SB722,1,5
1An Act to repeal 35.93 (2) (b) 3. im., 227.01 (3m), 227.05 and 227.112;
to amend
213.91 (1) (c), subchapter II (title) of chapter 227 [precedes 227.10], 227.40 (1),
3227.40 (2) (intro.), 227.40 (2) (e), 227.40 (3) (ag), 227.40 (3) (ar), 227.40 (3) (b),
4227.40 (3) (c) and 227.40 (4) (a); and
to create 227.10 (1m) of the statutes;
5relating to: guidance documents issued by state agencies.
Analysis by the Legislative Reference Bureau
Subject to certain exceptions, current law contains provisions requiring
agencies to 1) submit proposed guidance documents to the Legislative Reference
Bureau for publication in the Wisconsin Administrative Register and provide a
period for public comments on the proposed guidance documents, and 2) 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 publications regarding the laws the agency administers. In Service
Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, the Wisconsin
Supreme Court held that the provision on guidance documents is facially
unconstitutional and that the requirement to identify state statutory or
administrative code provisions is facially unconstitutional to the extent that it
addresses guidance documents.
This bill repeals these provisions and replaces them with a provision affirming
that any document or communication that an agency issues or provides in order to
explain the agency's implementation of a statute or rule enforced or administered by
the agency or to provide guidance or advice with respect to how the agency is likely
to apply a statute or rule enforced or administered by the agency must be consistent
with applicable statutes, rules, and other sources of law. The bill further provides
that, except when otherwise provided by law, any such document or communication
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. The bill also repeals associated provisions that provide for judicial
review of guidance documents. The bill does not, however, affect the ability of
persons to challenge that a statement, standard, or order was not promulgated as a
rule as required under current law (see, e.g., Frankenthal v. Wisconsin Real Estate
Brokers' Board, 3 Wis.2d 249 (1958) and Heritage Credit Union v. Office of Credit
Unions, 2001 WI App 213).
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB722,1
1Section
1. 13.91 (1) (c) of the statutes is amended to read:
SB722,2,32
13.91
(1) (c) Perform the functions prescribed in ch. 227 relating to
3administrative rules
and guidance documents.
SB722,2
4Section
2. 35.93 (2) (b) 3. im. of the statutes is repealed.
SB722,3
5Section
3. 227.01 (3m) of the statutes is repealed.
SB722,4
6Section
4. 227.05 of the statutes is repealed.
SB722,5
7Section 5
. Subchapter II (title) of chapter 227 [precedes 227.10] of the statutes
8is amended to read:
SB722,2,1010
Subchapter II
SB722,2,1211
ADMINISTRATIVE RULES
and
12GUIDANCE DOCUMENTS
SB722,6
13Section
6. 227.10 (1m) of the statutes is created to read:
SB722,3,614
227.10
(1m) Any document or communication that an agency issues or provides
15in order to explain the agency's implementation of a statute or rule enforced or
1administered by the agency or to provide guidance or advice with respect to how the
2agency is likely to apply a statute or rule enforced or administered by the agency
3shall be consistent with applicable statutes, rules, and other sources of law. Except
4when otherwise provided by law, any such document or communication does not have
5the force of law and does not provide the authority for implementing or enforcing a
6standard, requirement, or threshold, including as a term or condition of any license.
SB722,7
7Section
7. 227.112 of the statutes is repealed.
SB722,8
8Section 8
. 227.40 (1) of the statutes is amended to read:
SB722,3,259
227.40
(1) Except as provided in sub. (2), the exclusive means of judicial review
10of the validity of a rule
or guidance document shall be an action for declaratory
11judgment as to the validity of the rule
or guidance document brought in the circuit
12court for the county where the party asserting the invalidity of the rule
or guidance
13document resides or has its principal place of business or, if that party is a
14nonresident or does not have its principal place of business in this state, in the circuit
15court for the county where the dispute arose. The officer or other agency whose rule
16or guidance document is involved shall be the party defendant. The summons in the
17action shall be served as provided in s. 801.11 (3) and by delivering a copy to that
18officer or, if the agency is composed of more than one person, to the secretary or clerk
19of the agency or to any member of the agency. The court shall render a declaratory
20judgment in the action only when it appears from the complaint and the supporting
21evidence that the rule
or guidance document or its threatened application interferes
22with or impairs, or threatens to interfere with or impair, the legal rights and
23privileges of the plaintiff. A declaratory judgment may be rendered whether or not
24the plaintiff has first requested the agency to pass upon the validity of the rule
or
25guidance document in question.
SB722,9
1Section
9. 227.40 (2) (intro.) of the statutes is amended to read:
SB722,4,32
227.40
(2) (intro.) The validity of a rule
or guidance document may be
3determined in any of the following judicial proceedings when material therein:
SB722,10
4Section 10
. 227.40 (2) (e) of the statutes is amended to read:
SB722,4,95
227.40
(2) (e) Proceedings under s. 66.191, 1981 stats., or s. 40.65 (2), 106.50,
6106.52, 303.07 (7) or 303.21 or ss. 227.52 to 227.58 or under ch. 102, 108 or 949 for
7review of decisions and orders of administrative agencies if the validity of the rule
8or guidance document involved was duly challenged in the proceeding before the
9agency in which the order or decision sought to be reviewed was made or entered.
SB722,11
10Section
11. 227.40 (3) (ag) of the statutes is amended to read:
SB722,4,1911
227.40
(3) (ag) In any judicial proceeding other than one under sub. (1) or (2),
12in which the invalidity of a rule
or guidance document is material to the cause of
13action or any defense thereto, the assertion of that invalidity shall be set forth in the
14pleading of the party maintaining the invalidity of the rule
or guidance document in
15that proceeding. The party asserting the invalidity of the rule
or guidance document 16shall, within 30 days after the service of the pleading in which the party sets forth
17the invalidity, apply to the court in which the proceedings are had for an order
18suspending the trial of the proceeding until after a determination of the validity of
19the rule
or guidance document in an action for declaratory judgment under sub. (1).
SB722,12
20Section
12. 227.40 (3) (ar) of the statutes is amended to read:
SB722,5,221
227.40
(3) (ar) Upon the hearing of the application, if the court is satisfied that
22the validity of the rule
or guidance document is material to the issues of the case, an
23order shall be entered staying the trial of said proceeding until the rendition of a final
24declaratory judgment in proceedings to be instituted forthwith by the party asserting
25the invalidity of the rule
or guidance document. If the court finds that the asserted
1invalidity of the rule
or guidance document is not material to the case, an order shall
2be entered denying the application for stay.
SB722,13
3Section
13. 227.40 (3) (b) of the statutes is amended to read:
SB722,5,104
227.40
(3) (b) Upon the entry of a final order in the declaratory judgment
5action, it shall be the duty of the party who asserts the invalidity of the rule
or
6guidance document to formally advise the court of the outcome of the declaratory
7judgment action so brought as ordered by the court. After the final disposition of the
8declaratory judgment action the court shall be bound by and apply the judgment so
9entered in the trial of the proceeding in which the invalidity of the rule
or guidance
10document is asserted.
SB722,14
11Section
14. 227.40 (3) (c) of the statutes is amended to read:
SB722,5,1612
227.40
(3) (c) Failure to set forth the invalidity of a rule
or guidance document 13in a pleading or to commence a declaratory judgment proceeding within a reasonable
14time pursuant to the order of the court or to prosecute the declaratory judgment
15action without undue delay shall preclude the party from asserting or maintaining
16that the rule
or guidance document is invalid.
SB722,15
17Section
15. 227.40 (4) (a) of the statutes is amended to read:
SB722,5,2218
227.40
(4) (a) In any proceeding pursuant to this section for judicial review of
19a rule
or guidance document, the court shall declare the rule
or guidance document 20invalid if it finds that it violates constitutional provisions
or, exceeds the statutory
21authority of the agency
or, was promulgated
or adopted without compliance with
22statutory rule-making
or adoption procedures
, or violates s. 227.10 (2).