Constitutionality – Legislative Involvement in Litigation

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WI Supreme Court

Case Name: Service Employees International Union (SEIU), et al., v. Robin Vos, et al.,

Case No.: 2020 WI 67

Focus: Constitutionality – Legislative Involvement in Litigation

Under our constitutional order, government derives its power solely from the people. Government actors, therefore, only have the power the people consent to give them. The Wisconsin Constitution is the authorizing charter for government power in Wisconsin. And that document describes three——and only three——types of government power: legislative, executive, and judicial. See Wis. Const. art. IV, § 1; id. art. V, § 1; id. art. VII, § 2. Legislative power is the power to make the law, to decide what the law should be. Executive power is power to execute or enforce the law as enacted. And judicial power is the power to interpret and apply the law to disputes between parties.

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.

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.

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. 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.

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. 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.

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.

All of the enjoined claims, as well as several other related claims, were sufficiently briefed and argued. We conclude that with respect to each of these claims, other than those separately addressed in Justice Kelly’s opinion for the court, the Plaintiffs have not met their high burden to demonstrate that the challenged provisions are unconstitutional in all of their applications. Each of these provisions can be lawfully enforced as enacted in at least some circumstances. Accordingly, the motion to dismiss the facial challenges to these claims should have been granted. This therefore means the temporary injunction is vacated in full except as otherwise instructed in Justice Kelly’s opinion for the court.

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.

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. 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. 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. With this summary in view, our analysis begins with how we got here.

Affirmed in part. Reversed and remanded in part. Injunction vacated in part.

Concur: 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.

Dissent: 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.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.