In SEIU Local 1 v. Vos (2020 WI 67) the Wisconsin Supreme Court upheld provisions from 2017 Wis. Act 369 and 2017 Wis. Act 370 (including legislative involvement in litigation, legislative review of proposed changes to security in the capitol, temporary suspension of administrative rules, and the codification of the non-deference doctrine from Tetra Tech v. DOR, 2018 WI 75) as facially constitutional, with the exception of sections that attempted to give legislative control of guidance documents, which was found to be unconstitutional.
After the 2018 election, and prior to the change in governor, the Wisconsin legislature passed 2017 Wis. Act 369 and 2017 Wis. Act 370. These bills limited the powers of the Attorney General, as well as administrative agencies, while giving the legislature more oversight over both. The bills were signed into law by Governor Walker and were challenged as facially unconstitutional.
This was a unique decision, as it had two separate majority opinions; one written by Justice Hagedorn, and the other by Justice Kelly. Justice Hagedorn’s opinion upheld the facial constitutionality of all the provisions that were properly challenged and briefed. It is important to note that the challenge to the statutes were facial only, which means that SEIU was responsible for showing that these statutes have no possible, legitimate constitutional application. This is a hard burden to meet, and as such the challenge to the statutes all failed with one exception.
Justice Kelly’s opinion struck down one portion of the statutes as unconstitutional. Focusing on the separation of powers, Justice Kelly found the Legislature’s attempt to regulate guidance documents from administrative agencies was a violation of the separation of powers. Justice Kelly makes clear that guidance documents have absolutely no force of law behind them, and therefore are only the executive’s thoughts about particular laws or applications of the law. Because they are simply “thoughts” with no power behind them, it violates separation of powers for the legislature to attempt to regulate the thoughts of the executive.
Concurrences and Dissents
As stated before, this was a unique decision. Hagedorn’s opinion was joined unanimously in small part, with the rest of his opinion joined by Roggensack, Ziegler, Rebecca Bradley, and Kelly, with Ann Walsh Bradley and Dallet dissenting. Kelly’s opinion was joined by Ann Walsh Bradley, Rebecca Bradley, and Dallet, with Roggensack and Hagedorn dissenting. Ann Walsh Bradley and Dallet would have held most all of the statutes as unconstitutional. While both Hagedorn and Roggensack took issue with Kelly’s finding of guidance documents as solely within the power of the executive.