July 9, 2020 – After former Gov. Scott Walker’s 2018 election defeat, the legislature enacted – and Gov. Walker signed – two major laws impacting the power and authority of the legislative and executive branches. Today, the state supreme court largely upheld them.

Several labor organizations and individual taxpayers facially challenged 2017 Wisconsin Act 369 and 2017 Wisconsin Act 370, which require legislative approval of settlements by the attorney general and limits rulemaking authority, among many other provisions.

Today, in SEIU v. Vos, 2020 WI 67, the Wisconsin Supreme Court issued two majority opinions, with concurrences and dissents filed, but ultimately ruled that the plaintiffs “have not met their high burden to demonstrate that the challenged provisions are unconstitutional in all of their applications” and each can be lawfully enforced.

However, a separate majority (4-3) struck down provisions that regulate publication of formal “guidance documents” by state administrative agencies to guide the public.

The Dane County Circuit Court had blocked enforcement of some of the provisions pending appeal, but the supreme court blocked the temporary injunction.

Lame Duck Litigation

Last summer, the supreme court (4-3) rejected a claim that the extraordinary session in which the legislature enacted the laws now at issue was unconstitutionally convened.

Now the supreme court – with different votes on different provisions – largely rejected facial challenges to the law itself, including a provision granting the legislature more power over attorney general Josh Kaul, who also won election in November 2018.

The plaintiffs alleged that the package of bills enacted before the governorship changed hands were “designed to strip the incoming Governor of his authority and hand the Legislature unprecedented power over traditional executive functions.”

The legislative defendants, including Assembly Speaker Robin Vos and Senate President Scott Fitzgerald, moved to dismiss the entire complaint, arguing the legislature had the power to place checks on the attorney general and state agencies.

Defendants said the challenge was unprecedented and meritless: “While Plaintiffs seek facial invalidation of dozens of statutory provisions, they are unable to cite any decision in this Court’s history ever overturning even one provision under any of their theories.”

A majority (5-2) concluded that the motion to dismiss facial challenges to the laws should have been granted but the decision does not bar future as-applied challenges.

“We stress that we pass no judgment on the constitutionality of individual applications or categories of applications of these laws,” Justice Brian Hagedorn wrote.

“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.”

Legislative Involvement in Litigation

A majority (5-2) upheld a provision that gives the legislature or legislative committees the power to participate in litigation involving the state. Previously, only the attorney general managed litigation to represent and settle cases in the state’s best interest.

The new law also allows the legislature to intervene as a party in state or federal court when a party challenges a state statute or agues a statute is preempted federal law. It also requires the attorney general to obtain legislative approval to settle cases.

The plaintiffs argued that these provisions violate the separation of powers because the executive branch, through the state justice department, enforces the law.

But the legislative defendants argued that the attorney general’s powers are statutorily granted and the legislature can modify those powers anytime.

The majority agreed that the legislature may give and take power from the attorney general but disagreed that the legislature can participate in executive functions.

The majority noted the “attorney general is assuredly a member of the executive branch whose duties consist in executing the law” and the constitution “plainly acknowledges officers other than the governor who may permissibly deploy executive power.”

However, the legislative defendants won on a second argument: that litigation involving the state is not always the exclusive zone of executive authority.

“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,” Justice Hagedorn wrote.

“The takeaway is that the constitution gives the legislature the general power to spend the state's money by enacting laws,” Hagedorn continued.

“[W]here 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 majority also ruled that 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.”

Suspensions of Administrative Rules

The court unanimously upheld a provision that allows a legislative committee to suspend rules issued by executive branch agencies multiple times but noted that “an endless suspension of rules” without enacting a legislative bill “could not stand.”

“Under the new legislative changes, the legislature may impose the temporary three-month suspension addressed in Martinez multiple times,” wrote Justice Hagedorn, referring to Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 (1992).

“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.”

Capitol Security

The court unanimously upheld the constitutionality of a provision that grants the Joint Committee of Legislative Organization the authority to review and approve any changes to security at the State Capitol by the Department of Administration.

“We conclude that control of at least legislative space in the Capitol is a shared power between the legislature and executive branches,” Justice Hagedorn wrote.

“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.”

Agency Deference

The court unanimously upheld the constitutionality of a provision that says “no agency may seek deference in any proceeding based on the agency’s interpretation of the law,” which codifies a 2018 state supreme court decision, Tetra Tech EC, Inc. v. DOR.

“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,” Justice Hagedorn wrote.

Guidance Documents

Justice Daniel Kelly wrote a separate majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Bradley, and Justice Rebecca Dallet.

The majority struck down a provision that prohibits the executive branch “from communicating with the public through the issuance of guidance documents without first going through a preclearance process and including legislatively-mandated content.”

Justice Kelly’s majority opinion concluded that this provision “invaded the executive branch's exclusive province to ‘take care that the laws be faithfully executed.’”

“Guidance documents,” defined by the new law, are formal or official documents or communications issued by an agency that “explains the agency's implementation of a statute or rule enforced or administered by the agency” or “provides guidance or advice with respect to how the agency is likely to apply a statute or rule enforced or administered by the agency.” The new law regulated these guidance documents.

First, it legislatively requires administrative agencies to identify existing law that supports a guidance document's contents. Second, it legislatively describes the procedure an administrative agency must follow when creating a guidance document.

Those provisions are problematic, Justice Kelly wrote, “because they insert the legislature as a gatekeeper between the analytical predicate to the execution of the laws and the actual execution itself.”

“If the legislature can regulate the necessary predicate to executing the law, then the legislature can control the execution of the law itself,” Kelly continued. “Such power would demote the executive branch to a wholly-owned subsidiary of the legislature.”

The majority stuck down those provisions relating to documents but upheld others, including the definition of “guidance document,” judicial review of guidance documents, and initial applicability and effective date of provisions relating to guidance documents.

Concurrences and Dissents

Chief Justice Patience Roggensack concurred with Justice Hagedorn’s majority opinion but dissented to Justice Kelly’s opinion on guidance documents, concluding the regulation of guidance documents “does not invade the executive’s core powers.”

“Outside of court proceedings, interpreting the law remains a shared function,” the chief justice wrote. “Although the executive interprets laws, such interpretation does not convert a shared power into a constitutional core power of the executive.”

Justice Hagedorn also dissented, joined by Justice Annette Ziegler, with regard to guidance documents.

“Guidance documents regulate executive branch communications with the public – a permissible and longstanding area of legislative regulation,” he wrote. “I would hold that all of the guidance document provisions survive a facial challenge.”

Justice Rebecca Dallet concurred in part and dissented in part, joined by Justice A.W. Bradley, arguing that the legislature’s “litigation control” provisions that grant legislative power concerning litigation implicates the separation of powers.

“[T]he Litigation Control provisions make legislative officials the final arbiters over the attorney general's discretionary authority to resolve state-related litigation,” she wrote.

“The majority's conception of the legislature's ‘institutional interest as a represented party’ … 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. The Wisconsin Constitution, like 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.”

Justice Dallet also noted that the case was “snatched from the circuit court” too soon, meaning future litigation is likely on undeveloped or unresolved claims.