SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU), LOCAL 1 v. VOS
2019AP614-LV & 2019AP622
Supreme Court of Wisconsin
July 9, 2020
2020 WI 67
Frank D. Remington
REVIEW OF AN ORDER OF THE COURT OF APPEALS (2019 – unpublished)
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,
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.
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
STATE OF WISCONSIN : IN SUPREME COURT
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
¶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.
¶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.
¶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.
¶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
¶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, 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.
¶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
¶17 The Legislative Defendants responded with a motion to dismiss the entire complaint, arguing all challenged provisions were consistent with the
¶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
¶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
¶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
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 (
¶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
¶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 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
¶29 Our analysis begins in Part C with an overview of the separation of powers under the
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
¶31 The
¶32 While the separation of powers is easy to understand in theory, it carries with it not-insignificant complications. Notably, the
¶33 That said, these are exceptions to the default rule that legislative power is to be exercised by the legislative
¶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)).
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
¶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 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
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
¶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
¶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
¶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
¶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
¶51 Previously, the legislature had limited power to intervene in litigation. Now,
(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
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 .
¶54
¶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
¶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.
¶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.
¶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 (
¶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
¶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.
¶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
¶66 This language remains substantially the same today. See
¶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.
¶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
¶70 Other state legislatures appear to have this power as well under various circumstances. See
¶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
2. Capitol Security
¶74 The Plaintiffs also challenge the constitutionality of 2017 Wis. Act 369, § 16 (
This new provision requires DOA to notify JCLO of any proposed security changes.
¶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
¶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
3. Multiple Suspensions of Administrative Rules
¶78 The Plaintiffs also challenge 2017 Act 369, § 64 (
¶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.”
¶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
¶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
4. Agency Deference Provision
¶84 The Plaintiffs also challenge the constitutionality of 2017 Wis. Act 369, § 35 (
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
¶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
¶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.
¶89 “Guidance documents” are not conceptually new to administrative agencies, although they had no statutory definition until the Act created
(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 (
¶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:
2017 Wis. Act. 369, § 33 (
(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.
(2) An agency shall post each guidance document that the agency has adopted on the agency‘s Internet site and shall permit continuing public comment on the guidance document. The agency shall ensure that each guidance document that the agency has adopted remains on the agency‘s Internet site as provided in this subsection until the guidance document is no longer in effect, is no longer valid, or is superseded or until the agency otherwise rescinds its adoption of the guidance document.
(3) A guidance document does not have the force of law and does not provide the authority for implementing or enforcing a standard, requirement, or threshold, including as a term or condition of any license. An agency that proposes to rely on a guidance document to the detriment of a person in any proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the guidance document. An agency may not use a guidance document to foreclose consideration of any issue raised in the guidance document.
(4) If an agency proposes to act in any proceeding at variance with a position expressed in a guidance document, it shall provide a reasonable explanation for the variance. If an affected person in any proceeding may have relied reasonably on the agency‘s position, the explanation must include a reasonable justification for the agency‘s conclusion that the need for the variance outweighs the affected person‘s reliance interest.
(5) Persons that qualify under s. 227.12 to petition an agency to promulgate a rule may, as provided in s. 227.12, petition an agency to promulgate a rule in place of a guidance document.
(6) Any guidance document shall be signed by the secretary or head of the agency below the following certification: “I have reviewed this guidance document or proposed guidance document and I certify that it complies with sections 227.10 and 227.11 of the Wisconsin Statutes. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold that is not explicitly required or explicitly permitted by a statute or a rule that has been lawfully promulgated. I further certify that the guidance
document or proposed guidance document contains no standard, requirement, or threshold 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 (
¶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
¶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, 370 Wis. 2d 644, ¶20, 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
A. The Nature of Executive and Legislative Powers
¶95 It is common knowledge that the Wisconsin Constitution organizes our government in a tripartite structure. Goodland v. Zimmerman, 243 Wis. 459, 466-67, 10 N.W.2d 180 (1943) (“[G]overnmental powers are divided among the three departments of government, the legislative, the executive, and judicial[.]“). At the risk of oversimplification, the legislature‘s authority comprises the power to make the law,4 whereas the executive‘s authority consists of executing the law.5 The distinction between the two has been described as the difference between the power to prescribe and the power to put something into effect:
In 1792, Jacques Necker, the famous French statesman, neatly summed up the function and significance of the executive power. Of the function: “[I]f by a fiction we were for a moment to personify the legislative and the executive powers, the latter in speaking of the former might . . . say: All that this man has talked of, I will perform.” Of the significance: “The laws would in effect be nothing more than counsels, than so many maxims more or less sage, without this active and vigilant authority,
which assures their empire and transmits to the administration the motion of which it stands in need.”
Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 819 (2003) (quoted source omitted). This commentator concluded that, “[i]n the late-eighteenth century, someone vested with the executive power and christened as the chief executive enjoyed the power to control the execution of law.” Id.
¶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
¶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.
¶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 (
¶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 (
B. May the Legislature Regulate the Executive‘s Guidance Documents?
¶103 Because the executive branch has the native authority to create and disseminate guidance documents, we must next determine whether the legislature may nonetheless prescribe the content or method of disseminating such documents. The answer depends on whether the creation of guidance documents represents an exercise of the executive‘s core function, or merely a power shared with the legislature.
The separation of powers doctrine “envisions a system of separate branches sharing many powers while jealously guarding certain others, a system of ‘separateness but interdependence, autonomy but reciprocity.‘” State ex rel. Friedrich v. Circuit Court for Dane Cty., 192 Wis. 2d 1, 14, 531 N.W.2d 32 (1995) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). “The constitutional powers of each branch of government fall into two categories: exclusive powers and shared powers.” State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999). “Shared powers lie at the intersections of these exclusive core constitutional powers,” and “[t]hese ‘[g]reat borderlands of power’ are not exclusive to any one branch.” Id. at 643-44 (quoting Friedrich, 192 Wis. 2d at 14); see also State v. Holmes, 106 Wis. 2d 31, 42–43, 315 N.W.2d 703 (1982). Although the “branches may exercise [shared] power within these borderlands,” they “may [not]
unduly burden or 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
¶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,”
¶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
¶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
¶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
¶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
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.
¶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
¶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
¶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,
¶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
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
¶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.”
¶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 ”
¶125 To these errors Justice Hagedorn adds a metaphysical impossibility. He says the legislature can, and regularly does,
¶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
¶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
*
¶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.
¶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
¶131 This is a dangerous path the Chief Justice is pursuing. The
¶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:
[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
¶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
VI. CONCLUSION
¶135 We affirm the circuit court‘s judgment that
¶137 The executive‘s constitutional core power is to “take care that the laws be faithfully executed.”
¶138 In judicial proceedings, interpretation of the law is the constitutional core power of the courts.
¶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).
¶140
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
¶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“)
¶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).
¶146 I cannot ignore the history that led to the enactment of 2017 Wis. Act 369 simply because judicial review is available. Recently, we explained that judicial review is, by itself, an inadequate protection against the deprivation of the people‘s liberty. Wis. Legislature v. Palm, 2020 WI 42, ¶¶32–35, 391 Wis. 2d 497, 942 N.W.2d 900. As we explained, “[j]udicial review does not prevent oppressive conduct from initially occurring.” Id., ¶35. The legislature has a legitimate interest in providing effective procedural safeguards. Id. Justice Kelly should not be so quick to dismiss the history that led to the enactment of 2017 Wis. Act 369.
B. Agencies
¶147 While agencies are part of the executive branch once established, it is the legislature that creates agencies and grants them “power as is necessary to carry into effect the general legislative purpose.” Koschkee v. Taylor, 2019 WI 76, ¶12, 387 Wis. 2d 552, 929 N.W.2d 600. An administrative agency has only those powers as are expressly conferred by the statutory provisions under which it operates.3 State ex rel.
Castaneda v. Welch, 2007 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
¶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 ”
¶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]
¶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
¶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.
¶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 66, ¶2, 393 Wis. 2d 1, 946 N.W.2d 17.
¶155 Additionally, the legislature often interprets its own laws. In the case before us, members of the legislature would not have standing if the legislature had no power to interpret its laws. Yet Justice Kelly takes no issue with these members arguing before our court.
¶156 Justice Kelly also supports his legal conclusion with quotes from portions of Tetra Tech. For example, he says:
The executive must certainly interpret and apply the law; it would be impossible to perform his duties if
he did not. . . . Our constitution not only does not forbid this, it requires it.
Justice Kelly‘s majority op., ¶96 (citing Tetra Tech, 382 Wis. 2d 496, ¶53 (lead)). However, this paragraph of Tetra Tech was joined by only one justice in addition to Justice Kelly who wrote the provision; it does not represent the opinion of the court. Id., ¶3 n.4. Indeed, Justice Ziegler wrote a concurrence, which I joined, in part to respond to this portion of the lead opinion in Tetra Tech. Id., ¶141 & n.10 (Ziegler, J., concurring). She explained that “the power to interpret and apply the law” is a 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
[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 and 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.”
¶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 and 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.
¶164 I agree with the scope of the majority opinions1 and join several parts.2 I write separately, however, because the
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
¶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
¶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,
¶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 (
¶171 Similarly,
¶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
¶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
¶175 The other legislative power relied upon by the majority, the power of the purse, is found in the
¶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
¶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
¶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, 515-17 (1964) (applying overbreadth to evaluate a facial challenge to a statute
¶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
¶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.‘”
¶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
¶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
¶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.
¶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.
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.
¶193 The statute contains some clue as to the type of communications being envisioned: “a manual, handbook, directive, or informational bulletin.”
¶194 The guidance document provisions undoubtedly reach far and wide into agency operations. Agencies regularly create informational documents to inform the public regarding a given area of law. These communications do not themselves carry the force of law; rather they explain the agency‘s understanding and execution of the law to the public. The Plaintiffs and the Governor provided the following examples of guidance documents:
- A pamphlet issued by the Department of Public Instruction explaining how the department administers funding;
- A Department of Health Services guide about health insurance;
- A bulletin from the Division of Motor Vehicles about driver‘s license exams; and
Forms created by the Department of Children and Families explaining eligibility for child support.
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.
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
¶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.”
¶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
¶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,
¶200 In short, while the formal delineation of a category of executive branch communications called guidance documents are something new in state law, they are not new in kind. Here, the legislature 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
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.
¶201 The majority disagrees and concludes
¶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.
¶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
¶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.
¶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.
¶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
¶210 The two provisions the majority opinion strikes down should easily survive a facial challenge.
¶211 Similarly,
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
¶213 I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER joins this dissent.
Notes
(a) “Guidance document” means, except as provided in par. (b), any formal or official document or communication issued by an agency, including a manual, handbook, directive, or informational bulletin, that does any of the following:
1. Explains the agency‘s implementation of a statute or rule enforced or administered by the agency, including the current or proposed operating procedure of the agency.
2. Provides guidance or advice with respect to how the agency is likely to apply a statute or rule enforced or administered by the agency, if that guidance or advice is likely to apply to a class of persons similarly affected.
(b) “Guidance document” does not include any of the following:
1. A rule that has been promulgated and that is currently in effect or a proposed rule that is in the process of being promulgated.
2. A standard adopted, or a statement of policy or interpretation made, whether preliminary or final, in the decision of a contested case, in a private letter ruling under s. 73.035, or in an agency decision upon or 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).
All subsequent references to the Wisconsin Statutes are to the 2017-18 version.
- 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.
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). This court assumed jurisdiction over the Legislative Defendants’ interlocutory appeal on June 11, 2019, staying all circuit court proceedings the day before the first part of the bifurcated trial was set to commence. In the alternative, the Plaintiffs and the Governor assert that the guidance document provisions unduly burden and substantially interfere with the Governor‘s ability to faithfully execute the laws under a shared powers analysis. I conclude that all of the disputed guidance document provisions survive a facial challenge under both a core powers and shared powers analysis. But in light of the majority‘s decision, a separate analysis regarding shared powers is unnecessary.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[.]
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.
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
The Act also describes what a guidance document is not:
(b) “Guidance document” does not include any of the following:
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 (
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.
Chief Justice Roggensack suggests that this is a “change in the law[.]” See Chief Justice Roggensack‘s concurrence/dissent, ¶150. But she does not say what it is a change from. We have never said that the creative power to make a guidance document resides somewhere other than the executive branch, and the Chief Justice cites no authority suggesting we have. In other words, the facial remedy would be no broader 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.“).Pursuant to
(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
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
Sections 65 to 71 of the Act provide:
Section 65.
Section 66.
Section 67.
Section 68. 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 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. 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. 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.
2017 Wis. Act. 369, §§ 65-71 (amending
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
The department of justice shall:
. . . .
(1m) REPRESENT STATE IN OTHER MATTERS. If requested by the governor or either house of the legislature, appear for and represent the state, any state department, agency, official, employee or agent, whether required to appear as a party or witness in any civil or criminal matter, and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people of this state may be interested. The joint committee on legislative organization may intervene as permitted under
(Emphasis added.)
Justice Hagedorn apparently misses the import of these illustrations. He says: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 thecommittee notify the department that the committee has scheduled a meeting to review the department‘s proposal, the department may implement the proposed changes only upon approval of the committee. If there is a risk of imminent danger, the department may take any action related to security at the capitol that is necessary to prevent or mitigate the danger and the cochairpersons may review the action later if the cochairpersons determine review is necessary.