The Wisconsin Supreme Court on October 21 heard oral arguments in Service Employees International Union (SEIU), Local 1 v. Robin Vos, prompting some justices to question whether the Wisconsin Constitution provides for a fourth branch of administrative government.
The case challenges legislation passed during the December 2018 session that made changes to administrative processes in the state. Among these changes, the state legislature’s Joint Committee on Finance must approve any legal settlements reached by the state’s Department of Justice. The change is aimed at ending sue-and-settle in the state—a practice by which outside groups sue an agency in order to reach a settlement on terms favorable to the regulatory goals of both.
Plaintiffs in the case, led by the Service Employees International Union (SEIU), argued that the legislation is unconstitutional because it violates the state’s separation of powers doctrine. The legislative committee’s approval of legal settlements, according to the plaintiffs, represents an unconstitutional exercise of executive—rather than legislative—power.
State lawmakers, on the other hand, claimed that the attorney general is part of a fourth branch of administrative government with no constitutional authority of his own. Instead, the attorney general’s authority is prescribed through laws passed by the legislature. Thus, lawmakers argued that the legislation is in line with the separation of powers because the attorney general is not part of the executive branch and receives his authority directly from lawmakers.
Justices Brian Hagedorn and Dan Kelly asked questions seeking to clarify whether the role of the attorney general fits within the executive branch. Justice Rebecca Bradley voiced skepticism of lawmakers’ characterization of the attorney general as an office outside of the executive branch, stating, “We’ve never recognized a fourth branch of government.”