                                                             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                                     (2019 – unpublished)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

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,
                                              2
assistant 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.




                                3
                                                                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, 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                       FILED
Wisconsin Assembly Speaker, Roger Roth, in his
official capacity as Wisconsin Senate                    JUL 9, 2020
President, Jim Steineke, in his official
capacity as Wisconsin Assembly Majority Leader             Sheila T. Reiff
and Scott Fitzgerald, in his official capacity          Clerk of Supreme Court
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.
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.




       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




                                         2
                                                         Nos.    2019AP614-LV & 2019AP622



enacted.      And judicial power is the power to interpret and apply

the law to disputes between parties.

       ¶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.


                                           3
                                                         Nos.   2019AP614-LV & 2019AP622



    ¶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 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.


                                             4
                                                            Nos.    2019AP614-LV & 2019AP622



       ¶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 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
                                            5
                                                                 Nos.    2019AP614-LV & 2019AP622



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    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.
                                                  6
                                                    Nos.    2019AP614-LV & 2019AP622



      ¶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.



                                 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




      1The 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.

                                           7
                                                          Nos.   2019AP614-LV & 2019AP622



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

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




       The Legislative Defendants, all sued in their official
       2

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.

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

temporary restraining order; however, the circuit court, by
agreement of the parties, construed the motion as one for a
temporary injunction.

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

temporary restraining order and construed as a motion for a
temporary injunction.

                                           8
                                                 Nos.   2019AP614-LV & 2019AP622



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   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




      5We 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.

                                        9
                                                         Nos.   2019AP614-LV & 2019AP622



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    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


     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.
     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).

                                             10
                                                        Nos.   2019AP614-LV & 2019AP622




                                 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 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
                                           11
                                                        Nos.   2019AP614-LV & 2019AP622



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

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

      9Provisions 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.

                                           12
                                                                Nos.   2019AP614-LV & 2019AP622



alleged in the complaint state a viable cause of action.                                       This

is a legal question we review de novo, and one requiring no

further factual development.                  Id., ¶17.

       ¶27   Granting injunctive relief is a discretionary decision

that we review for an erroneous exercise of discretion.                                    Werner

v.   A.L.    Grootemaat         &     Sons,    Inc.,       80     Wis. 2d 513,          519,    259

N.W.2d 310 (1977).          Here, we conclude the circuit court should

have granted the motion to dismiss with respect to the enjoined

provisions discussed in this opinion and direct it to do so.                                     By

necessity,       the     temporary       injunction             based       on    these   to-be-

dismissed claims must be vacated as well.

       ¶28   This case raises questions requiring interpretation of

constitutional and statutory provisions.                           These are questions of

law we review de novo.                League of Women Voters of Wis. v. Evers,

2019 WI 75, ¶13, 387 Wis. 2d 511, 929 N.W.2d 209.                                      It is the

text    of   statutes      that        reflects       the        policy      choices      of   the

legislature, and therefore "statutory interpretation focus[es]

primarily on the language of the statute."                              State ex rel. Kalal
v.     Circuit     Court        for     Dane     Cty.,          2004        WI 58,     ¶44,     271

Wis. 2d 633,       681    N.W.2d 110.               The    text        of   the    constitution

reflects     the       policy       choices     of        the     people,        and   therefore

constitutional interpretation similarly focuses primarily on the

language of the constitution.                   See League of Women Voters, 387

Wis. 2d 511, ¶¶16-18.               "It is the enacted law, not the unenacted




                                               13
                                               Nos.   2019AP614-LV & 2019AP622



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.



     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


       For
      10     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.

                                       14
                                                             Nos.   2019AP614-LV & 2019AP622



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 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


                                             15
                                                     Nos.    2019AP614-LV & 2019AP622



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 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
                                          16
                                                   Nos.    2019AP614-LV & 2019AP622



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."     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)).


                                         17
                                                      Nos.    2019AP614-LV & 2019AP622



      ¶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 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


                                          18
                                                  Nos.    2019AP614-LV & 2019AP622



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 that raises the risk of judicial overreach.12                Wash. State

      11See 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)).
      12This 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.
                                      19
                                                           Nos.   2019AP614-LV & 2019AP622



Grange    v.    Wash.       State    Republican          Party,    552   U.S. 442,     450

(2008).     This is so in part because claims of facial invalidity

often rest on speculation about what might occur in the future.

Id.      They    raise      the     serious    risk      of   calling    on   courts   to

interpret statutes prematurely and decide legal questions before

they must be decided.                 Id. at 450-51.              Striking down a law

facially "threaten[s] to short circuit the democratic process by

preventing laws embodying the will of the people from being

implemented      in     a    manner    consistent         with     the   Constitution."

Id. at 451.          Thus, caution in the face of a facial challenge

shows due respect to the other branches of government——allowing

the legislature to legislate and the executive to execute——which

gives them space to carry out their own constitutional duties.

      ¶41      And    beyond        respect        for    other     branches,     facial

challenges raise the risk of the judiciary overstepping its own

constitutional authority.               The United States Supreme Court has

explained the solemnity of exercising the judicial power:

      This Court, as is the case with all federal courts,
      "has no jurisdiction to pronounce any statute, either
      of a State or of the United States, void, because
      irreconcilable with the constitution, except as it is
      called upon to adjudge the legal rights of litigants
      in actual controversies.     In the exercise of that
      jurisdiction, it is bound by two rules, to which it
      has rigidly adhered:     one, never to anticipate a
      question of constitutional law in advance of the
      necessity of deciding it; the other never to formulate
      a rule of constitutional law broader than is required
      by the precise facts to which it is to be applied."
      Kindred to these rules is the rule that one to whom
      application of a statute is constitutional will not be
      heard to attack the statute on the ground that
      impliedly it might also be taken as applying to other

                                              20
                                                        Nos.    2019AP614-LV & 2019AP622


       persons or other situations in which its application
       might be unconstitutional.
United       States   v.     Raines,    362     U.S. 17,       21   (1960)   (citation

omitted).

       ¶42     Judicial modesty, then, counsels that "courts should

not nullify more of a . . . law than necessary."                          Wash. State

Grange, 552 U.S. at 456 (citation omitted).                          It also ensures

that        courts    stay     in      their     lane      by       prohibiting    only

unconstitutional applications of laws.                     If a law can only be

applied unconstitutionally, it is our duty to say so.                        But if it

can be applied constitutionally, it would be an overstep on our

part to strike down a legislative enactment with constitutional

applications.13

       ¶43     It is with this understanding and appreciation of a

modest judicial power that this court has continually required a

party bringing a facial challenge to prove that the statute

cannot be constitutionally enforced "under any circumstances."

This has not been a principle selectively applied; it is not




       In her partial dissent, Justice Dallet suggests that
       13

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 as-applied 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.

                                           21
                                                        Nos.    2019AP614-LV & 2019AP622



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      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


       The United States Supreme Court has recognized the
       14

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.

                                            22
                                                          Nos.    2019AP614-LV & 2019AP622



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 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
                                              23
                                                     Nos.   2019AP614-LV & 2019AP622



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




                                         24
                                                               Nos.   2019AP614-LV & 2019AP622



is,     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



       Furthermore, the default rule in Wisconsin is that
      15

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.").

                                                 25
                                                        Nos.    2019AP614-LV & 2019AP622



law authorized the attorney general to represent the State in

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.

                                             26
                                            Nos.   2019AP614-LV & 2019AP622



    ¶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.




    (2) The committee on senate organization may intervene
    at any time in the action on behalf of the senate.
    The committee on senate organization may obtain legal
    counsel other than from the department of justice,
    with the cost of representation paid from the
    appropriation under [Wis. Stat. §] 20.765(1)(b), to
    represent the senate in any action in which the senate
    intervenes.

    (3) The joint committee on legislative organization
    may intervene at any time in the action on behalf of
    the legislature.   The joint committee on legislative
    organization may obtain legal counsel other than from
    the   department  of   justice,  with   the  cost   of
    representation paid from the appropriation under [Wis.
    Stat. §] 20.765(1)(a) or (b), as determined by the
    cochairpersons, to represent the legislature in any
    action in which the joint committee on legislative
    organization intervenes.

While 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.

                                   27
                                                     Nos.   2019AP614-LV & 2019AP622



      ¶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 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


      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.

                                       28
                                             Nos.   2019AP614-LV & 2019AP622



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 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,
                                   29
                                                  Nos.    2019AP614-LV & 2019AP622



      ¶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

      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.

       "Legislative power, as distinguished from executive
      19

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)).

                                     30
                                                             Nos.    2019AP614-LV & 2019AP622



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 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,
                                                 31
                                                              Nos.    2019AP614-LV & 2019AP622



§ 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); 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
                                              32
                                                                  Nos.    2019AP614-LV & 2019AP622



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 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
                                                    33
                                                            Nos.    2019AP614-LV & 2019AP622



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 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


                                              34
                                                    Nos.   2019AP614-LV & 2019AP622



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 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

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

    The department of justice shall:

    . . . .

                                      35
                                                Nos.   2019AP614-LV & 2019AP622



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 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.




      (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.)

                                      36
                                                       Nos.   2019AP614-LV & 2019AP622



       ¶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 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)
                                           37
                                                          Nos.   2019AP614-LV & 2019AP622



(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 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
                                             38
                                                        Nos.    2019AP614-LV & 2019AP622



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 applied under

any circumstances, the motion to dismiss the Plaintiffs' facial

challenge should have been granted.22

       The legislature, or its committees or members, have
       21

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).

       As explained above, the attorney general's litigation
       22

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.
                                             39
                                                      Nos.   2019AP614-LV & 2019AP622



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

enjoined by the circuit court, states as follows:

      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
                                         40
                                                          Nos.    2019AP614-LV & 2019AP622



This new 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   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.




     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.

                                            41
                                                         Nos.   2019AP614-LV & 2019AP622



      ¶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.



            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


                                            42
                                                          Nos.   2019AP614-LV & 2019AP622



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     delegate        rule-making

authority to an agency while retaining the right to review any


       This new paragraph states:
       24                           "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).

                                               43
                                                            Nos.   2019AP614-LV & 2019AP622



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
                                            44
                                                          Nos.       2019AP614-LV & 2019AP622



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


                                             45
                                                     Nos.   2019AP614-LV & 2019AP622



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

this opinion, we conclude as follows.

      ¶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




       Specifically, we reverse the circuit court's order
      25

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)).

       The circuit court's temporary injunction is vacated with
      26

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)).

       Following oral argument, the Attorney General moved to
      27

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.

                                              46
                                                     Nos.   2019AP614-LV & 2019AP622



      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      consistent     with   this   opinion       and   the    opinion   of

Justice Daniel Kelly.




                                        47
                                                     Nos.    2019AP614-LV & 2019AP622.dk


       ¶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.




                                            1
                                                 Nos.   2019AP614-LV & 2019AP622.dk


                              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.

                                      2
                                          Nos.     2019AP614-LV & 2019AP622.dk

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

(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
                           4
                                                  Nos.   2019AP614-LV & 2019AP622.dk

    document or proposed guidance document contains no
    standard, requirement, or threshold that is more
    restrictive than a standard, requirement, or threshold
    contained in the Wisconsin Statutes."

    (7)(a) This section does not apply to guidance
    documents adopted before the first day of the 7th
    month beginning after the effective date of this
    paragraph . . . [LRB inserts date], but on that date
    any guidance document that has not been adopted in
    accordance with sub. (1) or that does not contain the
    certification required under sub. (6) shall be
    considered rescinded.

    (b) This section does not apply to guidance documents
    or proposed guidance documents of the Board of Regents
    of the University of Wisconsin System, the Technical
    College System Board, or the department of employee
    trust funds.

    (8) The legislative council staff shall provide
    agencies  with  assistance  in  determining whether
    documents and communications are guidance documents
    that are subject to the requirements under this
    section.
2017 Wis. Act. 369, § 38 (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



    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.

                                       5
                                                           Nos.    2019AP614-LV & 2019AP622.dk


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

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

                                                 6
                                                     Nos.    2019AP614-LV & 2019AP622.dk


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.

          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,


      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.

                                              7
                                                          Nos.   2019AP614-LV & 2019AP622.dk

       which assures their empire and transmits to the
       administration the motion of which it stands in need."
Saikrishna Prakash, The Essential Meaning of Executive Power,

2003 U. Ill. L. Rev. 701, 819 (2003)                        (quoted source omitted).

This     commentator      concluded        that,          "[i]n     the       late-eighteenth

century, someone vested with the executive power and christened

as     the   chief    executive       enjoyed         the        power       to    control      the

execution of law."         Id.

       ¶96   The     executive,       however,            is     not     a        legislatively-

controlled automaton.            Before executing, he must of necessity

determine for himself what the law requires him to do.                                          As

Alexander Hamilton said, "[h]e who is to execute the laws must

first    judge      for   himself     of    their         meaning."               See   Alexander

Hamilton, Letters of Pacificus No. 1 (June 29, 1793), reprinted

in 4 The Works of Alexander Hamilton 438 (Henry Cabot Lodge ed.

1904).       This    is   intrinsic        to       the    very    nature          of   executive

authority.

       The executive must certainly interpret and apply the
       law; it would be impossible to perform his duties if
       he did not. After all, he must determine for himself
       what the law requires (interpretation) so that he may
       carry it into effect (application).    Our constitution
       not only does not forbid this, it requires it.
Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶53, 382 Wis. 2d 496,

914 N.W.2d 21 (Kelly, J., lead op.).                        See also 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 . . . .").

                                                8
                                             Nos.   2019AP614-LV & 2019AP622.dk


    ¶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 branch.").8             This understanding is not




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


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 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



      9See, 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.").

                                       10
                                                            Nos.      2019AP614-LV & 2019AP622.dk


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 extent it exists, it comes solely

through express delegation from the legislature.                                    Because this



                                                11
                                                          Nos.       2019AP614-LV & 2019AP622.dk


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,

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

any     license."              2017     Wis.      Act.         369,      § 38      (Wis.     Stat.

       "As a legislative creation, [an agency's] . . . rule-
      10

making powers can be repealed by the legislature." Martinez v.
DILHR, 165 Wis. 2d 687, 698, 478 N.W.2d 582 (1992).

                                               12
                                              Nos.    2019AP614-LV & 2019AP622.dk


§ 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


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

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:

      (b) "Guidance document" does not include any of the
      following:

                                      13
                                     Nos.   2019AP614-LV & 2019AP622.dk




    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.).


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


     ¶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 branch of government has even the




     13State 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.").

                                       15
                                         Nos.   2019AP614-LV & 2019AP622.dk


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]


      14Chief 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.

                                    16
                                                     Nos.    2019AP614-LV & 2019AP622.dk

     unduly burden or substantially interfere with another
     branch." Horn, 226 Wis.2d at 644.
Tetra     Tech     EC,   Inc.,      382    Wis. 2d 496,        ¶46    (alterations      in

original).

     ¶104 A        branch's    core       powers    are     those    that   define     its

essential        attributes.15            With     respect     to    these,     we    have

previously       recognized      that     "[e]ach     branch    has     exclusive     core

constitutional powers, into which the other branches may not

intrude."        Flynn v. DOA, 216 Wis. 2d 521, 545, 576 N.W.2d 245.

"Core powers," as has been previously observed, "are not for

sharing."        Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶47.                      "Shared

powers[, however,] lie at the intersections of these exclusive

core constitutional powers," and "[t]hese '[g]reat borderlands

of power' are not exclusive to any one branch."                               Horn, 226

Wis. 2d at        643-44      (quoting       Friedrich,        192      Wis. 2d at      14

(alterations        in   original)).              "Although     the     'branches      may

exercise    [shared]       power     within       these   borderlands,'       they    'may

[not]     unduly    burden     or    substantially          interfere    with    another

branch.'"        Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶46 (quoting

Horn,     226 Wis. 2d at 644            (alterations in original)).                  So if


     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.

                                             17
                                                        Nos.   2019AP614-LV & 2019AP622.dk


guidance documents fall somewhere in the realm of shared powers,

the legislature would conceivably retain some claim of right to

govern 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

                                             18
                                                              Nos.   2019AP614-LV & 2019AP622.dk


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, ¶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     wholly-owned          subsidiary          of    the

                                                      19
                                                    Nos.   2019AP614-LV & 2019AP622.dk


legislature.        Capturing the executive's ability to communicate

his knowledge, intentions, and understanding of the laws he is

to execute makes him a drone 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

duty-bound to execute.          But it may not control his knowledge or

intentions about those laws.              Nor may it mute or modulate the

communication       of   his   knowledge       or   intentions      to   the      public.

Because there are no set of facts pursuant to which § 33 (to the

extent it applies to guidance documents) and § 38 would not

impermissibly       interfere      with   the    executive's       exercise       of   his

core constitutional power, they are in that respect facially

unconstitutional.

  C.        Challenges to The Remaining Guidance Document Provisions

       ¶109 The     plaintiffs'      challenge       to    the    guidance     document

provisions of 2017 Wis. Act 369 goes beyond §§ 33 and 38, but as

it reaches §§ 31, 65-71, and 104-05, the focus of their argument

becomes so diffuse that the justification for declaring them
unconstitutional         appears    to    rely      almost       entirely    on    their


       The problem is especially acute because this regulation
       16

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.

                                          20
                                                        Nos.    2019AP614-LV & 2019AP622.dk


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

plaintiffs have not established that these remaining provisions

"cannot      be   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
                                 21
                               Nos.   2019AP614-LV & 2019AP622.dk



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 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
                          22
                               Nos.   2019AP614-LV & 2019AP622.dk



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 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
                          23
                                                    Nos.   2019AP614-LV & 2019AP622.dk


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


       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.

2017 Wis. Act. 369, §§ 65-71 (amending Wis. Stat. § 227.40).

                                         24
                                                   Nos.    2019AP614-LV & 2019AP622.dk


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

      ¶113 Sections 33 and 38 are before us today on different

procedural footings.          The latter is here on a straightforward

review of the circuit court's denial of a motion to dismiss.

Section 33, however, presents in a somewhat awkward posture for

two   reasons.      First     SEIU   does      not    claim      this       provision   is

unconstitutional.       That       allegation        appears     in    the     Governor's

cross-claim.      The Legislative Defendants' answer to the cross-

claim asserts the Governor does not have standing to challenge

the   constitutionality       of     a   law.         However,        the     Legislative

Defendants did not advance that argument in this court, and they

fully briefed their position on the section's constitutionality.

Because standing is a matter of judicial prudence, Milwaukee
District Council 48 v. Milwaukee County, 2001 WI 65, ¶38 n.7,

244   Wis. 2d 333,     627    N.W.2d 866         ("[S]tanding         is    generally    a

matter   of      judicial     policy       rather         than    a     jurisdictional

prerequisite."), and it was not argued here, we will not apply

it.   State v. Chamblis, 2015 WI 53, ¶54 n.15, 362 Wis. 2d 370,

864 N.W.2d 806 ("We choose not to address that argument because

it was not briefed by the parties.").                        We do not opine on

whether the Governor actually has standing; we simply do not
address it.

                                          25
                                                  Nos.    2019AP614-LV & 2019AP622.dk


     ¶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 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

                                          26
                                                     Nos.     2019AP614-LV & 2019AP622.dk


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 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

                                               27
                                                   Nos.   2019AP614-LV & 2019AP622.dk


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 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,


     18J. 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.").
                               28
                                                      Nos.    2019AP614-LV & 2019AP622.dk


¶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           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

                                          29
                                                Nos.    2019AP614-LV & 2019AP622.dk


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 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

                                         30
                                                           Nos.    2019AP614-LV & 2019AP622.dk


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 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

                                                31
                                                   Nos.    2019AP614-LV & 2019AP622.dk


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.            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."

                                          32
                                                     Nos.    2019AP614-LV & 2019AP622.dk


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      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,

                                             33
                                                       Nos.    2019AP614-LV & 2019AP622.dk


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 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


       Another epistemological error shows up in Justice
       19

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.


                                               34
                                                                    Nos.    2019AP614-LV & 2019AP622.dk


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 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

                                                         35
                                                         Nos.     2019AP614-LV & 2019AP622.dk


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 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

                                             36
                                                         Nos.    2019AP614-LV & 2019AP622.dk


[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       the       questions     rhetorical,          he    has    no    substantive

response to any of this.                  But he does reject it on the sweeping

basis that "the legislature's relationship to the judiciary is

far different than its relationship to the branch charged with
the    constitutional            duty     to   execute     the       laws    the   legislature

passes."          Id., ¶204 n.5.           A long time ago the notion that the

branches of government are co-equal passed into the realm of

common knowledge.               But Justice Hagedorn's assertion, coming as

it    does    with       no    explanation,       carries        a    suggestion        that   the

executive         is    less     than     equal    in    its     relationship           with   the

legislature.20 Perhaps it is because his guiding principle (as


       Justice Hagedorn apparently misses the import of these
       20

illustrations. He says:

                                                 37
                                                     Nos.      2019AP614-LV & 2019AP622.dk


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

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 well-

documented      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.


       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.

                                               38
                                                       Nos.    2019AP614-LV & 2019AP622.dk


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.

("[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

                                            39
                                                     Nos.   2019AP614-LV & 2019AP622.dk


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 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

                                            40
                                                    Nos.    2019AP614-LV & 2019AP622.dk


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:

      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:


                                            41
                                                        Nos.   2019AP614-LV & 2019AP622.dk

       [t]he judicial power was understood [at the time of
       the founding of the United States] to include the
       power to resolve ambiguities over time.     Alexander
       Hamilton lauded this power, arguing that '[t]he
       interpretation of the laws is the proper and peculiar
       province of the courts.' It is undoubtedly true that
       the other branches of Government have the authority
       and obligation to interpret the law, but only the
       judicial    interpretation    would    be  considered
       authoritative in a judicial proceeding."
Id.,    ¶138      (quoting     Perez,         575    U.S. at     119–20    (Thomas,      J.,

concurring) (some alterations in original; internal citations

omitted)).        Justice Thomas, of course, was careful to note that

the judiciary's interpretation of the law is authoritative "in a

judicial proceeding."              Perez, 575 U.S. at 120.              He made no claim

that our interpretation would be authoritative in the executive

branch's determination of what the law requires.                            As Alexander

Hamilton said:            "He who is to execute the laws must first judge

for    himself       of    their    meaning."           See     Hamilton,      supra,    ¶96

(emphasis added).

       ¶133 The question here is not whether the executive branch

alone       may   interpret        the    law.          The     question       is   whether

interpreting the law within the executive branch is an exercise
core to the executive and his employees.                        The Chief Justice says

this is a shared power, but does not indicate how that could

possibly be.         The general power to interpret the law is "shared"

in    the    sense    that    each       of    the     branches    must     perform     that

function while performing their vested responsibilities, but the

Chief Justice does not explain how the interpretation of the law

within      the   executive        branch      could    be     shared   with    any   other
branch.      She simply concludes that "[i]f explaining what the law

means through guidance documents actually were a constitutional
                                               42
                                                 Nos.    2019AP614-LV & 2019AP622.dk


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 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



       The Chief Justice says we ignored State v. Unnamed
      21

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.

                                         43
                                                    Nos.   2019AP614-LV & 2019AP622.dk


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

      ¶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

                                            44
                                     Nos.   2019AP614-LV & 2019AP622.dk


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

with respect to 2017 Wis. Act 369, §§ 31, 65-71, 104-05.




                               45
                                                          No.    2019AP614-LV & 2019AP622.pdr


       ¶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

                                               1
                                                           No.    2019AP614-LV & 2019AP622.pdr


court, it is the court's interpretation that prevails, not the

executive's.          State 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).



                                                2
                                                              No.   2019AP614-LV & 2019AP622.pdr


                                          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




       Sections 104–05 address
       1                                               the    initial     applicability            and
effective date of § 33.

                                                   3
                                                  No.    2019AP614-LV & 2019AP622.pdr


being enforced objects to enforcement.                     Newcap, Inc. v. DHS,

2018 WI App 40, ¶3, 383 Wis. 2d 515, 916 N.W.2d 173.

      ¶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")

                                           4
                                                               No.   2019AP614-LV & 2019AP622.pdr


(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-

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).




       Hale Melnick, Comment, Guidance Documents and Rules:
         2

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 time-
consuming——but    democratically   important——notice-and-comment
requirements.").

                                                    5
                                                      No.    2019AP614-LV & 2019AP622.pdr


       ¶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 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.

       2011 Wis. Act 21 affected the authority of agencies by
       3

imposing   an   "explicit authority  requirement"  on  agency
                               6
                                                       No.    2019AP614-LV & 2019AP622.pdr


Castaneda     v.     Welch,   2007    WI    103,       ¶26,    303    Wis. 2d          570,   735

N.W.2d 131 (quoting Brown Cty. v. DHSS, 103 Wis. 2d 37, 43, 307

N.W.2d 247 (1981)); see also Schmidt v. Dep't of Res. Dev., 39

Wis. 2d 46, 56, 158 N.W.2d 306 (1968) ("The very existence of

the administrative agency or director is dependent upon the will

of    the   legislature;      its    or    his    powers,       duties       and   scope      of

authority are fixed and circumscribed by the legislature and

subject to legislative change."); Gray Well Drilling Co. v. Wis.

State Bd. of Health, 263 Wis. 417, 419, 58 N.W.2d 64 (1953)

(explaining         that   administrative        agencies       are    not    required         to

follow      rules    governing      judicial      proceedings         unless       a    statute

requires       otherwise         because         "rules         of      procedure             for

administrative bodies" are a "function" that "belongs to the

legislature"); State ex rel. Wis. Inspector Bureau v. Whitman,

196    Wis. 472,       508,   220     N.W.       929    (1928)        ("[A]dministrative

agencies      are      the    creatures      of        the     legislature             and    are

responsible to it.            Consequently the legislature may withdraw



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
       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).

                                             7
                                                          No.   2019AP614-LV & 2019AP622.pdr


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 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]

                                                8
                                               No.   2019AP614-LV & 2019AP622.pdr


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

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

                                         9
                                                      No.    2019AP614-LV & 2019AP622.pdr


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

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.

                                              10
                                                      No.    2019AP614-LV & 2019AP622.pdr


       ¶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 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
                                11
                                                         No.   2019AP614-LV & 2019AP622.pdr

     he did not. . . . Our constitution not only does not
     forbid this, it requires it.
Justice     Kelly's         majority    op.,       ¶96    (citing          Tetra        Tech,    382

Wis. 2d 496, ¶53 (lead)).               However, this paragraph of Tetra Tech

was joined by only one justice in addition to Justice Kelly who

wrote the provision; it does not represent the opinion of the

court.         Id.,     ¶3    n.4.          Indeed,       Justice          Ziegler       wrote       a

concurrence, which I joined, in part to respond to this portion

of the lead opinion in Tetra Tech.                       Id., ¶141 & n.10 (Ziegler,

J., concurring).            She explained that "the power to interpret and

apply    the    law"    is    a    shared     power      outside          the    context        of    a

judicial proceeding.              Id., ¶¶140–41.

     ¶157 That an executive would interpret a law as he executes

it   does       not    convert       interpretation             of        the     law     into       a

constitutional         core    power.        Interpretation               of    the     law     is    a

shared    power       that    many     governmental            actors          employ    as     they

interpret what they must do in order to be in compliance with

the law.       See e.g., State v. Horn, 226 Wis. 2d 637, 644-45, 594

N.W.2d 772 (1999) (discussing the shared power of administrative

revocation      of     probation       and   the    court's          power       to   sentence);

State v. Dums, 149 Wis. 2d 314, 323-24, 440 N.W.2d 814 (1989)

(discussing the shared power to amend or dismiss a filed charge

under the separation of powers doctrine).

     ¶158 A         final    note    worth     mentioning            is    the     standard          of

review.     Justice Kelly and I agree on the standard of review,

although       we   apply     it    quite    differently.                 He    explains      that,

because this lawsuit is a facial challenge, we must uphold the



                                              12
                                                           No.   2019AP614-LV & 2019AP622.pdr


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     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.
                                                13
                                              No.   2019AP614-LV & 2019AP622.pdr


      ¶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 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.




                                       14
                                                 No.   2019AP614-LV & 2019AP622.rfd


      ¶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

      1I 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.
      2Specifically, 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.
                                         1
                                                       No.    2019AP614-LV & 2019AP622.rfd


complaint 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


     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.
      3This 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.
      4A 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).

                                            2
                                                        No.    2019AP614-LV & 2019AP622.rfd


to us after newly filed lawsuits result in the very development

that       this    court's     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




       See, e.g., Richard A. Posner, The Federal Courts: Crisis
       5

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.").

                                                3
                                                   No.   2019AP614-LV & 2019AP622.rfd


United     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,

    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).

                                         4
                                        No.   2019AP614-LV & 2019AP622.rfd


643, 594   N.W.2d 772 (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-of-

    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)).

                                  5
                                                       No.    2019AP614-LV & 2019AP622.rfd


powers    doctrine         because      they   effectively        eliminate        executive

power    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

                                               6
                                               No.   2019AP614-LV & 2019AP622.rfd


approval, if the committee chooses to meet.                    And if the plan

"concedes      the     unconstitutionality   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


      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).

                                        7
                                                   No.   2019AP614-LV & 2019AP622.rfd


executive branch's function.             Instead, the majority mechanically

applies    a    strict    review    standard       for    facial      challenges    and

concludes that the Plaintiffs' 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


      10If 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.

                                          8
                                                   No.    2019AP614-LV & 2019AP622.rfd


United States Constitution, does not contemplate an active role

for the legislature in executing or in supervising the executive

officers     charged      with    executing      the     laws   it   enacts.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


       I do not contest that the legislature's institutional
       11

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").

                                           9
                                                     No.       2019AP614-LV & 2019AP622.rfd


interest    to      any   constitutional          text.        This   is   fatal     to   its

argument because a separation-of-powers analysis begins and ends

with the Wisconsin Constitution.

      ¶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.


       In fact, the Wisconsin legislature's constitutional
      12

"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).

                                             10
                                                    No.   2019AP614-LV & 2019AP622.rfd


                                            B

      ¶176 Even      assuming       the     power    of     the    purse     gives       the

legislature a share of the power to resolve litigation, I do not

agree with the majority's mechanical adherence to a strict "no

set of circumstances" test for facial challenges.

      ¶177 The majority cites to United States v. Salerno, 481

U.S. 739, 745 (1987), for the standard that the challenging

party "must establish that no set of circumstances exists under

which   the      [challenged       act]   would      be    valid."         See    Justice

Hagedorn's majority op., ¶40 n.12.                  However, this dicta from the

Salerno    case    has     been    applied       inconsistently      by     the       United

States Supreme Court depending upon the nature of the facial

challenge.       See, e.g., Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) (adopting the undue burden test for facial

challenges to state abortion laws); see also City of Chicago v.

Morales, 527 U.S. 41, 55 n.22 (1999) (plurality opinion) ("To

the extent we have consistently articulated a clear standard for

facial challenges, it is not the Salerno formulation . . . .");
Janklow    v.    Planned    Parenthood,          Sioux    Falls    Clinic,       517    U.S.

1174, 1175 n.1 (1996) (mem.) (citing United States Supreme Court

cases     that    did    not      apply   the      Salerno    test     to    a        facial

challenge).         Recognizing       the    United       States    Supreme       Court's

inconsistency with regard to facial challenges, this court has

previously declined to apply the no set of circumstances test to

an   Establishment       Clause     challenge       where    there    was        no    clear

United States Supreme Court precedent for doing so.                          Jackson v.
Benson, 218 Wis. 2d 835, 854 n.4, 578 N.W.2d 602 (1998); see

                                            11
                                                    No.    2019AP614-LV & 2019AP622.rfd


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.").

      ¶178 The         majority     claims        this      test     is    nonetheless

appropriate as an exercise of judicial modesty that will avoid

judicial    overstepping           into     the     legislature's          prerogative.

However,    the    majority       effectuates       the    exact   opposite     result.

Instead    of     respecting      the     coequal     branches,      it    forces   the

subverted branch, here the executive, to repeatedly vindicate

its    constitutionally            delegated        role      through       as-applied

challenges.        That litigation burden             may itself be          undue and

substantially detracts from the time and resources that both

branches    should      instead     be    directing       toward   their     respective

constitutional functions.

      ¶179 More distressingly, the piecemeal litigation invited

by the majority means that the judiciary will have to engage in

line-drawing that is effectively policy-making, a clear overstep

of its constitutional role.               The much narrower statutes enacted
by other states demonstrate that it is for the legislature, not

the judiciary, to determine a dollar threshold where the power

of the purse is implicated.                  See Justice Hagedorn's majority

op., ¶70.       For example, the Connecticut legislature limited its

involvement       to   settlements        over    $2,500,000.        See    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

                                            12
                                                     No.       2019AP614-LV & 2019AP622.rfd


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 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




       At
       13   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.

                                             13
                                                  No.    2019AP614-LV & 2019AP622.rfd


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 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




                                          14
                                                         No.      2019AP614-LV & 2019AP622.rfd


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          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.'"



        In other words, the facial remedy would be no broader
          14

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.").

       Incremental
          15          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.

                                                 15
                                                             No.    2019AP614-LV & 2019AP622.rfd


(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; 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


       This conclusion might be true in all shared-powers
      16

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.

                                                   16
                                                        No.   2019AP614-LV & 2019AP622.rfd


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.    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

                                             17
                                             No.   2019AP614-LV & 2019AP622.rfd


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.
    ¶189 I    am   authorized   to    state     that    Justice    ANN   WALSH

BRADLEY joins this concurrence/dissent.




                                     18
                                                      No.    2019AP614-LV & 2019AP622.bh


       ¶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.

                                              1
                                                     No.   2019AP614-LV & 2019AP622.bh


Guidance documents regulate executive branch communications with

the public——a 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 that guidance documents


     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
                                        No.    2019AP614-LV & 2019AP622.bh


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



    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).

Wis. Stat. § 227.01(3m) (2017-18).

     All subsequent references to the Wisconsin Statutes are to
the 2017-18 version.

                                 3
                                                       No.    2019AP614-LV & 2019AP622.bh


likely    to    apply    to     a    class     of   persons        similarly       affected.

§ 227.01(3m)(a).

      ¶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
                                   4
                                                          No.    2019AP614-LV & 2019AP622.bh

            Forms created by the Department of Children and
             Families explaining eligibility for child support.

These        are,    in     the       main,       ordinary         sorts       of     official

communications that greatly affect the public's knowledge of the

laws that govern them.

      ¶195 This newly defined category of communications comes

with new statutory requirements.                    Of particular moment are the

two   provisions        receiving      the    court's       disapproval.              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


      2Wisconsin Stat. § 227.112 is cited in full in paragraph 90
of Justice Kelly's majority opinion.

                                              5
                                                No.   2019AP614-LV & 2019AP622.bh


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, 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

      3In 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.

                                        6
                                                        No.    2019AP614-LV & 2019AP622.bh


its function of determining what the law should be by passing

laws pursuant to its constitutional authority.                        Wis. Const. art.

IV, § 1, § 17; Koschkee 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




                                              7
                                      No.   2019AP614-LV & 2019AP622.bh


mandated reports regarding what the executive branch is doing

and plans to do are found throughout Wisconsin law.4

     ¶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

     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.

     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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                                                 No.   2019AP614-LV & 2019AP622.bh


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 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
       constitutionally-vested power.
Justice Kelly's op., ¶106.



                                       9
                                                    No.    2019AP614-LV & 2019AP622.bh


     ¶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," 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




                                           10
                                             No.    2019AP614-LV & 2019AP622.bh


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.

    ¶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.



    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.

                                    11
                                                              No.   2019AP614-LV & 2019AP622.bh


    ¶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. § 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

                                                 12
                                                             No.    2019AP614-LV & 2019AP622.bh


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    "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

                                              13
                                                           No.    2019AP614-LV & 2019AP622.bh


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    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

                                                   14
                                                      No.   2019AP614-LV & 2019AP622.bh


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



                                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


       As the majority notes, Wis. Stat. § 227.05 was not
       6

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.

     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.

                                           15
                                                   No.    2019AP614-LV & 2019AP622.bh


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.




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    No.   2019AP614-LV & 2019AP622.bh




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