2020 WI 67

SUPREME COURT OF WISCONSIN

CASE NO.: 2019AP614-LV & 2019AP622

COMPLETE TITLE: Service Employees International Union (SEIU), 

Local 1, 

SEIU Healthcare Wisconsin, Milwaukee Area 

Service and 

Hospitality Workers, AFT-Wisconsin, Wisconsin 

Federation 

of Nurses and Health Professionals, Ramon 

Argandona, Peter 

Rickman, Amicar Zapata, Kim Kohlhaas, Jeffrey 

Myers, 

Andrew Felt, Candice Owley, Connie Smith and 

Janet Bewley,

 Plaintiffs-Respondents,

 v.

Robin Vos, in his official capacity as Wisconsin 

Assembly 

Speaker, Roger Roth, in his official capacity as 

Wisconsin 

Senate President, Jim Steineke, in his official 

capacity 

as Wisconsin Assembly Majority Leader and Scott 

Fitzgerald, in his official capacity as 

Wisconsin Senate 

Majority Leader,

 Defendants-Appellants,

Josh Kaul, in his official capacity as Attorney 

General of 

the State of Wisconsin and Tony Evers, in his 

official 

capacity as Governor of the State of Wisconsin,

 Defendants-Respondents.

REVIEW OF AN ORDER OF THE COURT OF APPEALS

(2019 – unpublished)

OPINION FILED: July 9, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 18, 2020 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dane 

JUDGE: Frank D. Remington 
2

JUSTICES:

The opinion of the court is being announced in two writings. 

HAGEDORN, J., delivered a majority opinion of the Court 

addressing all issues other than the provisions of 2017 Wis. Act 

369 concerning guidance documents. This is a majority opinion 

of the Court with respect to Part II.E.2.-4., in which all 

Justices joined; and a majority opinion of the Court with 

respect to Parts I, II.A.-D., II.E.1., and III, in which 

ROGGENSACK, C.J., ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, 

JJ., joined. KELLY, J., delivered a majority opinion of the 

Court with respect to the provisions of 2017 Wis. Act 369 

concerning guidance documents, in which ANN WALSH BRADLEY, 

REBECCA GRASSL BRADLEY, and DALLET, JJ., joined. ROGGENSACK, 

C.J., filed an opinion concurring in part and dissenting in 

part. DALLET, J., filed an opinion concurring in part and 

dissenting in part, in which ANN WALSH BRADLEY, J., joined. 

HAGEDORN, J., filed an opinion concurring in part and dissenting 

in part, in which ZIEGLER, J., joined.

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, assistant 
3

attorney general and Colin T. Roth, assistant attorney general. 

There was an oral argument by Joshua L. Kaul and Lester A. Pines.

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.
2020 WI 67

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2019AP614-LV & 2019AP622

(L.C. No. 2019CV302)

STATE OF WISCONSIN : IN SUPREME COURT

Service Employees International Union (SEIU), 

Local 1, SEIU Healthcare Wisconsin, Milwaukee 

Area Service and Hospitality Workers, AFTWisconsin, Wisconsin Federation of Nurses and 

Health Professionals, Ramon Argandona, Peter 

Rickman, Amicar Zapata, Kim Kohlhaas, Jeffrey 

Myers, Andrew Felt, Candice Owley, Connie Smith 

and Janet Bewley,

 Plaintiffs-Respondents,

 v.

Robin Vos, in his official capacity as 

Wisconsin Assembly Speaker, Roger Roth, in his 

official capacity as Wisconsin Senate 

President, Jim Steineke, in his official 

capacity as Wisconsin Assembly Majority Leader 

and Scott Fitzgerald, in his official capacity 

as Wisconsin Senate Majority Leader,

 Defendants-Appellants,

Josh Kaul, in his official capacity as Attorney 

General of the State of Wisconsin and Tony 

Evers, in his official capacity as Governor of

the State of Wisconsin,

 Defendants-Respondents.

FILED

JUL 9, 2020

Sheila T. Reiff

Clerk of Supreme Court

The opinion of the court is being announced in two writings. 

HAGEDORN, J., delivered a majority opinion of the Court addressing 
2

all issues other than the provisions of 2017 Wis. Act 369 

concerning guidance documents. This is a majority opinion of the 

Court with respect to Part II.E.2.-4., in which all Justices 

joined; and a majority opinion of the Court with respect to Parts 

I, II.A.-D., II.E.1., and III, in which ROGGENSACK, C.J., ZIEGLER, 

REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. KELLY, J., 

delivered a majority opinion of the Court with respect to the 

provisions of 2017 Wis. Act 369 concerning guidance documents, in 

which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ., 

joined. ROGGENSACK, C.J., filed an opinion concurring in part and 

dissenting in part. DALLET, J., filed an opinion concurring in 

part and dissenting in part, in which ANN WALSH BRADLEY, J., 

joined. HAGEDORN, J., filed an opinion concurring in part and 

dissenting in part, in which ZIEGLER, J., joined.

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 Wisconsin Constitution is the authorizing charter for 

government power in Wisconsin. And that document describes three—

—and only three——types of government power: legislative, 

executive, and judicial. See Wis. Const. art. IV, § 1; id. art. 

V, § 1; id. art. VII, § 2. Legislative power is the power to make 

the law, to decide what the law should be. Executive power is 

power to execute or enforce the law as enacted. And judicial power 

is the power to interpret and apply the law to disputes between 

parties.
Nos. 2019AP614-LV & 2019AP622

3

¶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. Id. art. IV, § 1. The executive power is vested in 

the governor. Id. art. V, § 1. And the judicial power——being 

exercised in this very writing——is vested in a "unified court 

system" headed by the supreme court. Id. art. VII, §§ 2-3. With 

some exceptions, the general rule is that this diffusion of power 

into three separate branches creates a concomitant separation of 

powers requiring each branch to exercise only the power vested in 

it by the people of Wisconsin.

¶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.

¶4 The complaint unequivocally presents a facial attack on 

all the laws challenged. That is, the Plaintiffs seek to strike 

down application of the challenged laws in their entirety, rather 

than as applied to a given party or set of circumstances. Briefing 
Nos. 2019AP614-LV & 2019AP622

4

below and to this court confirms this. By presenting their 

challenge this way, the Plaintiffs face a tall task. Under our 

well-established law, a facial challenge succeeds only when every 

single application of a challenged provision is unconstitutional.

¶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. 

¶7 In light of the procedural posture of this case and the 

briefing before us, our analysis in this opinion rests on our 

review of the circuit court's denial of the Legislative Defendants' 

motion to dismiss. Our task is to determine whether the complaint 

states a valid legal claim against the challenged laws assuming 

the allegations in the complaint are true. Accordingly, this is 
Nos. 2019AP614-LV & 2019AP622

5

purely a question of law and requires no factual development. See

infra, ¶26.

¶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 temporary injunction is vacated 

in full except as otherwise instructed in Justice Kelly's opinion 

for the court.

¶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 
Nos. 2019AP614-LV & 2019AP622

6

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, where we held that one three-month suspension 

is constitutionally permissible. 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.

¶13 Finally, the provision partially codifying our holding 

in Tetra Tech is also clearly constitutional in many, if not all, 

applications. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 

Wis. 2d 496, 914 N.W.2d 21. The facial challenge to this provision 

cannot survive.

¶14 With this summary in view, our analysis begins with how 

we got here.
Nos. 2019AP614-LV & 2019AP622

7

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 

Defendants,2 Attorney General Josh Kaul, and Governor Tony Evers—

—all in their official capacities. The complaint sought 

declaratory and injunctive relief from enforcement of numerous 

 

1 The Plaintiffs are: Service Employees International Union 

(SEIU), Local 1; SEIU Healthcare Wisconsin; Milwaukee Area Service 

and Hospital Workers; AFT-Wisconsin; Wisconsin Federation of 

Nurses and Health Professionals; Ramon Argandona; Peter Rickman;

Amicar Zapata; Kim Kohlhaas; Jeffrey Myers; Andrew Felt; Candice 

Owley; Connie Smith; and Janet Bewley.

The Honorable Frank D. Remington, Dane County Circuit Court, 

presided.

2 The Legislative Defendants, all sued in their official 

capacities, are: Wisconsin Assembly Speaker Robin Vos; Wisconsin 

Senate President Roger Roth; Wisconsin Assembly Majority Leader 

Jim Steineke; and Wisconsin Senate Majority Leader Scott 

Fitzgerald.
Nos. 2019AP614-LV & 2019AP622

8

provisions of these acts. Concurrent with the filing of their 

complaint, the Plaintiffs also moved for a temporary injunction.3

¶17 The Legislative Defendants responded with a motion to 

dismiss the entire complaint, arguing all challenged provisions 

were consistent with the Wisconsin Constitution.

¶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 and requesting 

his own declaratory and injunctive relief with respect to the 

additional provisions he sought to enjoin.5

¶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

 

3 The Plaintiffs' motion was styled as a request for a 

temporary restraining order; however, the circuit court, by 

agreement of the parties, construed the motion as one for a 

temporary injunction.

4 The Governor's motion was similarly titled a motion for a 

temporary restraining order and construed as a motion for a 

temporary injunction.

5 We observe that the Governor, who was sued in his official, 

not personal, capacity, signed these bills into law. We leave for 

another day whether the governor of Wisconsin may sue the 

legislature over laws that the legislature passed, and here, ones 

the governor himself in his official capacity signed into law. We 

also leave for another day whether the legislature may be sued by 

the governor for passing laws the governor at some point thereafter 

believes are inconsistent with the constitution.
Nos. 2019AP614-LV & 2019AP622

9

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 regarding a newly defined category 

of agency communications called guidance documents.6

¶21 The Legislative Defendants then sought appellate review 

of both the denial of the motion to dismiss and the order granting 

 

6 The circuit court enjoined the following sections: 2017 

Wis. Act 369, § 26 (Wis. Stat. § 165.08(1) (2017-18)); § 30 (Wis. 

Stat. § 165.25(6)(a)1.); § 31 (Wis. Stat. § 227.01(3m)); § 33 

(Wis. Stat. § 227.05); § 38 (Wis. Stat. § 227.112); § 64 (Wis. 

Stat. § 227.26(2)(im)); § 65 (Wis. Stat. § 227.40(1)); § 66 (Wis. 

Stat. § 227.40(2)(intro.)); § 67 (Wis. Stat. § 227.40(2)(e)); § 68 

(Wis. Stat. § 227.40(3)(ag)); § 69 (Wis. Stat. § 227.40(3)(ar)); 

§ 70 (Wis. Stat. § 227.40(3)(b) & (c)); § 71 (Wis. Stat. 

§ 227.40(4)(a)); and §§ 104-05.

All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
Nos. 2019AP614-LV & 2019AP622

10

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

II. DISCUSSION

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 

 

7 Originally, the Legislative Defendants filed one appeal 

requesting review of both the denial of the motion to dismiss and 

the order granting injunctive relief. However, this appeal was 

split into two separate appeals——No. 2019AP622 is the appeal as of 

right from the temporary injunction while No. 2019AP614-LV is the 

petition for leave to file an interlocutory appeal from the circuit 

court's denial of the motion to dismiss.

8 We did not stay the circuit court's temporary injunction of 

2017 Wis. Act 369, § 38 with respect to Wis. Stat. § 227.112(7)(a).
Nos. 2019AP614-LV & 2019AP622

11

before us on review. The exception is 2017 Wis. Act 369, § 33 

(Wis. Stat. § 227.05), a guidance document provision addressed in 

Justice Kelly's opinion for the court.

¶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 Legislative 

Defendants failed to set forth sufficient arguments on several 

challenged provisions, these claims may proceed in the ordinary 

course of litigation on remand. We express no opinion on the 

merits of those claims.9

¶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 

 

9 Provisions raised in the complaint that we do not address 

are 2017 Wis. Act 369, § 87 (Wis. Stat. § 238.399(3)(am)); 2017 

Wis. Act 370, § 10 (Wis. Stat. § 20.940), and § 11 (Wis. Stat. 

§ 49.175(2)(a)). In the course of briefing, the parties reference 

many additional and often related provisions. We similarly decline 

to opine on any additional provisions not explicitly addressed in 

either this or Justice Kelly's opinion for the court.
Nos. 2019AP614-LV & 2019AP622

12

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. 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, 
Nos. 2019AP614-LV & 2019AP622

13

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 intent, that is binding on the public."10

State ex rel. Kalal, 271 Wis. 2d 633, ¶44.

¶29 Our analysis begins in Part C with an overview of the 

separation of powers under the Wisconsin Constitution. In Part D, 

we address the standards governing facial and as-applied 

challenges. Finally, in Part E, we apply these principles claim 

by claim.

 

10 For this reason, in statutory interpretation, we generally

do not resort to extrinsic aids like legislative history unless 

the statute is ambiguous. State ex rel. Kalal v. Circuit Court 

for Dane Cty., 2004 WI 58, ¶51, 271 Wis. 2d 633, 681 N.W.2d 110.

Resort to these extrinsic aids is likewise unnecessary where 

the constitutional text is plain. See League of Women Voters of 

Wis. v. Evers, 2019 WI 75, ¶18, 387 Wis. 2d 511, 929 N.W.2d 209 

(determining a historical review was unnecessary because the 

meaning of the constitutional text was clear). But where 

necessary, helpful extrinsic aids may include the practices at the 

time the constitution was adopted, debates over adoption of a given 

provision, and early legislative interpretation as evidenced by 

the first laws passed following the adoption. See State v. City 

of Oak Creek, 2000 WI 9, ¶18, 232 Wis. 2d 612, 605 N.W.2d 526.
Nos. 2019AP614-LV & 2019AP622

14

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 was 

these men who drafted our country's Constitution and established 

a system where power is diffused to different branches. We are 

more than two centuries into the American constitutional 

experiment, but the separation of powers is not an anachronism 

from a bygone era. Our founders believed the separation of powers 

was not just important, but the central bulwark of our liberty. 

See Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., 

dissenting) ("The Framers of the Federal Constitution . . . viewed 

the principle of separation of powers as the absolutely central 

guarantee of a just Government.").

¶31 The Wisconsin Constitution, adopted in 1848, was born of 

these same beliefs. Government power is divided into three 

separate branches, each "vested" with a specific core government 

power. Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶11, 376 

Wis. 2d 147, 897 N.W.2d 384. By "vesting" the respective powers, 

our constitution "clothe[s]" that branch with the corresponding 

power; each branch is "put in possession of" a specific 

governmental power. Noah Webster, An American Dictionary of the 

English Language (1828). "The legislative power shall be vested 
Nos. 2019AP614-LV & 2019AP622

15

in a senate and assembly"; "The executive power shall be vested in 

a governor"; and "The judicial power of this state shall be vested 

in a unified court system." Wis. Const. art. IV, § 1; id. art. V, 

§ 1; id. art. VII, § 2. To exercise this vested power, the 

legislature is tasked with the enactment of laws; the governor is 

instructed to "take care that the laws be faithfully executed"; 

and courts are empowered to adjudicate civil and criminal disputes 

pursuant to the law. Id. art. IV, § 17; id. art. V, § 4; id. art. 

VII, §§ 3, 5, 8, 14.

¶32 While the separation of powers is easy to understand in 

theory, it carries with it not-insignificant complications. 

Notably, the Wisconsin Constitution itself sometimes takes

portions of one kind of power and gives it to another branch. For 

example, the governor is granted the power "to convene the 

legislature on extraordinary occasions" and is required to 

"communicate to the legislature, at every session, the condition 

of the state, and recommend such matters to them for their 

consideration as he may deem expedient." Id. art. V, § 4. And 

while the legislature generally makes the law, the supreme court 

has authority over the practice of law, which requires us to 

establish normative rules and guidelines that, although not 

legislation as such, have the same prescriptive effect. Id. art. 

VII, § 3(1); see also Wis. Stat. § 751.12 (detailing the supreme 

court's authority to "regulate pleading, practice, and procedure 

in judicial proceedings in all courts"); Rao v. WMA Sec., Inc., 

2008 WI 73, ¶35, 310 Wis. 2d 623, 752 N.W.2d 220 ("A rule adopted 

by this court in accordance with Wis. Stat. § 751.12 is numbered 
Nos. 2019AP614-LV & 2019AP622

16

as a statute, is printed in the Wisconsin Statutes, may be amended 

by both the court and the legislature, has been described by this 

court as 'a statute promulgated under this court's rule-making 

authority,' and has the force of law." (footnotes omitted)).

¶33 That said, these are exceptions to the default rule that 

legislative power is to be exercised by the legislative branch, 

executive power is to be exercised by the executive branch, and 

judicial power is to be exercised by the judicial branch. "The 

Wisconsin constitution creates three separate co-ordinate branches 

of government, no branch subordinate to the other, no branch to 

arrogate to itself control over the other except as is provided by 

the constitution, and no branch to exercise the power committed by 

the constitution to another." State v. Holmes, 106 Wis. 2d 31, 

42, 315 N.W.2d 703 (1982).

¶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." 
Nos. 2019AP614-LV & 2019AP622

17

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)).

¶36 This legal framework is our starting point, but it must 

be filtered through the type of challenge before us. The 

Plaintiffs brought what is known as a facial challenge to all the 

statutory provisions in dispute. This is key to our disposition 

of the issues before us, and worthy of some extended examination.

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 
Nos. 2019AP614-LV & 2019AP622

18

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 is void 'from its 

beginning to the end.'" (quoted source omitted)).11

¶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 

 

11 See also Gabler v. Crime Victims Rights Bd., 2017 WI 67, 

¶29, 376 Wis. 2d 147, 897 N.W.2d 384 (explaining "the standard for 

a facial challenge" is that the law "'cannot be constitutionally 

enforced' . . . 'under any circumstances'" (quoted source 

omitted)); Soc'y Ins. v. LIRC, 2010 WI 68, ¶26, 326 Wis. 2d 444, 

786 N.W.2d 385 ("[A] facial constitutional challenge attacks the 

law itself as drafted by the legislature, claiming the law is void 

from its beginning to the end and that it cannot be 

constitutionally enforced under any circumstances . . . ."); State 

v. Cole, 2003 WI 112, ¶30, 264 Wis. 2d 520, 665 N.W.2d 328 ("A 

'facial' challenge to the constitutionality of a statute means 

that the 'challenger must establish, beyond a reasonable doubt, 

that there are no possible applications or interpretations of the 

statute which would be constitutional.'" (quoted source omitted)).
Nos. 2019AP614-LV & 2019AP622

19

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: 

 

12 This court has previously acknowledged that requiring 

facial challenges to show a law cannot be enforced "under any 

circumstances" mirrors the standard enunciated by the United 

States Supreme Court in United States v. Salerno, 481 U.S. 739 

(1987). League of Women Voters of Wis. Educ. Network, Inc. v. 

Walker, 2014 WI 97, ¶15, 357 Wis. 2d 360, 851 N.W.2d 302; see also

id., ¶60 n.1 (Crooks, J., concurring) (citing Salerno as the 

applicable framework of law for facial challenges). In Salerno, 

the Court explained that "[a] facial challenge to a legislative 

Act is, of course, the most difficult challenge to mount 

successfully, since the challenger must establish that no set of 

circumstances exists under which the Act would be valid." 481 

U.S. at 745.
Nos. 2019AP614-LV & 2019AP622

20

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

 

13 In her partial dissent, Justice Dallet suggests that 

subjecting broad statutes to piecemeal, as-applied litigation 

invites this court to engage in policymaking. Justice Dallet's 

concurrence/dissent, ¶¶178-179. Quite the contrary. Requiring a 

party to prove a law is unconstitutionally applied to the facts of 

a given case is precisely how as-applied challenges work. Our 

decision here invites no more policymaking than any other asapplied challenge that a court entertains. Justice Dallet's 

alternative proposal to sweep aside more of a law than is necessary 

to quickly settle a matter is not, by any definition, a more modest 

route.
Nos. 2019AP614-LV & 2019AP622

21

¶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 optional.14 

Parties casting the widest possible net and seeking the broadest 

possible remedy must make the maximum possible showing.

¶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 

 

14 The United States Supreme Court has recognized the validity 

of facial challenges premised on general claims of statutory 

overbreadth; however, the circumstances in which such challenges 

may be raised are very limited and not applicable here. See Sabri 

v. United States, 541 U.S. 600, 609–10 (2004). This court has 

taken a similar approach. See State v. Konrath, 218 Wis. 2d 290, 

305, 577 N.W.2d 601 (1998) ("With the exception of a challenge 

under the First Amendment to the United States Constitution, a 

party does not have standing to raise a facial challenge that a 

statute is overbroad.").

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.
Nos. 2019AP614-LV & 2019AP622

22

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 provisions may be facially 

challenged because every application will implicate his office and 

interested parties in the legislature. No such argument was made 

in briefing. And when pressed for supporting authority at oral 

argument, the Attorney General cited only to our decision in 

Gabler, 376 Wis. 2d 147.

¶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 Wis. Stat. ch. 950 

as they applied to judges. Id., ¶29. We agreed with him that the 

provisions could never be constitutionally applied against judges. 

Id., ¶60. In so doing, we recognized that the label of a 

challenging party's claim "is not what matters"; rather it is the 

"claim and the relief that would follow" that dictate the relevant 

standard of constitutional review. Id., ¶¶28-29 (quoting Doe v. 

Reed, 561 U.S. 186, 194 (2010)). The statutory challenge in Gabler

included characteristics of both a facial and an as-applied claim. 

Id., ¶29. Namely, Judge Gabler sought to invalidate the challenged 

provisions insofar as they could ever be applied against judges——

that is, he brought a broad challenge to a specific category of 

applications. Id., ¶29. In a challenge of this kind, we explained 
Nos. 2019AP614-LV & 2019AP622

23

that the challenging party is still required to demonstrate that, 

as to the specific category of applications, the statute could not 

be constitutionally enforced under any circumstances. Id. Judge 

Gabler had to show that the provisions could never be 

constitutionally applied against judges, even if it could be 

constitutionally applied to others. The statutory provisions in 

Gabler were neither challenged nor struck down in their entirety. 

In no way did our decision change the basic difference between a 

facial and an as-applied challenge.

¶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 is, 
Nos. 2019AP614-LV & 2019AP622

24

and to craft a remedy appropriately tailored to any constitutional 

violation.15

¶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 

law authorized the attorney general to represent the State in 

 

15 Furthermore, the default rule in Wisconsin is that statutes 

are severable. See Wis. Stat. § 990.001(11) ("If any provision of 

the statutes or of a session law is invalid, or the application of 

either to any person or circumstance is invalid, such invalidity 

shall not affect other provisions or applications which can be 

given effect without the invalid provision or application.").
Nos. 2019AP614-LV & 2019AP622

25

litigation and to settle cases in the State's best interest. 

Provisions of 2017 Wis. Act 369 substantially changed that. See

§ 5 (Wis. Stat. § 13.365); § 26 (Wis. Stat. § 165.08(1)); § 30 

(Wis. Stat. § 165.25(6)(a)1.); and § 97 (Wis. Stat. § 803.09(2m)).

¶51 Previously, the legislature had limited power to 

intervene in litigation. Now, Wis. Stat. § 13.365 and Wis. Stat. 

§ 803.09(2m) give three state legislative committees, each acting 

on behalf of a particular legislative entity——the assembly, the 

senate, and the whole legislature, respectively——the power to 

intervene in an action in state or federal court when a party 

argues a state statute is unconstitutional or "preempted by federal 

law," "or otherwise challenges [the statute's] construction or 

validity."16

 

16 Wisconsin Stat. § 13.365 provides: 

Pursuant to [Wis. Stat. §] 803.09(2m), 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: 

(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 [Wis. Stat. §] 20.765(1)(a), to represent the 

assembly in any action in which the assembly intervenes.

(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 
Nos. 2019AP614-LV & 2019AP622

26

¶52 In addition, prior to Act 369, the attorney general had 

the power in many cases to settle litigation impacting the State 

as he thought in the best interest of the State. In Wis. Stat. 

§ 165.08(1) and Wis. Stat. § 165.25(6)(a)1., much of that 

unilateral power has been removed and is now subject to legislative 

approval.

¶53 Wisconsin Stat. § 165.08(1) provides that the Department 

of Justice (DOJ), the agency headed by the attorney general, cannot 

settle or discontinue a case prosecuted by the attorney general 

unless either the legislative intervenor approves, or if the 

legislature has not intervened, DOJ receives approval from the 

 

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 Wis. Stat. § 803.09(2m) states: 

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.
Nos. 2019AP614-LV & 2019AP622

27

Joint Committee on Finance (JFC). Further, if DOJ wishes to 

concede the validity of a statute, "it must first get permission 

from the joint committee on legislative organization before asking 

the joint committee on finance." § 165.08(1).17

¶54 Wisconsin Stat. § 165.25(6)(a)1. amends the power of the 

attorney general to settle actions seeking injunctive relief or 

involving a proposed consent decree. In such cases, the attorney 

general must obtain the approval of any legislative intervenor. 

If no legislative entity has intervened, the new law establishes 

a multi-phase approval process with JFC. DOJ must first submit a 

plan to JFC. The JFC co-chairs, in turn, have 14 working days to 

notify the attorney general that the committee will meet to review 

the plan. If the attorney general receives notification from the 

committee of a meeting, the attorney general is required to obtain 

permission from JFC in order to settle. Moreover, the attorney 

 

17 Wisconsin Stat. § 165.08(1) states: 

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 

[Wis. Stat. §] 803.09(2m) or, if there is no intervenor, 

by submission of a proposed plan to the joint committee 

on finance for the approval of the committee. The 

compromise or discontinuance may occur only if the joint 

committee on finance approves the proposed plan. No 

proposed plan may be submitted to the joint committee on 

finance if the plan concedes the unconstitutionality or 

other invalidity of a statute, facially or as applied, 

or concedes that a statute violates or is preempted by 

federal law, without the approval of the joint committee 

on legislative organization.
Nos. 2019AP614-LV & 2019AP622

28

general cannot submit a plan that concedes "the 

unconstitutionality or other invalidity of a statute, facially or 

as applied, or concedes that a statute violates or is preempted by 

federal law," without first getting approval from the Joint 

Committee on Legislative Organization. § 165.25(6)(a)1.18

 

18 Wisconsin Stat. § 165.25(6)(a)1. now provides: 

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 [Wis. Stat. §] 885.07. The attorney 

general may compromise and settle the action as the 

attorney general determines to be in the best interest 

of the state except that, if the action is for injunctive 

relief or there is a proposed consent decree, the 

attorney general may not compromise or settle the action 

without the approval of an intervenor under [Wis. Stat. 

§] 803.09(2m) or, if there is no intervenor, without 

first submitting a proposed plan to the joint committee 

on finance. If, within 14 working days after the plan 

is submitted, the cochairpersons of the committee notify 

the attorney general that the committee has scheduled a 

meeting for the purpose of reviewing the proposed plan, 

the attorney general may compromise or settle the action 

only with the approval of the committee. The attorney 

general may not submit a proposed plan to the joint 

committee on finance under this subdivision in which the 

plan concedes the unconstitutionality or other 

invalidity of a statute, facially or as applied, or 

concedes that a statute violates or is preempted by 

federal law, without the approval of the joint committee 

on legislative organization.
Nos. 2019AP614-LV & 2019AP622

29

¶55 The Plaintiffs argue (and the Governor and Attorney 

General agree) that this takes a core executive power and gives it 

to the legislature in violation of the separation of powers.19 

Specifically, they maintain that such a requirement impermissibly 

limits the governor's duty to "take care that the laws be 

faithfully executed." Wis. Const. art. V, § 4. If deemed a shared 

power, the Plaintiffs and Attorney General argue that these 

provisions substantially burden the executive branch in violation 

of the separation of powers. The Legislative Defendants offer two 

main defenses, and we take each in turn.

¶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 legislative modification. With 

this, they argue that because the attorney general is not the 

governor (whom the Wisconsin Constitution specifically "vests" 

with the executive power), any modifications to the attorney 

general's power cannot implicate the separation of powers.

¶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 

 

19 "Legislative power, as distinguished from executive power, 

is the authority to make laws, but not to enforce them." Koschkee 

v. Taylor, 2019 WI 76, ¶11, 387 Wis. 2d 552, 929 N.W.2d 600 

(quoting Schuette v. Van De Hey, 205 Wis. 2d 475, 480-81, 556 

N.W.2d 127 (Ct. App. 1996)).
Nos. 2019AP614-LV & 2019AP622

30

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. 

Article IV, Section 28 requires "Members of the legislature, and 

all officers, executive and judicial, except such inferior 

officers as may be by law exempted," to take an oath before 

entering upon the duties of their office. Wis. Const. art. IV, 

§ 28 (emphasis added). The only fair reading of this is that there 

are other executive officers besides the governor.

¶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. 

Id. art. VI, §§ 2, 3. It also establishes various county officers, 

including coroners, registers of deeds, district attorneys, 

sheriffs, and chief executive officers. Id. art. VI, § 4. But 

these administrative officers do not constitute a separate 

"administrative" branch of government carrying out something 

called "administrative" power. We have repeatedly recognized that 

the constitution describes only three types of government power 

and creates only three branches of government. Panzer v. Doyle, 

2004 WI 52, ¶48, 271 Wis. 2d 295, 680 N.W.2d 666 ("Our state 

constitution has created three branches of government, each with 

distinct functions and powers."), overruled on other grounds by

Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 

Wis. 2d 1, 719 N.W.2d 408; Gabler, 376 Wis. 2d 147, ¶11 (same); 
Nos. 2019AP614-LV & 2019AP622

31

State v. Washington, 83 Wis. 2d 808, 816, 825, 266 N.W.2d 597 

(1978) (same).

¶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 (Wis. Const. art. V, 

§§ 1, 4), our cases have made clear that these "administrative" 

officers carry out executive functions. In 1855, just a few short 

years after adoption of the Wisconsin Constitution, Justice Abram

Smith observed "that sheriffs, coroners, registers of deeds, and 

district attorneys . . . are a part of the executive department." 

Attorney Gen. ex rel. Bashford v. Barstow, 4 Wis. 567, 795 (1855). 

Just last term we held that the superintendent of public 

instruction "has the executive constitutional function to 

supervise public instruction." Koschkee v. Taylor, 2019 WI 76, 

¶¶2, 25-29, 387 Wis. 2d 552, 929 N.W.2d 600. We have also said 

that state administrative agencies "are considered part of the 

executive branch." Id., ¶14. DOJ, through which the attorney 

general carries out his functions, is such an administrative agency 

and therefore part of the executive branch. See Wis. Stat. 

§ 15.01(5) and Wis. Stat. § 15.25 (creating the "executive branch" 

agency, the department of justice, "under the direction and 

supervision of the attorney general"). And we have explicitly 

made this point with reference to the attorney general himself, 

calling him "a high constitutional executive officer." State v. 

Woodington, 31 Wis. 2d 151, 167, 142 N.W.2d 810 (1966); see also

Milo M. Quaife, The Struggle Over Ratification 1846-47, at 456 

("The subordinate executive, or as they are called, administrative 
Nos. 2019AP614-LV & 2019AP622

32

officers, are a secretary of state who is ex officio auditor, a 

treasurer, and an attorney general . . . .").

¶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 general; it may. 

The question is whether the legislature may participate in carrying 

out the executive branch functions previously assigned to the 

attorney general. Or said another way, the question is not whether 

the legislature may circumscribe the attorney general's executive 

powers, but whether it may assume them, at least in part, for 

itself. Thus, Oak Creek is inapposite to the separation-of-powers 

argument at the heart of this case.

¶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 
Nos. 2019AP614-LV & 2019AP622

33

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. 

Wis. Stat. § 165.25(1m). Early enactments following the adoption 

of the constitution are appropriately given special weight. Oak 

Creek, 232 Wis. 2d 612, ¶18. This is because these enactments are 

likely to reflect the original public meaning of the constitutional 

text. See id., ¶¶29-31; Koschkee, 387 Wis. 2d 552, ¶32. In that 

vein, the attorney general was granted the power, even the duty, 

to represent the legislature or to represent the State at the 

request of the legislature from our state's earliest days.

¶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 Wis. Const. 

art. IV, § 3 (1846) (proposed)); Wis. Const. art. VI, § 3. So the 

first legislature of our new state went about prescribing those 

duties by statute. In 1848, the same year the constitution was 

adopted, the legislature enacted a law requiring the attorney 

general to "appear for the state in any court or tribunal in any 

other causes criminal or civil in which the state may be a party 

or be interested," and this was to occur "when required by the 

governor or either branch of the legislature." An Act concerning 

the Attorney General, Wis. Laws 1848 (emphasis added). This 

language was modified in 1849: "[W]hen requested by the governor 

or either branch of the legislature," the attorney general was 
Nos. 2019AP614-LV & 2019AP622

34

required to "appear for the people of this state, and prosecute or 

defend in any other court, or before any officer, in any cause or 

matter, civil or criminal, in which the people of this state may 

be a party or interested." Wis. Stat. ch. 9, § 36 (1849) (emphasis 

added).

¶66 This language remains substantially the same today. See

Wis. Stat. § 165.25(1m).20 Therefore, under the law since our 

state's founding, the attorney general may defend a legislative 

official, employee, or body. And either house of the legislature 

can request the attorney general to "prosecute or defend in any 

court or before any officer, any cause or matter, civil or 

 

20 Wisconsin Stat. § 165.25(1m) provides: 

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 [Wis. 

Stat. §] 803.09(2m) at any time. The public service 

commission may request under [Wis. Stat. §] 196.497(7) 

that the attorney general intervene in federal 

proceedings. All expenses of the proceedings shall be 

paid from the appropriation under [Wis. Stat. 

§] 20.455(1)(d).

(Emphasis added.)
Nos. 2019AP614-LV & 2019AP622

35

criminal, in which the state or the people of this state may be 

interested." Id.

¶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.

¶68 Another on-point institutional interest of the 

legislature is spelled out in the constitution. Article VIII, 

Section 2 states in relevant part, "No money shall be paid out of 

the treasury except in pursuance of an appropriation by law." Wis. 

Const. art. VIII, § 2. The legislature, of course, is the branch 

granted the power to enact laws. Id. art. IV, § 17.

¶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 Wis. Stat. § 165.25(6)(a)1. has constitutional 

applications where the power of the purse is implicated.

¶70 Other state legislatures appear to have this power as 

well under various circumstances. See Ariz. Rev. Stat. Ann. § 41-

621(N) (2019) (requiring approval of some settlements by joint 
Nos. 2019AP614-LV & 2019AP622

36

legislative budget committee after reaching certain dollar 

threshold); Conn. Gen. Stat. Ann. § 3-125a(a) (2019) (requiring 

approval of settlements exceeding certain dollar threshold by the 

legislature); Neb. Rev. Stat. § 81-8,239.05(4) (2018) (requiring 

legislative approval in order to pay punitive damages); Okla. Stat. 

Ann. tit. 51 § 200(A)(1) (2019) (requiring legislative approval 

for settlement or consent decrees above certain dollar threshold); 

Utah Code Ann. § 63G-10-202 (2018) (same). Although the practice 

of other states is not determinative of the constitutional 

questions before us, this generally reflects a shared 

understanding that legitimate institutional, even constitutional, 

legislative interests may be implicated when the attorney general 

purports to enter settlement agreements affecting state 

appropriations.

¶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 
Nos. 2019AP614-LV & 2019AP622

37

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 

succeed. In at least some cases, the legislature may permissibly 

give itself the power to consent to an agreement where the action 

involves injunctive relief or a proposed consent decree (Wis. Stat. 

§ 165.25(6)(a)1.), or in the compromise or discontinuance of a 

matter being prosecuted (Wis. Stat. § 165.08). In at least some 

cases, we see no constitutional violation in allowing the 

legislature to intervene in litigation concerning the validity of 

a statute, at least where its institutional interests are 

implicated.21 See Wis. Stat. § 13.365; Wis. Stat. § 803.09(2m). 

As we have explained, because the Plaintiffs have not met their 

burden to prove these provisions may not be constitutionally 

 

21 The legislature, or its committees or members, have 

litigated cases in Wisconsin impacting potential institutional 

interests throughout the history of the state. See Risser v. 

Klauser, 207 Wis. 2d 176, 180, 558 N.W.2d 108 (1997) (original 

action brought by several legislators against the governor); 

Citizens Util. Bd. v. Klauser, 194 Wis. 2d 484, 487-88, 534 

N.W.2d 608 (1995) (original action brought by citizens utility 

board and several legislators against the governor and the 

secretary of the Department of Administration); State ex rel. Wis. 

Senate v. Thompson, 144 Wis. 2d 429, 433, 424 N.W.2d 385 (1988) 

(original action brought by, among other petitioners, the senate 

and assembly against the governor).
Nos. 2019AP614-LV & 2019AP622

38

applied under any circumstances, the motion to dismiss the 

Plaintiffs' facial challenge should have been granted.22

¶73 We stress that this decision is limited. We express no 

opinion on whether individual applications or categories of 

applications may violate the separation of powers, or whether the 

legislature may have other valid institutional interests 

supporting application of these laws. But the facial challenge 

seeking to strike down Wis. Stat. § 13.365; Wis. Stat. § 165.08(1); 

Wis. Stat. § 165.25(6)(a)1.; and Wis. Stat. § 803.09(2m) in their 

entirety——the only claim developed before us——does not succeed. 

Given this, the order enjoining these provisions is vacated as 

well.

2. Capitol Security

¶74 The Plaintiffs also challenge the constitutionality of 

2017 Wis. Act 369, § 16 (Wis. Stat. § 16.84(2m)), which grants the 

Joint Committee of Legislative Organization (JCLO) the authority 

to review and approve changes proposed by the Department of 

Administration (DOA) to security at the Capitol.23 This new 

 

22 As explained above, the attorney general's litigation 

authority is not, in at least some cases, an exclusive executive 

power. These types of cases fall under a shared powers analysis. 

Where the legislature has appropriate institutional interests, 

legislative exercise of this shared power in at least some cases 

does not unduly burden or substantially interfere with the attorney 

general's executive authority. Hence, the facial challenge gets 

nowhere under an "unduly burdensome" shared powers analysis.

23 This provision, Wis. Stat. § 16.84(2m), which was not 

enjoined by the circuit court, states as follows: 
Nos. 2019AP614-LV & 2019AP622

39

provision requires DOA to notify JCLO of any proposed security 

changes. § 16.84(2m). If JCLO does not notify DOA within 14 days 

that a meeting has been scheduled to discuss the proposed changes, 

DOA may implement those changes. Id. However, if JCLO schedules 

a meeting to discuss the proposal, DOA may proceed with the 

proposed changes only with the approval of JCLO. Id. The statute 

also provides an exception if there is risk of imminent danger. 

Id.

¶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 

 

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 the committee 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.
Nos. 2019AP614-LV & 2019AP622

40

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 Wis. Const. 

art. IV, § 7; id. art. V, § 10.

¶76 Ahern correctly noted that the construction and 

maintenance of public buildings is an executive function. 114 

Wis. 2d at 106. In fact, the legislature created DOA and granted 

it broad duties to construct and repair state buildings, among 

other tasks. Wis. Stat. § 15.10; Wis. Stat. § 16.85. See 

generally Wis. Stat. ch. 16. However, before the enactment of 

Wis. Stat. § 16.84(2m), the legislature, by statute, created and 

implemented limitations on DOA's authority. For example, Wis. 

Stat. § 16.843 denotes where and how vehicles may park around the 

Capitol. Likewise, even before § 16.84(2m) was enacted, DOA's 

authority to use state buildings for public events did not include 

the areas of the Capitol reserved for use by the legislature. See

Wis. Admin. Code § DOA 2.04(1) (July 2014).

¶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 Wis. Stat. § 16.84(2m) cannot succeed.
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41

3. Multiple Suspensions of Administrative Rules

¶78 The Plaintiffs also challenge 2017 Act 369, § 64 (Wis. 

Stat. § 227.26(2)(im)), which allows the Joint Committee for 

Review of Administrative Rules (JCRAR) to suspend a rule more than 

once.24

¶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." Wis. Stat. § 227.10(1). When 

promulgated as required by statute, rules have "the force of law." 

Wis. Stat. § 227.01(13). Current statutory law authorizes JCRAR 

to review rules prior to promulgation, and to suspend rules 

following promulgation. See Wis. Stat. § 227.19; Wis. Stat. 

§ 227.26. The legislature can establish the procedures by which 

an agency promulgates rules, and can even take away rulemaking 

authority altogether. Koschkee, 387 Wis. 2d 552, ¶20. 

Additionally, the legislature may limit or retract its delegation 

of rulemaking authority, review rules prior to implementation, and 

determine the methods agencies must use to promulgate rules. Id.

¶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 

 

24 This new paragraph states: "Notwithstanding pars. (i) and 

(j), the committee may act to suspend a rule as provided under 

this subsection multiple times." Wis. Stat. § 227.26(2)(im).
Nos. 2019AP614-LV & 2019AP622

42

delegate rule-making authority to an agency while retaining the 

right to review any rules promulgated under the delegated power." 

Id. at 698. In so doing, we also stressed the importance of the 

temporary nature of the suspension. Id. at 699-700. To 

permanently repeal a suspended rule, the legislature must pass a 

bill in both houses and have it signed by the governor. Id. If 

no repeal occurs, the rule remains in effect and cannot be 

suspended again. Id. at 700. This structure, we concluded, did 

not violate the separation of powers. Id. at 700-01.

¶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 
Nos. 2019AP614-LV & 2019AP622

43

unconstitutional. Because this provision has constitutional 

applications, the facial challenge must necessarily fail. To 

strike down all applications of this law, or to draw a line in the 

future under which an additional suspension is too long is exactly 

the sort of speculation that counsels caution and a narrow 

application of Martinez in the context of a facial challenge. The 

facial challenge to Wis. Stat. § 227.26(2)(im) must be dismissed 

on remand, and the order enjoining this provision is thereby 

vacated as well.

4. Agency Deference Provision

¶84 The Plaintiffs also challenge the constitutionality of 

2017 Wis. Act 369, § 35 (Wis. Stat. § 227.10(2g)), which provides: 

"No agency may seek deference in any proceeding based on the 

agency's interpretation of any law." This provision partially 

codifies our holding in Tetra Tech where we ended "our practice of 

deferring to administrative agencies' conclusions of law." 382 

Wis. 2d 496, ¶108. Given our own decision that courts should not 

defer to the legal conclusions of an agency, a statute instructing 

agencies not to ask for such deference is facially constitutional.

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 

opinion for the court. With respect to the issues addressed in 

this opinion, we conclude as follows. 
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44

¶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

By the Court.—The judgment of the circuit court is affirmed 

in part and reversed in part, the temporary injunction is vacated 

in part, and the cause is remanded for further proceedings 

 

25 Specifically, we reverse the circuit court's order denying 

the motion to dismiss with respect to: 2017 Wis. Act 369, § 5 

(Wis. Stat. § 13.365); § 16 (Wis. Stat. § 16.84(2m)); § 26 (Wis. 

Stat. § 165.08(1)); § 30 (Wis. Stat. § 165.25(6)(a)1.); § 35 (Wis. 

Stat. § 227.10(2g)); § 64 (Wis. Stat. § 227.26(2)(im)); and § 97 

(Wis. Stat. § 803.09(2m)).

26 The circuit court's temporary injunction is vacated with 

respect to the following provisions: 2017 Wis. Act 369, § 26 (Wis. 

Stat. § 165.08(1)); § 30 (Wis. Stat. § 165.25(6)(a)1.); § 64 (Wis. 

Stat. § 227.26(2)(im)).

27 Following oral argument, the Attorney General moved to 

modify the stay of the temporary injunction that we imposed on 

June 11, 2019. As we remand this case for the circuit court to 

issue an order vacating its temporary injunction order in part, we 

deny the Attorney General's motion.
Nos. 2019AP614-LV & 2019AP622

2

consistent with this opinion and the opinion of Justice Daniel 

Kelly.
Nos. 2019AP614-LV & 2019AP622.dk

1

¶87 DANIEL KELLY, J. The great Justice Joseph Story once 

said "the three great powers of government . . . should for ever 

be kept separate and distinct." 2 Joseph Story, Commentaries on 

the Constitution of the United States § 519, at 2-3 (Boston, 

Hilliard, Gray, & Co. 1833). We agree. As a consequence, we 

conclude that when the legislature prohibited the executive branch 

from communicating with the public through the issuance of guidance 

documents without first going through a pre-clearance process and 

including legislatively-mandated content, it invaded the executive 

branch's exclusive province to "take care that the laws be 

faithfully executed." Wis. Const. art. V, § 4. 

¶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. 
Nos. 2019AP614-LV & 2019AP622.dk

2

I. BACKGROUND1

¶89 "Guidance documents" are not conceptually new to 

administrative agencies, although they had no statutory definition 

until the Act created Wis. Stat. § 227.01(3m) (2017-18)2 to read 

as follows:

(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 (Wis. Stat. § 227.01(3m)).

¶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:

 

1 The part of the court's opinion authored by Justice Brian 

Hagedorn provides the broad background strokes necessary to 

consider SEIU's claims. In this part of the court's opinion, we 

provide some additional context for our treatment of the "guidance 

document" provisions of 2017 Wis. Act 369.

2 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
Nos. 2019AP614-LV & 2019AP622.dk

3

Agency publications. An agency, other than the 

Board of Regents of the University of Wisconsin System, 

the Technical College System Board, or the department of 

employee trust funds, shall identify the applicable 

provision of federal law or the applicable state 

statutory or administrative code provision that supports 

any statement or interpretation of law that the agency 

makes in any publication, whether in print or on the 

agency's Internet site, including guidance documents, 

forms, pamphlets, or other informational materials, 

regarding the laws the agency administers.

2017 Wis. Act. 369, § 33 (Wis. Stat. § 227.05). The second is 

§ 38, which describes the procedure an administrative agency must 

follow when creating a guidance document.

(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.
Nos. 2019AP614-LV & 2019AP622.dk

4

(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 
Nos. 2019AP614-LV & 2019AP622.dk

5

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 (Wis. Stat. § 227.112).

¶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 

granted with respect to §§ 31, 33, 38, 65-71, and 104-05. The 

motion to dismiss asserted that the plaintiffs' complaint failed 

to state a claim upon which relief could be granted. "Whether a 

 

3 The "Legislative Defendants," who were sued in their 

official capacity, are Wisconsin Assembly Speaker Robin Vos,

Wisconsin Senate President Roger Roth, Wisconsin Assembly Majority 

Leader Jim Steineke, and Wisconsin Senate Majority Leader Scott 

Fitzgerald.
Nos. 2019AP614-LV & 2019AP622.dk

6

complaint states a claim upon which relief can be granted is a 

question of law for our independent review[.]" Data Key Partners 

v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 

N.W.2d 693. The motion puts at issue whether the guidance document 

provisions of 2017 Wis. Act 369 are facially unconstitutional. A 

statute is facially unconstitutional only when it "cannot be 

enforced 'under any circumstances.'" Mayo v. Wisconsin Injured 

Patients & Families Comp. Fund, 2018 WI 78, ¶24, 383 Wis. 2d 1, 

914 N.W.2d 678 (quoted source omitted).

¶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, ¶20, 370 Wis. 2d 644, 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 

the creation of such a document represents the exercise of 

executive as opposed to legislative power. We then assess whether 

the Act's guidance document provisions impermissibly encroach on 

the executive branch's authority to promulgate those documents.
Nos. 2019AP614-LV & 2019AP622.dk

7

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.

 

4 "The legislative power shall be vested in a senate and 

assembly." Wis. Const. art. IV, § 1.

5 "The executive power shall be vested in a governor." Wis. 

Const. art. V, § 1.
Nos. 2019AP614-LV & 2019AP622.dk

8

¶96 The executive, however, is not a legislativelycontrolled 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 Wis. Const. art. V, § 1 

("The executive power shall be vested in a governor . . . .");

Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 119 (2015) (Thomas, 

J., concurring) ("It is undoubtedly true that the other branches 

of Government have the authority and obligation to interpret the 

law . . . .").
Nos. 2019AP614-LV & 2019AP622.dk

9

¶97 The executive oftentimes carries out his functions 

through administrative agencies.6 Although agencies have sometimes 

been criticized as a "headless fourth branch of government,"7 they 

are not——we have only three. Agencies must belong to one of them, 

and we have said before that they are one manifestation of the 

executive. Koschkee v. Taylor, 2019 WI 76, ¶14, 387 Wis. 2d 552, 

929 N.W.2d 600 ("Agencies are considered part of the executive 

 

6 See, e.g., 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." (quoting U.S. Const. 

art. II, § 3 (alterations in original))); State ex rel. Wisconsin

Dev. Auth. v. Dammann, 228 Wis. 147, 159, 277 N.W. 278 on reh'g, 

228 Wis. 147, 280 N.W. 698 (1938) ("It is fundamental that under 

our constitutional system the governmental power to execute the 

laws is vested in the executive department of the state, and can 

be exercised only by duly constituted officers thereof."); DOR v. 

Nagle-Hart, Inc., 70 Wis. 2d 224, 226–27, 234 N.W.2d 350 (1975) 

("It is for the department[s] to implement and carry out the 

mandate of the legislative enactments . . . and stop at the limits 

of such legislative mandate or direction."); Black & Decker, Inc. 

v. DILHR, No. 1988AP0409, unpublished slip op. (Sept. 15, 1988) 

(Wherein the court of appeals described the function of an agency 

as one of carrying out and implementing a legislative act.).

7 Peter L. Strauss Agencies' Place in Government, 84 

Colum. L. Rev. 573, 578 (1984) (internal marks and quoted source 

omitted).
Nos. 2019AP614-LV & 2019AP622.dk

10

branch.").8 This understanding is not unique to Wisconsin.9 And 

when an administrative agency acts (other than when it is 

exercising its borrowed rulemaking function), it is exercising 

executive power. See, e.g., Jones v. United States, 137 U.S. 202, 

217 (1890) ("[T]here can be no doubt that it [the power "conferred 

on the president of the United States"] may be declared through 

the department of state, whose acts in this regard are in legal 

contemplation the acts of the president." (emphasis added)); 

Wolsey v. Chapman, 101 U.S. 755, 769 (1879) ("[T]he acts of the 

heads of departments, within the scope of their powers, are in law 

the acts of the President."); Mistretta v. United States, 488 

U.S. 361, 424 (1989) (Scalia, J., dissenting) ("Although the 

 

8 This is also apparent from the fact that the governor 

appoints agency secretaries, all of whom serve at the governor's 

pleasure. Wis. Stat. § 15.05(1)(a) ("If a department is under the 

direction and supervision of a secretary, the secretary shall be 

nominated by the governor, and with the advice and consent of the 

senate appointed, to serve at the pleasure of the governor.").

9 See, e.g., Town of Walkerton v. New York, C. & St. L. R. 

Co., 18 N.E. 2d 799, 803 (Ind. 1939) ("Under our form of government 

an administrative agency belongs to the executive department."); 

Barrett v. Tennessee Occupational Safety & Health Review Comm'n, 

284 S.W. 3d 784, 789 (Tenn. 2009) ("Administrative agencies are 

part of the executive branch of government."); Meyers v. Chapman 

Printing Co., 840 S.W. 2d 814, 820 (Ky. 1992) ("Decisionmaking 

performed by an administrative agency is an executive function."); 

Judges of 74th Judicial Dist. v. Bay Cty., 190 N.W. 2d 219, 226 

(Mich. 1971) ("Administrative agencies are a part of the executive 

branch of government. While they often act in a quasi-judicial 

capacity, it is recognized that they are established to perform 

essentially executive functions."); Matter of Kallen, 455 

A. 2d 460, 463 (N.J. 1983) ("Administrative agencies are the arms 

of the executive branch of government that implement the laws 

passed by the Legislature."); Muddy Boys, Inc. v. Dep't of 

Commerce, 440 P. 3d 741, 747 (Ut. Ct. App. 2019) 

("[A]dministrative agencies are part of the executive.").
Nos. 2019AP614-LV & 2019AP622.dk

11

Constitution says that '[t]he executive Power shall be vested in 

a President of the United States of America,' [U.S. Const.] Art. 

II, § 1, it was never thought that the President would have to 

exercise that power personally. He may generally authorize others 

to exercise executive powers, with full effect of law, in his 

place." (alterations in original)).; Frank B. Cross, Executive 

Orders 12,291 and 12,498: A Test Case in Presidential Control of 

Executive Agencies, 4 J.L. & Pol. 483, 507 (1988) ("Obviously, one 

person cannot execute all the functions of government personally. 

In order to carry out his constitutional responsibility, the 

president must delegate his authority to other executive 

officers.").

¶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. Wis. Stat. § 227.11(2) ("Rule-making authority 

is expressly conferred on an agency[.]"); Kieninger v. Crown Equip. 

Corp., 2019 WI 27, ¶16 n.8, 386 Wis. 2d 1, 924 N.W.2d 172 

("Administrative rules enacted pursuant to statutory rulemaking 

authority have the force and effect of law in Wisconsin." (quoted 

source omitted)). We have recognized before that when an agency 

promulgates a rule, it is exercising "a legislative power[.]" 

Koschkee, 387 Wis. 2d 552, ¶39. An agency, however, "has no 

inherent constitutional authority to make rules . . . ." Martinez 

v. DILHR, 165 Wis. 2d 687, 698, 478 N.W.2d 582 (1992). To the 
Nos. 2019AP614-LV & 2019AP622.dk

12

extent it exists, it comes solely through express delegation from 

the legislature. Because this capability is only on loan,10

agencies necessarily "remain subordinate to the legislature with 

regard to their rulemaking authority." Koschkee, 387 Wis. 2d 552, 

¶18.

¶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, 

 

10 "As a legislative creation, [an agency's] . . . rulemaking powers can be repealed by the legislature." Martinez v. 

DILHR, 165 Wis. 2d 687, 698, 478 N.W.2d 582 (1992).
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13

requirement, or threshold, including as a term or condition of any 

license." 2017 Wis. Act. 369, § 38 (Wis. Stat. § 227.112(3)). 

That's an important place to start because right away it 

establishes that, unlike a rule,11 the executive branch needs no 

borrowed authority from the legislature to create a guidance 

document. In fact, the executive was creating them long before 

the legislature passed the Act and gave them that name. The Act 

implicitly recognizes this by not even purporting to delegate the 

authority to create such documents to the executive——it assumed 

the power already resided there.

¶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 (Wis. Stat. § 227.01(3m)(a)1.-2.).12 

 

11 Koschkee v. Taylor, 2019 WI 76, ¶18, 387 Wis. 2d 552, 929 

N.W.2d 600 (Executive "agencies ha[ve] no inherent constitutional 

authority to make rules[.]" (some alterations in original)).

12 The Act also describes what a guidance document is not:
Nos. 2019AP614-LV & 2019AP622.dk

14

 

(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).

2017 Wis. Act. 369, § 31 (Wis. Stat. § 227.01(3m)(b)1.-9.).
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15

¶102 The Act's plain language allows us to discern the 

following essential attributes of guidance documents.13 They are 

not law, they do not have the force or effect of law, and they 

provide no authority for implementing or enforcing standards or 

conditions. They simply "explain" statutes and rules, or they 

"provide guidance or advice" about how the executive branch is 

"likely to apply" a statute or rule. They impose no obligations, 

set no standards, and bind no one. They are communications about

the law——they are not the law itself. They communicate intended 

applications of the law——they are not the actual execution of the 

law. Functionally, and as a matter of law, they are entirely 

inert. That is to say, they represent nothing more than the 

knowledge and intentions of their authors. It is readily apparent, 

therefore, that the executive need not borrow any legislative 

authority, nor seek the legislature's permission, to create 

guidance documents. It could hardly be otherwise. This creative 

power is necessarily inherent to the executive because no other 

 

13 State ex rel. Kalal v. Circuit Court for Dane Cty., 2004

WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 ("Statutory language 

is given its common, ordinary, and accepted meaning, except that 

technical or specially-defined words or phrases are given their 

technical or special definitional meaning.").
Nos. 2019AP614-LV & 2019AP622.dk

16

branch of government has even the theoretical ability to know the 

executive's mind with respect to the law he is to execute.14 

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 

 

14 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.
Nos. 2019AP614-LV & 2019AP622.dk

17

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 guidance 

documents fall somewhere in the realm of shared powers, the 

legislature would conceivably retain some claim of right to govern 

 

15 The Chief Justice's concurrence says there is no basis for 

this definition of core powers. See Chief Justice Roggensack's

concurrence/dissent, ¶152. That is simply not true; the 

constitution itself constitutes the source. First, we know that 

"[e]ach branch has exclusive core constitutional powers[.]" State 

v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999). These core 

powers are the "zones of authority constitutionally established

for each branch of government[.]" State ex rel. Fiedler v. 

Wisconsin Senate, 155 Wis. 2d 94, 100, 454 N.W.2d 770 (1990). In 

other words, a core power is a power vested by the constitution 

that distinguishes that branch from the other two.
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18

their content and dissemination. But if they lie within the 

executive's core authority, the legislature must retain a 

constitutionally-respectful distance. 

¶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," Wis. Const. art. V, § 4, it 

is also inseparable from the executive's constitutionally-vested 

power. It is all one, and has been one since the creation of our 

tripartite form of government centuries ago. See Hamilton, supra, 
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19

¶96; see also Kendall v. U.S. ex rel. Stokes, 37 U.S. 524, 600 

(1838) ("If, therefore, the executive be clearly satisfied as to 

the meaning of such a law, it is his bounden duty to see that the 

subordinate officers of his department conform with fidelity to 

that meaning; for no other execution, however pure the motive from 

which it springs, is a faithful execution of the law." (emphasis 

added)); Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶53 ("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)."); State v. Whitman, 196 

Wis. 472, 220 N.W. 929 (1928) ("Every executive officer in the 

execution of the law must of necessity interpret it in order to 

find out what it is he is required to do.").

¶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 whollyowned subsidiary of the legislature. Capturing the executive's 

ability to communicate his knowledge, intentions, and 

understanding of the laws he is to execute makes him a drone 
Nos. 2019AP614-LV & 2019AP622.dk

20

without the energy or independent wherewithal to act as a co-equal 

member of government.16

¶108 The legislature may enact the laws the executive is dutybound 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 

association with §§ 33 and 38. As we now explain, the plaintiffs 

have not established that these remaining provisions "cannot be 

 

16 The problem is especially acute because this regulation on 

the executive's pre-execution analysis and communication is 

infinitely recursive. That is, if he wished to publish a bulletin 

about his understanding of 2017 Wis. Act 369, §§ 33 and 38 or how 

he intends to implement them, that bulletin itself would have to 

go through the legislatively-mandated pre-clearance procedure. 

And if he wished to communicate about the communication he was 

required to submit to the legislative mandate, that communication 

too would be subject to pre-clearance. Ultimately, the Act's 

guidance document provisions prohibit the executive branch of 

government from publicizing his thoughts, knowledge, and 

intentions about the laws he is to execute without first 

surmounting the legislature's hurdles.
Nos. 2019AP614-LV & 2019AP622.dk

21

enforced 'under any circumstances.'" Mayo, 383 Wis. 2d 1, ¶24 

(quoted source omitted).

¶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 

 

17 Sections 65 to 71 of the Act provide:

Section 65. 227.40 (1) of the statutes is amended to 

read: 227.40 (1) Except as provided in sub. (2), the 

exclusive means of judicial review of the validity of a 

rule or guidance document shall be an action for 

declaratory judgment as to the validity of the rule or 

guidance document brought in the circuit court for the 

county where the party asserting the invalidity of the 

rule or guidance document resides or has its principal 

place of business or, if that party is a nonresident or 

does not have its principal place of business in this 

state, in the circuit court for the county where the 

dispute arose. The officer or other agency whose rule 
Nos. 2019AP614-LV & 2019AP622.dk

22

 

or guidance document is involved shall be the party 

defendant. The summons in the action shall be served as 

provided in s. 801.11 (3) and by delivering a copy to 

that officer or, if the agency is composed of more than 

one person, to the secretary or clerk of the agency or 

to any member of the agency. The court shall render a 

declaratory judgment in the action only when it appears 

from the complaint and the supporting evidence that the 

rule or guidance document or its threatened application 

interferes with or impairs, or threatens to interfere 

with or impair, the legal rights and privileges of the 

plaintiff. A declaratory judgment may be rendered 

whether or not the plaintiff has first requested the 

agency to pass upon the validity of the rule or guidance 

document in question.

Section 66. 227.40 (2) (intro.) of the statutes is 

amended to read: 227.40 (2) (intro.) The validity of 

a rule or guidance document may be determined in any of 

the following judicial proceedings when material 

therein:

Section 67. 227.40 (2) (e) of the statutes is amended to 

read: 227.40 (2) (e) Proceedings under s. 66.191, 1981 

stats., or s. 40.65 (2), 106.50, 106.52, 303.07 (7) or 

303.21 or ss. 227.52 to 227.58 or under ch. 102, 108 or 

949 for review of decisions and orders of administrative 

agencies if the validity of the rule or guidance document

involved was duly challenged in the proceeding before 

the agency in which the order or decision sought to be 

reviewed was made or entered.

Section 68. 227.40 (3) (intro.) of the statutes is 

renumbered 227.40 (3) (ag) and amended to read: 227.40 

(3) (ag) In any judicial proceeding other than one set 

out above under sub. (1) or (2), in which the invalidity 

of a rule or guidance document is material to the cause 

of action or any defense thereto, the assertion of 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 shall, within 30 days after the service of the 

pleading in which the party sets forth 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 
Nos. 2019AP614-LV & 2019AP622.dk

23

 

validity of said the rule or guidance document in an 

action for declaratory judgment under sub. (1) hereof.

Section 69. 227.40 (3) (a) of the statutes is renumbered 

227.40 (3) (ar) and amended to read: 227.40 (3) (ar)

Upon the hearing of 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. 227.40 (3) (b) and (c) of the statutes are 

amended to read: 227.40 (3) (b) Upon the entry of a 

final order in 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. 227.40 (4) (a) of the statutes is amended to 

read: 227.40 (4) (a) In any proceeding pursuant to 

this section for judicial review of a rule or guidance 

document, the court shall declare the rule or guidance 

document invalid if it finds that it violates 

constitutional provisions or exceeds the statutory 

authority of the agency or was promulgated or adopted

without compliance with statutory rule-making or 

adoption procedures.
Nos. 2019AP614-LV & 2019AP622.dk

24

these sections does little more than add the term "guidance 

document" to various subsections of Wis. Stat. § 227.40, which 

formerly applied only to rules. The parties do not make any 

particularized argument against judicial review of guidance 

documents, and we see no reason why the legislature's provision 

for such review differs so profoundly from judicial review of 

administrative rules that the former would necessarily be 

unconstitutional under any circumstances, while the latter is not. 

Mayo, 383 Wis. 2d 1, ¶24 (A statute is facially unconstitutional 

only when it "cannot be enforced 'under any circumstances.'" 

(quoted source omitted)).

¶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 Section 104 (1) 

takes effect on the first day of the 7th month beginning after 

publication." None of the respondents provide any reason to 

believe these provisions are facially unconstitutional, and no 

such reason immediately presents itself to us.

IV. THE CONSEQUENCES

 

2017 Wis. Act. 369, §§ 65-71 (amending Wis. Stat. § 227.40).
Nos. 2019AP614-LV & 2019AP622.dk

25

¶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 crossclaim 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.

¶114 The second postural oddity with respect to § 33 is that 

we are reviewing it in the context of determining whether the 

circuit court properly issued a temporary injunction against its 

enforcement. That is to say, this section was not included in the 

Legislative Defendants' motion to dismiss. That means our task is 

to determine whether the circuit court erroneously exercised its 

discretion in issuing the temporary injunction. Such 
Nos. 2019AP614-LV & 2019AP622.dk

26

interlocutory relief is available when: "(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, 370 Wis. 2d 644, ¶20 (citing 

Werner, 80 Wis. 2d at 520–21).

¶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 the 

constitutionality of the enjoined provisions, including §§ 33 and 

38. We performed that inquiry, and have concluded that both of 

those provisions are unconstitutional. 

¶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 
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27

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 not).18 So the only 

purpose in considering the remaining temporary injunction factors 

would be if we would consider remanding the case to the circuit 

court to decide whether a law we declared unconstitutional should 

 

18 J. C. Penney Co. v. Wisconsin Tax Comm'n, 238 Wis. 69, 72, 

298 N.W. 186 (1941), overruled in part on different grounds by 

Wisconsin Dep't of Taxation v. Nash-Kelvinator Corp., 250 Wis. 

533, 27 N.W.2d 889 (1947) ("As we understand the law, our 

construction of the state statute is conclusive upon the Supreme 

Court of the United States.").
Nos. 2019AP614-LV & 2019AP622.dk

28

nevertheless be enforced. We believe such a result would be 

anomalous and contrary to law.

¶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, ¶191. 

But he never identifies any error in our understanding of the laws 

the legislature passed. In fact, there appears to be no 

disagreement at all with respect to what §§ 33 and 38 actually do. 

Instead, the disagreement is over what the constitution requires. 

It is also about Justice Hagedorn's misunderstanding of what we 

said about the constitution, which he mischaracterizes as having 

rejected §§ 33 and 38 "on the thinnest of foundations——its 
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29

misguided determination that guidance documents regulate executive 

branch thought." Id. At the risk of repeating what we have 

already said, this is not just about regulating the executive's 

thought——it is about interfering in the relationship between the 

executive branch's interpretation of the law, its communication of 

that interpretation to the public, and its execution of the law.

¶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 exclusive zone of authority 

(and his opinion contains no further exploration of this concept), 

then there can be no structural limitations on the scope of laws 

the legislature may adopt. Of course §§ 33 and 38 are laws the 

legislature adopted under its constitutional authority to make the 

law. That is not the question. The question is whether, in making 

this law, the legislature legislated on something the constitution 

says it may not. 

The Constitution is either a superior, paramount law, 

unchangeable by ordinary means, or it is on a level with 
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30

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 opinion is simply an extended 

discussion of statutes that require the executive branch to create 

certain documents, followed by his assumption that this confers on 

the legislature the power to prevent the executive branch from

creating and disseminating documents unless they comply with the 

legislature's content and publication requirements. Justice 

Hagedorn introduces this part of his analysis by accusing the court 

of resting its analysis on "its mistaken interpretation of what 

guidance documents are." Justice Hagedorn's concurrence/dissent, 

¶192. He then proceeds to essentially repeat the statute's 

definition of guidance documents, a definition on which we based 
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31

our entire analysis. As relevant here, a guidance document 

"[e]xplains the agency's implementation of a statute or rule[,]" 

or "[p]rovides guidance or advice with respect to how the agency 

is likely to apply a statute or rule[.]" See 2017 Wis. Act 369, 

§ 31 (Wis. Stat. § 227.01(3m)(a)1.-2.). Because the executive 

branch (through its agencies) creates and issues guidance 

documents, it necessarily follows that they contain the 

executive's explanations, or the executive's guidance or advice. 

Naturally, that means the explanations, guidance, and advice must 

originate in the minds of executive branch employees, which further 

means guidance documents are nothing but the written 

manifestations of the executive branch's thought processes. But 

if 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. The failure to make that distinction explains his 

assertions that "determining the content and timing of executive 

branch communications are not the exclusive prerogative of the 

executive," and that "nothing in the constitution suggests the 

legislature cannot, at least in some circumstances, make laws that

determine the content of certain formal communications from the 

government to the public." Justice Hagedorn's 

concurrence/dissent, ¶198. His assertions are correct with 

respect to documents the legislature has the power to command. 
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32

But they are not correct with respect to guidance documents, 

because having not been commanded, they belong entirely to the 

executive. Nothing in Justice Hagedorn's opinion describes how 

the power to command the former translates into the power to ban 

the latter unless they comply with the legislature's content and 

publication requirements.

¶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." 

Id., ¶206. In the absence of a legislative command, of course, 

the document would belong to the executive department. Justice 

Hagedorn's reasoning works only if the executive branch has no 

authority to create or disseminate guidance documents, and depends 

on legislative permission to do so. This, of course, is not true 

and Justice Hagedorn does not even attempt to demonstrate 

otherwise.

¶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 "Wisconsin Stat. § 227.05 requires
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33

that a guidance document cite the applicable laws. But the 

majority opinion holds that this is too much for the legislature 

to demand of the executive branch because it controls executive 

branch thought." Id., ¶210. The question is not whether the 

legislature demanded too much, but whether it had the right to 

demand at all. Now, it is obviously true that the legislature 

could require the Department of Natural Resources to issue a 

bulletin citing the law applicable to the youth hunting season. 

It would simply need to pass a law mandating such a bulletin and 

require the citation. But that authority does not translate into 

the power to ban executive guidance documents on that subject 

unless they meet the legislature's content and process 

requirements.

¶125 To these errors Justice Hagedorn adds a metaphysical 

impossibility. He says the legislature can, and regularly does, 

co-opt the executive's thought processes that go into creating 

what are now known as guidance documents: "The legislature has 

long regulated . . . the executive branch's understanding of what 

the law is . . . and how the executive branch intends to execute 

the law going forward." Justice Hagedorn's concurrence/dissent, 

¶199. That, of course, is not and cannot be true. The legislature 

may tell executive branch employees what the law is and what to do 

with it, but regulating the employees' understanding of the law or 

their intentions with respect to the execution of the law is 

entirely beyond the legislature's reach——not as a matter of 

separation of powers, but as an epistemological recognition that 
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34

one person cannot control another's understanding or intentions.19 

He says "[t]he clearest example [of this phenomenon] may be the 

mandatory creation of certain executive branch reports," such as 

Wis. Stat. § 15.04(1)(d), which he says requires the executive 

agencies to "include what the agency has done, how it operates, 

and its goals and objectives moving forward." Justice Hagedorn's

concurrence/dissent, ¶199. Commanding the executive to divulge 

its understanding of the law and intentions with respect to the 

law is not the same thing as regulating the executive's 

understanding and intentions. So the dispositive difference 

between this and the guidance document provisions is really not 

that hard to spot. The legislature may command the executive to 

speak, and even provide content to include in that speech. But 

absent a command to produce a document, the document is the 

executive's own, and the legislature cannot, as an epistemological 

matter, control how the executive understands the law he is 

addressing, or his intentions with respect to that law. Justice 

 

19 Another epistemological error shows up in Justice 

Hagedorn's reversal of our observation that "[t]he constitutional 

authority of the executive encompasses determining what the law 

requires as well as applying it (preferably in that order)." 

Supra, ¶99. He says this is "wrong on the facts, and therefore, 

wrong on the law" because guidance documents "are the result of, 

rather than the necessary predicate to, executing the law." 

Justice Hagedorn's concurrence/dissent, ¶203. But this 

formulation——act first, do the intellectual homework later——cannot 

possibly be correct. Creating a guidance document does not reflect 

the execution of any law. It is simply a written record of the 

executive branch's thoughts about how it will——future tense——

execute the law, or how others ought to——future tense——conform 

themselves to the law. In the relationship between guidance 

documents and execution of the law, therefore, guidance documents 

come first as a definitional and epistemological matter.
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35

Hagedorn could probably provide an endless list of examples in 

which he believes this type of legislative control over the 

executive branch would be a good idea and minimally intrusive (and 

he makes a good start on it (see id., ¶207)), but that would be to 

entirely miss the point. With respect to core powers, the 

constitutionality of the legislature's reach into the executive 

branch is not determined by the wisdom of what it would do once 

there, or the relative lack of discomfort to those exercising core 

powers. It is determined by whether the legislature is exercising 

that control at all. But for Justice Hagedorn, there is no 

difference between: (a) a mandatory report describing an agency's 

understandings and intentions and; (b) a law that attempts to 

regulate the executive branch's "understanding of what the law is" 

and how it "intends to execute the law." Id., ¶199. The former 

is clearly lawful and achievable; the latter is impossible because 

the executive branch's thought processes about the implementation 

of the law, and its guidance and advice, are (by definition) its 

own.

¶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 
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36

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 

[court opinions] is now denominated a regulation of [judicial]

branch thought and invades core [judicial] power"? Id. Would he 

say that "[t]he legislature is not invading the [judiciary]'s

ability to read the law or think about the law when it regulates

how [the courts] officially communicate to the public about what 

the law is and where in the statutes the law may be found"? Id., 

¶204. Would he conclude that the legislature may mandate the 

content and publication process of our opinions because "[b]y the 

time [the court's opinion] has been reduced to writing, the 

thinking and analyzing has been done"? Id., ¶203. Would he be 

mollified if we could reduce the pre-clearance time period to 

something inconsequential?

¶127 One could do this with the entirety of Justice Hagedorn's 

analysis. And even though the answers are so obvious they make 
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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 coequal 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 far as he says in his opinion, at least) is 

simply that, so long as "the legislature is carrying out its 

function of determining what the law should be by passing laws 

pursuant to its constitutional authority," there are no structural 

limitations on the scope of that law. Id., ¶198. He certainly 

provides no analysis of the legislature's limits, nor does he even

attempt to describe what might be included in the executive's core 

 

20 Justice Hagedorn apparently misses the import of these 

illustrations. He says:

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. 
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38

powers. And yet without doing any of this work, he says "[our] 

analysis falls far short of the mark," id., ¶201, even though the 

constitutional principles informing our analysis are welldocumented and fundamental to the separation of powers established 

under our constitution more than 170 years ago. 

*

¶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. This 

is so, she says, because of the nature of administrative agencies 

within our constitutional structure: "[A]dministrative agencies

have no constitutional core powers because they are not a branch 

of government in our tripartite system." Chief Justice 

Roggensack's concurrence/dissent, ¶148. She also asserts that we 

have previously said that administrative agencies can do nothing 

but what the legislature tells them to do: "[A]dministrative 

agencies are creations of the legislature and that they can 

exercise only those powers granted by the legislature." Id., ¶150 

(quoting Martinez, 165 Wis. 2d at 697).

¶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.
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39

("[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 of our analysis in 

Martinez. There, we said "administrative agencies are creations 

of the legislature and . . . they can exercise only those powers 

granted by the legislature." Martinez, 165 Wis. 2d 20 at 697. 

From this the Chief Justice concludes that because agencies are 

created by the legislature they are subject to its plenary control. 

Chief Justice Roggensack's concurrence/dissent, ¶147. That, 

however, overlooks the fact that agencies exercise both executive 

and legislative powers. Our observations in Martinez related to 

the legislature's ability to govern the rule-making authority——

that is, the legislative power——it delegates to administrative 

agencies. So our statements on the legislature's ability to limit 

the legislative authority the agencies exercise say nothing about 

its ability to limit the agencies' exercise of executive authority. 

Nor does the Chief Justice find any authority for the proposition 

that an agency's exercise of that executive authority arises from 

or is dependent on the legislature. The legislature undeniably 

has plenary authority to govern administrative agencies' exercise 
Nos. 2019AP614-LV & 2019AP622.dk

40

of their delegated rule-making power because the legislature could 

simply choose to revoke it altogether. Martinez, 165 Wis. 2d at 

698. It naturally follows that if the legislature may eliminate 

the power it conferred, it may also condition the exercise of that 

power. Koschkee, 387 Wis. 2d 552, ¶20. But the legislature does 

not confer on administrative agencies the ability to exercise 

executive power; that comes by virtue of being part of the 

executive branch. The Chief Justice cites no authority nor 

presents any argument suggesting the legislature's authority over 

an agency's exercise of legislative power is necessarily (or even 

potentially) co-extensive with its authority over an agency's 

exercise of executive power.

¶131 This is a dangerous path the Chief Justice is pursuing. 

The Wisconsin Constitution provides for a circuit court, but does 

not say how many circuit court judges there shall be. So the 

existence of any given circuit court judge is dependent entirely 

on the legislature's choice to create the position. The Chief 

Justice says the power to create includes the ability to control 

the exercise of authority in that position, even when the 

legislature is not the source of the authority the employee 

exercises. If that logic is sound, the legislature could tell 

circuit court judges how to exercise their judicial power on the 

grounds that it did not have to create the circuit court position 

in the first place and could eliminate it.

¶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:
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41

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 
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42

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 core power of the 

executive, courts could not strike down such an interpretation." 

Chief Justice Roggensack's concurrence/dissent, ¶154. But we 

don't strike down executive interpretations of the law. We strike 

down the executive's application of the law in specific cases. A 

guidance document is not an application of the law, it is simply 

the executive branch's understanding of what the law requires.21

¶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 

 

21 The Chief Justice says we ignored State v. Unnamed 

Defendant, 150 Wis. 2d 352, 441 N.W.2d 696 (1989), as an example 

of the judiciary properly invading the executive's interpretation 

of the law. Chief Justice Roggensack's concurrence/dissent, ¶151. 

There, as the Chief Justice notes, "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." Id. (citing Unnamed Defendant, 150 

Wis. 2d at 356). We ultimately approved the circuit court's order 

authorizing issuance of a complaint under Wis. Stat. § 968.02(3). 

But this does not illustrate what the Chief Justice thinks it does. 

We didn't countermand the district attorney's interpretation of 

the law, we countermanded his exercise of discretion.
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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 legislature has 

specifically defined a guidance document as something that cannot 

be a rule, impose any obligations, set no standards, or bind 

anyone, it is no longer even conceptually possible for them to be 

"applied" or "enforced" against a person in accordance with the 

law. However, should an administrative employee treat a guidance 

document as a source of authority, that employee would be making 

a mistake, not defining the nature of a guidance document. So 

although the Chief Justice accurately describes how guidance 

documents were used prior to adoption of 2017 Wis. Act 369, they 

may no longer be lawfully used in that manner. We expect, as 

befits a co-equal branch of government, that executive branch 

employees will respect that change in the law. But if they should 

mistakenly use them as before, their mistakes are subject to 

judicial review pursuant to §§ 65-71, as we explained above. The 

Chief Justice's concern that executive branch employees will 

misuse guidance documents in the future is not a justification for 

allowing the legislature to overstep its constitutional boundaries 

in order to check those transgressions. Procedural safeguards 

enacted by the legislature, even those that respond to the 

executive's historical misuse of guidance documents, must comport 

with the constitution. Sections 33 and 38 do not.

VI. CONCLUSION
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¶135 We affirm the circuit court's judgment that 2017 Wis. 

Act 369 § 33 (to the extent it addresses guidance documents) and 

§ 38 are facially unconstitutional because they intrude on power 

the Wisconsin Constitution vests in the executive branch of 

government. However, we reverse the circuit court's judgment with 

respect to 2017 Wis. Act 369, §§ 31, 65-71, 104-05.
No. 2019AP614-LV & 2019AP622.pdr

1

¶136 PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part, 

dissenting in part). I conclude that 2017 Wis. Act 369's 

regulation of guidance documents does not invade the executive's 

core powers. I write to point out the fundamental flaw that 

underlies Justice Kelly's reasoning and on which he bases his 

conclusion that "the creation and dissemination of guidance 

documents fall within the executive's core authority." Justice 

Kelly's majority op., ¶105. 

¶137 The executive's constitutional core power is to "take 

care that the laws be faithfully executed." Wis. Const. art. V, 

§ 4. Justice Kelly gets to the conclusion he seeks by adding 

interpretation of the law to Article V, § 4's core power of 

execution of the law. Justice Kelly's majority op., ¶¶105–06. 

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. 

¶138 In judicial proceedings, interpretation of the law is 

the constitutional core power of the courts. Wis. Const. art.

VII, § 2; State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 

WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110 ("It is, of course, a 

solemn obligation of the judiciary to faithfully give effect to 

the laws enacted by the legislature, and to do so requires a 

determination of statutory meaning."). When an executive's 

interpretation of a law has been challenged in court, it is the 

court's interpretation that prevails, not the executive's. State 
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v. Unnamed Defendant, 150 Wis. 2d 352, 360, 441 N.W.2d 696 (1989); 

see also Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 119–20 (2015) 

(Thomas, J., concurring) ("The judicial power was understood [at 

the time of the founding of the United States] to include the power 

to resolve these 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." (Internal citations omitted.)). 

¶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).
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I. BACKGROUND

¶140 2017 Wis. Act 369 has several provisions that affect 

guidance documents. Section 31 generally defines guidance 

documents; § 33 addresses required content of guidance documents; 

§ 38 regulates creation of guidance documents and §§ 65-71 set out 

how litigation may proceed when guidance documents are at issue.1 

Justice Kelly has concerns with only §§ 33 and 38. Justice Kelly's 

majority op., ¶88. He has concluded that the other guidance 

document provisions are facially constitutional. Id.

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 being enforced objects to enforcement. 

Newcap, Inc. v. DHS, 2018 WI App 40, ¶3, 383 Wis. 2d 515, 916 

N.W.2d 173.

 

1 Sections 104–05 address the initial applicability and 

effective date of § 33.
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¶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") (last 

visited June 25, 2020); Floor Speech by Andre Jacque Floor Session 

on 2017 Assembly Bill 1072 (2017 Wis. Act 369), at 

3:25, https://wiseye.org/2018/12/05/assembly-floor-session-part-
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2-8/ (last visited June 25, 2020) (explaining the assemblyman 

"frequently heard from constituents, small businesses [and] local 

government" about "how guidance documents have been abused as a 

vehicle to actually change the law" and how they are sometimes 

"hidden from sight or dusted off after decades"). 

¶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).

¶145 Justice Kelly ignores the remedial nature of 2017 Wis. 

Act 369. He argues that "should an administrative agency employee 

treat a guidance document as a source of authority, that employee 

would be making a mistake, not defining the nature of a guidance 

 

2 Hale Melnick, Comment, Guidance Documents and Rules: 

Increasing Executive Accountability in the Regulatory World, 44 

B.C. Environmental Affairs L. Rev. 357, 364 (2017) ("By issuing 

guidance documents, agencies circumvent the costly and timeconsuming——but democratically important——notice-and-comment 

requirements.").
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document. . . . [T]heir mistakes are subject to judicial review." 

Justice Kelly's majority op., ¶134. 

¶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 

 

3 2011 Wis. Act 21 affected the authority of agencies by 

imposing an "explicit authority requirement" on agency authority. 

See generally Kirsten Koschnick, Comment, Making "Explicit 

Authority" Explicit: Deciphering Wis. Act 21's Prescriptions for 

Agency Rulemaking Authority, 2019 Wis. L. Rev. 993. This

requirement is set out in Wis. Stat. § 227.10(2m), which provides: 

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 
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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 powers which have been 

granted, prescribe the procedure through which granted powers are 

to be exercised, and if necessary wipe out the agency entirely.").

¶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 "art. IV., 

sec. 1 vests legislative power in the senate and assembly; art. 

V., sec. 1 vest[s] executive power in the governor and lieutenant 

 

been promulgated in accordance with this subchapter[.] 

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).
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governor; and art. VII, sec. 2 vest[s] judicial power in a unified 

court system"); see also Unnamed Defendant, 150 Wis. 2d at 360. 

However, administrative agencies have no constitutional core 

powers because they are not a branch of government in our 

tripartite system. Martinez, 165 Wis. 2d at 696 n.8. Stated 

otherwise, the core power of the executive resides with the 

governor and lieutenant governor; it does not reside with 

administrative agencies, which are merely "creatures of statute." 

Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54, ¶23, 335 Wis. 2d 47, 

799 N.W.2d 73; see also Koschkee, 387 Wis. 2d 552, ¶47 (R. Grassl 

Bradley, J., concurring) ("Article V, Section 1 'vest[s]' the 

'executive power . . . in a governor' . . . . These 

constitutional 'grants are exclusive,' which has been understood 

to mean 'only the vested recipient of that power can perform it.'" 

(alterations in the original) (internal citations omitted)).

¶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] 

guidance document is something created by the executive branch 

employees through the exercise of executive authority native to 

that branch of government." Justice Kelly's majority op., ¶105. 

Justice Kelly asserts that "unlike a rule, the executive branch 

needs no borrowed authority from the legislature to create a 

guidance document." Justice Kelly's majority op., ¶100. He 

asserts, "This creative power is necessarily inherent to the 

executive because no other branch of government has even the 
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theoretical ability to know the executive's mind with respect to 

the law he is to execute." Justice Kelly's majority op., ¶102. 

¶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 file charges pursuant to 

Wis. Stat. § 968.02(3), which states a judge "may permit the filing 

of a complaint" in a John Doe proceeding "if the judge finds there 

is probable cause to believe that the person to be charged has 

committed an offense after conducting a hearing." Id. at 357. We 

upheld the circuit court's decision. Id. at 367. In so doing, we 

authorized circuit courts to disregard prosecutors' statutory 

interpretations in light of the "John Doe Law," Wis. Stat. 

§§ 968.02(3) and 968.26. Id. at 366. The interpretation of the 
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acting district attorney would not have been overruled if 

interpretation of the law were a core power of the executive.

¶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.

¶153 To explain shared powers, and their relationship to core 

powers, "it is neither possible nor practicable to categorize all 

governmental action as exclusively legislative, executive or 

judicial." Martinez, 165 Wis. 2d at 696 (quoting State v. 

Washington, 83 Wis. 2d 808, 825, 266 N.W.2d 597 (1978)). 

Therefore, separation of powers is transgressed only when one 

branch "interferes with a constitutionally guaranteed 'exclusive 

zone' of authority vested in another branch," Martinez, 165 Wis. 2d 

at 697, i.e., a constitutional core power, or when a shared power 
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is unduly burdened. Flynn v. DOA, 216 Wis. 2d 521, 556, 576 N.W.2d 

245 (1998).

¶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 __, ¶2, __ Wis. 2d __, __ N.W.2d __.

¶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 
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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 statutes unless they 

cannot be enforced under any circumstances. Justice Kelly's 

majority op., ¶92. He later states:

[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 
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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 & 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." Wis. Stat. § 227.112(1)(b). Public 

comments might inform the "knowledge or intentions" of the 

administrative agency; however, they would not control it. Justice 

Kelly rhetorically questions whether I would feel similarly if the 

legislature required the Wisconsin Supreme Court to submit its 

opinions to a public comment period before publication. No, I 

would not, because we are constitutional officers; administrative 

agencies are not.

¶161 Third, and relatedly, this case is not an as-applied 

challenge. In some situations, §§ 33 & 38 might contain procedural 

hurdles on the issuance of guidance documents that are so difficult 

to meet that they are unduly burdensome. However, we do not have 

an as-applied challenge before us.

¶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 
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2017 Wis. Act 369, §§ 33 & 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. 
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¶163 REBECCA FRANK DALLET, J. (concurring in part, 

dissenting in part). Just days before the swearing-in of 

Wisconsin's newly elected governor and attorney general, the 

legislature passed, and the outgoing governor signed into law, 

2017 Wis. Act 369 and 2017 Wis. Act 370. The Plaintiffs, a group 

of labor organizations and individual taxpayers, filed this 

lawsuit alleging several provisions of these Acts violate the 

separation of powers enshrined in the Wisconsin Constitution.

¶164 I agree with the scope of the majority opinions1 and join 

several parts.2 I write separately, however, because the complaint 

 

1 I agree the following provisions were not properly before 

the court on this interlocutory appeal: 2017 Wis. Act 369, § 87 

(Wis. Stat. § 238.399(3)(am)), 2017 Wis. Act 370, § 10 (Wis. Stat. 

§ 20.940), and 2017 Wis. Act 370, § 11 (Wis. Stat. § 49.175(2)(a)). 

See Justice Hagedorn's majority op., ¶24 n.9.

2 Specifically, I join Justice Kelly's majority opinion with 

respect to 2017 Wis. Act 369, § 31 (Wis. Stat. § 227.01 (3m)), 

§ 33 (Wis. Stat. § 227.05), § 38 (Wis. Stat. § 227.112), §§ 65-71 

(amending Wis. Stat. § 227.40), and §§ 104-05 in full, and Justice 

Hagedorn's majority opinion on the following parts:

 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.
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plausibly suggests that the sweep of the "Litigation Control" 

provisions, 2017 Wis. Act 369, § 26 (Wis. Stat. § 165.08(1)) and 

§ 30 (Wis. Stat. § 165.25(6)(a)1.), violates our constitutional

separation of powers because it unduly burdens and substantially 

interferes with executive power. Accordingly, I respectfully 

concur in part and dissent in part.

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 to us after newly filed 

lawsuits result in the very development that this court's 

 

Because I join the majority opinions with respect to 2017 

Wis. Act 369, § 31 (Wis. Stat. § 227.01(3m)), § 64 (Wis. Stat. 

§ 227.26(2)(im)), §§ 65-71 (amending Wis. Stat. § 227.40), and 

§§ 104-05, I would similarly vacate the circuit court's temporary 

injunction with respect to these sections.

3 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.

4 A litigant's ability to amend the pleadings pursuant to Wis. 

Stat. § 802.09(1) is "liberally construed . . . so as to present 

the entire controversy providing the amendment does not unfairly 

deprive the opposing party of timely opportunity to meet the issue 

created by the amendment." Wiegel v. Sentry Indem. Co., 94 

Wis. 2d 172, 184, 287 N.W.2d 796 (1980) (quoted source omitted).
No. 2019AP614-LV & 2019AP622.rfd

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assumption of jurisdiction snuffed. This court's impatience did 

not allow the challenges to 2017 Wis. Act 369 and 2017 Wis. Act 

370 to percolate and will prove to be an unfortunate waste of 

judicial resources.5

¶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 United 

 

5 See, e.g., Richard A. Posner, The Federal Courts: Crisis 

and Reform 163 (1985) ("[A] difficult question is more likely to 

be answered correctly if it is allowed to engage the attention of 

different sets of judges deciding factually different cases than 

if it is answered finally by the first panel to consider it."); 

John Paul Stevens, Some Thoughts on Judicial Restraint, 66 

Judicature 177, 183 (1982) ("The doctrine of judicial restraint 

teaches us that patience in the judicial resolution of conflicts 

may sometimes produce the most desirable result.").
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4

States Constitution.6 The Wisconsin Constitution establishes a 

tripartite state government whereby it vests the senate and 

assembly with the legislative power, Wis. Const. art. IV, § 1; the 

governor with the executive power, id., art. V, § 1; and the 

unified court system with the judicial power, id., art. VII, § 2. 

"[N]o branch [is] subordinate to the other, no branch [may]

arrogate to itself control over the other except as is provided by 

the constitution, and no branch [may] exercise the power committed 

by the constitution to another." Koschkee v. Taylor, 2019 WI 76, 

¶10, 387 Wis. 2d 552, 929 N.W.2d 600 (quoting State ex rel. 

Friedrich v. Cir. Ct. for Dane Cty., 192 Wis. 2d 1, 13, 531 

N.W.2d 32 (1995) (per curiam)).

¶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, 643, 594 N.W.2d 772 

 

6 The "principles underlying the United States 

Constitution . . . 'inform our understanding of the separation of 

powers under the Wisconsin Constitution.'" League of Women Voters 

of Wisconsin v. Evers, 2019 WI 75, ¶31, 387 Wis. 2d 511, 929 

N.W.2d 209 (quoting Gabler v. Crime Victims Rights Bd., 2017 WI 

67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384).
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5

(1999). The core powers are "jealously guard[ed]," while branches 

with intersecting powers may exercise their shared authority so 

long as they do not "unduly burden or substantially interfere with 

another branch." Id. at 644.

¶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 (Wis. Stat. § 165.08(1)) and 

§ 30 (Wis. Stat. § 165.25(6)(a)1.), violate the separation-ofpowers doctrine because they effectively eliminate executive power 

 

7 Justice Brennan, a prolific modern advocate of living 

constitutionalism and constitutional functionalism generally, 

adhered to a formal separation-of-powers philosophy because of 

this vulnerability. See Commodity Futures Trading Comm'n v. Schor, 

478 U.S. 833, 859–62 (1986) (Brennan, J., dissenting) (reasoning 

that the Court's functional approach risked the "incremental 

erosion" of the separation between the branches "central to our 

constitutional scheme"); see also N. Pipeline Constr. Co. v. 

Marathon Pipe Line Co., 458 U.S. 50 (1982) (Brennan, J.).

8 "While individual encroachments on the constitutional 

structure may appear harmless, at some point the structure will 

fail, and '[w]hen structure fails, liberty is always in peril.'" 

Ara Lovitt, Fight for Your Right to Litigate: Qui Tam, Article 

II, and the President, 49 Stan. L. Rev. 853, 866 (1997) (footnotes 

omitted) (quoting Public Citizen v. United States Dep't of Justice, 

491 U.S. 440, 468 (1989) (Kennedy, J., concurring)).
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to settle civil litigation by enacting an overriding legislative 

veto. Prior to Act 369, executive branch officials could direct 

a civil prosecution to be compromised or discontinued. Act 369 

amended § 165.08(1) to remove the executive branch's unilateral 

control by barring the attorney general from compromising or 

discontinuing a civil prosecution without prior "approval of a[] 

[legislative] intervenor" or, if there is no legislative 

intervenor, "only if the joint committee on finance approves the 

proposed plan [to compromise or discontinue]" the prosecution. 

(Emphasis added.) Further, pursuant to § 165.08(1) the attorney 

general can no longer concede "the unconstitutionality or other 

invalidity of a statute" or that "a statute violates or is 

preempted by federal law" without first receiving the approval of 

another legislative committee, the joint committee on legislative 

organization.

¶171 Similarly, Wis. Stat. § 165.25(6)(a)1. removes the 

executive branch's unilateral control by mandating legislative 

approval in cases where the attorney general defends the State of 

Wisconsin in a civil action for injunctive relief or where there 

is a proposed consent decree. Section 165.25(6)(a)1. dictates 

that the attorney general "may not compromise or settle the action 

without the approval of a[] [legislative] intervenor . . . or, if 

there is no intervenor, without first submitting a proposed plan 

to the joint committee on finance." (Emphasis added.) The 

attorney general may now only settle a case in defense of the State

of Wisconsin with the committee's approval, if the committee 

chooses to meet. And if the plan "concedes the unconstitutionality 
No. 2019AP614-LV & 2019AP622.rfd

7

or other invalidity of a statute, facially or as applied, or 

concedes a statute violates or is preempted by federal law,"

section 165.25(6)(a)1. adds yet another layer of legislative 

control: "the approval of the joint committee on legislative 

organization" before the attorney general may even submit the plan. 

Collectively, the Litigation Control provisions make legislative 

officials the final arbiters over the attorney general's 

discretionary authority to resolve state-related litigation.

¶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 executive branch's function. 

Instead, the majority mechanically applies a strict review 

standard for facial challenges and concludes that the Plaintiffs' 

 

9 "A lawsuit is the ultimate remedy for a breach of the law, 

and it is to the President . . . that the Constitution entrusts 

the responsibility to 'take Care that the Laws be faithfully 

executed.'" Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam) 

(quoting U.S. Const. art. II, § 3).
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8

challenge fails because the court can conceive of some 

unarticulated constitutional application of the Litigation Control 

provisions.

¶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 Wisconsin Constitution, like the United 

States Constitution, does not contemplate an active role for the 

legislature in executing or in supervising the executive officers

 

10 If the legislature had an institutional interest such that 

it could arrogate the executive power to ensure its laws were 

upheld (or at least not conceded) in court, the legislature could

also rely on this interest to enact the same controls on the 

judiciary's authority to declare its laws invalid, 

unconstitutional, or preempted by federal law. Such a result is 

constitutionally suspect.
No. 2019AP614-LV & 2019AP622.rfd

9

charged with executing the laws it enacts.11 See Schuette v. Van 

De Hey, 205 Wis. 2d 475, 480–81, 556 N.W.2d 127, (Ct. App. 1996)

("Legislative power, as distinguished from executive power, is the 

authority to make laws, but not to enforce them, or appoint the 

agents charged with the duty of such enforcement." (quoting 2A 

Eugene McQuillin, Municipal Corporations § 10.06 at 311 (3d ed. 

1996))); see also Bowsher v. Synar, 478 U.S. 714, 722, 726 (1986). 

Justice Hagedorn's majority opinion fails to tie its concept of an 

institutional interest to any constitutional text. This is fatal 

to its argument because a separation-of-powers analysis begins and 

ends with the Wisconsin Constitution.

 

11 I do not contest that the legislature's institutional 

interest may permit it to intervene in litigation on its own 

branch's behalf. For this reason, I join Justice Hagedorn's 

opinion with respect to 2017 Wis. Act 369, § 5 (Wis. Stat. 

§ 13.365) and § 97 (Wis. Stat. § 803.09(2m)).

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 Wis. Stat. § 14.11(2), when a 

conflict arises and the attorney general, as part of the executive 

branch, is unable to represent a named judicial party, it is the 

judicial branch rather than the executive branch that selects 

subsequent representation. See id., ¶13 n.3 (citing SCR 81.02(1)) 

(referring to "this court's practice of appointing counsel for a 

court, for judges sued in their official capacity . . . and for 

boards, commissions and committees appointed by the supreme 

court").
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¶175 The other legislative power relied upon by the majority, 

the power of the purse, is found in the Wisconsin Constitution. 

Wis. Const. art. VIII, § 2 ("No money shall be paid out of the 

treasury except in pursuance of an appropriation by law."); see

Justice Hagedorn's majority op., ¶68. The legislature's control 

of the purse strings, however, cannot be read so broadly that it 

allows the legislature to curtail the functions of another branch 

even in an area of shared authority.12 See Gabler v. Crime Victims 

Rights Bd., 2017 WI 67, ¶4, 376 Wis. 2d 147, 897 N.W.2d 384

("[N]either the legislature nor the executive nor the judiciary 

'ought to possess, directly or indirectly, an overruling influence 

over the others in the administration of their respective powers.'" 

(quoting The Federalist No. 48, at 305 (James Madison) (Clinton 

Rossiter ed., 1961))). If it were so broad, the legislature could 

authorize itself to veto any function constitutionally assigned to 

the executive or judiciary because money is required to enforce 

the law and maintain a judiciary. Such an "overruling influence" 

over the other branches is not constitutionally tolerable.

B

¶176 Even assuming the power of the purse gives the 

legislature a share of the power to resolve litigation, I do not 

 

12 In fact, the Wisconsin legislature's constitutional "power 

of the purse" is substantially more constrained relative to other 

state and the federal constitutions because the Wisconsin 

Constitution grants the governor "coextensive" authority over 

appropriations legislation. Wis. Const. art. V, § 10(1)(b); State 

ex rel. Wis. Tel. Co. v. Henry, 218 Wis. 302, 315, 260 N.W. 486

(1935).
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11

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 also State v. Konrath, 218 Wis. 2d 290, 305 n.15, 577 

N.W.2d 601 (1998) ("[T]he United States Supreme Court has not 

consistently applied the 'no set of circumstances' language.").
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12

¶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 linedrawing 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 Conn. Gen. Stat. Ann. § 3-

125a(a) (2019). The Oklahoma legislature set a threshold of 

$250,000. See Okla. Stat. Ann. tit. 51 § 200A.1. (2019). In Utah, 

legislative approval only becomes mandatory for settlements that 

might cost more than $1,000,000 to implement. Utah Code Ann. 

§ 63G-10-202 (2018). In contrast, Wisconsin's legislature granted 

itself an unfettered veto power in every proposed settlement, 

compromise, or discontinuation of not only civil cases where the 

attorney general is defending the State of Wisconsin, but also 
No. 2019AP614-LV & 2019AP622.rfd

13

where the executive is prosecuting the law. I fail to see the 

touted judicial modesty in an approach that will result in an 

exercise of judicial policy-making.

¶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, 515–517 (1964) (applying overbreadth to evaluate a facial 

challenge to a statute affecting the right to travel because it is 

"a personal liberty protected by the Bill of Rights").

¶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 

 

13 At oral argument, Attorney General Kaul and the Legislative 

Defendants debated the issue of whether analyzing this case as a 

traditional facial challenge was appropriate. My analysis stems 

from their debate.
No. 2019AP614-LV & 2019AP622.rfd

14

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 affected by the 

requested declaratory and injunctive relief.14 This eliminates the 

possibility for judicial overreach that standing is meant to 

moderate.

¶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 

 

14 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.").
No. 2019AP614-LV & 2019AP622.rfd

15

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.'" (quoting 1 Montesquieu, The Spirit of the Laws 151-52 

(Oskar Piest et al. eds., Thomas Nugent trans., 1949) (1748))). 

It also would prevent "practically unbridled . . . discretion" in 

delaying or denying executive decision-making on how to best 

enforce the law. Cf. Stevenson, 236 Wis. 2d 86, ¶13.

¶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; 

 

15 Incremental erosion "undermines the checks and 

balances . . . designed to promote governmental accountability and 

deter abuse." Panzer v. Doyle, 2004 WI 52, ¶52, 271 Wis. 2d 295, 

680 N.W.2d 666, overruled on other grounds by Dairyland Greyhound 

Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408.

16 This conclusion might be true in all shared-powers 

analyses, but I leave that question for another time. I focus my 

application of the overbreadth doctrine on the Litigation Control 

provisions because, as compared to the other challenged 

provisions, only their sweeping grab of power could unduly burden 

or substantially interfere with the executive branch's function.
No. 2019AP614-LV & 2019AP622.rfd

16

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 Plaintiffs' allegations that 

the Litigation Control provisions can: (1) prolong litigation 

deemed no longer in the public interest; (2) lock in public 

resources on those cases; (3) undermine the attorney general's 

leverage at settlement conferences by removing ultimate settlement 

authority; and (4) inhibit the executive's check on 

unconstitutional legislative action. See Voters with Facts, 382 

Wis. 2d 1, ¶27 (quoting Data Key Partners, 356 Wis. 2d 665, ¶19).

¶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. 
No. 2019AP614-LV & 2019AP622.rfd

17

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 with the attorney general's ability to 

execute the law through litigation.

¶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.
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¶189 I am authorized to state that Justice ANN WALSH BRADLEY 

joins this concurrence/dissent.
No. 2019AP614-LV & 2019AP622.bh

1

¶190 BRIAN HAGEDORN, J. (concurring in part, dissenting in 

part). In 2017 Wis. Act 369, the legislature defined a new 

category of formal or official executive branch documents and 

communications called "guidance documents." The legislature 

established certain requirements governing their contents, a 

process governing their issuance, and a procedure permitting their 

administrative and judicial challenge. The majority bases its 

declaration that two provisions are unconstitutional on this 

proposition: legislative governance over guidance documents 

regulates executive branch thought and therefore invades core 

executive power. Hence, it throws the constitutional penalty flag 

and declares as facially unconstitutional a statutory provision 

requiring that the law be cited in formal agency communications. 

It also declares a notice-and-comment period prior to the issuance 

of guidance documents facially unconstitutional.

¶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. Guidance documents 

regulate executive branch communications with the public——a 
No. 2019AP614-LV & 2019AP622.bh

2

permissible and longstanding area of legislative regulation. I 

would hold that all of the guidance document provisions survive a 

facial challenge.

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. Wis. Stat. § 227.01(3m).1 The new statute affirms 

 

1 2017 Wis. Act 369, § 31 created the following subsection:

(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 
No. 2019AP614-LV & 2019AP622.bh

3

that guidance documents are not rules; they do not have the force 

of law. Rather, guidance documents are "formal or official 

documents or communications issued by an agency" that either 

explain how an agency is implementing a rule, or provide guidance 

or advice on how the agency is likely to apply a statute or rule 

if it is likely to apply to a class of persons similarly affected. 

§ 227.01(3m)(a).

 

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).

Wis. Stat. § 227.01(3m) (2017-18).

All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version.
No. 2019AP614-LV & 2019AP622.bh

4

¶193 The statute contains some clue as to the type of 

communications being envisioned: "a manual, handbook, directive, 

or informational bulletin." Id. While this list is nonexclusive, 

these examples help us understand what is meant by "formal or 

official document[s] or communication[s]." Id. Not every agency 

communication is a guidance document, only formal or official 

communications that either are or are like manuals, handbooks, 

directives, or bulletins. See Schill v. Wis. Rapids School Dist., 

2010 WI 86, ¶66, 327 Wis. 2d 572, 786 N.W.2d 177 (explaining that 

"general terms . . . may be defined by the other words and 

understood in the same general sense" under the interpretive canon 

of noscitur a sociis (a word is "known by its associates")).

¶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.
No. 2019AP614-LV & 2019AP622.bh

5

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. Wisconsin Stat. 

§ 227.05 states that agencies "shall identify the applicable 

provision of federal law or the applicable state statutory or

administrative code provision that supports any statement or 

interpretation of law that the agency makes in any publication." 

And Wis. Stat. § 227.112 requires, among other things, that 

proposed guidance documents be sent to the legislative reference 

bureau and undergo a notice-and-comment period before the guidance 

documents are issued, subject to the caveat that public comment 

periods shorter than 21 days are allowed with the governor's 

approval.2

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 may exercise 

that power. See State v. Horn, 226 Wis. 2d 637, 643, 594 

N.W.2d 772 (1999); Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶48, 

 

2 Wisconsin Stat. § 227.112 is cited in full in paragraph 90 

of Justice Kelly's majority opinion.
No. 2019AP614-LV & 2019AP622.bh

6

382 Wis. 2d 496, 914 N.W.2d 21 (Kelly, J.). Not all government 

power has this exclusive character. Shared powers, those residing 

where the powers of the branches converge, may be exercised by 

more than one branch so long as no branch "unduly burden[s] or 

substantially interferes[s] with another branch." Horn, 226 

Wis. 2d at 643-44.

¶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." Wis. Const. 

art. V, § 4. This occurs, the parties contend, because the 

legislature is regulating non-legislative power——the power to give 

advice, for example. The majority agrees in part and holds that 

two of the guidance document provisions intrude upon the core 

powers of the executive branch.3

¶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 its function of 

determining what the law should be by passing laws pursuant to its 

constitutional authority. Wis. Const. art. IV, § 1, § 17; Koschkee 

 

3 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.
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v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600 (stating 

legislative power "is the authority to make laws"). And nothing 

in the constitution suggests the legislature cannot, at least in 

some circumstances, make laws that determine the content of certain 

formal communications from the government to the public, or 

prescribe the process by which certain formal or official documents 

and communications are finalized and issued.

¶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, Wis. Stat. § 15.04(1)(d) requires executive agencies 

to create a report each biennium, delivered "[o]n or before October 

15 of each odd-numbered year." The report must include what the 

agency has done, how it operates, and its goals and objectives 

moving forward. Id. Similar mandated reports regarding what the 

executive branch is doing and plans to do are found throughout 

Wisconsin law.4

 

4 For example, the Read to Lead Development Council, a 

subordinate of the Department of Children and Families, annually

submits an operation report to appropriate standing committees of 

the legislature. Wisconsin Blue Book 194 (2019-20). Likewise, 

the Board on Aging and Long-Term Care reports to both the governor 

and the legislature regarding "long-term care for the aged and 

disabled." Id. at 184. And the Farmland Advisory Council, a 

subordinate council of the Department of Revenue, is also required 

to report annually to the legislature. Id. at 226.
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¶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 has passed laws telling the executive branch what 

content must be included in certain communications, how those 

communications must be issued, and the process by which those 

communications may be challenged. This has never been thought of 

as a power exclusive to the executive, and nothing in the 

constitution makes it so. The constitution gives the legislature 

the power to say what the law should be. At the very least, this 

gives the legislature a say in at least some formal executive 

 

Sometimes 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 Wis. Stat. 

§ 15.347(13). This statutory provision not only creates the 

council and its membership, it also details with particularity how 

often and under what conditions it can meet. § 15.347(13)(f) ("The 

council shall meet at least twice each year and may meet at other 

times on the call of 3 of its members."). The legislature has 

further mandated that the council must file a report every August

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.

§ 15.347(13)(g).
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branch communications to the public about the law. The challenged 

provisions therefore should survive a facial challenge.

¶201 The majority disagrees and concludes Wis. Stat. 

§§ 227.05 and 227.112 violate the core powers of the executive 

branch. Its analysis falls far short of the mark because it rests 

on a singular proposition that finds no support in the statutory 

provisions at issue, and therefore has no basis in the 

constitution.

¶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 constitutionallyvested power.

Justice Kelly's op., ¶106.

¶203 This conclusion, however, does not follow from the 

premises because the guidance document provisions do not control 

or regulate executive branch thought, at least in all 

circumstances. That is the hook upon which the majority's entire 

analysis rests, and it is mistaken. The only thing the legislature 

purports to regulate here is a "formal or official document or 

communication" about the law——in other words, formal 

communications reflecting the product of thought. Wis. Stat. 

§ 227.01(3m)(a). The majority's explanation that the legislature 

is regulating "the necessary predicate to executing the law," 
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Justice Kelly's op., ¶107, is wrong on the facts, and therefore, 

wrong on the law. The legislature is regulating formal 

communications that are the result of, rather than the necessary 

predicate to, executing the law. By the time a guidance document 

has been reduced to writing, the thinking and analyzing has been 

done.

¶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 includes communication about 

the law.5 The majority's abstract approach misses what's actually 

going on here. The legislature is not invading the executive's 

ability to read the law or think about the law when it regulates 

how agencies officially communicate to the public about what the 

law is and where in the statutes the law may be found.

 

5 The majority raises a series of questions asking whether 

the legislature could tell the judicial branch to do similar things 

as the disputed laws do here. Justice Kelly's op., ¶126. But 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. 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.
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¶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.

¶206 Nothing in the statutes, however, supports this 

conclusion. If the law commands that a manual be created 

reflecting the executive's understanding and intended application 

of the law——and the statutes are full of such mandates——by 

definition, the manual will reflect the executive's understanding 

and intended application of the law. The "authorship," as the 

majority calls it, doesn't change one bit. For example, 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.

¶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. Wis. Stat. 
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§ 227.01(3m)(a). These have lay definitions, but they also appear 

as terms of art throughout our statutes to describe formal agency 

communications. Sometimes our law requires the creation of 

specific informational communications. See, e.g., Wis. Stat. 

§ 7.08(3) (instructing the Elections Commission to create an 

election law manual); Wis. Stat. § 49.32(3) (instructing the 

Department of Health Services (DHS) to create a policy and 

procedural manual regarding aid to families with dependent 

children); Wis. Stat. § 73.03(57) (instructing the Department of 

Revenue to create a tax increment financing manual); Wis. Stat. 

§ 84.02(4)(e) (instructing the Department of Transportation (DOT) 

to create a manual establishing uniform traffic control devices); 

Wis. Stat. § 108.14(23) (instructing the Department of Workforce 

to create an unemployment insurance handbook). And at other times 

the statutes authorize, rather than command, the creation of 

informational communications. See, e.g., Wis. Stat. § 84.01(11) 

(instructing that the DOT shall issue bulletins, pamphlets and 

literature as necessary); Wis. Stat. § 115.28(4) (instructing the 

State Superintendent of Public Instruction to create informational 

bulletins); Wis. Stat. § 452.05(2) (authorizing the Real Estate 

Examining Board to prepare informational letters and bulletins); 

Wis. Stat. § 458.03(2) (authorizing the Department of Safety and 

Professional Services to create informational letters and 

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 
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"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 optional creation 

of a manual by the executive branch is a guidance document, while 

the mandatory creation of that same manual containing the same 

thoughts and written by the same authors is not a guidance 

document. But both a legislative command to communicate and 

legislative permission to communicate fall well within the 

statutory language that a guidance document "[e]xplains the 

agency's implementation of a statute or rule enforced or 

administered by the agency" or "[p]rovides guidance or advice with 

respect to how the agency is likely to apply a statute or rule 

enforced or administered by the agency." Wis. Stat. 

§ 227.01(3m)(a). The majority's approach to authorship does not 

square with the words the legislature wrote.

¶210 The two provisions the majority opinion strikes down 

should easily survive a facial challenge. Wisconsin Stat. § 227.05

requires that a guidance document cite the applicable laws. But 

the majority opinion holds that this is too much for the 

legislature to demand of the executive branch because it controls 
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executive branch thought. Again, the majority's analysis is not 

grounded in the constitution, but in its misinterpretation of the 

statutes. The legislature can, at least sometimes, command the 

executive branch to cite the legal basis for its formal explanation 

of laws.

¶211 Similarly, Wis. Stat. § 227.112 mandates draft guidance 

documents be posted for 21 days before they are officially issued, 

among other related requirements. Posting a draft before issuance 

of some formal communications is now denominated a regulation of 

executive branch thought and invades core executive power. The 

majority's reasoning is likewise rooted in its notion of authorship 

that runs counter to the statutory language. Again, the 

constitution allows the legislature to regulate the process by 

which at least some formal executive branch communications are 

issued. The majority agrees the legislature may do this if it 

commands the creation of such documents, but says the legislature 

may not do this if it merely permits the creation of such 

documents. Nothing in the statutes or the constitution suggests 

such a distinction.6

 

6 As the majority notes, Wis. Stat. § 227.05 was not 

challenged by the Plaintiffs; it was raised in the Governor's 

motion for a temporary injunction. Therefore, the underlying 

merits are not before us, only the motion for temporary injunction. 

Rather than conduct an analysis under the rubric we have 

established for reviewing temporary injunctions, the majority goes 

right to the merits and decides the legal claim. The majority 

could have determined the claim is likely to be successful, and 

gone on to analyze the remaining factors. That is ordinarily how 

a claim under this posture would be analyzed since the legal 

question presented here relates only to the temporary injunction, 

not to the legal claim in the case itself.
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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 the 

laws the legislature passed. The majority's criticisms and 

constitutional conclusion all derive from this error. The 

unfortunate result is that the court's decision undermines, rather 

than protects, the separation of powers by removing power the 

people gave to the legislature through their constitution. I would 

have directed the circuit court to grant the motion to dismiss the 

facial challenge to all the guidance document provisions 

challenged here and vacated the order enjoining these provisions 

in full.

¶213 I am authorized to state that Justice ANNETTE KINGSLAND 

ZIEGLER joins this dissent.

 

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.
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