Introduction

The case of Ser v. Service Employees International Union (SEIU), Local 1, et al. adjudicated by the State of Wisconsin Supreme Court on July 9, 2020, stands as a pivotal judgment reinforcing the doctrine of separation of powers within the state's constitutional framework. The plaintiffs, comprising various labor organizations and individual taxpayers, challenged provisions of the 2017 Wisconsin Acts 369 and 370, alleging that these statutory changes infringed upon the constitutional separation of powers by unduly burdening the executive branch, specifically the Attorney General's authority.

Central to the dispute were the contested provisions that expanded legislative oversight over executive functions, particularly in litigation management and the issuance of administrative "guidance documents." The defendants, including legislative leaders and state officials, contended that these provisions overstepped constitutional boundaries, effectively transferring or limiting executive powers to the legislature.

Summary of the Judgment

The Wisconsin Supreme Court delivered a split decision addressing the constitutionality of several provisions within Acts 369 and 370. Justice Brian Hagedorn authored the majority opinion, affirming some aspects of the lower court's rulings while reversing others. The court examined whether the challenged statutes constituted facial violations of the separation of powers doctrine.

Key findings include:

• Facial Challenges: The court reiterated the high burden plaintiffs must meet to succeed in facial challenges, requiring proof that a statute is unconstitutional in all applications.
• Legislative Oversight: Provisions granting the legislature authority to intervene in litigation and control the issuance of guidance documents were scrutinized.
• Guidance Documents: The court delved into the definition and constitutional implications of legislative control over executive-issued guidance documents.
• Impact on Separation of Powers: The judgment reinforced the necessity of maintaining clear boundaries between legislative and executive branches to preserve co-equal authority.

Ultimately, the court affirmed the lower court's decision to vacate the temporary injunction against several provisions, determining that plaintiffs did not meet the stringent requirements for a facial challenge. However, the court found sections pertaining to legislative control over guidance documents to be facially unconstitutional, as they impinged upon the executive branch's core functions.

Analysis

Precedents Cited

The court extensively referenced established Wisconsin and U.S. Supreme Court precedents to frame its analysis:

• MARTINEZ v. DILHR (1992): Upheld the legislature's authority to temporarily suspend administrative rules, emphasizing the separation of powers.
• Tetra Tech EC, Inc. v. DOR (2018): Affirmed that courts should not defer to administrative agencies' legal interpretations, reinforcing judicial independence.
• STATE v. HORN (1999): Distinguished between core and shared powers within the branches of government.
• State ex rel. Friedrich v. Circuit Court for Dane Cty. (1995): Highlighted the non-subordinate nature of the branches in the Wisconsin Constitution.
• Federalist No. 51 and Marbury v. Madison (1803): Though not directly cited, the court's reasoning aligns with foundational principles of separation of powers and judicial review.

Legal Reasoning

The court's reasoning centered on the robust doctrine of separation of powers, which delineates specific domains for each branch of government. Legislative powers are vested in the senate and assembly, executive powers in the governor and associated officials, and judicial powers in the unified court system. Any encroachment upon these domains by another branch must withstand constitutional scrutiny, particularly when challenged facially.

The plaintiffs' facial challenges targeted provisions that allowed legislative involvement in executive litigation processes and imposed procedural requirements on executive-issued guidance documents. The court assessed whether these provisions either occupied core executive powers or unduly burdened them within shared power zones.

For facial challenges, the court reiterated the stringent standard: proponents must demonstrate that a statute is unconstitutional in all conceivable applications. Given this high threshold, the court found that most challenged provisions failed to meet this requirement, as they could be constitutionally applied in specific circumstances.

However, provisions pertaining to guidance documents were found to infringe upon the executive branch's core functions. By mandating legislative approval and procedural oversight over executive communications, these statutes encroached upon the inherent executive authority to interpret and execute laws without undue legislative interference.

Impact

This judgment has significant implications for the balance of power between the legislative and executive branches in Wisconsin:

• Reaffirmation of Separation of Powers: The decision underscores the constitutional mandate to maintain distinct and independent branches of government, limiting legislative overreach into executive functions.
• Facial Challenges: The ruling emphasizes the difficulty of succeeding in facial challenges, thereby reinforcing the protection of statutes that might otherwise unduly burden the executive if left unchecked.
• Guidance Documents: By striking down provisions that regulate executive-issued guidance documents, the court preserves the executive branch's autonomy in interpreting and communicating the law, ensuring that such communications remain untainted by legislative mandates.
• Future Litigation: The decision provides a clear framework for evaluating future challenges to legislative encroachments on executive authority, stressing the necessity for concrete evidence when asserting facial unconstitutionality.

Complex Concepts Simplified

Separation of Powers

The doctrine of separation of powers divides governmental authority among three branches: legislative, executive, and judicial. Each branch has distinct and independent powers to prevent any one branch from becoming too dominant, thereby safeguarding democratic governance.

Facial vs. As-Applied Challenges

• Facial Challenge: Argues that a law is unconstitutional in all possible applications. This is a stringent test, requiring proof that no scenario exists where the statute could be valid.
• As-Applied Challenge: Claims that a law is unconstitutional in specific circumstances or its application to certain situations is problematic. This is generally easier to succeed with compared to facial challenges.

Guidance Documents

Guidance documents are formal communications issued by executive agencies that explain or advise on the implementation and interpretation of laws. Unlike rules or statutes, guidance documents do not have the force of law but serve to clarify how agencies will enforce or administer laws.

Conclusion

The Ser v. SEIU judgment serves as a critical reaffirmation of the separation of powers doctrine within Wisconsin's constitutional landscape. By meticulously dissecting the contested statutory provisions, the Wisconsin Supreme Court underscored the inviolable boundaries that delineate legislative authority from executive functions. The decision not only protects the executive branch's autonomy in executing and interpreting laws but also sets a high bar for future constitutional challenges, particularly facial ones, against legislative interventions. As such, this case fortifies the foundational structure of co-equal branches of government, ensuring that no single branch can unilaterally encroach upon the other's constitutionally-vested powers.