In 2018, Wisconsin Governor Scott Walker and Attorney General Brad Schimel were unseated in the midterm elections by their Democratic opponents, while the Republicans in the legislature maintained full control of both the assembly and senate. A month after the 2018 gubernatorial and attorney general elections, the Republican-controlled legislature enacted three bills during an extraordinary session limiting the powers of incoming Democratic Governor Tony Evers and Attorney General Josh Kaul. The bills were signed into law by outgoing Governor Scott Walker just weeks before he left office.
The bills became 2017 Wisconsin Acts 368, 369, and 370. The new laws made numerous changes to Wisconsin’s Administrative Procedure Act as well as laws governing interactions among the legislature, governor, and attorney general.
In response, several labor unions, political interest groups, and individual taxpayers (including the state senate assistant minority leader) filed a series of lawsuits in state and federal courts arguing the laws facially violated the Wisconsin Constitution’s separation of powers. On July 9, 2020, the Wisconsin Supreme Court issued its long-awaited decision. Instead of issuing one decision, the court issued two: the first upholding the majority of the laws limiting the powers of the governor and attorney general, and a second which struck down a portion of the laws that regulating state agency guidance documents.
Justice Brian Hagedorn wrote the majority opinion on all issues except for the Act 369 provisions concerning guidance documents. Justice Hagedorn’s opinion was joined by Chief Justice Patience D. Roggensack, and Justices Annette Ziegler, Rebecca Bradley, and Daniel Kelly. Justice Kelly wrote the majority opinion regarding the guidance document provisions. His opinion was joined by Justices R. Bradley, Ann Walsh Bradley, and Rebecca Dallet. Chief Justice Roggensack authored a separate opinion criticizing the court’s decision on the guidance documents issue. Justice Hagedorn, joined by Justice Ziegler also filed a dissenting opinion. Justice Kelly wrote an entire section in his majority decision addressing the significant criticisms contained in the dissenting opinions.
Given the breadth of the new laws and the court’s decision, this article focuses on those portions of the decision that dealt with the most noteworthy statutes.
II. Summary of Extraordinary Session Laws Limiting the Governor and Attorney General Powers
The 2018 extraordinary session laws were meant to provide the legislature more oversight authority of the governor and attorney general. Below is a summary of the main provisions of the laws that were challenged in court:
- Suspension of Administrative Rules – Prior to the passage of Act 369, the Joint Committee for Review of Administrative Rules (JCRAR) could suspend an administrative rule for up to a single legislative session. The legislature could then pass a bill to make the suspension permanent. If the legislation was not enacted, then the rule would come back into effect and JCRAR could not suspend it again. Act 369 changed this procedure to allow JCRAR to suspend a rule multiple times prior to legislation being passed. This in effect gave JCRAR the authority to indefinitely strike down a proposed administrative rule rather than requiring the full legislature to vote to strike down the rule.
- Agency Deference – Act 369 codified the Wisconsin Supreme Court’s ruling in Tetra Tech EC Inc. v. Wisconsin Department of Revenue, which held that Wisconsin courts must not accord any deference to a state agency’s interpretation of law.
- Guidance Documents – Wisconsin administrative agencies routinely provide plain language explanations of statutes and administrative rules. However, some assert that guidance documents might contain standards or requirements that are found nowhere in statute or rule, essentially creating new law. In Act 369, the legislature defined a “guidance document” and created a series of protections against agency attempts to use guidance documents to avoid rulemaking. These protections include requirements that agencies cite to statutory and regulatory authorities discussed in the document, make these documents publicly available, allow public comment periods, and permit private parties to petition an agency to promulgate a rule instead of issuing a guidance document.
- Legislative Intervention – Act 369 gave the legislature, through the Joint Committee on Legislative Organization, authority to intervene in any lawsuit challenging the validity of a state statute.
- Attorney General’s Settlement Authority – Prior to Act 369, the attorney general had the authority to compromise or discontinue any civil action on behalf of the state of Wisconsin, provided the governor approved the action. Act 369 provided the legislature with oversight over both of these functions, requiring legislative, instead of gubernatorial, approval to compromise or discontinue a civil action. Specifically, in order to compromise or discontinue a case, the attorney general must now submit a proposed plan to the Joint Finance Committee for its approval.
Further, the attorney general cannot submit a settlement agreement for approval to the Joint Finance Committee in which the unconstitutionality or invalidity of a state statute is conceded without the approval of the Joint Committee on Legislative Organization.
III. The Court’s Decision – Separation of Powers
The plaintiffs facially challenged the constitutionality of the provisions described above in Acts 369 and 370. They alleged the statutes violated the separation of powers doctrine.
In its opinion, the court explained that when the Wisconsin Constitution was adopted in 1848, government power was divided among three separate branches, each “vested” with a specific core government power. The court noted that “[w]hile separation of powers is easy to understand in theory, it carries with it not-insignificant complications.” The court further explained the Wisconsin Constitution “sometimes takes portions of one kind of power and gives it to another branch.” As a result, determining “where the functions of one branch end and those of another begin” is not always clear.
According to the court, a “separation of powers analysis begins by determining if the power in question is core or shared,” with core powers being those powers that are “conferred to a single branch by the constitution.” If a power is “core,” “no other branch may take it up and use it as its own.” Shared powers, on the other hand, are those that “lie at the intersections of these exclusive constitutional powers.” The three branches of government “may exercise power within the borderlands but no branch may unduly burden or substantially interfere with another branch.” Using this legal framework, the court addressed the various laws passed by the legislature to determine whether they “unduly burdened” or “substantially interfered” with the core powers of executive branch, and thus violated the separation of powers doctrine.
A. Decision Upholding Laws Limiting Governor and Attorney General Powers
1. Legislative Involvement in Litigation
The court addressed the legislature’s authority to involve itself in litigation through both intervention and approval authority over the settling or discontinuing of cases involving either revenues deposited in the treasury or the validity of a statute. The court noted that while the attorney general is an executive officer, and the Wisconsin Department of Justice is an agency created by the legislature residing in the executive branch, the Wisconsin Constitution gives the legislature the authority to proscribe the powers of the attorney general.
The court discussed the history of the legislature carrying out certain powers alongside the attorney general, namely engaging in litigation. The legislature did so in its first ever legislative session in 1848, giving the attorney general the power to represent the state in cases where the state is a party or may have an interest when required by the governor or either house of the legislature. According to the court, the attorney general’s ability to engage in litigation is not always a core executive function because of the legislature’s institutional interest in various types of cases, especially those involving revenue and statutes passed by the legislature. The court determined that these interests were sufficient to defeat the facial challenges regarding legislative intervention and the ability to review settlements and discontinuances of certain cases.
2. Suspension of Administrative Rules
The legislature delegates a portion of its legislative power to administrative agencies by allowing them to make rules. These delegations are subject to procedural constraints contained in Wisconsin’s Administrative Procedure Act. One such constraint is JCRAR’s authority to temporarily suspend a rule a single time, which was created in 1985 and subsequently upheld by the state supreme court in Martinez v. DIHLR.
In upholding the constitutionality of the law empowering JCRAR to suspend a rule multiple times, the court explained that no party raised constitutional concerns with the holding or underlying principles in Martinez, which held that one three-month suspension was constitutionally permissible because of the safeguards put in place and the need for bicameralism and presentment to permanently suspend a rule. Here, the court held that if one three-month suspension is permissible, then surely a second suspension is permissible as well because, like in Martinez, the suspension would be temporary.
3. Agency Deference
The court disposed of the plaintiffs’ challenge to the constitutionality of Act 369’s codification of the court’s holding in Tetra Tech in a few short sentences noting, “[g]iven 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.”
B. Decision Striking Down Agency Guidance Document Provisions
Justice Kelly, joined by Justices R. Bradley, A. Bradley, and Dallet, wrote the majority opinion striking down most of Act 369’s guidance document provisions as a facially unconstitutional infringement on core executive branch powers. According to the court, the executive branch’s authority to execute the law “encompasses determining what the law requires as well as applying it.” The majority went on to find that guidance documents are not the law and do not have the force or effect of law and that therefore the executive branch has authority to issue guidance documents.
After determining that the creation of guidance documents is an executive power, the court next considered whether creation of guidance documents is a “core” executive power or a power “shared” with the legislature. The court determined it is a core executive power because (1) it is created by executive branch employees with executive branch authority, (2) it requires no legislative authority or personnel involvement, and (3) it does not affect what the law is, create policy or standards, or bind anyone or anything. In other words, a guidance document is simply the executive saying what the law requires prior to executing it.
Chief Justice Roggensack and Justices Hagedorn and Ziegler, in two different dissenting opinions, disagreed that the creation of guidance documents is a core executive power and that they do not, in practice, have the force of law. Chief Justice Roggensack’s dissent argued that while the execution of laws is a core executive power, the power to interpret laws is not, but is instead shared across all three branches of government. Interpretations of law, outside of court proceedings, are a shared constitutional function. The Chief Justice further stated that guidance documents historically have been used by administrative agencies to circumvent rulemaking. She explained that administrative agencies use guidance documents to avoid the procedural guardrails the legislature put on their delegations of legislative power. Additionally, the Chief Justice argued that the legislature has a legitimate interest in providing these safeguards and that “Justice Kelly should not be so quick to dismiss the history that led to the enactment of [Act 369].”
Justice Hagedorn, joined by Justice Zeigler, agreed with the Chief Justice that the creation of guidance documents is a shared power. Justice Hagedorn further argued that the legislature has long regulated the creation of certain executive branch communications on the law and that regulating the manner in which guidance documents are created does not regulate how the executive branch interprets the law but how that interpretation is documented. According to Justice Hagedorn:
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.
Rather than protect the separation of powers, Justice Hagedorn argued, the majority’s opinion undermines it “by removing power the people gave to the legislature through their constitution.”
In SEIU, the Wisconsin Supreme Court continued its trend of upholding laws increasing legislative oversight of administrative agencies and legislative interaction with the executive branch. The court found that the legislature has a legitimate role in conducting and settling litigation that affects its institutional interests, the authority to temporarily suspend administrative rules, and the warrant to forbid judicial deference to agency interpretations. Even in striking down the legislature’s attempt to exert control over the publication of guidance documents, the court held that guidance documents do not have “the force or effect of law,” further reinforcing past decisions that agencies can only create law through rulemaking, a process heavily influenced by the legislature. While several minor contested provisions of the laws were not addressed by the court and remanded to the circuit court, this decision effectively ends the “extraordinary session” litigation that has been before Wisconsin courts for the past two and a half years.
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 Ch. 227, Wis. Stats.
 Service Employees Int’l Union (SEIU) v. Vos, 2020 WI 67 (2020).
 Justice Kelly was subsequently defeated in his election and replaced on the bench by Justice Jill Karofsky.
 Wis. Stat. § 227.26(2)(im).
 Wis. Stat. § 227.10(2)(g) (codifying Tetra Tech EC Inc. v. Wisconsin Dep’t of Revenue, [citation]).
 Wis. Stat. § 227.01(3m).
 Wis. Stat. § 227.112.
 Wis. Stat. § 165.25(1m).
 Wis. Stat. §§ 165.08(1); 165.25(6)(a)1.
 Wis. Stat. §§ 165.08(1); 165.25(6)(a)1.
 A facial challenge is when a party seeks to strike down a law in its entirety as compared to an as-applied challenge which seeks to strike down a law “as applied to a given party or set of circumstances.” SEIU, 2020 WI at ¶ 4. The threshold for striking down a law in its entirety is high, as a party must show that “every single application of a challenged provision is unconstitutional.” Id.
 Id. at ¶ 31. See Wis. Const. art. IV, § 1 (“The legislative power shall be vested in a senate and assembly.”); id. art. V, § 1 (“The executive power shall be vested in a governor.”); id. art. VII, § 2 (“The judicial power of this state shall be vested in a unified court system.”).
 SEIU, 2020 WI at ¶ 32.
 Id. at ¶ 32.
 Id. at ¶ 34.
 Id. at ¶ 35.
 Id. at ¶¶ 57-62.
 Id. at ¶ 63.
 Id. at ¶ 65.
 Id. at ¶¶ 67-71.
 Martinez v. DIHLR, 165 Wis. 2d 687, 699-700, 478 N.W.2d 582 (Wis. 1992).
 SEIU, 2020 WI at ¶ 82.
 Id. at ¶ 84.
 Id. at ¶ 88 (The court did not strike down the provisions that defined guidance documents and judicial review of guidance documents. Wis. Stat. §§ 227.01(3m), 227.40.).
 Id. at ¶ 99.
 Id. at ¶ 105.
 Id. at ¶¶ 96-97.
 Id. at ¶ 139 (citing Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶¶ 140-41, 382 Wis. 2d 496, 914 N.W.2d 21 (Ziegler, J., concurring)).
 Id. at ¶¶ 142-43 (citing Andrew C. Cook, Extraordinary Session Laws: New Limits on Governor and Attorney General, 92 Wis. Law. 26, 27 (2019)).
 Id. at ¶¶ 144-47.
 Id. at ¶ 145.
 Id. at ¶¶ 201-06.
 Id. at ¶ 204.
 Id. at ¶ 212.