Wisconsin Legislature: 369,35

369,28 Section 28 . 165.25 (1) of the statutes is amended to read:

165.25 (1) Represent state in appeals and on remand. Except as provided in ss. 5.05 (2m) (a), 19.49 (2) (a), and 978.05 (5), appear for the state and prosecute or defend all actions and proceedings, civil or criminal, in the court of appeals and the supreme court, in which the state is interested or a party, and attend to and prosecute or defend all civil cases sent or remanded to any circuit court in which the state is a party. The joint committee on legislative organization may intervene as permitted under s. 803.09 (2m) at any time. Nothing in this subsection deprives or relieves the attorney general or the department of justice of any authority or duty under this chapter.

369,29 Section 29 . 165.25 (1m) of the statutes is amended to read:

165.25 (1m) Represent state in other matters. If requested by the governor or either house of the legislature, appear for and represent the state, any state department, agency, official, employee or agent, whether required to appear as a party or witness in any civil or criminal matter, and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people of this state may be interested. The joint committee on legislative organization may intervene as permitted under s. 803.09 (2m) at any time. The public service commission may request under s. 196.497 (7) that the attorney general intervene in federal proceedings. All expenses of the proceedings shall be paid from the appropriation under s. 20.455 (1) (d).

369,30 Section 30. 165.25 (6) (a) of the statutes is renumbered 165.25 (6) (a) 1. and amended to read:

165.25 (6) (a) 1. At the request of the head of any department of state government, the attorney general may appear for and defend any state department, or any state officer, employee, or agent of the department in any civil action or other matter brought before a court or an administrative agency which is brought against the state department, or officer, employee, or agent for or on account of any act growing out of or committed in the lawful course of an officer's, employee's, or agent's duties. Witness fees or other expenses determined by the attorney general to be reasonable and necessary to the defense in the action or proceeding shall be paid as provided for in s. 885.07. The attorney general may compromise and settle the action as the attorney general determines to be in the best interest of the state except that, if the action is for injunctive relief or there is a proposed consent decree, the attorney general may not compromise or settle the action without the approval of an intervenor under s. 803.09 (2m) or, if there is no intervenor, without first submitting a proposed plan to the joint committee on finance. If, within 14 working days after the plan is submitted, the cochairpersons of the committee notify the attorney general that the committee has scheduled a meeting for the purpose of reviewing the proposed plan, the attorney general may compromise or settle the action only with the approval of the committee. The attorney general may not submit a proposed plan to the joint committee on finance under this subdivision in which the plan concedes the unconstitutionality or other invalidity of a statute, facially or as applied, or concedes that a statute violates or is preempted by federal law, without the approval of the joint committee on legislative organization.

2. Members, officers, and employees of the Wisconsin state agencies building corporation and the Wisconsin state public building corporation are covered by this section. Members of the board of governors created under s. 619.04 (3), members of a committee or subcommittee of that board of governors, members of the injured patients and families compensation fund peer review council created under s. 655.275 (2), and persons consulting with that council under s. 655.275 (5) (b) are covered by this section with respect to actions, claims, or other matters arising before, on, or after April 25, 1990. The attorney general may compromise and settle claims asserted before such actions or matters formally are brought or may delegate such authority to the department of administration. This paragraph may not be construed as a consent to sue the state or any department thereof or as a waiver of state sovereign immunity.

369,31 Section 31 . 227.01 (3m) of the statutes is created to read:

227.01 (3m) (a) “Guidance document" means, except as provided in par. (b), any formal or official document or communication issued by an agency, including a manual, handbook, directive, or informational bulletin, that does any of the following:

1. Explains the agency's implementation of a statute or rule enforced or administered by the agency, including the current or proposed operating procedure of the agency.

2. Provides guidance or advice with respect to how the agency is likely to apply a statute or rule enforced or administered by the agency, if that guidance or advice is likely to apply to a class of persons similarly affected.

(b) “Guidance document" does not include any of the following:

1. A rule that has been promulgated and that is currently in effect or a proposed rule that is in the process of being promulgated.

2. A standard adopted, or a statement of policy or interpretation made, whether preliminary or final, in the decision of a contested case, in a private letter ruling under s. 73.035, or in an agency decision upon or disposition of a particular matter as applied to a specific set of facts.

3. Any document or activity described in sub. (13) (a) to (zz), except that “guidance document" includes a pamphlet or other explanatory material described under sub. (13) (r) that otherwise satisfies the definition of “guidance document" under par. (a).

4. Any document that any statute specifically provides is not required to be promulgated as a rule.

5. A declaratory ruling issued under s. 227.41.

6. A pleading or brief filed in court by the state, an agency, or an agency official.

7. A letter or written legal advice of the department of justice or a formal or informal opinion of the attorney general, including an opinion issued under s. 165.015 (1).

8. Any document or communication for which a procedure for public input, other than that provided under s. 227.112 (1), is provided by law.

9. Any document or communication that is not subject to the right of inspection and copying under s. 19.35 (1).

369,32 Section 32 . 227.01 (13) (intro.) of the statutes is amended to read:

227.01 (13) (intro.) “Rule" means a regulation, standard, statement of policy, or general order of general application which that has the effect force of law and which that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency. “Rule" includes a modification of a rule under s. 227.265. “Rule" does not include, and s. 227.10 does not apply to, any action or inaction of an agency, whether it would otherwise meet the definition under this subsection, which that:

369,33 Section 33 . 227.05 of the statutes is created to read:

227.05 Agency publications. An agency, other than the Board of Regents of the University of Wisconsin System, the Technical College System Board, or the department of employee trust funds, shall 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 any publication, whether in print or on the agency's Internet site, including guidance documents, forms, pamphlets, or other informational materials, regarding the laws the agency administers.

369,34 Section 34 . Subchapter II (title) of chapter 227 [precedes 227.10] of the statutes is amended to read:

Chapter 227

Subchapter II

ADMINISTRATIVE RULES and
GUIDANCE DOCUMENTS

369,35 Section 35 . 227.10 (2g) of the statutes is created to read:

227.10 (2g) No agency may seek deference in any proceeding based on the agency's interpretation of any law.

369,36 Section 36 . 227.11 (title) of the statutes is amended to read:

227.11 (title) Extent to which chapter confers Agency rule-making authority.

369,37 Section 37 . 227.11 (3) of the statutes is created to read:

227.11 (3) (a) A plan that is submitted to the federal government for the purpose of complying with a requirement of federal law does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. 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.

(b) A settlement agreement, consent decree, or court order does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. No agency may agree to promulgate a rule as a term in any settlement agreement, consent decree, or stipulated order of a court unless the agency has explicit statutory authority to promulgate the rule at the time the settlement agreement, consent decree, or stipulated order of a court is executed.

369,38 Section 38 . 227.112 of the statutes is created to read:

227.112 Guidance documents. (1) (a) Before adopting a guidance document, an agency shall submit to the legislative reference bureau the proposed guidance document with a notice of a public comment period on the proposed guidance document under par. (b), in a format approved by the legislative reference bureau, for publication in the register. The notice shall specify the place where comments should be submitted and the deadline for submitting those comments.

(b) The agency shall provide for a period for public comment on a proposed guidance document submitted under par. (a), during which any person may submit written comments to the agency with respect to the proposed guidance document. Except as provided in par. (c), the period for public comment shall end no sooner than the 21st day after the date on which the proposed guidance document is published in the register under s. 35.93 (2) (b) 3. im. The agency may not adopt the proposed guidance document until the comment period has concluded and the agency has complied with par. (d).

(d) An agency shall retain all written comments submitted during the public comment period under par. (b) and shall consider those comments in determining whether to adopt the guidance document as originally proposed, modify the proposed guidance document, or take any other action.

(2) An agency shall post each guidance document that the agency has adopted on the agency's Internet site and shall permit continuing public comment on the guidance document. The agency shall ensure that each guidance document that the agency has adopted remains on the agency's Internet site as provided in this subsection until the guidance document is no longer in effect, is no longer valid, or is superseded or until the agency otherwise rescinds its adoption of the guidance document.

(3) A guidance document 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. An agency that proposes to rely on a guidance document to the detriment of a person in any proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the guidance document. An agency may not use a guidance document to foreclose consideration of any issue raised in the guidance document.

(4) If an agency proposes to act in any proceeding at variance with a position expressed in a guidance document, it shall provide a reasonable explanation for the variance. If an affected person in any proceeding may have relied reasonably on the agency's position, the explanation must include a reasonable justification for the agency's conclusion that the need for the variance outweighs the affected person's reliance interest.

(5) Persons that qualify under s. 227.12 to petition an agency to promulgate a rule may, as provided in s. 227.12, petition an agency to promulgate a rule in place of a guidance document.

(6) Any guidance document shall be signed by the secretary or head of the agency below the following certification: “I have reviewed this guidance document or proposed guidance document and I certify that it complies with sections 227.10 and 227.11 of the Wisconsin Statutes. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold that is not explicitly required or explicitly permitted by a statute or a rule that has been lawfully promulgated. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold that is more restrictive than a standard, requirement, or threshold contained in the Wisconsin Statutes.”

(7) (a) This section does not apply to guidance documents adopted before the first day of the 7th month beginning after the effective date of this paragraph .... [LRB inserts date], but on that date any guidance document that has not been adopted in accordance with sub. (1) or that does not contain the certification required under sub. (6) shall be considered rescinded.

(b) This section does not apply to guidance documents or proposed guidance documents of the Board of Regents of the University of Wisconsin System, the Technical College System Board, or the department of employee trust funds.

(8) The legislative council staff shall provide agencies with assistance in determining whether documents and communications are guidance documents that are subject to the requirements under this section.

369,39 Section 39 . 227.13 of the statutes is amended to read:

227.13 Advisory committees and informal consultations. An agency may use informal conferences and consultations to obtain the viewpoint and advice of interested persons with respect to contemplated rule making. An agency also may also appoint a committee of experts, interested persons or representatives of the public to advise it with respect to any contemplated rule making. The Such a committee shall have advisory powers only. Whenever an agency appoints a committee under this section, the agency shall submit a list of the members of the committee to the joint committee for review of administrative rules.

369,64 Section 64 . 227.26 (2) (im) of the statutes is created to read:

227.26 (2) (im) Multiple suspensions. Notwithstanding pars. (i) and (j), the committee may act to suspend a rule as provided under this subsection multiple times.

369,65 Section 65 . 227.40 (1) of the statutes is amended to read:

227.40 (1) Except as provided in sub. (2), the exclusive means of judicial review of the validity of a rule or guidance document shall be an action for declaratory judgment as to the validity of the rule or guidance document brought in the circuit court for the county where the party asserting the invalidity of the rule or guidance document resides or has its principal place of business or, if that party is a nonresident or does not have its principal place of business in this state, in the circuit court for the county where the dispute arose. The officer or other agency whose rule or guidance document is involved shall be the party defendant. The summons in the action shall be served as provided in s. 801.11 (3) and by delivering a copy to that officer or, if the agency is composed of more than one person, to the secretary or clerk of the agency or to any member of the agency. The court shall render a declaratory judgment in the action only when it appears from the complaint and the supporting evidence that the rule or guidance document or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule or guidance document in question.

369,66 Section 66 . 227.40 (2) (intro.) of the statutes is amended to read:

227.40 (2) (intro.) The validity of a rule or guidance document may be determined in any of the following judicial proceedings when material therein:

369,67 Section 67 . 227.40 (2) (e) of the statutes is amended to read:

227.40 (2) (e) Proceedings under s. 66.191, 1981 stats., or s. 40.65 (2), 106.50, 106.52, 303.07 (7) or 303.21 or ss. 227.52 to 227.58 or under ch. 102, 108 or 949 for review of decisions and orders of administrative agencies if the validity of the rule or guidance document involved was duly challenged in the proceeding before the agency in which the order or decision sought to be reviewed was made or entered.

369,68 Section 68 . 227.40 (3) (intro.) of the statutes is renumbered 227.40 (3) (ag) and amended to read:

227.40 (3) (ag) In any judicial proceeding other than one set out above under sub. (1) or (2), in which the invalidity of a rule or guidance document is material to the cause of action or any defense thereto, the assertion of such that invalidity shall be set forth in the pleading of the party so maintaining the invalidity of such the rule or guidance document in that proceeding. The party so asserting the invalidity of such the rule or guidance document shall, within 30 days after the service of the pleading in which the party sets forth such the invalidity, apply to the court in which such the proceedings are had for an order suspending the trial of said the proceeding until after a determination of the validity of said the rule or guidance document in an action for declaratory judgment under sub. (1) hereof.

369,69 Section 69 . 227.40 (3) (a) of the statutes is renumbered 227.40 (3) (ar) and amended to read:

227.40 (3) (ar) Upon the hearing of such the application, if the court is satisfied that the validity of such the rule or guidance document is material to the issues of the case, an order shall be entered staying the trial of said proceeding until the rendition of a final declaratory judgment in proceedings to be instituted forthwith by the party asserting the invalidity of such the rule or guidance document. If the court shall find finds that the asserted invalidity of a the rule or guidance document is not material to the case, an order shall be entered denying the application for stay.

369,70 Section 70 . 227.40 (3) (b) and (c) of the statutes are amended to read:

227.40 (3) (b) Upon the entry of a final order in said the declaratory judgment action, it shall be the duty of the party who asserts the invalidity of the rule or guidance document to formally advise the court of the outcome of the declaratory judgment action so brought as ordered by the court. After the final disposition of the declaratory judgment action the court shall be bound by and apply the judgment so entered in the trial of the proceeding in which the invalidity of the rule or guidance document is asserted.

(c) Failure to set forth the invalidity of a rule or guidance document in a pleading or to commence a declaratory judgment proceeding within a reasonable time pursuant to such the order of the court or to prosecute such the declaratory judgment action without undue delay shall preclude such the party from asserting or maintaining such that the rule or guidance document is invalid.

369,71 Section 71 . 227.40 (4) (a) of the statutes is amended to read:

227.40 (4) (a) In any proceeding pursuant to this section for judicial review of a rule or guidance document, the court shall declare the rule or guidance document invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated or adopted without compliance with statutory rule-making or adoption procedures.

369,72 Section 72 . 227.40 (6) of the statutes is amended to read:

227.40 (6) Upon entry of a final order in a declaratory judgment action under sub. (1) with respect to a rule, the court shall send an electronic notice to the legislative reference bureau of the court's determination as to the validity or invalidity of the rule, in a format approved by the legislative reference bureau, and the legislative reference bureau shall publish a notice of that determination in the Wisconsin administrative register under s. 35.93 (2) and insert an annotation of that determination in the Wisconsin administrative code under s. 13.92 (4) (a).

369,80 Section 80 . 227.57 (11) of the statutes is amended to read:

227.57 (11) Upon review of an agency action or decision affecting a property owner's use of the property owner's property, the court shall accord no deference to the agency's interpretation of law if the agency action or decision restricts the property owner's free use of the property owner's property.

369,81 Section 81 . 230.08 (2) (sb) of the statutes is repealed.

369,82m Section 82m. 238.02 (1) of the statutes is amended to read:

238.02 (1) There is created an authority, which is a public body corporate and politic, to be known as the “Wisconsin Economic Development Corporation." The members of the board shall consist of 6 members nominated by the governor, and with the advice and consent of the senate appointed, to serve at the pleasure of the governor; 3 4 members appointed by the speaker of the assembly, consisting of one majority and one minority party representative to the assembly, appointed as are the members of standing committees in the assembly, and one person employed in the private sector, to serve at the speaker's pleasure; and 3 4-year terms; one member appointed by the minority leader of the assembly to serve a 4-year term; 4 members appointed by the senate majority leader, consisting of one majority and one minority party senator, appointed as are members of standing committees in the senate, and one person employed in the private sector, to serve at the majority leader's pleasure 4-year terms; and one member appointed by the minority leader of the senate to serve a 4-year term. Neither the speaker of the assembly nor the senate majority leader may appoint more than 2 members of the legislature to the board. The secretary of administration and the secretary of revenue shall also serve on the board as nonvoting members. The board shall elect a chairperson from among its nonlegislative voting members. A vacancy on the board shall be filled in the same manner as the original appointment to the board for the remainder of the unexpired term, if any.

369,83 Section 83 . 238.02 (2) of the statutes is amended to read:

238.02 (2) A majority of the voting appointed members of the board currently serving constitutes a quorum for the purpose of conducting its business and exercising its powers and for all other purposes, notwithstanding the existence of any vacancies. Action may be taken by the board upon a vote of a majority of the voting appointed members present.

369,84e Section 84e. 238.03 (2) (c) of the statutes is amended to read:

238.03 (2) (c) Require that each recipient of a grant or, loan award, or tax credit under the program submit a report to the corporation. Each contract with a recipient of a grant or, loan award, or tax credit under the program must specify the frequency and format of the report to be submitted to the corporation and the performance measures to be included in the report. Each recipient shall submit a statement to the corporation signed by the recipient or the director or principal officer of the recipient attesting to the accuracy and truthfulness of the information.

369,84f Section 84f. 238.03 (2) (e) of the statutes is amended to read:

238.03 (2) (e) Annually and independently verify, from a sample of grants and loans, loan awards, and tax credits, the accuracy of the information required to be reported under par. (c).

369,85 Section 85 . 238.04 (15) of the statutes is created to read:

238.04 (15) Appoint and supervise the economic development liaison project position created in 2017 Wisconsin Act 58, section 61 (1).

369,85e Section 85e. 238.16 (5) (e) of the statutes is amended to read:

238.16 (5) (e) The corporation shall annually verify, under s. 238.03 (2) (e), the information submitted to the corporation by the person for the purpose of claiming tax benefits under ss. 71.07 (3q), 71.28 (3q), and 71.47 (3q).

369,85k Section 85k. 238.306 (1) (a) of the statutes is amended to read:

238.306 (1) (a) Annually verify Verify, under s. 238.03 (2) (e), the information submitted to the department of revenue under ss. 71.07 (2dy), 71.28 (1dy), 71.47 (1dy), and 76.637 by persons certified under s. 238.301 (2) and eligible to receive tax benefits under s. 238.303 corporation by the person for the purpose of claiming tax benefits.

369,85m Section 85m. 238.308 (5) (b) of the statutes is amended to read:

238.308 (5) (b) The corporation shall annually verify, under s. 238.03 (2) (e), the information submitted to it the corporation by the person for the purpose of claiming tax benefits under ss. 71.07 (3y), 71.28 (3y), and 71.47 (3y).