SB 722

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).