Wisconsin Gov. Tony Evers address the Legislature in his 2024 State of the State message. (Baylor Spears | Wisconsin Examiner)

Gov. Tony Evers is suing the Wisconsin State Legislature for clarification on administrative rulemaking powers after a state Supreme Court decision earlier this year found that lawmakers were unconstitutionally blocking administrative rules indefinitely. 

Since the Wisconsin Supreme Court’s Evers v. Marklein II decision in July, Evers has taken steps to implement 12 administrative rules that were approved by him, but without getting the sign off from committees. His administration has said the additional approval isn’t needed. 

However, Republican lawmakers have objected to Evers implementing the rules without going through the legislative committees, instructing the Legislative Reference Bureau not to publish any rule that hasn’t gone through a review by the Legislature in accordance with Wisconsin law. 

“The Legislature cannot continue to indefinitely obstruct my administration from doing the people’s work — and the Wisconsin Supreme Court agrees, but Republican lawmakers are continuing their unlawful behavior anyway,” Evers said in a statement about the court filing. “At the end of the day, this lawsuit is about following the law and making sure there’s accountability for elected officials if they fail to do so. It shouldn’t take going to court to get Republican lawmakers to comply with state law and Supreme Court decisions, but it seems like that’s what it’s going to take, unfortunately.” 

Evers argues in the filing in Dane County Circuit Court that the state law that barred agencies from publishing rules that hadn’t gone through the Joint Committee on the Review of Administrative Rules was invalidated under the state Supreme Court ruling. 

“No statute bars agencies from promulgating final administrative rules pending a legislative committee’s review,” the filing argued. “And even if any such statute existed, it would be facially unconstitutional under Evers II… a legislative committee cannot have discretion over a pre-promulgation pause without violating constitutional bicameralism and presentment procedures. Such a statute would also unconstitutionally intrude on the executive branch’s authority to execute statutes that authorize administrative rulemaking.”

Evers is asking for a declaration and an injunction that orders the Legislative Reference Bureau must publish the nine rules the Evers Administration has already submitted and all administrative rules that have completed all preceding rulemaking procedures and been approved by the governor. 

Assembly Speaker Robin Vos (R-Rochester) and Senate President Mary Felzkowski (R-Tomahawk) said in a statement that Evers is directing agencies to violate “valid” parts of Wisconsin law that “no court has ever questioned, let alone found to be invalid in any respect.”

“Just because Governor Evers is now a lame duck who no longer believes he is accountable to the people, it does not give him the right to ignore laws that the Legislature enacted, and a prior occupant of his office signed,” the Republican leaders said. “That’s not how the rule of law works.”

A state Supreme Court ruling hasn't ended the friction between Republican lawmakers and Democratic Gov. Tony Evers over administrative rulemaking. (Wisconsin Examiner photo)

Republican leaders of the Legislature moved Thursday to block the Evers administration from bypassing legislative committees in implementing administrative rules.

Republican leaders of the Joint Committee on Legislative Organization (JCLO), with members from both the Assembly and the Senate, sent committee members a motion Thursday instructing the Legislative Reference Bureau not to finalize or publish any rules unless they have gone through a review by the Legislature in accordance with Wisconsin law.

The motion came two days after a published report that Gov. Tony Evers  instructed cabinet heads to skip the Legislature in the final steps of the rulemaking process.

It is the latest development in an ongoing feud between the Democratic governor and Republican leaders in the Legislature over the power of the executive branch to write rules in order to carry out state laws.

In a memo Aug. 12, Evers told department secretaries, “There no longer remains any statutory requirement to wait for legislative committee review before promulgating a rule once I have approved it.”

The governor’s memo cited the July 8 Wisconsin Supreme Court ruling in the case Evers v. Marklein that curtailed the power of the Joint Committee for the Review of Administrative Rules (JCRAR) to block executive branch rulemaking.

In the 4-3 decision, which has become known as Evers v. Marklein II, the Court majority ruled that state laws giving JCRAR broad powers to block administrative rules indefinitely were unconstitutional.

“This is good and important news as it means we can — and must — continue the people’s work in earnest,” Evers wrote in the memo, first reported by WisPolitics.com. “Accordingly, I am directing agencies to submit rules that have made it through that relevant part of the process to the Legislative Reference Bureau for finalization and publication.”

The motion distributed to JCLO members Thursday takes direct aim at the assertion in Evers’ memo.

The motion states that “the Legislative Reference Bureau (LRB) shall neither finalize nor publish any rules or proposed rules that failed to comply with the standing committee statutory requirements of s. 227.19 (2) to (4), Stats., including rules or proposed rules that have already been submitted to the LRB.”

Those statutes require that when administrative rules are in final draft form, the Legislature must be notified, a detailed report on the rule must be submitted, and the rule must be reviewed by a standing committee of the Legislature.

There are 27 administrative rules submitted to the Legislative Reference Bureau currently awaiting publication in the Administrative Register.

The bureau director, Rick Champagne, told the Wisconsin Examiner on Thursday that 13 of those rules have not yet completed standing committee review. Those have been classified as not to be published.

“Evers v. Marklein II did not address the constitutionality of standing committee review of proposed administrative rules,” Champagne wrote in an email message.

Among the rules held up pending review are one addressing the state’s policy on gray wolf management and one on surface water degradation. 

The remaining 14 rules have completed the standing committee review and are before the Joint Committee for the Review of Administrative Rules or have completed that process, according to Champagne.  

“I believe these are ready for publication under Evers v. Marklein II,” Champagne told the Examiner.

“JCLO has the authority to direct the manner in which the LRB will carry out its statutory duties,” Champagne added.  “The Wisconsin Supreme Court, in Evers v. Marklein II, did not eliminate standing committee review of proposed administrative rules.  If JCLO so directs, the LRB will not finalize or publish any proposed administrative rules that have not completed standing committee review.”

The paper ballot votes on the motion are due Friday and results are expected to be posted by the end of the day. The motion is expected to pass given the committee’s GOP majority.

The committee’s Republican co-chairs, Assembly Speaker Robin Vos and Senate President Mary Felzkowski, issued a press release Thursday calling Evers’ action to sidestep submitting rules to the Legislature for committee review a “direct contradiction” of the Court’s ruling.

“In Evers v. Marklein, the Wisconsin Supreme Court clearly stated that the Legislature ‘alone maintains the ability to amend, expand, or limit the breadth of administrative rulemaking in other branches” of government, the press release said. “Governor Tony Evers is attempting to circumvent statutory requirements that are part of the rule-making process and that no court has held to be invalid in any respect.”

“We are following the law and maintaining the fundamental checks and balances of lawmaking,” Vos and Felzkowski said in a joint statement. “The governor is flagrantly disregarding the rule of law and egregiously abusing the power of his office.”

Evers’ communications director, Britt Cudaback, countered with a charge that the Republican lawmakers were defying the law. 

“Republicans are reaching new levels of lawlessness, whether it’s President Trump trying to take over Washington DC, Republicans in Texas trying to rig maps and elections in their favor, or Republicans in Wisconsin who appear poised to disobey decisions made by our state’s highest court,” Cudaback wrote in an email message. “Republicans are not above the law — they should follow the law like everyone else is expected to.”

Gov. Tony Evers implementing pay raises for state employees that were approved in the state budget without additional approval from the Legislature’s Joint Committee for Employment Relations. Evers signed the budget, now 2025 Wisconsin Act 15, at 1:32 a.m. in his office Thursday, less than an hour after the Assembly passed it. (Photo by Baylor Spears/Wisconsin Examiner)

Gov. Tony Evers is implementing pay raises for state employees without additional approval from the Legislature’s Joint Committee for Employment Relations, citing a recent state Supreme Court ruling.

The state budget, which was passed by the Republican-led Legislature and signed by Evers last month, included about $385 million to provide state and University of Wisconsin employees with a 3% pay increase in the first year of the budget and a 2% increase in the second year.

“I fought hard in our bipartisan budget negotiations to secure much deserved pay increases for our talented state workers,” Evers wrote in a letter to state employees on Monday, adding that he was proud to sign the budget last month and it was important to him that state workers receive the wage adjustment as soon as possible.

Eligible employees will receive the 3% base pay adjustment to their current pay rate with their Sept. 4 paychecks, including a lump sum back pay from June 29. The second year of raises is supposed to be implemented June 28, 2026.

“The work that we do together every day on behalf of the people of Wisconsin is so important — perhaps never more so than it is today,” Evers wrote. “With Washington creating continued uncertainty through devastating cuts to investments and programs that so many across our state rely on, Wisconsinites will continue looking to us to lead, support them and build upon the work we’ve done together over the last six years. There is, as always, much hard work ahead of us. Having committed and exceptional partners like you in this good work will make all the difference.” 

The Joint Committee on Employment Relations has been tasked by state law with holding hearings on changes to state employee compensation and approving those changes. Assembly Speaker Robin Vos (R-Rochester) and Senate President Mary Felzkowski (R-Tomahawk) and Co-chairs of the Joint Committee of Employment Relations have not responded to requests for comment on Evers’ announcement. 

In a bulletin about the raises, the Department of Administration cited the recent Wisconsin Supreme Court ruling in the case Tony Evers v. Howard Marklein, which addressed the Knowles-Nelson Stewardship Program and the ability of the Joint Finance Committee to hold up already appropriated funds. The Evers administration asserted that the decision clarified its authority to implement the raises without the additional approval of the committee.

The Court ruled 6-1 in July 2024 that the ability for the committee to withhold funds was unconstitutional and a violation of the separation of powers. 

Justice Rebecca Bradley wrote for the majority that a statute that authorizes lawmakers to “exercise core powers of the executive branch violates the constitutional separation of powers and cannot be enforced under any circumstances.” 

“While the constitution gives the legislature the power to appropriate funds, the power to spend the funds the legislature has appropriated for a specific project belongs to the executive branch,” Bradley wrote. “While the legislature has the power to create an agency, define its powers, and appropriate funds to fulfill the purpose for which the legislature established it, the power to spend appropriated funds in accordance with the law enacted by the legislature lies solely within the core power of the executive to ensure the laws are faithfully executed. We conclude these statutes interfere with the executive branch’s core function to carry out the law by permitting a legislative committee, rather than an executive branch agency, to make spending decisions for which the legislature has already appropriated funds and defined the parameters by which those funds may be spent.”

The original lawsuit filed by Evers in October 2023 included the Knowles-Nelson program and two other issues: JOCER’s ability to withhold raises approved in the budget and the Joint Committee for Review of Administrative Rules’s block on administrative rules related to conversion therapy. At the time, JOCER was withholding pay raises approved in the budget for University of Wisconsin employees, so the raises could be used as a bargaining chip in Republican lawmakers’ efforts to eliminate diversity, equity and inclusion efforts in the system. The pay raises, approved in the budget in July, were released by JOCER in December 2023. 

The majority decided in February 2024 that it would only take up the Knowles-Nelson issue and leave the other two “held in abeyance pending further order of the court.” Conservative justices were critical of the majority allowing original action in the case and separating the issues from each other at the time.

Justice Annette Zeigler wrote in her dissenting opinion in the case that taking all of the issues at once could have produced consistency. 

“Selecting an issue that only impacts the Republican-controlled legislature and the longstanding Knowles-Nelson Stewardship Program should raise eyebrows,” Zeigler wrote. “Determining all issues at the same time could serve to hold my colleagues to application of the same principles in the same way, even when it comes to a Democratic-controlled branch of government. Unfortunately, we will wait to see if that consistency will be forthcoming, as the majority handpicked and now limits only the legislative branch’s longstanding, statutorily authorized practice.”

The Court dismissed the compensation and Joint Committee on Employment Relations issue in October 2024 when it decided to take up the conversion therapy and Joint Committee for Review of Administrative Rules issue. The Court issued a ruling in July limiting the committee’s ability to block administrative rules.

The University of Wisconsin system will also be implementing the general wage raises. 

“We are grateful to Governor Tony Evers and the Wisconsin State Legislature for their continued support of our workforce and recognition of the vital role our faculty and staff play in education, research, and public service,” UW President Jay Rothman wrote in a memo to employees on Monday. 

The implementation of the raises is not the first time the administration has moved ahead with releasing funds following the ruling. The administration announced funding for 12 Department of Natural Resources projects under the Knowles-Nelson Stewardship Program in October of 2024.