Over a year after hearing oral arguments, the Wisconsin Supreme Court issued its 144 page, 2-majority opinion in SEIU v. Vos effectively upholding the majority of 2017 Wis. Act 369 and Act 370, with the important exception of guidance documents.
In December 2018, the Wisconsin Legislature passed 2017 Wis. Act 369 and Act 370 (otherwise known as the lame-duck session laws) which, among other things, allowed the Wisconsin legislature to intervene in ongoing litigation and required procedure for administrative agencies issuing guidance documents.
SEIU challenged the lame-duck session laws as on their face unconstitutional violations of separation of powers. Justice Hagedorn, writing the first majority opinion, noted:
¶38 In a facial challenge…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.”
And because of the high bar to prove an on its face challenge, SEIU and other challengers lost on almost all grounds, including intervention:
¶63 [The Legislative Defendants] 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.
The new requirements for guidance documents represented the exception.
Justice Kelly introduced the second majority opinion by noting:
¶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 […] That’s an important place to start because right away it establishes that, unlike a rule, the executive branch needs no borrowed authority from the legislature to create a guidance document.
¶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.
Chief Justice Roggensack, Justice Dallet, and Justice Hagedorn all wrote dissents.