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

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(2019 – unpublished)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,
2
assistant 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
2
Nos. 2019AP614-LV & 2019AP622
enacted. And judicial power is the power to interpret and apply
the law to disputes between parties.
¶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.
3
Nos. 2019AP614-LV & 2019AP622
¶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 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.
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Nos. 2019AP614-LV & 2019AP622
¶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 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
5
Nos. 2019AP614-LV & 2019AP622
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 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.
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Nos. 2019AP614-LV & 2019AP622
¶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.
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
1The Plaintiffs are: Service Employees International Union
(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.
7
Nos. 2019AP614-LV & 2019AP622
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
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
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.
The Plaintiffs' motion was styled as a request for a
3
temporary restraining order; however, the circuit court, by
agreement of the parties, construed the motion as one for a
temporary injunction.
The Governor's motion was similarly titled a motion for a
4
temporary restraining order and construed as a motion for a
temporary injunction.
8
Nos. 2019AP614-LV & 2019AP622
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 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
5We 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.
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Nos. 2019AP614-LV & 2019AP622
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 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
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.
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
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 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
11
Nos. 2019AP614-LV & 2019AP622
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
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
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.
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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 so. 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,
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
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Nos. 2019AP614-LV & 2019AP622
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.
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
For
10 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
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 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
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Nos. 2019AP614-LV & 2019AP622
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 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
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Nos. 2019AP614-LV & 2019AP622
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." 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)).
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¶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 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
18
Nos. 2019AP614-LV & 2019AP622
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 that raises the risk of judicial overreach.12 Wash. State
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)).
12This 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
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:
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
20
Nos. 2019AP614-LV & 2019AP622
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
¶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
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.
21
Nos. 2019AP614-LV & 2019AP622
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 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
The United States Supreme Court has recognized the
14
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.
22
Nos. 2019AP614-LV & 2019AP622
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 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
23
 Nos. 2019AP614-LV & 2019AP622
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
24
Nos. 2019AP614-LV & 2019AP622
is, 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
Furthermore, the default rule in Wisconsin is that
15
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.").
25
Nos. 2019AP614-LV & 2019AP622
law authorized the attorney general to represent the State in
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.
26
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.
(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 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.
27
Nos. 2019AP614-LV & 2019AP622
¶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 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
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.
28
Nos. 2019AP614-LV & 2019AP622
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 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,
29
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
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.
"Legislative power, as distinguished from executive
19
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)).
30
Nos. 2019AP614-LV & 2019AP622
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 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,
31
Nos. 2019AP614-LV & 2019AP622
§ 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); 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
32
Nos. 2019AP614-LV & 2019AP622
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 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
33
Nos. 2019AP614-LV & 2019AP622
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 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
34
Nos. 2019AP614-LV & 2019AP622
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 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
20 Wisconsin Stat. § 165.25(1m) provides:
The department of justice shall:
. . . .
35
Nos. 2019AP614-LV & 2019AP622
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 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.
(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.)
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Nos. 2019AP614-LV & 2019AP622
¶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 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)
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Nos. 2019AP614-LV & 2019AP622
(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 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
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Nos. 2019AP614-LV & 2019AP622
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 applied under
any circumstances, the motion to dismiss the Plaintiffs' facial
challenge should have been granted.22
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).
As explained above, the attorney general's litigation
22
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.
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¶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 provision, Wis. Stat. § 16.84(2m), which was not
23
enjoined by the circuit court, states as follows:
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
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Nos. 2019AP614-LV & 2019AP622
This new 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 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.
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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Nos. 2019AP614-LV & 2019AP622
¶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.
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
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Nos. 2019AP614-LV & 2019AP622
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 delegate rule-making
authority to an agency while retaining the right to review any
This new paragraph states:
24 "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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Nos. 2019AP614-LV & 2019AP622
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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Nos. 2019AP614-LV & 2019AP622
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
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Nos. 2019AP614-LV & 2019AP622
opinion for the court. With respect to the issues addressed in
this opinion, we conclude as follows.
¶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
Specifically, we reverse the circuit court's order
25
denying 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 to
27
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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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 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
4
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document or proposed guidance document contains no
standard, requirement, or threshold 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
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.
5
Nos. 2019AP614-LV & 2019AP622.dk
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
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
6
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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.
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,
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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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.
¶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 . . . .").
8
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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 branch.").8 This understanding is not
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).
8 This is also apparent from the fact that the governor
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.").
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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 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
9See, e.g., Town of Walkerton v. New York, C. & St. L. R.
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.").
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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 extent it exists, it comes solely
through express delegation from the legislature. Because this
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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,
requirement, or threshold, including as a term or condition of
any license." 2017 Wis. Act. 369, § 38 (Wis. Stat.
"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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§ 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
Koschkee v. Taylor, 2019 WI 76, ¶18, 387 Wis. 2d 552, 929
11
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:
(b) "Guidance document" does not include any of the
following:
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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 branch of government has even the
13State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
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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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]
14Chief 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.
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unduly burden or 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
15 The 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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guidance documents fall somewhere in the realm of shared powers,
the legislature would conceivably retain some claim of right to
govern 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
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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, ¶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
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legislature. Capturing the executive's ability to communicate
his knowledge, intentions, and understanding of the laws he is
to execute makes him a drone 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
The problem is especially acute because this regulation
16
on 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.
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association with §§ 33 and 38. As we now explain, the
plaintiffs have not established that these remaining provisions
"cannot be 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
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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 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
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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 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
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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
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.
2017 Wis. Act. 369, §§ 65-71 (amending Wis. Stat. § 227.40).
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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
¶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.
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¶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 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
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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 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
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Nos. 2019AP614-LV & 2019AP622.dk
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 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,
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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Nos. 2019AP614-LV & 2019AP622.dk
¶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 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
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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 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
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Nos. 2019AP614-LV & 2019AP622.dk
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 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
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Nos. 2019AP614-LV & 2019AP622.dk
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. 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."
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Nos. 2019AP614-LV & 2019AP622.dk
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 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,
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Nos. 2019AP614-LV & 2019AP622.dk
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 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
Another epistemological error shows up in Justice
19
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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Nos. 2019AP614-LV & 2019AP622.dk
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 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
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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 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
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Nos. 2019AP614-LV & 2019AP622.dk
[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 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
Justice Hagedorn apparently misses the import of these
20
illustrations. He says:
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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
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.
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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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.
("[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
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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 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
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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:
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:
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[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 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
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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 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
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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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
¶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
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government. However, we reverse the circuit court's judgment
with respect to 2017 Wis. Act 369, §§ 31, 65-71, 104-05.
45
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¶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
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court, it is the court's interpretation that prevails, not the
executive's. State 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
Sections 104–05 address
1 the initial applicability and
effective date of § 33.
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being enforced objects to enforcement. Newcap, Inc. v. DHS,
2018 WI App 40, ¶3, 383 Wis. 2d 515, 916 N.W.2d 173.
¶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")
4
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(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-
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).
Hale Melnick, Comment, Guidance Documents and Rules:
2
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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¶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 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.
2011 Wis. Act 21 affected the authority of agencies by
3
imposing an "explicit authority requirement" on agency
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Castaneda v. Welch, 2007 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
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
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).
7
No. 2019AP614-LV & 2019AP622.pdr
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 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]
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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
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
9
No. 2019AP614-LV & 2019AP622.pdr
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
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.
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¶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 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
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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 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
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No. 2019AP614-LV & 2019AP622.pdr
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 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.
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¶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 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
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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No. 2019AP614-LV & 2019AP622.rfd
complaint 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
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.
3This 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.
4A 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).
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No. 2019AP614-LV & 2019AP622.rfd
to us after newly filed lawsuits result in the very development
that this court's 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
See, e.g., Richard A. Posner, The Federal Courts: Crisis
5
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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No. 2019AP614-LV & 2019AP622.rfd
United 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,
6 The "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).
4
No. 2019AP614-LV & 2019AP622.rfd
643, 594 N.W.2d 772 (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-
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
No. 2019AP614-LV & 2019AP622.rfd
powers doctrine because they effectively eliminate executive
power 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
6
No. 2019AP614-LV & 2019AP622.rfd
approval, if the committee chooses to meet. And if the plan
"concedes the unconstitutionality 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
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
executive branch's function. Instead, the majority mechanically
applies a strict review standard for facial challenges and
concludes that the Plaintiffs' 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
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
United States Constitution, does not contemplate an active role
for the legislature in executing or in supervising the executive
officers 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
I do not contest that the legislature's institutional
11
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
interest to any constitutional text. This is fatal to its
argument because a separation-of-powers analysis begins and ends
with the Wisconsin Constitution.
¶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.
In fact, the Wisconsin legislature's constitutional
12
"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
B
¶176 Even assuming the power of the purse gives the
legislature a share of the power to resolve litigation, I do not
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
11
No. 2019AP614-LV & 2019AP622.rfd
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.").
¶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
12
No. 2019AP614-LV & 2019AP622.rfd
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 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
At
13 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
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 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
14
No. 2019AP614-LV & 2019AP622.rfd
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 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.'"
In other words, the facial remedy would be no broader
14
than 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.").
Incremental
15 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.
15
No. 2019AP614-LV & 2019AP622.rfd
(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; 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
This conclusion might be true in all shared-powers
16
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.
16
No. 2019AP614-LV & 2019AP622.rfd
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. 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
17
No. 2019AP614-LV & 2019AP622.rfd
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.
¶189 I am authorized to state that Justice ANN WALSH
BRADLEY joins this concurrence/dissent.
18
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.
1
No. 2019AP614-LV & 2019AP622.bh
Guidance documents regulate executive branch communications with
the public——a 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 that guidance documents
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
No. 2019AP614-LV & 2019AP622.bh
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
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).
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
likely to apply to a class of persons similarly affected.
§ 227.01(3m)(a).
¶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
4
No. 2019AP614-LV & 2019AP622.bh
 Forms created by the Department of Children and
Families explaining eligibility for child support.
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
2Wisconsin Stat. § 227.112 is cited in full in paragraph 90
of Justice Kelly's majority opinion.
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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, 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
3In 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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its function of determining what the law should be by passing
laws pursuant to its constitutional authority. Wis. Const. art.
IV, § 1, § 17; Koschkee 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
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mandated reports regarding what the executive branch is doing
and plans to do are found throughout Wisconsin law.4
¶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
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.
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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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 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.
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¶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," 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
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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.
¶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.
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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¶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. § 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
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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 "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
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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 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
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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
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
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.
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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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.
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