/ Opinions / Kelly, Bradley make colossal blunder with guidance documents

Kelly, Bradley make colossal blunder with guidance documents

July 24, 2020

Sometimes good people do bad things, and sometimes good Supreme Court justices do stupid things, and that’s just what happened in a recent decision by the state Supreme Court.

In a 4-3 vote, with conservative justices Daniel Kelly and Rebecca Bradley — usually two of the most reliable conservatives on the court — siding with liberal justices Rebecca Dallet and Ann Walsh Bradley, the majority put out a green flag for the state’s bureaucracy to cause mischief and suffering in a way that hasn’t been seen since the days of Democratic Gov. Jim Doyle.

Specifically, the court threw out as unconstitutional the Legislature’s bid to rein in the bureaucracy’s never-ceasing efforts to undermine the intent of the Legislature, which agencies have been doing through so-called guidance documents.

As we report today, guidance documents are “public information” documents that instruct individuals and businesses on how to comply with state agency administrative rules, which in turn lay out standards for implementing state statutes. According to the Evers administration, more than 200,000 guidance documents are in play across all state agencies.

Under the law passed in December 2018, every guidance document would have to receive a public hearing, receive certification by the head of the department, and undergo Legislative Reference Bureau review.

The idea was to implement a procedure that would ensure that, when setting policy and enforcing laws through guidance documents, state agencies would actually be doing what the Legislature intended. Often enough, state agencies have done the very opposite, and, once upon a time, they used administrative rules to subvert the intent of the laws the rules were supposed to implement, precisely because it was exceedingly difficult for the Legislature to block rules.

Then, with the GOP controlling the Legislature and Scott Walker as governor, the Legislature mandated that major rules actually be approved by lawmakers before taking effect, to ensure that the will of the people was being served.

When the Legislature did that — which it could do because rule making procedures are a formal statutory process that can be amended — state agencies shifted to imposing rules through “informal” guidance documents. 

This law was the Legislature’s attempt to stop that willful subversion of laws, but now the Supreme Court says, nope, you can’t.

The case is a quintessential example of how judges — especially Supreme Court justices who sit in the highest of the ivory towers — can become so insulated from the real world that they can easily veer off and get lost in the theoretical weeds.

The case is also another example of a sad tendency of conservative jurists to give undue powers to the administrative state — deference to agency interpretations is the classic example of this. That tendency has been ameliorated in recent years, but in this case it reared its ugly head.

Let’s take a look at the arguments written by Kelly and wallowed in by Rebecca Bradley.

First, Kelly opines that, oh, you know, these are nothing more than harmless little memos that, unlike rules, do not have the force or effect of law and provide no authority for implementing or enforcing standards or conditions, and establish no policy, but simply explain statutes and rules, and provide guidance or advice.

In other words, this is just their thinking, and citizens can take what they say with a grain of salt.

But what person in his or her right mind is going to go to a state agency such as the DNR, ask its advice on whether they can build a deck on a boathouse roof, to use one relevant and real-life example, and then ignore the DNR when it says the law doesn’t allow you to do it.

More to the point, such a person — again, this is a real-life case — likely goes to the county first, and the county, an administrative arm of the state, then asks the state for “advice.”

That advice led Oneida County to stop issuing permits for such projects and even amend its ordinance. This is hardly the definition of harmless, hardly the definition of “entirely inert,” as Kelly called guidance documents, and in Oneida County it certainly led to an established policy, formalized in county code.

The sad part is, Kelly admitted in his own words that he knew such guidance documents are not inert. 

He says, for example, that guidance documents represent “nothing more than the knowledge and intentions (emphasis added) of their authors,” and “(t)hey communicate intended applications of the law — they are not the actual execution of the law.”

In other words, when an agency tells you they are not prosecuting you now for not taking their advice — because you haven’t ignored it yet — but that they intend to do so when you do ignore it, that’s meaningless because they just intend to prosecute you, they are not yet actually executing the law.

Maybe that’s harmless in the rarified world that justice Kelly lives in, but for the rest of us that’s a distinction without a difference, a government promise to punish you if you go against their “advice.” 

So, why in the world would a government agency offer advice about what it believes the law is and express its intentions about enforcing that interpretation, if it was an inert (which means lacking the ability to act) exercise that has nothing to do with actual enforcement of that advice? Kelly doesn’t say.

Kelly does offer up that if bureaucrats do actually follow through with what they promised to do, citizens can seek judicial review. Chief justice Patience Roggensack, who authored an outstanding dissent, rightly pointed out that, in the recent case in which the court nullified an attempted power grab by Gov. Tony Evers and DHS secretary Andrea Palm, the court explained that judicial review is, by itself, an inadequate protection against the deprivation of the people’s liberty. 

“As we explained, ‘(j)udicial review does not prevent oppressive conduct from initially occurring,’” Roggensack wrote, adding that the Legislature has a legitimate interest in providing effective procedural safeguards.

Let us add that a common DNR ploy in the old days was to force people to go to court to challenge its determinations, knowing that most people do not have the resources to pursue such challenges very far, if at all. The agency also knew it had a built-in advantage because the courts routinely favored agency determinations.

This Supreme Court ruling doesn’t tell us that that propensity has changed.

A few more of Kelly’s points, which Roggensack swatted down pretty easily. One was that writing such interpretations of the law in guidance documents was a core constitutional power of the executive.

But, as Ms. Roggensack pointed out, when “an executive’s interpretation of a law has been challenged in court, it is the court’s interpretation that prevails, not the executive’s,” and “(o)utside of judicial proceedings, interpreting the law is a power that is shared by many governmental actors …”

The bottom line was, the chief justice observed, “(i)f explaining what the law means through guidance documents actually were a constitutional core power of the executive, courts could not strike down such an interpretation.”

But they do, and such a core constitutional power does not exist for executive interpretation of the law, she argued; rather, state agencies are “creatures of statute” and “(a)s creatures of statute, the Legislature may ‘prescribe the procedure through which granted powers (of administrative agencies) are to be exercised.’”

Some of this bleeds into justice Brian Hagedorn’s dissent, which challenged justice Kelly’s view that the Legislature was trying to regulate how the executive branch thinks. Hagedorn was right to say that the Legislature was doing no such thing, but rather was trying to regulate the outcome of that thinking — its communications and interaction with the public.

Put another way, if the executive’s thinking produces guidance that runs counter to the intent of the Legislature in passing the law the guidance speaks to, why shouldn’t the Legislature be aware of it and be able to correct it before rather than after such guidance is put in place, especially when it is the Legislature that confers the power to agencies to implement laws in the first place?

The executive agencies can think what they want, but they should not be able to use that thinking to subvert the intent of lawmakers through guidance that no one can challenge, except after grievous injustice is done.

Such cannot be the intent of the separation of powers doctrine. It is an invitation for agencies to legislate rather than implement, and it leads to an absurd conclusion, namely, that the laws written by our elected representatives are just so many rough drafts for unelected bureaucrats to ponder and rewrite at their pleasure. 

At one point in his opinion, justice Kelly opined that the regulation of executive interpretations of laws that the Legislature writes would turn the executive branch into a wholly own subsidiary of the Legislature.

In fact, it’s just the opposite. Positing in the executive branch such unbridled power to interpret — read that as write — laws as they wish turns the Legislature into a wholly own subsidiary of the bureaucracy. 

We thought those days were long gone, and we certainly hope this is an aberration, for we can imagine no greater danger than to transfer the power to legislate from the elected Legislature to the unelected administrative state.

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