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home : opinions : opinions
June 15, 2019

6/6/2019 7:30:00 AM
Our view
One person's guidance is another person's law

As we report in today's edition, there's a lot more at stake in the various challenges to laws passed in an Extraordinary Session of the Legislature last December, when lawmakers clipped the wings of the incoming governor and attorney general, than the legality of the session itself.

In an attempt to save some power for this liberal duo, the lawsuits ostensibly challenge the constitutionality of the session, and that is important. As others have observed, if that session was illegal and the laws passed during it are null and void, then it's not a far leap to think that all laws passed during any similar extraordinary sessions in the past are also null and void.

There's at least four decades of such sessions and laws, and they will all become targets of various interest groups that see an opening to invalidate laws they don't like.

But some of these particular laws are extremely important in and of themselves, and none more so than the Legislature's move to stop state agencies from using so-called guidance documents to "instruct" people and businesses on how to comply with laws and administrative rules.

Before, bureaucrats just wrote them up and used them when they wanted to, usually to torture some poor citizen they had it in for, as well as overturn by bureaucratic fiat some law they didn't like.

The December law now defines the term, and requires every guidance document to have a public hearing and receive certification by the head of the department, as well as Legislative Reference Bureau review, all to give the elected Legislature more oversight over unaccountable bureaucrats.

To environmental groups, the old way of doing things was much, much better. Guidance documents are a good thing, they argue, beneficial communications ranging from policy statements to instructions for applying for complex permits to informational brochures - all of which they say flow from smiling, compassionate government officials who seek to streamline administrative processes, create regulatory certainty, and ensure the consistent application of the law.

To these groups, these policy pronouncements do not have the force of law but helpfully guide individuals and businesses to go about their business and to be good citizens, and they further give agency officials some discretion to vary from that policy when they feel justified to do so, you know, to help the average Joe and Jane.

Critics of guidance documents, though, such as the Wisconsin Manufacturers & Commerce, do not view state agencies and their use of guidance documents so benevolently. To them, before the December law was passed to rein them in, the documents allowed state agencies to end-run the administrative code process and effectively establish rules that had to be followed, all without the inconvenience of actually promulgating a rule.

In other words, these guidance documents were anything but helpful guidance by friendly bureaucrats but documents that the administrative state used as a sledgehammer, often to enact policies that subverted legislative intent.

A little history. Back in the days when Democrat Jim Doyle was governor, the administrative state ran amok with administrative rules, using them to subvert legislative intent. The Legislature couldn't stop the rules in most cases because of the passive rule review process it then followed.

The most famous example was when the Legislature passed the s Job Creation Act to streamline permitting on the state's waterways. The law exempted the state's sensitive waterways from the expedited process, however, and left it to the DNR to compile a list of sensitive waterways by rule.

So what did the DNR do? They promptly tried to promulgate a rule that listed virtually every waterbody in the state as a sensitive waterway. They didn't get away with it because of the outcry, but, on many other important rules, they did, until the GOP passed the REINS Act to give the Legislature active oversight of the administrative state's rule-making games.

At that point, bureaucrats began to ramp up their use of guidance documents to pursue their partisan political agendas, and there is a perfect example from Oneida County that demonstrates that these documents are not benign or benevolent but exactly what WMC says they are.

Several years ago, the Legislature passed a law which allowed a boathouse roof to be used as a deck. The law's author, former Rep. Adam Jarchow, in a letter he wrote to surveyor Jimmy Rein, said the Legislature's intent could not be clearer.

"This provision is clear that the intent of Act 391 was, and still is, to allow decks on top of boathouses," he wrote. "The plain language in Act 391 was crafted specifically to permit such a project - counties should not prohibit nor should they pass an ordinance prohibiting decks to be constructed on top of boathouses. Decks and other materials should absolutely be allowed on top of boathouses."

But that's not how the DNR saw it. In a policy - established through a guidance document, not by rule - the agency effectively rewrote the statute to say that, while the law allows boathouse roofs to be used as decks, the language didn't actually state that a deck could be constructed.

"Act 167 allows exempt structures (such as boathouses) to be replaced, repaired, etc. provided there is no expansion of the 3-dimensional building envelope," Kay Lutze, the DNR's shoreland zoning policy coordinator, wrote to Oneida County zoning officials in 2016. "Act 391 allows the roof to be used as a deck, meaning that you can sit on the roof, read on the roof, lounge on the roof and do the activities that you could do on a deck, on the roof. It does not say construct a new deck on the roof. It says, 'may be used as a deck.'"

So you could use a deck but you couldn't build one, a tiny problem because most people didn't have them due to DNR prohibitions back in the Doyle era.

Later, after another public outcry, the DNR backtracked and reversed itself.

"Upon reflection we believe that we must revise our position to be in-line with the legislative intent," she wrote. "Statutes are interpreted to avoid absurd results. It would be absurd for the legislature to specifically allow a roof to be used as a deck, and for railing to be installed, while simultaneously refusing to allow modifications to the platform itself to make it useable as a deck."

Absurd, yes, but damage had already been caused. Because of the DNR's "guidance," in 2018 the Oneida County actually amended its ordinance to prohibit the placement of decking on a boathouse roof, despite the plain language of the law. Plus, the county had already stopped issuing permits for deck construction based on the DNR policy.

Make no mistake, bureaucrats didn't like the law allowing the use of boathouse roofs as decks, and found a way around it in a guidance policy, at least until they got caught with their hands in the cookie jar and were forced to do an about face.

But how many times do they get away with it, especially when average citizens often lack the know-how, resources, or time to fight back? How many lives have been impacted, especially when there are more than 200,000 guidance documents out there telling us how to live our lives?

So don't let dishonest environmental groups fool you. Guidance documents were never meant to be tools that friendly government agents would use to help citizens they care about.

They were always meant to be a used as sledgehammers to force average citizens to conform with their radical agendas, and to thwart the will of an elected Legislature.

That's why these court cases are so important. If the Supreme Court tosses the laws, there's no way - with Democrat Tony Evers sitting in the governor's office - the law limiting the use of guidance documents can be passed and enacted again.

With radical bureaucrats such as Todd Ambs re-installed in the DNR, that's a very scary thought indeed.

In that case, we may need to pray for guidance from a higher authority.

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