a
guidance document." Justice Kelly's majority op., ¶100. He
asserts, "This creative power is necessarily inherent to the
executive because no other branch of government has even the
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theoretical ability to know the executive's mind with respect to
the law he is to execute." Justice Kelly's majority op., ¶102.
¶150 He cites no authority for this change in the law, which
has repeatedly held that "administrative agencies are creations of
the legislature and that they can exercise only those powers
granted by the legislature." Martinez, 165 Wis. 2d at 697; see
also Castaneda, 303 Wis. 2d 570, ¶26; Brown, 103 Wis. 2d at 43.
As creatures of statute, the legislature may "prescribe the
procedure through which granted powers [of administrative
agencies] are to be exercised." Whitman, 196 Wis. at 508.
¶151 Justice Kelly also ignores our decision in Unnamed
Defendant where an acting district attorney concluded that he could
not prove a sexual assault occurred beyond a reasonable doubt,
and, therefore, decided not to commence criminal proceedings.
Unnamed Defendant, 150 Wis. 2d at 356. Notably, his conclusion
occurred outside the context of a judicial proceeding, as most
charging decisions do. Nevertheless, the circuit court ordered
the district attorney or his designee to file charges pursuant to
Wis. Stat. § 968.02(3), which states a judge "may permit the filing
of a complaint" in a John Doe proceeding "if the judge finds there
is probable cause to believe that the person to be charged has
committed an offense after conducting a hearing." Id. at 357. We
upheld the circuit court's decision. Id. at 367. In so doing, we
authorized circuit courts to disregard prosecutors' statutory
interpretations in light of the "John Doe Law," Wis. Stat.
§§ 968.02(3) and 968.26. Id. at 366. The interpretation of the
9
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acting district attorney would not have been overruled if
interpretation of the law were a core power of the executive.
¶152 Justice Kelly ultimately concludes that the answer to
whether the legislature can legislate in regard to guidance
documents "depends on whether the creation of guidance documents
represents an exercise of the executive's core function, or merely
a power shared with the legislature." Justice Kelly's majority
op., ¶103. To address this concern, he creates his own definition
core powers: "A branch's core powers are those that define its
essential attributes." Justice Kelly's majority op., ¶104. He
acknowledges that if guidance documents fall within shared powers,
the legislature may have the "right to govern their content and
dissemination." Justice Kelly's majority op., ¶104. However, he
does not give a moment's pause to shared powers, but rather, he
opines that all of his legal contentions are "true because guidance
documents merely explain statutes and rules, or provide guidance
or advice about how the executive is likely to apply them."
Justice Kelly's majority op., ¶106.
¶153 To explain shared powers, and their relationship to core
powers, "it is neither possible nor practicable to categorize all
governmental action as exclusively legislative, executive or
judicial." Martinez, 165 Wis. 2d at 696 (quoting State v.
Washington, 83 Wis. 2d 808, 825, 266 N.W.2d 597 (1978)).
Therefore, separation of powers is transgressed only when one
branch "interferes with a constitutionally guaranteed 'exclusive
zone' of authority vested in another branch," Martinez, 165 Wis. 2d
at 697, i.e., a constitutional core power, or when a shared power
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is unduly burdened. Flynn v. DOA, 216 Wis. 2d 521, 556, 576 N.W.2d
245 (1998).
¶154 If explaining what the law means through guidance
documents actually were a constitutional core power of the
executive, courts could not strike down such an interpretation.
Yet courts have done so when an agency oversteps the authority
granted by the legislature in reliance on the agency's
interpretation of what the law requires. Newcap, 383 Wis. 2d 515,
¶3; Papa v. DHS, 2020 WI __, ¶2, __ Wis. 2d __, __ N.W.2d __.
¶155 Additionally, the legislature often interprets its own
laws. In the case before us, members of the legislature would not
have standing if the legislature had no power to interpret its
laws. Yet Justice Kelly takes no issue with these members arguing
before our court.
¶156 Justice Kelly also supports his legal conclusion with
quotes from portions of Tetra Tech. For example, he says:
The executive must certainly interpret and apply the
law; it would be impossible to perform his duties if he
did not. . . . Our constitution not only does not
forbid this, it requires it.
Justice Kelly's majority op., ¶96 (citing Tetra Tech, 382 Wis. 2d
496, ¶53 (lead)). However, this paragraph of Tetra Tech was joined
by only one justice in addition to Justice Kelly who wrote the
provision; it does not represent the opinion of the court. Id.,
¶3 n.4. Indeed, Justice Ziegler wrote a concurrence, which I
joined, in part to respond to this portion of the lead opinion in
Tetra Tech. Id., ¶141 & n.10 (Ziegler, J., concurring). She
explained that "the power to interpret and apply the law" is a
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shared power outside the context of a judicial proceeding. Id.,
¶¶140–41.
¶157 That an executive would interpret a law as he executes
it does not convert interpretation of the law into a constitutional
core power. Interpretation of the law is a shared power that many
governmental actors employ as they interpret what they must do in
order to be in compliance with the law. See e.g., State v. Horn,
226 Wis. 2d 637, 644-45, 594 N.W.2d 772 (1999) (discussing the
shared power of administrative revocation of probation and the
court's power to sentence); State v. Dums, 149 Wis. 2d 314, 323-
24, 440 N.W.2d 814 (1989) (discussing the shared power to amend or
dismiss a filed charge under the separation of powers doctrine).
¶158 A final note worth mentioning is the standard of review.
Justice Kelly and I agree on the standard of review, although we
apply it quite differently. He explains that, because this lawsuit
is a facial challenge, we must uphold the statutes unless they
cannot be enforced under any circumstances. Justice Kelly's
majority op., ¶92. He later states:
[The legislature] may not control [the Governor's]
knowledge or intentions about those laws. Nor may it
mute or modulate the communication of his knowledge or
intentions to the public. Because there are no set of
facts pursuant to which §§ 33 (to the extent it applies
to guidance documents) and 38 would not impermissibly
interfere with the executive's exercise of his core
constitutional power, they are in that respect facially
unconstitutional.
Justice Kelly's majority op., ¶108.
¶159 There are a few issues with this application of the
standard of review. First, I would not conflate administrative
agencies with the governor as Justice Kelly does. The governor is
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a constitutional officer; administrative agencies are "creatures
of statute." Lake Beulah, 335 Wis. 2d 47, ¶23.
¶160 Second, even if I were to assume, arguendo, that
administrative agencies were equivalent to the governor, 2017 Wis.
Act 369, §§ 33 & 38 do not "control" the governor's "knowledge or
intentions." Justice Kelly's majority op., ¶108. Instead, they
require administrative agencies to follow certain procedures. For
example, agencies must "provide for a period for public comment on
a proposed guidance document." Wis. Stat. § 227.112(1)(b). Public
comments might inform the "knowledge or intentions" of the
administrative agency; however, they would not control it. Justice
Kelly rhetorically questions whether I would feel similarly if the
legislature required the Wisconsin Supreme Court to submit its
opinions to a public comment period before publication. No, I
would not, because we are constitutional officers; administrative
agencies are not.
¶161 Third, and relatedly, this case is not an as-applied
challenge. In some situations, §§ 33 & 38 might contain procedural
hurdles on the issuance of guidance documents that are so difficult
to meet that they are unduly burdensome. However, we do not have
an as-applied challenge before us.
¶162 Justice Kelly's conclusion is in error because his
reasoning relies on a fundamentally inaccurate legal premise.
Interpreting the law is a shared power, not a constitutional core
power of the executive. As a shared power, it cannot be unduly
burdened. Flynn, 216 Wis. 2d at 556. However, before us is a
facial challenge, and the plaintiffs have not established that
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2017 Wis. Act 369, §§ 33 & 38 are unduly burdensome in all
circumstances. Accordingly, I respectfully concur with respect to
the majority opinion on all issues except guidance documents, and
I respectfully dissent from the majority opinion regarding
guidance documents.
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¶163 REBECCA FRANK DALLET, J. (concurring in part,
dissenting in part). Just days before the swearing-in of
Wisconsin's newly elected governor and attorney general, the
legislature passed, and the outgoing governor signed into law,
2017 Wis. Act 369 and 2017 Wis. Act 370. The Plaintiffs, a group
of labor organizations and individual taxpayers, filed this
lawsuit alleging several provisions of these Acts violate the
separation of powers enshrined in the Wisconsin Constitution.
¶164 I agree with the scope of the majority opinions1 and join
several parts.2 I write separately, however, because the complaint
1I agree the following provisions were not properly before
the court on this interlocutory appeal: 2017 Wis. Act 369, § 87
(Wis. Stat. § 238.399(3)(am)), 2017 Wis. Act 370, § 10 (Wis. Stat.
§ 20.940), and 2017 Wis. Act 370, § 11 (Wis. Stat. § 49.175(2)(a)).
See Justice Hagedorn's majority op., ¶24 n.9.
2Specifically, I join Justice Kelly's majority opinion with
respect to 2017 Wis. Act 369, § 31 (Wis. Stat. § 227.01 (3m)),
§ 33 (Wis. Stat. § 227.05), § 38 (Wis. Stat. § 227.112), §§ 65-71
(amending Wis. Stat. § 227.40), and §§ 104-05 in full, and Justice
Hagedorn's majority opinion on the following parts:
 Part II.E.1., insofar as it reverses the circuit court with
respect to 2017 Wis. Act 369, § 5 (Wis. Stat. § 13.365)
and § 97 (Wis. Stat. § 803.09(2m));
 Part II.E.2., "Capitol Security" provision, 2017 Wis. Act
369, § 16 (Wis. Stat. § 16.84(2m));
 Part II.E.3, "Multiple Suspensions of Administrative
Rules" provision, 2017 Wis. Act 369, § 64 (Wis. Stat.
§ 227.26(2)(im)), in light of Martinez v. DILHR, 165
Wis. 2d 687, 478 N.W.2d 582 (1992); and
 Part II.E.4., "Agency Deference Provision," 2017 Wis. Act
369, § 35 (Wis. Stat. § 227.10(2g)), in light of Tetra Tech
EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914
N.W.2d 21.
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plausibly suggests that the sweep of the "Litigation Control"
provisions, 2017 Wis. Act 369, § 26 (Wis. Stat. § 165.08(1)) and
§ 30 (Wis. Stat. § 165.25(6)(a)1.), violates our constitutional
separation of powers because it unduly burdens and substantially
interferes with executive power. Accordingly, I respectfully
concur in part and dissent in part.
I
¶165 This case was snatched from the circuit court in its
infancy, on the eve of the first trial on the challenged
provisions.3 Consequently, the facts have not been developed and
the parties have not had the opportunity to amend their pleadings
to conform to those facts.4 The impact of the majority opinions
is therefore limited, as is our review. Several undeveloped claims
are remanded right back to the circuit court to proceed in the
ordinary course of litigation. Even those claims dismissed by the
majority will likely find their way back to us after newly filed
lawsuits result in the very development that this court's
Because I join the majority opinions with respect to 2017
Wis. Act 369, § 31 (Wis. Stat. § 227.01(3m)), § 64 (Wis. Stat.
§ 227.26(2)(im)), §§ 65-71 (amending Wis. Stat. § 227.40), and
§§ 104-05, I would similarly vacate the circuit court's temporary
injunction with respect to these sections.
3 This court assumed jurisdiction over the Legislative
Defendants' interlocutory appeal on June 11, 2019, staying all
circuit court proceedings the day before the first part of the
bifurcated trial was set to commence.
4 A litigant's ability to amend the pleadings pursuant to Wis.
Stat. § 802.09(1) is "liberally construed . . . so as to present
the entire controversy providing the amendment does not unfairly
deprive the opposing party of timely opportunity to meet the issue
created by the amendment." Wiegel v. Sentry Indem. Co., 94
Wis. 2d 172, 184, 287 N.W.2d 796 (1980) (quoted source omitted).
2
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assumption of jurisdiction snuffed. This court's impatience did
not allow the challenges to 2017 Wis. Act 369 and 2017 Wis. Act
370 to percolate and will prove to be an unfortunate waste of
judicial resources.5
¶166 We have before us a limited review of the circuit court's
denial of a motion to dismiss. "A motion to dismiss for failure
to state a claim tests the legal sufficiency of the complaint."
Voters with Facts v. City of Eau Claire, 2018 WI 63, ¶27, 382
Wis. 2d 1, 913 N.W.2d 131 (quoting Data Key Partners v. Permira
Advisers LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693).
The legal sufficiency of a complaint, in turn, "depends on [the]
substantive law that underlies the claim made because it is the
substantive law that drives what facts must be pled." Id.
(alteration in original) (quoting Data Key Partners, 356
Wis. 2d 665, ¶31).
¶167 Here, the underlying substantive law is this court's
jurisprudence on the separation of powers under the Wisconsin
Constitution, as well as the United States Supreme Court's
jurisprudence regarding the separation of powers under the United
5 See, e.g., Richard A. Posner, The Federal Courts: Crisis
and Reform 163 (1985) ("[A] difficult question is more likely to
be answered correctly if it is allowed to engage the attention of
different sets of judges deciding factually different cases than
if it is answered finally by the first panel to consider it.");
John Paul Stevens, Some Thoughts on Judicial Restraint, 66
Judicature 177, 183 (1982) ("The doctrine of judicial restraint
teaches us that patience in the judicial resolution of conflicts
may sometimes produce the most desirable result.").
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States Constitution.6 The Wisconsin Constitution establishes a
tripartite state government whereby it vests the senate and
assembly with the legislative power, Wis. Const. art. IV, § 1; the
governor with the executive power, id., art. V, § 1; and the
unified court system with the judicial power, id., art. VII, § 2.
"[N]o branch [is] subordinate to the other, no branch [may]
arrogate to itself control over the other except as is provided by
the constitution, and no branch [may] exercise the power committed
by the constitution to another." Koschkee v. Taylor, 2019 WI 76,
¶10, 387 Wis. 2d 552, 929 N.W.2d 600 (quoting State ex rel.
Friedrich v. Cir. Ct. for Dane Cty., 192 Wis. 2d 1, 13, 531
N.W.2d 32 (1995) (per curiam)).
¶168 Despite this formal proscriptive language, our
separation-of-powers doctrine at times embraces a functionalist
approach: "the doctrine envisions a system of separate branches
sharing many powers while jealously guarding certain others, a
system of 'separateness but interdependence, autonomy but
reciprocity.'" Friedrich, 192 Wis. 2d at 14 (quoting Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)). Our doctrine
distinguishes core powers that the Wisconsin Constitution
exclusively vests in one of the branches from shared powers that
"lie at the intersections of these exclusive core constitutional
powers." State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772
The
6 "principles underlying the United States
Constitution . . . 'inform our understanding of the separation of
powers under the Wisconsin Constitution.'" League of Women Voters
of Wisconsin v. Evers, 2019 WI 75, ¶31, 387 Wis. 2d 511, 929
N.W.2d 209 (quoting Gabler v. Crime Victims Rights Bd., 2017 WI
67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384).
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(1999). The core powers are "jealously guard[ed]," while branches
with intersecting powers may exercise their shared authority so
long as they do not "unduly burden or substantially interfere with
another branch." Id. at 644.
¶169 This court's functionalist approach, however, is
vulnerable to one branch's accretion of another's power in their
shared zone of authority.7 That vulnerability threatens our
constitutional structure8 and requires this court to vigorously
apply the limiting principle in our shared-power analysis: the
exercise of shared power cannot unduly burden or substantially
interfere with a coequal branch's function. Mindful of this
limiting principle, I turn to the Litigation Control provisions.
II
¶170 The complaint alleges that the Litigation Control
provisions, 2017 Wis. Act 369, § 26 (Wis. Stat. § 165.08(1)) and
§ 30 (Wis. Stat. § 165.25(6)(a)1.), violate the separation-of-
powers doctrine because they effectively eliminate executive power
7 Justice Brennan, a prolific modern advocate of living
constitutionalism and constitutional functionalism generally,
adhered to a formal separation-of-powers philosophy because of
this vulnerability. See Commodity Futures Trading Comm'n v. Schor,
478 U.S. 833, 859–62 (1986) (Brennan, J., dissenting) (reasoning
that the Court's functional approach risked the "incremental
erosion" of the separation between the branches "central to our
constitutional scheme"); see also N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50 (1982) (Brennan, J.).
8 "While individual encroachments on the constitutional
structure may appear harmless, at some point the structure will
fail, and '[w]hen structure fails, liberty is always in peril.'"
Ara Lovitt, Fight for Your Right to Litigate: Qui Tam, Article
II, and the President, 49 Stan. L. Rev. 853, 866 (1997) (footnotes
omitted) (quoting Public Citizen v. United States Dep't of Justice,
491 U.S. 440, 468 (1989) (Kennedy, J., concurring)).
5
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to settle civil litigation by enacting an overriding legislative
veto. Prior to Act 369, executive branch officials could direct
a civil prosecution to be compromised or discontinued. Act 369
amended § 165.08(1) to remove the executive branch's unilateral
control by barring the attorney general from compromising or
discontinuing a civil prosecution without prior "approval of a[]
[legislative] intervenor" or, if there is no legislative
intervenor, "only if the joint committee on finance approves the
proposed plan [to compromise or discontinue]" the prosecution.
(Emphasis added.) Further, pursuant to § 165.08(1) the attorney
general can no longer concede "the unconstitutionality or other
invalidity of a statute" or that "a statute violates or is
preempted by federal law" without first receiving the approval of
another legislative committee, the joint committee on legislative
organization.
¶171 Similarly, Wis. Stat. § 165.25(6)(a)1. removes the
executive branch's unilateral control by mandating legislative
approval in cases where the attorney general defends the State of
Wisconsin in a civil action for injunctive relief or where there
is a proposed consent decree. Section 165.25(6)(a)1. dictates
that the attorney general "may not compromise or settle the action
without the approval of a[] [legislative] intervenor . . . or, if
there is no intervenor, without first submitting a proposed plan
to the joint committee on finance." (Emphasis added.) The
attorney general may now only settle a case in defense of the State
of Wisconsin with the committee's approval, if the committee
chooses to meet. And if the plan "concedes the unconstitutionality
6
No. 2019AP614-LV & 2019AP622.rfd
or other invalidity of a statute, facially or as applied, or
concedes a statute violates or is preempted by federal law,"
section 165.25(6)(a)1. adds yet another layer of legislative
control: "the approval of the joint committee on legislative
organization" before the attorney general may even submit the plan.
Collectively, the Litigation Control provisions make legislative
officials the final arbiters over the attorney general's
discretionary authority to resolve state-related litigation.
¶172 The question presented to this court is whether the
Plaintiffs have sufficiently stated a claim that the sweep of the
Litigation Control provisions "unduly burden[s] or substantially
interfere[s] with" the executive branch's power to execute the
law. Horn, 226 Wis. 2d at 645. It is indisputable that litigation
is a tool of the executive branch for executing the law, see
Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam),9 and that
removal of sufficient executive control over litigation can
violate the constitution, see Morrison v. Olson, 487 U.S. 654,
685-96 (1988). However, the majority undertakes no substantive
analysis of whether the Litigation Control provisions' removal of
executive control over resolving litigation unduly burdens or
substantially interferes with the executive branch's function.
Instead, the majority mechanically applies a strict review
standard for facial challenges and concludes that the Plaintiffs'
9 "A lawsuit is the ultimate remedy for a breach of the law,
and it is to the President . . . that the Constitution entrusts
the responsibility to 'take Care that the Laws be faithfully
executed.'" Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam)
(quoting U.S. Const. art. II, § 3).
7
No. 2019AP614-LV & 2019AP622.rfd
challenge fails because the court can conceive of some
unarticulated constitutional application of the Litigation Control
provisions.
¶173 I dissent for two reasons. First, the legislature does
not have a constitutionally-vested "institutional interest as a
represented party" in civil litigation resolution and the power of
the purse cannot be understood so broadly as to permit substantial
burdens on another branch's intersecting power. Second, the
majority's rigid application of a strict facial-challenge standard
in this case achieves the exact opposite of judicial modesty.
Application of the overbreadth doctrine better safeguards the
separation of powers established by the Wisconsin Constitution.
A
¶174 The majority's conception of the legislature's
"institutional interest as a represented party," Justice
Hagedorn's majority op., ¶67, is unsupported by the Wisconsin
Constitution and creates a dangerously expansive ability for the
legislature to unduly burden and substantially interfere with the
other branches.10 The Wisconsin Constitution, like the United
States Constitution, does not contemplate an active role for the
legislature in executing or in supervising the executive officers
10If the legislature had an institutional interest such that
it could arrogate the executive power to ensure its laws were
upheld (or at least not conceded) in court, the legislature could
also rely on this interest to enact the same controls on the
judiciary's authority to declare its laws invalid,
unconstitutional, or preempted by federal law. Such a result is
constitutionally suspect.
8
No. 2019AP614-LV & 2019AP622.rfd
charged with executing the laws it enacts.11 See Schuette v. Van
De Hey, 205 Wis. 2d 475, 480–81, 556 N.W.2d 127, (Ct. App. 1996)
("Legislative power, as distinguished from executive power, is the
authority to make laws, but not to enforce them, or appoint the
agents charged with the duty of such enforcement." (quoting 2A
Eugene McQuillin, Municipal Corporations § 10.06 at 311 (3d ed.
1996))); see also Bowsher v. Synar, 478 U.S. 714, 722, 726 (1986).
Justice Hagedorn's majority opinion fails to tie its concept of an
institutional interest to any constitutional text. This is fatal
to its argument because a separation-of-powers analysis begins and
ends with the Wisconsin Constitution.
11I do not contest that the legislature's institutional
interest may permit it to intervene in litigation on its own
branch's behalf. For this reason, I join Justice Hagedorn's
opinion with respect to 2017 Wis. Act 369, § 5 (Wis. Stat.
§ 13.365) and § 97 (Wis. Stat. § 803.09(2m)).
I further emphasize that this concurrence/dissent should not
be read to advance the position that the attorney general, as part
of the executive branch, has the sole power to decide the
litigation positions of other constitutional officers when those
officers are named parties in a lawsuit. We have previously warned
that such a practice "would give the attorney general breathtaking
power" and "would potentially make the attorney general a
gatekeeper for legal positions taken by constitutional officers,
such as the governor or justices of this court sued in their
official capacity." Koschkee v. Evers, 2018 WI 82, ¶13, 382
Wis. 2d 666, 913 N.W.2d 878 (per curiam).
Likewise, irrespective of Wis. Stat. § 14.11(2), when a
conflict arises and the attorney general, as part of the executive
branch, is unable to represent a named judicial party, it is the
judicial branch rather than the executive branch that selects
subsequent representation. See id., ¶13 n.3 (citing SCR 81.02(1))
(referring to "this court's practice of appointing counsel for a
court, for judges sued in their official capacity . . . and for
boards, commissions and committees appointed by the supreme
court").
9
No. 2019AP614-LV & 2019AP622.rfd
¶175 The other legislative power relied upon by the majority,
the power of the purse, is found in the Wisconsin Constitution.
Wis. Const. art. VIII, § 2 ("No money shall be paid out of the
treasury except in pursuance of an appropriation by law."); see
Justice Hagedorn's majority op., ¶68. The legislature's control
of the purse strings, however, cannot be read so broadly that it
allows the legislature to curtail the functions of another branch
even in an area of shared authority.12 See Gabler v. Crime Victims
Rights Bd., 2017 WI 67, ¶4, 376 Wis. 2d 147, 897 N.W.2d 384
("[N]either the legislature nor the executive nor the judiciary
'ought to possess, directly or indirectly, an overruling influence
over the others in the administration of their respective powers.'"
(quoting The Federalist No. 48, at 305 (James Madison) (Clinton
Rossiter ed., 1961))). If it were so broad, the legislature could
authorize itself to veto any function constitutionally assigned to
the executive or judiciary because money is required to enforce
the law and maintain a judiciary. Such an "overruling influence"
over the other branches is not constitutionally tolerable.
B
¶176 Even assuming the power of the purse gives the
legislature a share of the power to resolve litigation, I do not
12 In fact, the Wisconsin legislature's constitutional "power
of the purse" is substantially more constrained relative to other
state and the federal constitutions because the Wisconsin
Constitution grants the governor "coextensive" authority over
appropriations legislation. Wis. Const. art. V, § 10(1)(b); State
ex rel. Wis. Tel. Co. v. Henry, 218 Wis. 302, 315, 260 N.W. 486
(1935).
10
No. 2019AP614-LV & 2019AP622.rfd
agree with the majority's mechanical adherence to a strict "no set
of circumstances" test for facial challenges.
¶177 The majority cites to United States v. Salerno, 481 U.S.
739, 745 (1987), for the standard that the challenging party "must
establish that no set of circumstances exists under which the
[challenged act] would be valid." See Justice Hagedorn's majority
op., ¶40 n.12. However, this dicta from the Salerno case has been
applied inconsistently by the United States Supreme Court
depending upon the nature of the facial challenge. See, e.g.,
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)
(adopting the undue burden test for facial challenges to state
abortion laws); see also City of Chicago v. Morales, 527 U.S. 41,
55 n.22 (1999) (plurality opinion) ("To the extent we have
consistently articulated a clear standard for facial challenges,
it is not the Salerno formulation . . . ."); Janklow v. Planned
Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175 n.1 (1996)
(mem.) (citing United States Supreme Court cases that did not apply
the Salerno test to a facial challenge). Recognizing the United
States Supreme Court's inconsistency with regard to facial
challenges, this court has previously declined to apply the no set
of circumstances test to an Establishment Clause challenge where
there was no clear United States Supreme Court precedent for doing
so. Jackson v. Benson, 218 Wis. 2d 835, 854 n.4, 578 N.W.2d 602
(1998); see also State v. Konrath, 218 Wis. 2d 290, 305 n.15, 577
N.W.2d 601 (1998) ("[T]he United States Supreme Court has not
consistently applied the 'no set of circumstances' language.").
11
No. 2019AP614-LV & 2019AP622.rfd
¶178 The majority claims this test is nonetheless appropriate
as an exercise of judicial modesty that will avoid judicial
overstepping into the legislature's prerogative. However, the
majority effectuates the exact opposite result. Instead of
respecting the coequal branches, it forces the subverted branch,
here the executive, to repeatedly vindicate its constitutionally
delegated role through as-applied challenges. That litigation
burden may itself be undue and substantially detracts from the
time and resources that both branches should instead be directing
toward their respective constitutional functions.
¶179 More distressingly, the piecemeal litigation invited by
the majority means that the judiciary will have to engage in line-
drawing that is effectively policy-making, a clear overstep of its
constitutional role. The much narrower statutes enacted by other
states demonstrate that it is for the legislature, not the
judiciary, to determine a dollar threshold where the power of the
purse is implicated. See Justice Hagedorn's majority op., ¶70.
For example, the Connecticut legislature limited its involvement
to settlements over $2,500,000. See Conn. Gen. Stat. Ann. § 3-
125a(a) (2019). The Oklahoma legislature set a threshold of
$250,000. See Okla. Stat. Ann. tit. 51 § 200A.1. (2019). In Utah,
legislative approval only becomes mandatory for settlements that
might cost more than $1,000,000 to implement. Utah Code Ann.
§ 63G-10-202 (2018). In contrast, Wisconsin's legislature granted
itself an unfettered veto power in every proposed settlement,
compromise, or discontinuation of not only civil cases where the
attorney general is defending the State of Wisconsin, but also
12
No. 2019AP614-LV & 2019AP622.rfd
where the executive is prosecuting the law. I fail to see the
touted judicial modesty in an approach that will result in an
exercise of judicial policy-making.
¶180 Instead, this court should determine whether the
Litigation Control provisions substantially interfere with the
function of the executive because of their unconstitutional
overbreadth.13 An overbreadth challenge is appropriate upon
"specific reasons weighty enough to overcome our well-founded
reticence" in entertaining facial challenges. Sabri v. United
States, 541 U.S. 600, 609-10 (2004) (citing United States Supreme
Court cases applying an overbreadth test to facial challenges in
various substantive contexts). Indeed, the United States Supreme
Court will evaluate a facial challenge alleging that a statute is
unconstitutionally overbroad where "good reason" exists——generally
where the statute may encumber a fundamental constitutional
protection. Id.; see, e.g., Aptheker v. U.S. Sec'y of State, 378
U.S. 500, 515–517 (1964) (applying overbreadth to evaluate a facial
challenge to a statute affecting the right to travel because it is
"a personal liberty protected by the Bill of Rights").
¶181 The United States Supreme Court's broader understanding
of the overbreadth doctrine is instructive for this court, as we
have not had the opportunity to address the overbreadth doctrine
outside of the First Amendment context. See, e.g., State v.
Stevenson, 2000 WI 71, 236 Wis. 2d 86, 613 N.W.2d 90; Konrath, 218
13At oral argument, Attorney General Kaul and the Legislative
Defendants debated the issue of whether analyzing this case as a
traditional facial challenge was appropriate. My analysis stems
from their debate.
13
No. 2019AP614-LV & 2019AP622.rfd
Wis. 2d 290. As we noted in Konrath, the limited use of the
overbreadth doctrine is based on third-party standing concerns: a
private party to whom a statute constitutionally applies could
escape his or her deserved sanction because of the statute's
unconstitutional application to parties not before the court. 218
Wis. 2d at 305. We tolerate this result and modify the rules of
standing in the First Amendment context because of "the gravity of
a 'chilling effect' that may cause others not before the court to
refrain from constitutionally protected speech or expression."
Stevenson, 236 Wis. 2d 86, ¶12 (quoted sources omitted).
¶182 Here, there is no third-party standing concern. The
constitutional and unconstitutional applications of the Litigation
Control provisions affect a single party: the attorney general.
By assuming jurisdiction over this case, the court obtained
jurisdiction over the only party that could be affected by the
requested declaratory and injunctive relief.14 This eliminates the
possibility for judicial overreach that standing is meant to
moderate.
¶183 Additionally, application of the overbreadth doctrine in
a separation of powers challenge such as this one would prevent
the "incremental erosion" of our tripartite constitutional
structure, a harm as grave as the chilling effect on protected
In other words, the facial remedy would be no broader than
14
the as-applied remedy since the only potential as-applied
challenger is currently under this court's jurisdiction. This
renders the distinction between the two analytically meaningless.
See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 331
(2010) ("The distinction [between facial and as-applied
challenges] . . . goes to the breadth of the remedy.").
14
No. 2019AP614-LV & 2019AP622.rfd
speech in the First Amendment context.15 See Commodity Futures
Trading Comm'n v. Schor, 478 U.S. 833, 859–62 (1986) (Brennan, J.,
dissenting). With respect to the Litigation Controls provisions
particularly, the overbreadth doctrine would alleviate the danger
of the legislature's "selective enforcement" of its new veto power
to discriminately force the executive to continue litigation no
longer deemed to be in the public interest. Cf. Stevenson, 236
Wis. 2d 86, ¶13; see also Gabler, 376 Wis. 2d 147, ¶5 (warning
that absent separation of powers the legislature could "first
'enact tyrannical laws' then 'execute them in a tyrannical
manner.'" (quoting 1 Montesquieu, The Spirit of the Laws 151-52
(Oskar Piest et al. eds., Thomas Nugent trans., 1949) (1748))).
It also would prevent "practically unbridled . . . discretion" in
delaying or denying executive decision-making on how to best
enforce the law. Cf. Stevenson, 236 Wis. 2d 86, ¶13.
¶184 Given the absence of third-party standing issues and the
gravity of the harm alleged with respect to these provisions, there
is "good reason" for this court to apply the overbreadth doctrine
to the Litigation Control provisions,16 consistent with the United
States Supreme Court's approach. See Sabri, 541 U.S. at 609-10;
15Incremental erosion "undermines the checks and
balances . . . designed to promote governmental accountability and
deter abuse." Panzer v. Doyle, 2004 WI 52, ¶52, 271 Wis. 2d 295,
680 N.W.2d 666, overruled on other grounds by Dairyland Greyhound
Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408.
16This conclusion might be true in all shared-powers
analyses, but I leave that question for another time. I focus my
application of the overbreadth doctrine on the Litigation Control
provisions because, as compared to the other challenged
provisions, only their sweeping grab of power could unduly burden
or substantially interfere with the executive branch's function.
15
No. 2019AP614-LV & 2019AP622.rfd
see also Richard H. Fallon, Jr., As-Applied and Facial Challenges
and Third-Party Standing, 113 Harv. L. Rev. 1321 (2000) (advocating
that the review of a facial challenge should be evaluated on a
"doctrine-by-doctrine basis" and guided by "the applicable
substantive tests of constitutional validity").
¶185 In the context of a motion to dismiss review, this
court's overbreadth inquiry is whether the Plaintiffs have stated
a claim that the Litigation Control provisions sweep so broadly
that they "unduly burden or substantially interfere with" the
executive branch's power to execute the law. See Horn, 226 Wis. 2d
at 644. We must accept as true the Plaintiffs' allegations that
the Litigation Control provisions can: (1) prolong litigation
deemed no longer in the public interest; (2) lock in public
resources on those cases; (3) undermine the attorney general's
leverage at settlement conferences by removing ultimate settlement
authority; and (4) inhibit the executive's check on
unconstitutional legislative action. See Voters with Facts, 382
Wis. 2d 1, ¶27 (quoting Data Key Partners, 356 Wis. 2d 665, ¶19).
¶186 To assess the burden on a branch of government, the
concern is with "actual and substantial encroachments by one branch
into the province of another, not theoretical divisions of power."
Martinez v. DILHR, 165 Wis. 2d 687, 697, 478 N.W.2d 582 (1992)
(quoting J.F. Ahern v. Bldg. Comm'n, 114 Wis. 2d 69, 104, 336
N.W.2d 679 (Ct. App. 1983)). The court has in previous cases
relied upon affidavits and statistical analyses. See Friedrich,
192 Wis. 2d at 25-30 (relying on affidavits from judges and
attorneys to assess burden to the judicial branch); State v.
16
No. 2019AP614-LV & 2019AP622.rfd
Holmes, 106 Wis. 2d 31, 70, 315 N.W.2d 703 (1982) (relying on
statistical evidence to assess the burden on the judicial branch
caused by the challenged statute). In this case, however, there
has been no factual development as to the amount and types of cases
the attorney general litigates, the types and frequency of
resolutions pursued in those cases, or the kinds of burdens the
Litigation Control provisions now impose on that litigation. Only
after development of the facts can a court determine whether the
sweep of the Litigation Control provisions unduly burdens or
substantially interferes with the attorney general's ability to
execute the law through litigation.
¶187 I conclude that the complaint and the reasonable
inferences drawn therefrom sufficiently states a claim that the
sweep of the Litigation Control provisions will unduly burden or
substantially interfere with the executive branch's power to
execute the law through civil litigation. Accordingly, I would
affirm the circuit court's denial of the motion to dismiss the
Litigation Control provisions and remand the case to the circuit
court to proceed through the ordinary course of litigation. The
temporary injunction should be reinstated on remand because the
circuit court did not erroneously exercise its discretion. Its
written decision states the correct law, applies that law to the
facts of record, and demonstrates a reasoned process in reaching
its conclusion. See Thoma v. Vill. of Slinger, 2018 WI 45, ¶11,
381 Wis. 2d 311, 912 N.W.2d 56.
¶188 For the foregoing reasons, I respectfully concur in part
and dissent in part.
17
No. 2019AP614-LV & 2019AP622.rfd
¶189 I am authorized to state that Justice ANN WALSH BRADLEY
joins this concurrence/dissent.
2
No. 2019AP614-LV & 2019AP622.bh
¶190 BRIAN HAGEDORN, J. (concurring in part, dissenting in
part). In 2017 Wis. Act 369, the legislature defined a new
category of formal or official executive branch documents and
communications called "guidance documents." The legislature
established certain requirements governing their contents, a
process governing their issuance, and a procedure permitting their
administrative and judicial challenge. The majority bases its
declaration that two provisions are unconstitutional on this
proposition: legislative governance over guidance documents
regulates executive branch thought and therefore invades core
executive power. Hence, it throws the constitutional penalty flag
and declares as facially unconstitutional a statutory provision
requiring that the law be cited in formal agency communications.
It also declares a notice-and-comment period prior to the issuance
of guidance documents facially unconstitutional.
¶191 The majority's thesis, however, is wrong on the facts
and runs contrary to the plain language of the laws the legislature
passed. This means its constitutional conclusion is similarly
faulty. The court may assert it is upholding the separation of
powers, but it is not. The powers exercised by the legislature
here are properly within their province, at least on a facial
challenge. Although the majority denies it, the majority takes
these powers away based on the thinnest of foundations——its
misguided determination that guidance documents regulate executive
branch thought. This isn't what the statutes do, and every other
error follows from this flawed wellspring. Guidance documents
regulate executive branch communications with the public——a
1
No. 2019AP614-LV & 2019AP622.bh
permissible and longstanding area of legislative regulation. I
would hold that all of the guidance document provisions survive a
facial challenge.
I. WHAT GUIDANCE DOCUMENTS ARE
¶192 My disagreement with the majority is not over the meaning
of the constitution; we both embrace the same separation-of-powers
principles. Rather, the majority's analytical error rests with
its mistaken interpretation of what guidance documents are and
what they do. Wis. Stat. § 227.01(3m).1 The new statute affirms
1 2017 Wis. Act 369, § 31 created the following subsection:
(a) "Guidance document" means, except as provided in
par. (b), any formal or official document or
communication issued by an agency, including a manual,
handbook, directive, or informational bulletin, that
does any of the following:
1. Explains the agency's implementation of a statute or
rule enforced or administered by the agency, including
the current or proposed operating procedure of the
agency.
2. Provides guidance or advice with respect to how the
agency is likely to apply a statute or rule enforced or
administered by the agency, if that guidance or advice
is likely to apply to a class of persons similarly
affected.
(b) "Guidance document" does not include any of the
following:
1. A rule that has been promulgated and that is currently
in effect or a proposed rule that is in the process of
being promulgated.
2. A standard adopted, or a statement of policy or
interpretation made, whether preliminary or final, in
the decision of a contested case, in a private letter
ruling under s. 73.035, or in an agency decision upon or
2
No. 2019AP614-LV & 2019AP622.bh
that guidance documents are not rules; they do not have the force
of law. Rather, guidance documents are "formal or official
documents or communications issued by an agency" that either
explain how an agency is implementing a rule, or provide guidance
or advice on how the agency is likely to apply a statute or rule
if it is likely to apply to a class of persons similarly affected.
§ 227.01(3m)(a).
disposition of a particular matter as applied to a
specific set of facts.
3. Any document or activity described in sub. (13) (a)
to (zz), except that "guidance document" includes a
pamphlet or other explanatory material described under
sub. (13) (r) that otherwise satisfies the definition of
"guidance document" under par. (a).
4. Any document that any statute specifically provides
is not required to be promulgated as a rule.
5. A declaratory ruling issued under s. 227.41.
6. A pleading or brief filed in court by the state, an
agency, or an agency official.
7. A letter or written legal advice of the department of
justice or a formal or informal opinion of the attorney
general, including an opinion issued under s. 165.015
(1).
8. Any document or communication for which a procedure
for public input, other than that provided under s.
227.112 (1), is provided by law.
9. Any document or communication that is not subject to
the right of inspection and copying under s. 19.35 (1).
Wis. Stat. § 227.01(3m) (2017-18).
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version.
3
No. 2019AP614-LV & 2019AP622.bh
¶193 The statute contains some clue as to the type of
communications being envisioned: "a manual, handbook, directive,
or informational bulletin." Id. While this list is nonexclusive,
these examples help us understand what is meant by "formal or
official document[s] or communication[s]." Id. Not every agency
communication is a guidance document, only formal or official
communications that either are or are like manuals, handbooks,
directives, or bulletins. See Schill v. Wis. Rapids School Dist.,
2010 WI 86, ¶66, 327 Wis. 2d 572, 786 N.W.2d 177 (explaining that
"general terms . . . may be defined by the other words and
understood in the same general sense" under the interpretive canon
of noscitur a sociis (a word is "known by its associates")).
¶194 The guidance document provisions undoubtedly reach far
and wide into agency operations. Agencies regularly create
informational documents to inform the public regarding a given
area of law. These communications do not themselves carry the
force of law; rather they explain the agency's understanding and
execution of the law to the public. The Plaintiffs and the
Governor provided the following examples of guidance documents:
 A pamphlet issued by the Department of Public
Instruction explaining how the department administers
funding;
 A Department of Health Services guide about health
insurance;
 A bulletin from the Division of Motor Vehicles about
driver's license exams; and
 Forms created by the Department of Children and
Families explaining eligibility for child support.
4
No. 2019AP614-LV & 2019AP622.bh
These are, in the main, ordinary sorts of official communications
that greatly affect the public's knowledge of the laws that govern
them.
¶195 This newly defined category of communications comes with
new statutory requirements. Of particular moment are the two
provisions receiving the court's disapproval. Wisconsin Stat.
§ 227.05 states that agencies "shall identify the applicable
provision of federal law or the applicable state statutory or
administrative code provision that supports any statement or
interpretation of law that the agency makes in any publication."
And Wis. Stat. § 227.112 requires, among other things, that
proposed guidance documents be sent to the legislative reference
bureau and undergo a notice-and-comment period before the guidance
documents are issued, subject to the caveat that public comment
periods shorter than 21 days are allowed with the governor's
approval.2
II. ANALYSIS
¶196 I refer the reader to the discussion of the separation
of powers in the majority opinion analyzing the remaining issues
in this case. Justice Hagedorn's majority op., ¶¶30-35. But by
way of reminder, a core power is one conferred by the constitution
such that only the branch vested with a core power may exercise
that power. See State v. Horn, 226 Wis. 2d 637, 643, 594
N.W.2d 772 (1999); Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶48,
Wisconsin Stat. § 227.112 is cited in full in paragraph 90
2
of Justice Kelly's majority opinion.
5
No. 2019AP614-LV & 2019AP622.bh
382 Wis. 2d 496, 914 N.W.2d 21 (Kelly, J.). Not all government
power has this exclusive character. Shared powers, those residing
where the powers of the branches converge, may be exercised by
more than one branch so long as no branch "unduly burden[s] or
substantially interferes[s] with another branch." Horn, 226
Wis. 2d at 643-44.
¶197 The Plaintiffs and the Governor argue that all of the
guidance document provisions impermissibly infringe on a core
executive power——namely, the Governor's constitutional duty to
"take care that the laws be faithfully executed." Wis. Const.
art. V, § 4. This occurs, the parties contend, because the
legislature is regulating non-legislative power——the power to give
advice, for example. The majority agrees in part and holds that
two of the guidance document provisions intrude upon the core
powers of the executive branch.3
¶198 The challenged provisions do not intrude upon the core
powers of the executive branch because determining the content and
timing of executive branch communications are not the exclusive
prerogative of the executive. By enacting the guidance document
provisions, the legislature is carrying out its function of
determining what the law should be by passing laws pursuant to its
constitutional authority. Wis. Const. art. IV, § 1, § 17; Koschkee
3 In the alternative, the Plaintiffs and the Governor assert
that the guidance document provisions unduly burden and
substantially interfere with the Governor's ability to faithfully
execute the laws under a shared powers analysis. I conclude that
all of the disputed guidance document provisions survive a facial
challenge under both a core powers and shared powers analysis.
But in light of the majority's decision, a separate analysis
regarding shared powers is unnecessary.
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v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600 (stating
legislative power "is the authority to make laws"). And nothing
in the constitution suggests the legislature cannot, at least in
some circumstances, make laws that determine the content of certain
formal communications from the government to the public, or
prescribe the process by which certain formal or official documents
and communications are finalized and issued.
¶199 The legislature has long regulated at least some formal
executive branch communications about the law——including the
executive branch's understanding of what the law is, how the
executive branch is executing the law, and how the executive branch
intends to execute the law going forward. The clearest example
may be the mandatory creation of certain executive branch reports.
For instance, Wis. Stat. § 15.04(1)(d) requires executive agencies
to create a report each biennium, delivered "[o]n or before October
15 of each odd-numbered year." The report must include what the
agency has done, how it operates, and its goals and objectives
moving forward. Id. Similar mandated reports regarding what the
executive branch is doing and plans to do are found throughout
Wisconsin law.4
4 For example, the Read to Lead Development Council, a
subordinate of the Department of Children and Families, annually
submits an operation report to appropriate standing committees of
the legislature. Wisconsin Blue Book 194 (2019-20). Likewise,
the Board on Aging and Long-Term Care reports to both the governor
and the legislature regarding "long-term care for the aged and
disabled." Id. at 184. And the Farmland Advisory Council, a
subordinate council of the Department of Revenue, is also required
to report annually to the legislature. Id. at 226.
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¶200 In short, while the formal delineation of a category of
executive branch communications called guidance documents are
something new in state law, they are not new in kind. Here, the
legislature has passed laws telling the executive branch what
content must be included in certain communications, how those
communications must be issued, and the process by which those
communications may be challenged. This has never been thought of
as a power exclusive to the executive, and nothing in the
constitution makes it so. The constitution gives the legislature
the power to say what the law should be. At the very least, this
gives the legislature a say in at least some formal executive
Sometimes the legislature is quite specific in directing the
content of formal communications and the internal operations and
decision-making processes in the executive branch. One example is
the groundwater coordinating council, found in Wis. Stat.
§ 15.347(13). This statutory provision not only creates the
council and its membership, it also details with particularity how
often and under what conditions it can meet. § 15.347(13)(f) ("The
council shall meet at least twice each year and may meet at other
times on the call of 3 of its members."). The legislature has
further mandated that the council must file a report every August
which summarizes the operations and activities of the
council during the fiscal year concluded on the
preceding June 30, describes the state of the
groundwater resource and its management and sets forth
the recommendations of the council. The annual report
shall include a description of the current groundwater
quality in the state, an assessment of groundwater
management programs, information on the implementation
of [Wis. Stat.] ch. 160 and a list and description of
current and anticipated groundwater problems. In each
annual report, the council shall include the dissents of
any council member to the activities and recommendations
of the council.
§ 15.347(13)(g).
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branch communications to the public about the law. The challenged
provisions therefore should survive a facial challenge.
¶201 The majority disagrees and concludes Wis. Stat.
§§ 227.05 and 227.112 violate the core powers of the executive
branch. Its analysis falls far short of the mark because it rests
on a singular proposition that finds no support in the statutory
provisions at issue, and therefore has no basis in the
constitution.
¶202 The majority summarizes its reasoning and conclusion as
follows:
Thought must precede action, of course, and guidance
documents are simply the written record of the
executive's thoughts about the law and its execution.
They contain the executive's interpretation of the laws,
his judgment about what the laws require him to do.
Because this intellectual homework is indispensable to
the duty to "take care that the laws be faithfully
executed," Wis. Const. art. V, § 4, it is also
inseparable from the executive's constitutionally-
vested power.
Justice Kelly's op., ¶106.
¶203 This conclusion, however, does not follow from the
premises because the guidance document provisions do not control
or regulate executive branch thought, at least in all
circumstances. That is the hook upon which the majority's entire
analysis rests, and it is mistaken. The only thing the legislature
purports to regulate here is a "formal or official document or
communication" about the law——in other words, formal
communications reflecting the product of thought. Wis. Stat.
§ 227.01(3m)(a). The majority's explanation that the legislature
is regulating "the necessary predicate to executing the law,"
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Justice Kelly's op., ¶107, is wrong on the facts, and therefore,
wrong on the law. The legislature is regulating formal
communications that are the result of, rather than the necessary
predicate to, executing the law. By the time a guidance document
has been reduced to writing, the thinking and analyzing has been
done.
¶204 It is true that an executive branch document explaining
when fishing season starts will require the executive branch to
read and think about the law. But there's nothing core to the
executive branch's powers in disseminating formal information
which answers that legislatively determined question. Indeed,
under our constitutional structure, it must be the executive that
formally disseminates that information; that is the branch that
executes the law, which necessarily includes communication about
the law.5 The majority's abstract approach misses what's actually
going on here. The legislature is not invading the executive's
ability to read the law or think about the law when it regulates
how agencies officially communicate to the public about what the
law is and where in the statutes the law may be found.
5 The majority raises a series of questions asking whether
the legislature could tell the judicial branch to do similar things
as the disputed laws do here. Justice Kelly's op., ¶126. But the
legislature's relationship to the judiciary is far different than
its relationship to the branch charged with the constitutional
duty to execute the laws the legislature passes. Moreover, the
majority's criticisms ring hollow because the majority says the
legislature can pass laws that do the very things it cites; the
legislature just has to enact laws regarding specific documents
(create a youth hunting bulletin, for example). So the majority's
criticisms apply just as forcefully to its own reasoning, which is
to say, not much at all.
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¶205 The majority realizes, of course, that the legislature
can tell the executive branch to communicate on a topic and can
specify what the communication must include. Justice Kelly's op.,
¶¶122-23. But such a communication, the majority tells us, does
not meet the statutory definition of a guidance document. The
majority explains:
[I]f the legislature can "determine the content" of a
guidance document, then it is no longer the executive's
explanation, or the executive's guidance or advice——it
is the legislature's explanation, guidance or advice.
So, to the extent the legislature commands production of
a document, or determines the content of a guidance
document, it simply is no longer a guidance document.
Id., ¶122.
¶206 Nothing in the statutes, however, supports this
conclusion. If the law commands that a manual be created
reflecting the executive's understanding and intended application
of the law——and the statutes are full of such mandates——by
definition, the manual will reflect the executive's understanding
and intended application of the law. The "authorship," as the
majority calls it, doesn't change one bit. For example, if an
executive agency must by legislative command create a youth hunting
bulletin and cite the relevant law, this is a reflection of the
executive branch's understanding of the law no less than if the
executive chooses to do the same thing in the absence of such a
command.
¶207 Moreover, the statutory definition of guidance documents
contains strong internal clues that the majority's analysis is
unsound. The law tells us guidance documents include manuals,
handbooks, or informational bulletins. Wis. Stat.
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§ 227.01(3m)(a). These have lay definitions, but they also appear
as terms of art throughout our statutes to describe formal agency
communications. Sometimes our law requires the creation of
specific informational communications. See, e.g., Wis. Stat.
§ 7.08(3) (instructing the Elections Commission to create an
election law manual); Wis. Stat. § 49.32(3) (instructing the
Department of Health Services (DHS) to create a policy and
procedural manual regarding aid to families with dependent
children); Wis. Stat. § 73.03(57) (instructing the Department of
Revenue to create a tax increment financing manual); Wis. Stat.
§ 84.02(4)(e) (instructing the Department of Transportation (DOT)
to create a manual establishing uniform traffic control devices);
Wis. Stat. § 108.14(23) (instructing the Department of Workforce
to create an unemployment insurance handbook). And at other times
the statutes authorize, rather than command, the creation of
informational communications. See, e.g., Wis. Stat. § 84.01(11)
(instructing that the DOT shall issue bulletins, pamphlets and
literature as necessary); Wis. Stat. § 115.28(4) (instructing the
State Superintendent of Public Instruction to create informational
bulletins); Wis. Stat. § 452.05(2) (authorizing the Real Estate
Examining Board to prepare informational letters and bulletins);
Wis. Stat. § 458.03(2) (authorizing the Department of Safety and
Professional Services to create informational letters and
bulletins).
¶208 It would be extraordinarily odd to read the use of terms
like manual, handbook, and bulletin in the definition of a guidance
document to exclude nearly all other statutory uses of the terms
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No. 2019AP614-LV & 2019AP622.bh
"manual," "handbook," and "bulletin." That's not normally how we
do statutory interpretation. Bank Mut. v. S.J. Boyer Constr.,
Inc., 2010 WI 74, ¶31, 326 Wis. 2d 521, 785 N.W.2d 462 ("When the
same term is used throughout a chapter of the statutes, it is a
reasonable deduction that the legislature intended that the term
possess an identical meaning each time it appears." (citation
omitted)).
¶209 The majority's mistaken interpretation also produces
results at odds with other portions of the definition of guidance
documents. Under the majority's reasoning, the optional creation
of a manual by the executive branch is a guidance document, while
the mandatory creation of that same manual containing the same
thoughts and written by the same authors is not a guidance
document. But both a legislative command to communicate and
legislative permission to communicate fall well within the
statutory language that a guidance document "[e]xplains the
agency's implementation of a statute or rule enforced or
administered by the agency" or "[p]rovides guidance or advice with
respect to how the agency is likely to apply a statute or rule
enforced or administered by the agency." Wis. Stat.
§ 227.01(3m)(a). The majority's approach to authorship does not
square with the words the legislature wrote.
¶210 The two provisions the majority opinion strikes down
should easily survive a facial challenge. Wisconsin Stat. § 227.05
requires that a guidance document cite the applicable laws. But
the majority opinion holds that this is too much for the
legislature to demand of the executive branch because it controls
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executive branch thought. Again, the majority's analysis is not
grounded in the constitution, but in its misinterpretation of the
statutes. The legislature can, at least sometimes, command the
executive branch to cite the legal basis for its formal explanation
of laws.
¶211 Similarly, Wis. Stat. § 227.112 mandates draft guidance
documents be posted for 21 days before they are officially issued,
among other related requirements. Posting a draft before issuance
of some formal communications is now denominated a regulation of
executive branch thought and invades core executive power. The
majority's reasoning is likewise rooted in its notion of authorship
that runs counter to the statutory language. Again, the
constitution allows the legislature to regulate the process by
which at least some formal executive branch communications are
issued. The majority agrees the legislature may do this if it
commands the creation of such documents, but says the legislature
may not do this if it merely permits the creation of such
documents. Nothing in the statutes or the constitution suggests
such a distinction.6
As the majority notes, Wis. Stat. § 227.05 was not
6
challenged by the Plaintiffs; it was raised in the Governor's
motion for a temporary injunction. Therefore, the underlying
merits are not before us, only the motion for temporary injunction.
Rather than conduct an analysis under the rubric we have
established for reviewing temporary injunctions, the majority goes
right to the merits and decides the legal claim. The majority
could have determined the claim is likely to be successful, and
gone on to analyze the remaining factors. That is ordinarily how
a claim under this posture would be analyzed since the legal
question presented here relates only to the temporary injunction,
not to the legal claim in the case itself.
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No. 2019AP614-LV & 2019AP622.bh
III. CONCLUSION
¶212 I part ways with the majority not in the general
constitutional principles at stake, but in the majority's
erroneous interpretation of what guidance documents are under the
laws the legislature passed. The majority's criticisms and
constitutional conclusion all derive from this error. The
unfortunate result is that the court's decision undermines, rather
than protects, the separation of powers by removing power the
people gave to the legislature through their constitution. I would
have directed the circuit court to grant the motion to dismiss the
facial challenge to all the guidance document provisions
challenged here and vacated the order enjoining these provisions
in full.
¶213 I am authorized to state that Justice ANNETTE KINGSLAND
ZIEGLER joins this dissent.
I also observe that even if the circuit court appropriately
granted the temporary injunction, as the majority opinion
concludes, the Legislative Defendants should still be able to raise
their affirmative defenses on remand, including their claim that
the governor does not have standing to sue the legislature on this
question. The Legislative Defendants did not waive any opportunity
to brief that question in the circuit court on remand given the
question now before us relates only to the temporary injunction.
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