Analysis by the Legislative Reference Bureau
1.
This bill changes the Department of Justice gifts and grants appropriations
from continuing appropriations to annual appropriations.
2.
This bill eliminates the power of the attorney general to appoint a solicitor
general and up to three deputy solicitors general, each of whom must be licensed to
practice law in this state. The effect of the bill is to eliminate the Office of the Solicitor
General in the Department of Justice, which represents the state in certain cases on
appeal in state and federal courts.
3.
This bill requires a party that alleges that a statute is unconstitutional, or in
violation of or preempted by federal law, to serve the speaker of the assembly, the
president of the senate, and the senate majority leader with a copy of the proceeding.
The bill also requires that, in such cases, the assembly, the senate, and the Joint
Committee on Legislative Organization (JCLO) are entitled to be heard,
representing the legislature and the state.
Under current law, if a statute, ordinance, or franchise is alleged to be
unconstitutional, the attorney general must be served with a copy of the proceeding
and be entitled to be heard. This requirement exists in the statutes for declaratory
judgment acts under s. 806.04 (11). The Wisconsin Supreme Court has also extended
the requirement to other types of actions involving claims that a statute is
unconstitutional. See Kurtz v. City of Waukesha, 91 Wis. 2d 103, 280 N.W.2d 757
(1979). This bill incorporates the Kurtz rule into the statutes and extends both the
current statutory and Kurtz requirements of service and an opportunity to be heard
to the legislature when a statute is alleged to be unconstitutional or in violation of
or preempted by federal law.
The bill also provides that when a party challenges the constitutionality of a
statute, facially or as applied, or challenges a statute as violating or preempted by
federal law, as part of a claim or affirmative defense, the assembly, the senate, and
JCLO have the right at any time to intervene and participate in the action and may
also retain legal counsel other than the Department of Justice. Under the bill, the
Committee on Assembly Organization may intervene in the action, as well as obtain
legal counsel, on behalf of the assembly; the Committee on Senate Organization may
intervene in the action, as well as obtain legal counsel, on behalf of the senate; and
JCLO may intervene in the action, as well as obtain legal counsel, on behalf of the
state. If JCLO determines that the interests of the state will be best represented by
special counsel appointed by the legislature, JCLO must appoint special counsel to
represent the state defendants and act instead of the attorney general. In these
circumstances, special counsel has the powers of the attorney general with respect
to the litigation to which special counsel has been appointed.
4.
Under current law, DOJ deposits settlement funds that are not committed
under the terms of the settlement into a DOJ appropriation and may spend the funds
only after submitting a plan for the expenditure to the Joint Committee on Finance
for passive review. If JCF does not schedule a meeting to review the proposed plan
within 14 days, DOJ may expend the funds as provided in the plan. This bill requires
that DOJ must deposit all settlement funds into the general fund. This bill also
lapses all unencumbered settlement funds that are currently in the DOJ
appropriation into the general fund.
Current law allows the attorney general to compromise or discontinue an action
DOJ is prosecuting if the governor approves the compromise or discontinuance. This
bill requires JCF to approve the compromise or discontinuance instead of the
governor. Current law allows the attorney general to settle and compromise actions
in which the attorney general is appearing for and defending the state as the
attorney general determines to be in the best interest of the state. This bill requires
that, if the action is for injunctive relief or there is a proposed consent decree, the
attorney general must submit the settlement or compromise plan to JCF for passive
review. If JCF does not schedule a meeting to review the plan within 14 days, the
attorney general may proceed, but, if JCF does schedule a meeting, the attorney
general may proceed only with the approval of JCF.
The bill further provides that the attorney general may not submit a proposed
settlement plan to JCF in which the plan concedes the unconstitutionality or other
invalidity of a statute without the approval of JCLO.
5.
Currently, representatives to the assembly and senators, as well as legislative
employees, may receive legal representation from the Department of Justice in most
legal proceedings. Assembly and senate policies and practices also allow legislators
and legislative employees to retain outside legal counsel in some instances.
With respect to the assembly, the bill provides that the speaker of the assembly
may authorize a representative to the assembly or assembly employee who requires
legal representation to obtain outside legal counsel if the acts or allegations
underlying the action are arguably within the scope of the representative's or
employee's duties. The speaker may also obtain outside legal counsel in any action
in which the assembly is a party or in which the interests of the assembly are
affected, as determined by the speaker.
With respect to the senate, the bill provides that the senate majority leader may
authorize a senator or senate employee who requires legal representation to obtain
outside legal counsel if the acts or allegations underlying the action are arguably
within the scope of the senator's or employee's duties. The majority leader may also
obtain outside legal counsel in any action in which the senate is a party or in which
the interests of the senate are affected, as determined by the majority leader.
Finally, the bill provides that the cochairpersons of the Joint Committee on
Legislative Organization may authorize a legislative service agency employee who
requires legal representation to obtain outside legal counsel if the acts or allegations
underlying the action are arguably within the scope of the employee's duties. The
cochairpersons may also obtain outside legal counsel in any action in which the
legislature is a party or in which the interests of the legislature are affected, as
determined by the cochairpersons.
6.
The bill provides that any individual nominated by the governor or another
state officer or agency, and with the advice and consent of the senate appointed, to
any office or position may not hold the office or position, be nominated again for the
office or position, or perform any duties of the office or position during the legislative
session biennium if the individual's confirmation for the office or position is rejected
by the senate. Currently, there is no prohibition against the governor or another
state officer or agency nominating the individual again for the office or position or
appointing the individual to the office or position as a provisional appointment.
7.
This bill requires the Department of Administration to submit any proposed
changes to security at the capitol, including the posting of a firearm restriction, to
the Joint Committee on Legislative Organization for approval under passive review.
8.
This bill requires the Department of Veterans Affairs to submit to the Joint
Committee on Finance a notification of any transfers of funds from the
unencumbered balance of certain appropriations for veterans homes to the veterans
trust fund or the veterans mortgage loan repayment fund. Current law allows those
transfers to be made without any notification.
9.
Under current law, no later than September 15 of each even-numbered year,
each executive state agency must file with the Department of Administration the
agency's budget request for the succeeding biennium. This bill requires each agency
to include with its biennial budget request a report that lists each fee the agency is
authorized to charge. The report must also include the following:
1. The amount of each fee or the method of calculating the fee if there is no fixed
amount.
2. An identification of the agency's statutory authority to charge each fee.
3. A statement whether or not the agency currently charges the fee.
4. A description of whether and how each fee has changed over time.
5. Any recommendation the agency has concerning each fee.
The bill defines “fee” as any amount of money other than a tax that an agency
charges a person other than a governmental entity.
10.
This bill requires the Building Commission to establish an amortization
schedule for each short-term, general obligation debt authorized by the commission.
The amortization schedule must provide that a portion of the principal amount of the
debt is retired annually over the life of the improvement or asset to which the debt
is related. An amortization schedule established as required under the bill may not
be modified except as authorized by the Joint Committee on Finance under passive
review.
11.
This bill increases the size of the Group Insurance Board by four members. The
new members are appointed, respectively, by the speaker of the assembly, the
assembly minority leader, the senate majority leader, and the senate minority leader.
The bill also provides that the six members appointed by the governor for two-year
terms are subject to senate confirmation.
12.
Under current law, the Department of Natural Resources administers the
municipal flood control and riparian restoration program, which provides grants
that pay a portion of the costs of facilities and structures for the collection and
transmission of storm water, including the purchase of flowage and conservation
easements on lands within floodways, and of floodproofing public and private
structures located in the 100-year floodplain. Current law requires DNR to
promulgate rules specifying eligibility criteria for projects and for determining which
projects will receive financial assistance. However, under current law, during the
2017-19 fiscal biennium, DNR must consider an applicant to be eligible for such a
grant if the project is funded or executed in whole or in part by the U.S. Army Corps
of Engineers' small flood control projects program, and DNR must provide such an
applicant with a cost-sharing grant not to exceed $14,600,000. This bill extends this
requirement to the 2019-21 biennium as well.
13.
Under current law, the Department of Administration contracts with a vendor
to provide web-based technology services through a web portal to state agencies,
state authorities, units of the federal government, local governmental units, tribal
schools, individuals, and entities in the private sector. Revenue received from the
fees charged for certain services provided through the self-funded web portal is
disbursed as payment to the vendor.
This bill requires DOA to submit to the Joint Committee on Finance and the
legislature by October 1 of each year a report on the administration of the
self-funded portal. The report must include the following information: 1) a financial
statement of state revenues and expenditures; 2) a list of services available; 3) fees
charged for each service; 4) the activity level of each service; and 5) any other
information that DOA determines is appropriate to include.
14.
Under current law, the board of directors of the Wisconsin Economic
Development Corporation consists of 12 voting members as follows:
1. Six members are appointed by the governor subject to senate confirmation,
to serve at the pleasure of the governor.
2. Three members are appointed by the speaker of the assembly, consisting of
one majority and one minority party representative to the assembly and one person
employed in the private sector, all of whom serve at the speaker's pleasure.
3. Three members are appointed by the senate majority leader, consisting of
one majority and one minority party senator and one person employed in the private
sector, all of whom serve at the majority leader's pleasure.
Under this bill, the board consists of 12 voting members. However, the governor
appoints four members. The speaker of the assembly and the senate majority leader
each appoint three members, but the appointees need not be members of the
legislature nor employed in the private sector. The minority leader of each house
appoints one member to the board.
The bill further provides that the chief executive officer of WEDC is appointed
by the board of directors of WEDC and serves at the pleasure of the board. Currently,
the governor appoints the CEO.
15.
Current law requires the Department of Administration, at the direction of the
Joint Committee on Legislative Organization, to lease or acquire office space for
legislative offices or legislative service agencies. This bill requires instead that the
cochairpersons of JCLO lease or acquire office space for legislative offices or
legislative services agencies.
16.
This bill requires all executive branch state agencies, other than the Board of
Regents of the University of Wisconsin System, to submit a quarterly report to the
Joint Committee on Finance listing all state agency expenditures for state
operations in the preceding calendar quarter. The report must specifically detail all
expenditures for administrative supplies and services that are made at the
discretion of or to be used by heads of state agencies, secretaries, deputy secretaries,
assistant deputy secretaries, and executive assistants. Under the bill, “state
operations” means all agency expenditures except aids to individuals and
organizations and local assistance.
17.
This bill requires that the Wisconsin Economic Development Corporation
obtain approval from the Joint Committee on Finance under passive review before
WEDC designates a new enterprise zone under the enterprise zone tax credit
program. The bill also eliminates any restriction on the number of enterprise zones
WEDC may designate. Currently, WEDC may not designate more than 30 enterprise
zones.
18.
This bill requires the Department of Corrections to submit a report to the
legislature upon request, and to post the report on its website, regarding individuals
who, since the previous report or during a date range specified in the request, were
pardoned or released from imprisonment before completing their sentences. The
report must identify each individual by name, include the crime for which he or she
was convicted, and provide the name of the person who pardoned the individual or
authorized the early release. If an individual appears on a report requested under
this bill and is subsequently convicted of a crime, this bill requires DOC to report also
the name of that individual and the crime.
19.
Generally, under current law, an agency planning to promulgate an
administrative rule, including an emergency rule, must first prepare a statement of
the scope of the proposed rule (scope statement). A scope statement must be
submitted to the Department of Administration for a determination as to whether
the agency has the explicit authority to promulgate the rule as proposed in the scope
statement. DOA must then report the statement and its determination to the
governor who, in his or her discretion, may approve or reject the scope statement.
Also under current law, after a proposed administrative rule, including an
emergency rule, is in final draft form, the agency promulgating the proposed rule
must submit the proposed rule to the governor, who may approve or reject the
proposed rule. No agency may promulgate an administrative rule without the
written approval of the governor.
In Coyne v. Walker, 2016 WI 38, the Wisconsin Supreme Court held that
provisions requiring gubernatorial approval of scope statements and rules are
unconstitutional as applied to the superintendent of public instruction.
Consistent with the result in Coyne, this bill exempts rules promulgated by the
Department of Public Instruction from the requirements that a) a scope statement
be submitted to DOA for a determination of authority and that the scope statement
be approved by the governor and b) a proposed rule in final draft form be submitted
to the governor and that the governor approve the rule in writing.
20.
This bill requires a state agency to provide a statutory or administrative rule
citation for any statement or interpretation of law that the agency provides in its
informational materials.
21.
This bill allows the legislature to request an independent retrospective
economic impact analysis (EIA) for a rule.
Under current law, either cochairperson of the Joint Committee for Review of
Administrative Rules may request an independent EIA for a proposed rule after an
agency submits its EIA for that proposed rule. Such a request by the senate
cochairperson of JCRAR requires approval by the Committee on Senate
Organization, and a request by the assembly cochairperson requires approval by the
Committee on Assembly Organization. Current law requires the requester to enter
into a contract to perform the independent EIA, and requires the analysis to be
completed within 60 days after entering into the contract. Under current law, an
independent EIA is paid for by the agency if the independent EIA's cost estimate for
the proposed rule varies by 15 percent or more from the agency's EIA, and is paid for
by the legislature if the independent EIA's cost estimate for the proposed rule varies
by less than 15 percent from the agency's EIA.
Also under current law, either cochairperson of JCRAR may request an agency
to conduct a retrospective EIA for existing rules, which must contain certain
information and analysis about the economic impact of the agency's existing rules.
This bill allows either cochairperson of JCRAR to request an independent
retrospective EIA for a rule within 90 days after an agency submits a retrospective
EIA for the rule. The bill specifies that a request for an independent retrospective
EIA for a rule follows the same procedure and payment method as a request for an
independent EIA for a proposed rule.
22.
Under current law, as the final step of the administrative rule process, an
agency must file a certified copy of a rule with the Legislative Reference Bureau for
publication. Filing a certified copy of a rule with the LRB creates a number of
presumptions, including that the rule was duly promulgated by the agency and that
all of the required rule-making procedures were complied with.
This bill eliminates the statutory presumptions that a rule was “duly”
promulgated by the agency and that all of the required rule-making procedures were
complied with.
23.
Under current law, a state agency must prepare a fiscal estimate for each
proposed rule, which must describe the fiscal effect of the proposed rule on local
governmental fiscal liabilities and revenues, the fiscal effect of the proposed rule on
state government, and, for rules that the agency determines may have a significant
fiscal effect on the private sector, the anticipated costs that will be incurred by the
private sector in complying with the rule. Also under current law, the agency must
prepare an economic impact analysis for a proposed rule, which must contain certain
specified information on the economic effect of the proposed rule on specific
businesses, business sectors, public utility ratepayers, local governmental units, and
the state's economy as a whole, as well as certain other information regarding the
economic impact of the proposed rule.
This bill specifically requires an economic impact analysis for a proposed rule
to be prepared and submitted separately from the fiscal estimate for the proposed
rule.
24.
This bill provides that a plan submitted by an agency to the federal government
for the purpose of complying with federal law (compliance plan) does not confer
rule-making authority and cannot be used by an agency as authority to promulgate
rules. The bill provides that no agency may agree to promulgate a rule as a
component of a compliance plan unless the agency has explicit statutory authority
to promulgate the rule at the time the compliance plan is submitted to the federal
government.
25.
Under current law, administrative rules that are in effect may be temporarily
suspended by the Joint Committee for Review of Administrative Rules. If JCRAR
suspends a rule, JCRAR must introduce bills in each house of the legislature to make
the suspension permanent. If neither bill to support the suspension is ultimately
enacted, the rule may remain in effect and JCRAR may not suspend the rule again.
This bill provides that JCRAR may suspend a rule multiple times.
26.
Under current law, an agency may, by rule or by an order in a particular case,
specify that the decision of a hearing examiner who conducts a hearing in a contested
case proceeding is the final decision of the agency. This bill prohibits an agency from
delegating the authority to issue a final decision in a contested case to a hearing
examiner. This bill also requires that all final decisions of an agency must be
approved, signed, and dated by the secretary of the agency.
27.
Under current law, an applicant for a driver's license or identification card must
provide to the Department of Transportation 1) an identification document that
includes either the applicant's photograph or both the applicant's full legal name and
date of birth; 2) documentation showing the applicant's date of birth, which may be
the same as item 1; 3) proof of the applicant's social security number or verification
that the applicant is not eligible for a social security number; 4) documentation
showing the applicant's name and address of principal residence; and 5)
documentary proof that the applicant is a U.S. citizen or is otherwise lawfully
present in the United States.
In 2015 and 2017, DOT promulgated rules, the first establishing and the second
modifying, a procedure by which persons requesting free identification cards for the
purpose of voter identification could receive these cards despite being unable to
provide required documentary proof. In general, the procedure requires an applicant
to provide DOT with either 1) the applicant's full legal name, date of birth, place of
birth, and any other birth record information requested by DOT; or 2) the applicant's
alien or U.S. citizenship and immigration service number or U.S. citizenship
certificate number. DOT then shares this information with the Department of
Health Services or the federal government for the purpose of verifying the applicant's
identity. In general, a person may receive a voter identification card under this
procedure if either DHS or the federal government verifies the person's identity or
if DOT receives acceptable alternate documentation. This bill incorporates this
verification procedure into the statutes.
DOT's 2017 rule also provided a procedure by which an applicant for an
identification card could obtain a card with a name other than the name that appears
on the applicant's supporting documentation. The bill also incorporates this
procedure into the statutes.
Under current law, an unexpired identification card issued by an accredited
university or college in this state may be used as identification for voting purposes
if it contains a photograph and the signature of the person to whom it was issued, it
expires no later than two years after the date of issuance, and the person establishes
that he or she is enrolled as a student at the university or college on election day. The
Government Accountability Board (now the Elections Commission) promulgated a
rule to clarify that an identification card issued by a technical college that is governed
by this state's technical college system may be used for voting purposes. The bill
codifies the rule.
28.
The bill a) requires committees appointed by agencies to provide advice with
respect to rule making to submit a list of the members of the committee to JCRAR;
b) makes various changes with respect to the required content and preparation of
statements of scope and EIAs for rules, including mandating minimum comment
periods for EIAs for rules; c) prohibits an agency from submitting a statement of
scope for a proposed rule to the LRB for publication in the register more than 30 days
after the date of the governor's approval of the statement of scope without the
approval of the governor; and d) codifies current practice by allowing an agency that
intends to concurrently promulgate an emergency rule and a permanent rule that
are identical in substance to submit one statement of scope indicating this intent.
29.
This bill 1) prohibits a court from according deference to agency interpretations
of law in certain proceedings and prohibits agencies from seeking deference in any
proceeding to agency interpretations of law; 2) establishes various requirements
with respect to the adoption and use of guidance documents by agencies, including
requirements that agencies must comply with in order to adopt guidance documents;
and 3) provides that settlement agreements do not confer rule-making authority.
