Guidance documents issued by state agencies

What it would have done

Summary by the Legislative Reference Bureau, the Legislature's nonpartisan drafting office. It's their wording, not ours.

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).

Who's behind it

2 senators are its authors⁠. All 2 are Republicans.

14 more lawmakers signed on in support⁠.