SEIU v. Vos: Less Opportunity for Public Input on Agency Guidance Documents

On July 9, 2020, the Wisconsin Supreme Court issued its decision in SEIU v. Vos, a long-awaited ruling involving a constitutional challenge to the validity of 2017 Wisconsin Acts 369 and 370, the so-called "lame duck" laws, that were passed by the Wisconsin Legislature in December 2018.

The ruling largely upheld the laws as constitutional, but struck down certain provisions in Act 369 that, among other things, required state agencies to submit “guidance documents” to a public notice and comment period before publication. Guidance documents are agency publications that explain the law or that provide advice on how an agency will apply the law. Prior to the Supreme Court invalidating these provisions in Act 369, the notice and comment requirements ensured that the public and regulated community had the opportunity to provide input to the agency during the guidance document drafting process.

The Supreme Court struck down the notice and comment provisions because those requirements invaded the powers of Wisconsin’s executive branch, which has the exclusive authority to “take care that the laws be faithfully executed” under the Wisconsin Constitution.

It is somewhat unclear how Wisconsin state agencies will react to this ruling. However, guidance documents that had been shelved by agencies until they went through the notice and comment process may be issued immediately without adhering to these procedures. Additionally, guidance documents that were undergoing public comment periods are no longer subject to that requirement. Importantly, the Supreme Court reaffirmed that guidance documents do not have the force and effect of law and impose no legal obligations or standards.

DeWitt will continue to monitor how state agencies interpret the Supreme Court’s decision. If you have specific questions about the decision, or a particular agency guidance document, please contact Wes Webendorfer at jww@dewittllp.com or (608) 252-9368.