Peggy Z. Coyne v. Scott Walker , 368 Wis. 2d 444 ( 2016 )

2016 WI 38
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP416
COMPLETE TITLE: Peggy Z. Coyne, Mary Bell, Mark W. Taylor, Corey
Otis,
Marie K. Stangel, Jane Weidner and Kristin A.
Voss,
Plaintiffs-Respondents,
v.
Scott Walker and Scott Neitzel,
Defendants-Appellants-Petitioners,
Anthony Evers,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 361 Wis. 2d 225, 862 N.W.2d 606)
(Ct. App. 2015 – Published)
PDC No. 2015 WI App 21
OPINION FILED: May 18, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 17, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Amy R. Smith
JUSTICES:
CONCURRED: ABRAHAMSON, J., concurs, joined by BRADLEY,
A.W., J.
PROSSER, J. concurs
DISSENTED: ROGGENSACK, C.J. dissents, joined by ZIEGLER, J.
and BRADLEY, R.G., J.
ZIEGLER, J. dissents, joined by BRADLEY, R.G.,
J.
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-appellants-petitioners, the cause was
argued by David V. Meany, assistant attorney general, with whom
on the briefs was Daniel P. Lennington, assistant attorney
general, Andrew C. Cook, deputy attorney general and Brad D.
Schimel, attorney general.
For the plaintiffs-respondents, there were briefs by Susan
M. Crawford, Lester A. Pines, Aaron G. Dumas, and Cullen Weston
Pines & Bach LLP, Madison, and Randall Garczynski, Wisconsin
Education Association, Madison and oral argument by Susan M.
Crawford.
For the defendant-respondent, there briefs by Ryan
Nilsestuen, Janet A. Jenkins, and Wisconsin Department of Public
Instruction, Madison, and oral argument by Ryan Nilsestuen.
There was an amicus curiae brief by Richard M. Esenberg,
Charles J. Szafir, Brian W. McGrath, and Wisconsin Institute for
Law & Liberty, Milwaukee on behalf of Wisconsin Manufacturers &
Commerce, Metropolitan Milwaukee Association of Commerce, School
Choice of Wisconsin, the Honorable Jason Fields, and the
Honorable Scott Jensen. Oral argument by Richard M. Esenberg.
There was an amicus curiae brief by Richard F. Verstegen,
Michael J. Julka, M. Tess O’Brien-Heinzen, and Boardman & Clark
LLP, Madison on behalf of The Wisconsin Association of School
Boards and School Administrators Alliance. Oral argument by
Michael J. Julka.
2
2016 WI 38
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP416
(L.C. No. 2011CV4573)
STATE OF WISCONSIN : IN SUPREME COURT
Peggy Z. Coyne, Mary Bell, Mark W. Taylor,
Corey Otis, Marie K. Stangel, Jane Weidner and
Kristin A. Voss,
Plaintiffs-Respondents,
v.
FILED
MAY 18, 2016
Scott Walker and Scott Neitzel,
Diane M. Fremgen
Clerk of Supreme Court
Defendants-Appellants-Petitioners,
Anthony Evers,
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of a
published decision of the court of appeals1 affirming the Dane
County circuit court's2 grant of summary judgment in favor of
Peggy Z. Coyne, Mary Bell, Mark W. Taylor, Corey Otis, Marie K.
1
Coyne v. Walker, 2015 WI App 21, 361 Wis. 2d 225, 862
N.W.2d 606.
2
The Honorable Amy Smith, presiding.
No. 2013AP416
Stangel, Jane Weidner and Kristin A. Voss ("Coyne"). Coyne
sought a declaratory judgment that 2011 Wisconsin Act 21 ("Act
21") is unconstitutional as applied to the Superintendent of
Public Instruction ("SPI") and the Department of Public
Instruction ("DPI"). Among other things, Act 21 amended portions
of Wis. Stat. ch. 227, which governs the procedures for
administrative rulemaking and now allows the Governor (and in
some instances the Secretary of Administration) to permanently
halt the rulemaking process. The circuit court concluded that
Act 21 is unconstitutional as applied to the SPI because it
gives superior authority over public instruction to officers who
are not subordinate to the SPI. As a result, it permanently
enjoined Governor Scott Walker and Secretary of Administration
Michael Huebsch3 from proceeding thereunder with respect to the
SPI.
¶2 The court of appeals affirmed, largely adopting the
reasoning of the circuit court. Coyne v. Walker, 2015 WI App 21,
¶36, 361 Wis. 2d 225, 862 N.W.2d 606. The court of appeals
relied on our decision in Thompson v. Craney, 199 Wis. 2d 674,
546 N.W.2d 123 (1996), specifically noting that in Thompson we
determined that rulemaking is a supervisory power of the SPI.
Coyne, 361 Wis. 2d 225, ¶¶23-24. Applying Thompson's reasoning,
3
After we accepted the petition for review in this case
Scott Neitzel replaced Huebsch as the Secretary of
Administration. Consequently, on June 18, 2015, Huebsch was
removed from the caption and Neitzel was added as a defendant-
appellant-petitioner.
2
No. 2013AP416
the court of appeals concluded that although the Legislature has
the authority to give, not give, or take away the SPI's
supervisory powers, "[w]hat the legislature may not do is give
the SPI a supervisory power relating to education and then fail
to maintain the SPI's supremacy with respect to that power."
Id., ¶25.
¶3 The issues presented for our consideration are
threefold. The first is whether administrative rulemaking is a
supervisory power of the SPI and DPI. The second is whether
Article X, § 1 of the Wisconsin Constitution allows the
Legislature to vest the supervision of public instruction in any
"other officers" it chooses. The third is whether Act 21 vests
the supervision of public instruction in the Governor and the
Secretary of Administration by giving them the authority to
prevent the SPI and DPI's promulgation of rules.
¶4 We hold that Act 21 is unconstitutional and therefore
void as applied to the Superintendent of Public Instruction and
his subordinates. Article X, § 1 requires the Legislature to
vest the supervision of public instruction in officers of
supervision of public instruction. The current statutory scheme
requires the SPI to promulgate rules in order to supervise
public instruction. Because Act 21 does not provide a way for
the SPI and DPI to proceed with rulemaking if the Governor or
Secretary of Administration withholds approval, Act 21 gives the
Governor and the Secretary of Administration the power to
"manage, direct, or oversee" the primary means by which the SPI
and DPI are required to carry out their supervisory duties.
3
No. 2013AP416
Thus, Act 21 unconstitutionally vests the supervision of public
instruction in officers who are not officers of supervision of
public instruction in violation of Article X, § 1. Consequently,
Act 21 is void as applied to the SPI and his subordinates.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. 2011 Wisconsin Act 21
¶5 On May 23, 2011, Governor Walker signed into law 2011
Wisconsin Act 21. At the heart of this controversy are the
provisions of Act 21 that changed portions of Wis. Stat. ch. 227
sub. II (2009-10), the Wisconsin Administrative Procedure Act.
This Act prescribes the procedures state agencies must follow in
order to promulgate administrative rules. Three sections of Act
21 are especially relevant to the present case: Section 4,
Section 21, and Section 32.
¶6 First, Section 4 of Act 21 amended Wis. Stat.
§ 227.135(2) (2009-10). Wisconsin Stat. § 227.135(2) previously
required agencies that had prepared a "scope statement"4 to
submit that scope statement to the Legislative Reference Bureau
for publication in the administrative register and to "the
individual or body with policy-making powers over the subject
matter of a proposed rule" for approval. Wisconsin Stat.
§ 227.135(2) now additionally requires an agency that has
4
To begin the rule-drafting process, agencies must prepare
a scope statement that, among other things, describes the
objectives, policies, authority, and use of government resources
that the rule may affect. See Wis. Stat. § 227.135(1).
4
No. 2013AP416
prepared a scope statement to submit the scope statement to the
Governor for approval. The agency may not submit the scope
statement to the Legislative Reference Bureau for publication in
the Administrative Register nor "perform any activity in
connection with the drafting of a proposed rule" unless and
until the Governor approves the scope statement in writing. Wis.
Stat. § 227.135(2).
¶7 Second, Section 21 of Act 21 amended Wis. Stat.
§ 227.138(2) (2009-10) and renumbered the subsection to Wis.
Stat. § 227.137(6). Wisconsin Stat. § 227.138(2) previously
required only those agencies listed in Wis. Stat. § 227.137(1)
to receive the Secretary of Administration's approval to submit
proposed rules that could result in costs of $20,000,000 or more
to the Legislature. Wisconsin Stat. § 227.137(6) now requires
all agencies to receive the Secretary of Administration's
approval to submit such proposed rules to the Legislature.5
¶8 Third, Section 32 of Act 21 created Wis. Stat.
§ 227.185. Prior to Act 21, agencies would submit final drafts
of proposed rules directly to the Legislature for review. See
Wis. Stat. §§ 227.135-.19 (2009-10). Wisconsin Stat. § 227.185
now requires agencies to submit any final draft of a proposed
5
Wisconsin Stat. § 227.137(7) requires the Secretary of
Administration to approve the rule if the "agency has adequately
addressed the issues raised during the department [of
administration]'s review of the rule," but the determination of
whether the agency has "adequately addressed the issues" is left
to the discretion of the Secretary of Administration.
5
No. 2013AP416
rule to the Governor for approval before submitting the draft
rule to the Legislature.6 The Governor then has sole discretion
to approve or reject the rule. Wis. Stat. § 227.185. An agency
may not submit the proposed rule to the Legislature for review
unless the Governor "has approved the proposed rule in writing."
Id.
B. The Proceedings Below
¶9 The Coyne parties7 filed an action pursuant to Wis.
Stat. § 806.04 seeking declaratory judgment and injunctive
relief in the Dane County Circuit Court on October 11, 2011. The
complaint named as defendants Governor Walker, Secretary of
Administration Huebsch, and Superintendent Anthony Evers, all in
their official capacities, and it sought to enjoin the
6
Specifically, Wis. Stat. § 227.185 states,
After a proposed rule is in final draft form, the
agency shall submit the proposed rule to the governor
for approval. The governor, in his or her discretion,
may approve or reject the proposed rule. If the
governor approves a proposed rule, the governor shall
provide the agency with a written notice of that
approval. No proposed rule may be submitted to the
legislature for review under s.227.19(2) unless the
governor has approved the proposed rule in writing.
7
Peggy Z. Coyne and Mary Bell are taxpayers and school
teachers who are the current presidents of Madison Teacher Inc.,
the labor organization that represents most employees of the
Madison Metropolitan School District, and the Wisconsin
Education Association Counsel, a labor organization representing
thousands of teachers throughout Wisconsin, respectively. Corey
Otis and Jane Weidner are taxpayers and teachers in Wisconsin
public schools. Kristin A. Voss, Marie K. Stangel, and Mark W.
Taylor are taxpayers and parents whose children attend and
receive services from Wisconsin public schools.
6
No. 2013AP416
defendants from proceeding with rulemaking under Act 21. The
complaint alleged that by requiring the SPI and DPI to obtain
the Governor's and the Secretary of Administration's approval to
proceed with rulemaking, Act 21 gives the Governor and the
Secretary of Administration equal or superior authority to that
of the SPI over the supervision of public instruction.
Consequently, the complaint alleged that Act 21 violates Article
X, section 1 of the Wisconsin Constitution and is inconsistent
with our holding in Thompson.
¶10 Superintendent Evers filed an answer agreeing with
Coyne; he has taken the same position as Coyne throughout this
litigation. Governor Walker and Secretary Heubsch8 filed a motion
to dismiss the case for lack of standing. Prior to disposition
of that motion, Coyne filed a motion for summary judgment. On
April 6, 2012, the circuit court denied the Governor's motion to
dismiss, and thereafter the Governor answered the complaint. On
May 25, 2012, the Governor filed a motion for summary judgment
and opposed Coyne's previously filed motion.
¶11 The circuit court denied the Governor's motion for
summary judgment and granted Coyne's motion, concluding that
"under the analysis set forth in Thompson, Act 21 as applied to
this case violates the Wisconsin Constitution." Accordingly, the
circuit court declared void the provisions of Act 21 that
8
For ease of reading, we will refer mainly to the Governor,
though our analysis and conclusion apply with equal force to the
Secretary of Administration.
7
No. 2013AP416
"require approval of the Governor or the Secretary of the
Department of Administration over the administrative rule-making
activities in which the State Superintendent of Public
Instruction engages or supervises, with respect to the
supervision of public instruction."
¶12 The Governor appealed, arguing that administrative
rulemaking is not a supervisory power of the SPI and that even
if it were a supervisory power, the Legislature is free to
"divvy up" the supervisory powers of the SPI among any "other
officers" as it sees fit. Coyne, 361 Wis. 2d 225, ¶¶21, 25.
Finally, the Governor argued that Act 21 does not impede the
SPI's ability to make or authorize rules; thus, Act 21 does not
place the Governor in a superior role to the SPI relative to
rulemaking or public instruction. Id., ¶¶27, 29.
¶13 The court of appeals rejected each of these arguments
and affirmed the circuit court. Id., ¶36. The court of appeals
noted that we previously held that rulemaking is a supervisory
power of the SPI. Id., ¶¶21-24 (citing Thompson, 199
Wis. 2d 674). It reasoned, "the practical effect of Act 21" is
to give the Governor "the power to decide that there will be no
rule or rule change on a particular subject, irrespective of the
judgment of the SPI." Id., ¶28. The court went on to highlight
the tension Act 21 created between the Governor and the SPI:
"[i]t seems beyond reasonable dispute that a Governor at
loggerheads with an SPI over the content of a proposed
rule . . . could use the threat to withhold approval as a means
of affecting the rule content." Id., ¶35. As a result, the court
8
No. 2013AP416
of appeals concluded that Act 21 places the Governor in a
superior position to the SPI as to the supervision of public
instruction; consequently, the court found the challenged
provisions of Act 21 unconstitutional as applied to the SPI.
Id., ¶36. The Governor appealed, and we granted review on June
12, 2015.
II. STANDARD OF REVIEW
¶14 We review a grant of summary judgment de novo,
independently applying the same methodology as the circuit court
and the court of appeals while benefitting from their analyses.
Preisler v. Gen. Cas. Ins. Co., 2014 WI 135, ¶16, 360
Wis. 2d 129, 857 N.W.2d 136. Summary judgment "shall be rendered
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that the moving party is entitled to a judgment as a matter of
law." Wis. Stat. § 802.08(2).
¶15 This case requires us to interpret Article X, § 1 of
the Wisconsin Constitution. "We interpret provisions of the
Wisconsin Constitution de novo." Polk Cty. v. State Pub. Def.,
188 Wis. 2d 665, 674, 524 N.W.2d 389 (1994). This court turns to
three sources to interpret provisions of the Wisconsin
Constitution: "(1) the plain meaning of the words in the context
used, (2) the historical analysis of the constitutional debates
and of what practices were in existence [at the time the
provision was drafted or amended]; and (3) the earliest
interpretation of the provision by the Legislature as manifested
9
No. 2013AP416
in the earliest law passed following the adoption of the
constitution." Id.
III. DISCUSSION
A. Administrative Rulemaking
¶16 Prior to undertaking our constitutional analysis, it
is important to explain what rulemaking is, the role that it
plays in our system of government, and how Act 21 modified the
rulemaking process.9
¶17 Agencies are governmental bodies created by the
Legislature in order to facilitate the efficient functioning of
government by implementing the policy decisions of the
Legislature.10 "Agency" is defined very broadly in Wisconsin:
"'Agency' means a board, commission, committee, department or
officer in the state government, except the governor, a district
attorney or a military or judicial officer." Wis. Stat.
§ 227.01(1). The DPI is a "department in the state government"
9
Administrative rulemaking is a complicated process, and we
do not endeavor to explicate the required steps for each agency
nor the requirements of each subdivision of Wis. Stat. ch. 227.
We merely provide a general summary of the process.
10
See generally Wis. Stat. § 227.19(1)(b) ("The legislature
recognizes the need for efficient administration of public
policy. . . . The delegation of rule-making authority is
intended to eliminate the necessity of establishing every
administrative aspect of general public policy by
legislation."); Wis. Stat. ch. 15, Structure of the Executive
Branch; Wis. Stat. § 15.001(2)(a) ("As the chief administrative
officer of the state, the governor should be provided with the
administrative facilities and the authority to carry out the
functions of the governor's office efficiently and effectively
within the policy limits established by the legislature.").
10
No. 2013AP416
created by the Legislature that is "under the direction and
supervision of the state superintendent of public instruction."11
Wis. Stat. § 15.37. The SPI is an "officer in the state
government" who is not the governor, a district attorney, or a
military and judicial officer; thus, the SPI is also considered
an "agency" to which Wis. Stat. ch. 227 applies.
¶18 In order to implement the policy decisions of the
Legislature, the Legislature delegates to agencies, by statute,
the power to promulgate administrative rules.12 In 1943, the
11
The DPI is the administrative agency that interprets,
implements, administers, and enforces the statutes in Wis. Stat.
chs. 115-121 governing the supervision of public instruction at
the state level. See Wis. Stat. § 115.001(2); see also Wis.
Admin. Code PI (2013-14). The DPI is created by the Legislature
and is "under the direction and supervision of the state
superintendent of public instruction" Wis. Stat. § 15.37, and it
is the agency that promulgates rules when it or the SPI are
required to do so. For example, Wis. Stat. § 115.28(5) requires
the SPI to promulgate rules establishing procedures for bringing
appeals before the SPI, but the rule itself is drafted and
promulgated by the DPI. See Wis. Admin. Code PI 1; CR 87-84,
384B Wis. Admin. Reg. (Dec. 31, 1987). The SPI is the
"individual or body with policy making powers" who must approve
rules proposed by the DPI.
12
Wis. Stat. § 227.11(2)(a) (an agency may promulgate rules
to effectuate the purpose of any statute administered by it);
see also, e.g., Wis. Stat. § 85.16 (giving the Secretary of
Transportation the authority to make rules "deemed necessary to
the discharge of the powers, duties and functions vested in the
department [of transportation]").
(continued)
11
No. 2013AP416
Legislature created Wis. Stat. ch. 227, entitled "Administrative
Procedure and Review."13 The Legislature sought to promote
efficiency and create a uniform set of procedures administrative
agencies were to follow when promulgating rules. Chapter 227 of
the Wisconsin Statutes has henceforth prescribed the procedure
agencies must follow to promulgate valid rules and regulations.
See, e.g., Wis. Stat. §§ 227.01(1)-.08 (1943-44); Wis. Stat.
§§ 227.01(1)-.30 (2013-14).
¶19 A "rule" is defined by Wis. Stat. § 227.01(13) as "a
regulation, standard, statement of policy or general order of
general application which has the effect of law and which is
issued by an agency to implement, interpret, or make specific
legislation enforced or administered by the agency or to govern
The Legislature also frequently requires an agency to
promulgate a rule on a certain subject. See generally Wis. Stat.
§ 41.11(1g)(b)(5) (requiring the Department of Tourism to
"establish by rule" a reporting and verification requirement for
recipients of grants or loans under state economic development
programs); Wis. Stat. § 118.045 (requiring the Department of
Public Instruction to promulgate rules to implement and
administer the statute section regarding commencement of the
school term); Wis. Stat. § 150.03 (requiring the Department of
Health Services to adopt rules and set standards to administer
subchapters I and II of Wis. Stat. ch. 150).
13
See Ralph M. Hoyt, The Wisconsin Administrative Procedure
Act, 1944 Wis. L. Rev. 214 (1944).
12
No. 2013AP416
the organization or procedure of the agency."14 Agencies
generally must promulgate rules to take any action pursuant to
the statutes they are tasked with administering unless the
statute explicitly contains the threshold, standard, or
requirement to be enforced.15 All agencies are required to
14
The statute gives a long list of agency actions or
inactions that are not considered rules even though they would
otherwise fit the definition given, such as actions concerning
the internal management of an agency that do not affect private
rights or interests, decisions or orders in contested cases,
actions which relate to military or naval affairs, etc. See Wis.
Stat. § 227.01(13)(a)-(zz).
15
Agencies generally cannot take any legally binding action
pursuant to a statute without promulgating a rule. For example,
the COP-W/CIP-II program allows individuals who would qualify
for Medicaid institutional care to instead receive services at
home. The Department of Health and Family Services (DHFS) (now
Department of Health Services) is tasked with administering this
statute. Wis. Stat. § 49.43(3e), .45(1). Wis. Stat.
§ 49.45(6m)(i) states that this benefit is only available for
persons receiving skilled, intermediate, or limited levels of
nursing care as defined by the DHFS. In 2005, DHFS gave a
written instruction to county "screeners" that changed how the
screeners assessed whether someone qualified for "limited" care,
but did not promulgate a rule to implement the new definition of
needing limited care. Cholvin v. DHFS, 2008 WI App 127, ¶13, 313
Wis. 2d 749, 758 N.W.2d 118. Previously, screeners were to
assess people based upon their needs on a "bad day." Id., ¶19.
The new instruction required screeners to assess a person as
fully functional unless they needed assistance one-third of the
time or more. Id. The court of appeals determined that the
instruction was invalid and had to be promulgated as a rule. The
court found that the instruction "interprets law because it
removes from consideration a number of possible functional
limitations" and that it created a new standard because it
imposed "an entirely new eligibility condition established by
DHFS." Id., ¶¶32-33. Thus, pursuant to Wis. Stat. § 227.10(1)
and .10(2m), DHFS screeners could not use the instruction to
determine whether someone qualified for limited care until it
validly promulgated the instruction as a rule.
13
No. 2013AP416
promulgate rules to adopt general policies and interpretations
of statutes that will govern the agency's enforcement or
administration of that statute. Wis. Stat. § 227.10(1).16
Additionally, an agency may not "implement or enforce any
standard, requirement, or threshold, including as a term or
condition of any license issued by the agency, unless that
standard, requirement, or threshold is explicitly required or
explicitly permitted by statute or by a rule that has been
promulgated in accordance with [Wis. Stat. ch. 227, subchapter
II] . . . ." Wis. Stat. § 227.10(2m).
1. Agency Rulemaking Prior to Act 2117
¶20 Prior to Act 21, the procedures that agencies were
required to follow to promulgate a rule were as follows. Once an
agency resolved to make a rule, the agency began the rulemaking
process by preparing "a statement of the scope" of the rule.
Wis. Stat. § 227.135(1). Among other things, the scope statement
gives an overview of the proposed rule and the effect it is
likely to have on entities and government resources. Wis. Stat.
§ 227.135(1)(a)-(f).
16
"Each agency shall promulgate as a rule each statement of
general policy and each interpretation of a statute which it
specifically adopts to govern its enforcement or administration
of that statute." Wis. Stat. § 227.10(1).
17
Again, we do not endeavor to recite every step of the
process in detail, and there are many more requirements that
must be met for a rule to be properly promulgated. See Wis.
Stat. ch. 227 sub. II.
14
No. 2013AP416
¶21 Once prepared, the agency sent a copy of the scope
statement to the Legislative Reference Bureau for publication in
the Administrative Register, and it sent another copy to the
Secretary of Administration. Wis. Stat. § 227.135(3) (2009-10).
The "individual or body with policy-making powers over the
subject matter of a proposed rule" then had to approve the scope
statement. Wis. Stat. § 227.135(2)(2009-10).
¶22 After approval by the individual or body with policy-
making powers, the agency could begin drafting the proposed
rule. See Wis. Stat. §§ 227.135(2)-.18 (2009-10). Once the
drafting process was complete, the agency submitted the draft
rule in its final form along with a detailed report about the
proposed rule to the Legislature for review.18 Wis. Stat.
§ 227.19(2)-(7)(2009-10).
2. Rulemaking After Act 21
¶23 As relevant here, Act 21 significantly altered the
rulemaking process by allowing the Governor, at his discretion,
to halt the process at two key points: (1) after the agency has
prepared a scope statement and (2) before the agency submits a
draft rule to the Legislature for review.19 See Wis. Stat.
18
The legislative review process is elaborate and
complicated, and again we are merely giving a summary and not a
comprehensive analysis of the process. The full legislative
review process can be found in Wis. Stat. §§ 227.19-.265.
19
As noted previously, in some circumstances Wis. Stat.
§ 227.137(6) as amended by Act 21 also allows the Secretary of
Administration to keep a draft rule from being reviewed by the
Legislature.
15
No. 2013AP416
§ 227.135(2); Wis. Stat. § 227.185. At either juncture——and
regardless of the approval of the "individual or body with
policy-making powers over the subject matter of a proposed
rule"——the agency may not proceed with the rulemaking process
unless the agency receives the Governor's written approval,
which can be withheld for any reason or for no reason. Id.
B. Constitutional Challenges to Statutes
¶24 Coyne challenges the constitutionality of the
aforementioned changes to Wis. Stat. ch. 227. Generally, there
are two types of constitutional challenges to statutes: facial
and as applied. Tammy W-G v. Jacob T., 2011 WI 30, ¶46, 333
Wis. 2d 273, 797 N.W.2d 854. In either case, the statute is
presumed constitutional. See id., ¶¶46-48. A facial challenge
"attacks the law itself as drafted by the legislature, claiming
the law is void from its beginning to the end and that it cannot
be constitutionally enforced under any circumstances." Soc'y
Ins. v. LIRC, 2010 WI 68, ¶26, 326 Wis. 2d 444, 786 N.W.2d 385.
¶25 In an as applied challenge, the party does not attack
the statute itself as unconstitutional; rather, the party claims
that the statute has been applied to him or her in an
unconstitutional manner. Id., ¶48. "The analysis of an as-
applied challenge is determined by the constitutional right that
is alleged to have been affected by the application of the
16
No. 2013AP416
statute."20 Tammy W-G, 333 Wis. 2d 273, ¶49. Accordingly, in an
as applied challenge, the court "assess[es] the merits of the
particular case in front of us, 'not hypothetical facts in other
situations.'" State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321,
780 N.W.2d 63 (quoting State v. Hamdan, 2003 WI 113, ¶43, 264
Wis. 2d 433, 665 N.W.2d 785).
¶26 The line between facial and as applied challenges is
not always clear. Here, for example, Coyne's argument contains
elements of both a facial and an as applied challenge. See
League of Women Voters of Wis. Educ. Network, Inc. v. Walker,
2014 WI 97, ¶134 n.40, 357 Wis. 2d 360, 851 N.W.2d 302
(Abrahamson, C.J., dissenting). Coyne is attacking the law as it
was drafted by the Legislature, claiming that the portion of Act
21 involving the process of drafting and promulgating
administrative rules could never be constitutionally applied.
But Coyne limits this claim as applying only to the SPI. We
conclude that this is an as applied challenge to Act 21 because
Coyne is not claiming that the entirety of Act 21 can never be
applied in any circumstance to any agency, but rather that Act
21 cannot be constitutionally applied to the SPI. See Soc'y
Ins., 326 Wis. 2d 444, ¶26.
20
Stated otherwise, the analysis changes depending on the
right at issue. For example, when the challenge to the
application of the statute involves an issue of freedom of
conscience based on religious beliefs, we apply the "compelling
state interest/least restrictive alternative test." See Tammy W-
G v. Jacob T., 2011 WI 30, ¶50, 333 Wis. 2d 273, 797 N.W.2d 854.
17
No. 2013AP416
¶27 The dissents take issue with the procedural posture of
this case, specifically commenting that "no proof has been
submitted that either Wis. Stat. § 227.135(2) or Wis. Stat.
§ 227.185 has been unconstitutionally enforced against the
Superintendent." Chief Justice Roggensack's dissent, ¶231; see
also Justice Ziegler's dissent, ¶¶250-52. Contrary to the
dissents' positions otherwise, Act 21 does not have to have been
enforced for Coyne to properly bring a claim via a declaratory
judgment action. Coyne properly seeks——through a declaratory
judgment——that the court determine her "rights, status, and
other legal relations" in a justiciable controversy. Wis. Stat.
§ 806.04(1).
¶28 The Uniform Declaratory Judgments Act, Wis. Stat.
§ 806.04, allows "controversies of a justiciable nature to be
brought before the courts for settlement and determination prior
to the time that a wrong has been threatened or committed."
Olson v. Town of Cottage Grove, 2008 WI 51, ¶28, 309
Wis. 2d 365, 749 N.W.2d 211. We have explained,
A controversy is justiciable when the following four
factors are present: (1) A controversy in which a
claim of right is asserted against one who has an
interest in contesting it. (2) The controversy must be
between persons whose interests are adverse. (3) The
party seeking declaratory relief must have a legal
interest in the controversy——that is to say, a legally
protectable interest. (4) The issue involved in the
controversy must be ripe for judicial determination.
Id., ¶29. Governor Walker and Secretary Huebsch contested only
the third factor in the courts below. They claimed that Coyne
lacked a legally protectable interest in this controversy and
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thus had no standing to bring this action. See Coyne, 361
Wis. 2d 225, ¶4. The court of appeals found that the Coyne
parties had standing as taxpayers, id., ¶13, and Walker did not
appeal that finding to this court.21
¶29 Justice Ziegler's assertion that this case is unripe
for adjudication is also without merit due to the nature of a
declaratory judgment action. See Justice Ziegler's dissent,
¶¶250-52. We examined the issue of ripeness in the context of
the Declaratory Judgment Act in Olson, where we stated,
By definition, the ripeness required in declaratory
judgment actions is different from the ripeness
required in other actions. . . . potential defendants
'may seek a construction of a statute or a test of its
constitutional validity without subjecting themselves
to forfeitures or prosecution.' Thus, a plaintiff
seeking a declaratory judgment need not actually
suffer an injury before availing himself of the Act.
What is required is that the facts be sufficiently
developed to allow a conclusive adjudication.
309 Wis. 2d 365, ¶43 (internal citations omitted). The facts
before this court are sufficiently developed to determine
whether Act 21 violates the constitution with respect the SPI.
There are no details of any proposed rule or other facts that
could come to light in the drafting process that would have any
bearing on whether the contested portions of Act 21 violate
21
"Unlike the federal courts, which can only hear 'cases'
or 'controversies,' standing in Wisconsin is not a matter of
jurisdiction, but of sound judicial policy." McConkey v. Van
Hollen, 2010 WI 57, ¶15, 326 Wis. 2d 1, 783 N.W.2d 855.
Accordingly, we are not required to reexamine this issue before
proceeding.
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Article X, § 1. The germane facts, namely, the constitutional
provision and the text of the statutes, are already before us.
¶30 Consequently, this case is properly before us as an as
applied challenge to the constitutionality of Act 21. See
Waushara Cty. v. Graff, 166 Wis. 2d 442, 451, 480 N.W.2d 16
(1992) ("Appellate courts need not and ordinarily will not
consider or decide issues which are not specifically raised on
appeal."). Coyne is, however, claiming that the statute as
written can never be constitutionally applied to the SPI. Thus,
the burden of proof Coyne must meet is that the application of
Act 21 to the SPI is unconstitutional beyond a reasonable doubt.
Soc'y Ins., 326 Wis. 2d 444, ¶27.
C. Rulemaking, Supervision, and the Language of Article X
1. Rulemaking Is A Supervisory Power.
¶31 We first address whether rulemaking is a supervisory
power of the SPI and DPI. Article X, § 1 states, "[t]he
supervision of public instruction shall be vested in a state
superintendent and such other officers as the legislature shall
direct; and their qualifications, powers, duties and
compensation shall be prescribed by law." The SPI's and DPI's
powers and duties are "prescribed by" the Legislature and found
throughout Wis. Stat. chs. 115–121. If rulemaking is not a
supervisory power, then there is no constitutional impediment to
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Act 21 because it would not affect the supervision of public
instruction.22
¶32 Coyne argues that because rulemaking has been part of
the SPI's supervisory power since statehood, it is an "essential
aspect" of the SPI's constitutional duty to supervise public
instruction. In contrast, the Governor claims that rulemaking
cannot be a supervisory power because of its "legislative
nature." We find neither argument persuasive. Because the SPI is
vested with the "supervision of public instruction," a
"supervisory power" is one without which the SPI could not carry
out his legislatively-mandated duties of supervision of public
instruction. Put simply, the real question is whether the
Legislature requires the SPI and DPI to supervise public
instruction through rulemaking.
¶33 As agencies, the SPI and DPI are both bound by Wis.
Stat. ch. 227. This means they are statutorily required by the
Legislature to engage in rulemaking in order to "implement or
enforce any standard, requirement, or threshold, including as a
term or condition of any license issued by the agency." Wis.
Stat. § 227.10(2m). The SPI and DPI cannot take any legally
binding action pursuant to any of the statutes they are tasked
22
"Public instruction" has been interpreted as "the
elementary and high schools supported by pubic taxation." Wis.
Stat. § 115.01(1). The SPI is tasked with the supervision of the
public schools grades K-12, and the supervision of programs for
the public schools that are supported by public taxation. See,
e.g., Wis. 115.28 (1), (3), (20)-(23).
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with administering without making rules unless the statute
specifically provides for another course of action. Id. Because
rulemaking is the only means by which the SPI and the DPI can
currently perform most of their legislatively-mandated duties of
supervision of public instruction,23 rulemaking is a supervisory
power that the DPI and SPI must use to supervise public
instruction.
¶34 Article X, § 1 states, "[t]he supervision of public
instruction shall be vested in a state superintendent and such
other officers as the legislature shall direct; and their
qualifications, powers, duties and compensation shall be
prescribed by law." Though we have never interpreted the phrase
"shall be prescribed by law" in specific reference to Article X,
"[t]his court has consistently stated that the phrase
'prescribed by law' in art. VI, § 3 plainly means prescribed by
statutory law." State v. City of Oak Creek, 2000 WI 9, ¶19, 232
Wis. 2d 612, 605 N.W.2d 526. Neither reason nor precedent leads
us to interpret this same phrase differently in this provision.
¶35 The Legislature has "prescribed by law" the SPI's and
DPI's duties and powers of supervision of public instruction in
Wis. Stat. chs. 115-121. By enacting Wis. Stat. § 15.37, the
Legislature has "prescribed by law" that the SPI oversee the
DPI. It has also "prescribed by law" that the SPI and DPI are
agencies bound by Wis. Stat. ch. 227. See Wis. Stat.
23
See Wis. Stat. chs. 115-121; see also Part D., infra;
n.35, infra.
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§ 227.01(1). Further, the Legislature has "prescribed by law"
that the SPI and DPI must engage in rulemaking. See, e.g., infra
n.39; Wis. Stat. §§ 227.10. Thus, rulemaking is a supervisory
power because it is the means by which the Legislature has
prescribed the SPI and DPI to carry out the majority of their
statutorily-mandated duties and powers. Stated otherwise,
rulemaking is the means by which the Legislature has "prescribed
by law" that the SPI must carry out his Legislatively-defined
duties of supervision.
¶36 To be clear, rulemaking is not a constitutional power
of the SPI. Article X, § 1 "is not [a provision] which
incorporates an ancient common law office [such as the sheriff],
possessing defined powers and duties, into the constitution."
Fortney v. Sch. Dist. of W. Salem, 108 Wis. 2d 167, 182, 321
N.W.2d 225 (1982). There were no common law duties and powers
that the SPI or any other officers of supervision of public
instruction had traditionally possessed prior to the adoption of
the Wisconsin Constitution because neither the office of the SPI
nor a uniform system of public instruction existed prior the
adoption of our constitution in 1848. See id.
¶37 Consequently, any rulemaking power the SPI and DPI has
is clearly a delegation of power from the Legislature, not from
the constitution. However, under the current statutory
prescription, the SPI and DPI cannot carry out their duties and
powers of supervision without rulemaking. See Wis. Stat.
§ 227.10; see also infra n.39. Accordingly, under the current
Legislative prescription of the SPI's powers and duties of
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supervision of public instruction, rulemaking is a supervisory
power.
2. The Legislature May Delegate Supervision of Public
Instruction Only to Officers of Supervision of Public
Instruction.
¶38 We next address the argument that even if rulemaking
is a supervisory power, the Legislature is free to divide that
power among any "other officers" it chooses pursuant to Article
X, § 1 of the Wisconsin Constitution. Both parties spent a
substantial amount of effort arguing about the applicability and
validity of our decision in Thompson, in which we held that the
Legislature must maintain the superiority of the SPI over the
"other officers" in whom supervision of public instruction is
vested. 199 Wis. 2d 674. Thus, we begin with a discussion of
Thompson.
a. Thompson v. Craney
¶39 Thompson's examination of Article X, § 1 is
instructive to our analysis here, and much of what was said
there applies to this case because we are interpreting the same
constitutional provision under similar circumstances. However,
this case poses a different constitutional question than the
question posed in Thompson. In Thompson, the Legislature had
redistributed nearly all of the SPI's powers of supervision of
public instruction among other officers whose roles all related
to the supervision of public instruction: a new Department of
Education, a new Education Commission, and a new Secretary of
Education. Id. at 678-79 (emphasis added). There, the question
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was not whether those officers could constitutionally be vested
with the supervision of public instruction at all, but rather,
whether the constitution allowed such "other officers" of
supervision of public instruction to be given equal or greater
authority over the supervision of public instruction than the
SPI. Id.
¶40 In contrast, here, the Legislature is attempting to
give officers who are not officers of supervision of public
instruction the ability to prevent the SPI from promulgating
rules. Thus, the question in this case is whether the term
"other officers" in Article X, § 1 allows some supervision of
public instruction to be vested in any other officers the
Legislature chooses, including other constitutional officers
whose offices were not created to supervise public instruction.
¶41 In short, there are two questions a court must
consider. The first is whether the Legislature vested the
supervision of public instruction in a proper "other officer."
If the Legislature did not, then the analysis ends. If the
Legislature did, then, under Thompson, we proceed to consider
whether that "other officer" has been given equal or greater
authority over the supervision of public instruction than the
SPI. The Thompson court only addressed the second question, but
we must address the first. Thus, although much of Thompson's
general discussion of Article X, § 1 applies to this case,
Thompson does not answer the precise constitutional question
before us. Accordingly, we proceed to consider the first
question left unanswered by Thompson: whether the Legislature
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vested the supervision of public instruction in a proper "other
officer."
b. General Principles Governing the Interpretation of a
Constitutional Provision
¶42 "The surest guides to a proper interpretation of
[Article X, § 1] are the constitutions of 1846 and 1848, the
1902 amendment, the accompanying debates, our legislature's
first laws following adoption, and this court's prior
interpretation of Article X, § 1." Thompson, 199 Wis. 2d at 698.
Applying this approach, we begin by looking at the language of
Article X, § 1 when it was adopted in 1848 and when it was
amended in 1902. See Polk Cty., 188 Wis. 2d at 674. First
adopted in 1848, Article X, § 1 stated,
The supervision of public instruction shall be vested
in a state superintendent, and such other officers as
the legislature shall direct. The state superintendent
shall be chosen by the qualified electors of the
state, in such manner as the legislature shall
provide; his powers, duties, and compensation shall be
prescribed by law. Provided, that his compensation
shall not exceed the sum of twelve hundred dollars
annually.
In 1902, Article X, § 1 was amended to read,
The supervision of public instruction shall be vested
in a state superintendent and such other officers as
the legislature shall direct; and their
qualifications, powers, duties and compensation shall
be prescribed by law. The state superintendent shall
be chosen by the qualified electors of the state at
the same time and in the same manner as members of the
supreme court, and shall hold office for four years
from the succeeding first Monday in July. The state
superintendent chosen at the general election in
November, 1902, shall hold and continue in his office
until the first Monday in July, 1905, and his
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successor shall be chosen at the time of the judicial
election in April, 1905. The term of office, time and
manner of electing or appointing all other officers of
supervision of public instruction shall be fixed by
law.
Small, non-substantive changes were made by amendment in 1982;
these changes included removing the word "his" from before the
word "office," changing the word "four" to "4," and removing the
sentence about the 1902 and 1905 elections.
¶43 "The purpose of construing a constitutional amendment
'is to give effect to the intent of the framers and of the
voters who adopted it.'" Appling v. Walker, 2014 WI 96, ¶19, 358
Wis. 2d 132, 853 N.W.2d 888 (citing State v. Cole, 2003 WI 112,
¶10, 264 Wis. 2d 520, 665 N.W.2d 328). "To determine what the
framers and the voters wanted the constitutional provision to
accomplish we first look at the plain language and meaning of
the amendment they ratified." Appling, 358 Wis. 2d 132, ¶22. It
is a paramount rule of constitutional construction that the
intent of a provision "is to be ascertain[ed], not alone by
considering the words of any part of the instrument, but by
ascertaining the general purpose of the whole[.]" Kayden Indus.,
Inc. v. Murphy, 34 Wis. 2d 718, 730, 150 N.W.2d 447 (1967)
(quoting State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 184,
204 N.W. 803, 805 (1925)).
¶44 When we examine the constitution as a whole, we
conclude that Article X, § 1's reference to "other officers"
means officers of supervision of public instruction other than
the SPI. Article X is titled "Education," and the eight sections
that lay within Article X form the foundation of Wisconsin's
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public education system. It follows then that the most logical
interpretation of Article X, § 1 is that "other officers" means
"other officers" whose offices relate to supervising education,
i.e., other officers of supervision of public instruction.
c. The Plain Language Of Article X, Section 1.
¶45 The structure and language of Section 1 itself
supports our interpretation as well. When the plain language of
Article X, § 1 is read within the context of the entire section,
it becomes clear that the "other officers" in whom the
Legislature may vest the supervision of public instruction are
other officers of supervision of public instruction.
¶46 When the same word or phrase appears twice in the same
statute or provision, we attribute the same definition to that
word or phrase. See DaimlerChrysler v. LIRC, 2007 WI 15, ¶29,
299 Wis. 2d 1, 727 N.W.2d 311 ("It is a basic rule of
construction that we attribute the same definition to a word
both times it is used in the same statute or administrative
rule."). The only officers mentioned in Section 1 are the
superintendent and the "other officers." The second sentence of
Section 1 refers only to the superintendent.24 The final sentence
of Article X, § 1 refers to "all other officers of supervision
of public instruction." (Emphasis added.) Thus, the most
24
"The state superintendent shall be chosen by the
qualified electors of the state at the same time and in the same
manner as members of the supreme court, and shall hold office
for 4 years from the succeeding first Monday in July." Wis.
Const. Art. X, sec. 1.
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reasonable construction of Section 1——as a whole——is that the
term "all other officers" in the last sentence of Section 1 is
referring to "all officers authorized by Article X, § 1 other
than the superintendent." The final sentence specifically states
that these "other officers" are "other officers of supervision
of public instruction." It would defy our basic principles of
construction to conclude that the drafters of Article X, § 1
were referring to different "other officers" in the first
sentence than in the last, particularly when read in context
with the rest of Section 1. See, e.g., State v. Cole, 2003 WI
112, ¶13, 264 Wis. 2d 520, 665 N.W.2d 328 ("In interpreting a
constitutional provision, we first turn to the plain meaning of
the amendment in context").
¶47 Further evidence that the "other officers" referred to
in Article X, § 1 were intended exclusively to be other officers
of supervision of public instruction is found throughout
Section 1. The Legislature is empowered to define the
qualifications, powers, duties, compensation, term of office,
and time and manner of selection of all "other officers"
authorized by Article X. The very existence of their offices is
dependent upon the Legislature. With this in mind, the most
straightforward interpretation of "such other officers as the
Legislature may direct" is that the "other officers" are meant
to be "creatures of the Legislature" whose offices were created
to supervise public instruction. See, e.g., City of Sun Prairie
v. Davis, 226 Wis. 2d 738, ¶¶29-31, 595 N.W.2d 635 (1999)
(nothing that although municipal courts are authorized by the
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No. 2013AP416
constitution, they exist only if the Legislature creates them;
thus, they are "creatures of the legislature" with no inherent
powers).
¶48 Another indication that the "other officers" in
Article X, § 1 must be other officers of supervision of public
instruction is found in the provision for a state
superintendent. See Thompson, 199 Wis. 2d at 698-99. The first
portion of Article X, § 1 vests supervision of public
instruction in "a state superintendent and such other officers
as the legislature may direct." The constitution does not define
"superintendent," so we look to a dictionary from around the
time of the provision's adoption to determine the common,
ordinary meaning of the word at the time of the adoption of the
constitution. See Xcel Energy Servs., Inc. v. LIRC, 2003 WI 64,
¶32, 349 Wis. 2d 234, 833 N.W.2d 665. A superintendent is "[o]ne
who has the oversight and charge of something, with the power of
direction."25
¶49 The Legislature must vest the supervision of public
instruction in officers over whom the SPI has "oversight and
charge with the power of direction," or by definition he is no
25
Superintendent, Noah Webster, An American Dictionary of
the English Language, 810 (J.E. Worcester ed., New York, N. & J.
White, 15th abr. ed. 1838).
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No. 2013AP416
longer the superintendent of public instruction.26 See Thompson,
199 Wis. 2d at 698-99. Article X, § 1 gives the Legislature the
freedom to shape and reshape a system of public education that
fits the needs of the people of our State at any given time. See
id., see also Thompson, 199 Wis. 2d at 701-02 (Wilcox, J.,
concurring). To that end, the Legislature is free to create or
eliminate the positions of whatever "other officers" of
supervision of public instruction it wants. The Legislature may
also grant, withhold, or take away those officers' powers and
duties as it sees fit. However, supervision of public
instruction must remain in the hands of officers whose
activities the SPI oversees and directs; otherwise, the SPI is
no longer supervising public instruction, which would constitute
a violation of Article X, § 1. See Thompson, 199 Wis. 2d at 698-
99.
¶50 The argument remains, however, that "other officers"
and "other officers of supervision of public instruction" are
different terms, and thus "other officers" in the first sentence
must have a different meaning than "other officers" in the last
26
This does not mean that the SPI must have direct control
over every decision made by the other officers of supervision of
public instruction. See, e.g., Wis. Stat. § 118.01(1)
(outlining the responsibilities of the superintendent, the
school boards, the parents and guardians of pupils, and the
state in public education). Rather, the SPI has the "power of
direction" of the other officers of supervision of public
instruction if those officers are not free to ignore the
directives of the SPI made pursuant to the statutes he is tasked
with administering by the Legislature. Compare Wis. Stat.
ch. 115 with Wis. Stat. ch. 118.
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sentence. We cannot conclude that the plain language of Article
X, § 1 unambiguously precludes this interpretation, so we move
on to our second source of constitutional interpretation: the
constitutional debates and practices in existence at the time of
the writing of the constitutional provision. Polk Cty., 188
Wis. 2d at 674.
d. The Constitutional Debates Regarding Article X.
¶51 When interpreting a constitutional provision we do not
rest our analysis on the language of the provision alone.
Rather, we also consult the constitutional debates and the
practices in existence at the time of the writing of the
constitutional provision and the interpretation of the provision
by the Legislature as manifested in the laws passed following
its adoption. Id. Both the constitutional debates and the laws
passed following the adoption of Article X, § 1 and the 1902
amendment show that the "other officers" authorized by the
provision were meant to be officers of supervision of public
instruction whose positions were created by the Legislature
exclusively for that purpose.
¶52 As originally proposed in 1846, Article X, § 1 read:
The supervision of public instruction shall be vested
in a state superintendent and such other officers as
the legislature may direct. The state superintendent
shall be chosen by the electors of the state once in
every two years. The legislature shall provide for
filling vacancies in the office of state
superintendent and prescribe his powers and duties.
The Convention of 1846, 538 (Milo M. Quaife, ed., 1919)
available at
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No. 2013AP416
https://books.google.com/books?id=EY0UAAAAYAAJ&printsec=titlepag
e&source=gbs_summary_r&hl=en#v=onepage&q&f=false (hereinafter
The Convention of 1846). The proposed constitution of 1846 was
not adopted, and another convention was called in 1847. The
Attainment of Statehood, VI-VIII, (Milo M. Quaife, ed. 1928).
The wording of the 1846 provision was largely retained; the only
changes made were regarding the method of selection of the
superintendent. See Thompson, 199 Wis. 2d at 686.
¶53 As this court recognized in Thompson, discussion of
the role or powers of the "other officers" mentioned in Article
X is completely absent from the constitutional debates of 1846
and 1848. 199 Wis. 2d at 687; see also Conrad Patzer, Public
Education in Wisconsin 17-27 (1925); Journal and Debates,
reprinted in The Attainment of Statehood, (Milo M. Quaife, ed.,
1928). The debates focused mainly on the other sections of the
Article and the importance of the superintendent. The phrase
"such other officers as the legislature shall direct" went
virtually unchallenged. Thompson, 199 Wis. 2d at 687.
¶54 However, two defeated proposals regarding the
superintendent from the 1846 debates indicate that the framers
envisioned the "other officers" in Article X, § 1 to be officers
of public instruction whose offices were created by the
Legislature. One delegate to the 1846 convention sought to amend
Section 1 by eliminating the superintendent altogether. His
proposed amendment read "[t]he supervision of public instruction
shall be vested in such officers as shall hereafter be created
by law." The Convention of 1846, 568. Another delegate thought
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that the superintendent was unnecessary and that "the duties [of
supervision of public instruction] for a time might be done by
the secretary of state or some other officer already provided
for, leaving to the legislature to provide for this office when
the time came." Id.
¶55 The framers of the 1846 constitution rejected a model
where the supervision of public instruction was vested in "other
officer[s] already provided for," and all other proposed
amendments to the section always left it to the Legislature to
provide for new officers to supervise public instruction. The
framers decided that a superintendent was crucial and rejected
both proposals, but clearly they were considering a system where
the supervision of public instruction was vested in a
superintendent and officers whose offices were created for that
purpose. That the "other officers" were intended to be officers
of supervision of public instruction was never in contention.
¶56 Moreover, the history of the 1902 amendment to Article
X, § 1 indicates that the drafter of the amendment and those who
ratified it also understood the "other officers" to be other
officers of supervision of public instruction. The 1902
amendment, which substantially provided Article X, § 1 as we
know it today, was drafted and supported by then-Superintendent
of Public Instruction Lorenzo Dow Harvey. See Conrad Patzer,
Lorenzo Dow Harvey, 93 (1936). Harvey was concerned that local,
elected county superintendents had been using the office for
political gain rather than for furthering the cause of
education, so he introduced the amendment in order to allow the
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Legislature to provide for the appointment of local public
instruction officials. See id. at 93; see also Thompson, 199
Wis. 2d at 691-92. Additionally, Harvey was concerned with
ensuring that there was enough flexibility to overhaul the
public school system, as Justice Wilcox pointed out in his
concurrence in Thompson. 199 Wis. 2d at 702-03 (Wilcox, J.,
concurring).
¶57 Our review of the history of the drafting of the 1902
amendment reveals that like the drafters of the original
provision, Harvey only ever contemplated the Legislature vesting
the supervision of public instruction in officers whose offices
were created by the Legislature for that purpose. See Thompson,
199 Wis. 2d at 690-693; see also Thompson, 199 Wis. Stat. § at
701-05 (Wilcox, J., concurring); Conrad Patzer, Lorenzo Dow
Harvey, 93-95. Harvey's stated purpose of amendment was to allow
the Legislature to appoint public instruction officers, if
necessary, in order to ensure that the officers supervising
public instruction were dedicated solely to the task of
education rather than using the office as a political stepping
stone. In fact, it was Harvey who added the "other officers of
supervision of public instruction" language to the section. It
strains credulity to accept that Harvey intended Article X, § 1
to allow the Legislature to vest the supervision of public
instruction in officials who are not officers of supervision of
public instruction when he is the person who added that language
to Section 1.
e. The First Laws Interpreting Article X, Section 1.
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No. 2013AP416
¶58 We next turn to our third source of interpreting a
constitutional provision. We examine the "earliest
interpretation of the provision by the legislature as manifested
in the earliest law passed following the adoption of the
constitution." Polk Cty., 188 Wis. 2d at 674. Thus, we look to
the first laws passed vesting the supervision of public
instruction in "other officers." The constitution does not
define "supervision," so we again look to a dictionary from
around the time of the provision's adoption to determine the
common, ordinary meaning of the word "supervision" at the time
of the adoption of the constitution.27 See Xcel Energy Servs.,
Inc., 349 Wis. 2d 234, ¶32. "Supervision" is defined as "[t]he
act of overseeing; inspection; superintendence."28
¶59 The first laws regarding "overseeing, inspection, or
superintendence" of public instruction passed by the Legislature
of 1848 defined the powers and duties of the SPI and created the
office of "town superintendent of common schools." See Laws of
27
The term "supervision" was not changed by the 1902
amendment, so we use a dictionary from around the time Article
X, § 1 was initially adopted. Additionally, the definition has
not changed substantially since 1848. "Supervision" is defined
as "[t]he series of acts involved in managing, directing, or
overseeing persons or projects"; Supervision, Black's Law
Dictionary (10th ed. 2014).
28
Supervision, Noah Webster, An American Dictionary of the
English Language, 811 (J.E. Worcester ed., New York, N. & J.
White, 15th abr. ed. 1838).
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1848, 127-29;29 Laws of 1848, 209. The duties of the town
superintendent of common schools included qualifying teachers,
examining the condition of schools, and advising on the course
of studies to be pursued. See Laws of 1848, 219, Sec.1-2. The
town superintendent of common schools was "in all cases under
the control and direction of the state superintendent of public
instruction." Laws of 1848, 219, Sec.3.
¶60 The Legislature also enacted an "Act in relation to
Public Schools," which created the school district system,
school district officers, district boards, and town boards of
school inspectors. Laws of 1848, 226-47. The SPI, the town
superintendent, and the district officers and boards were
entrusted with all functions of the public schools. Id. All of
these officers whom the Act vested with the supervision of
public instruction are, aside from the SPI, officers whose
positions the Legislature created for the purpose of supervising
public instruction.30 See Laws of 1848, 127-29, 226-47. The
Legislature created county superintendents of schools in 1866.
See, e.g., Laws of 1866, Chapter 111. Some Legislatures created
city boards of education and city superintendents to supervise
public instruction in the cities; these officers wielded the
29
The laws of 1848 did not provide separate numbers for
each act. Thus, we will cite to these laws by the page on which
it appears in the bound volume of the Laws and the section
number where appropriate.
30
Some record-keeping responsibilities were given to the
town clerk. See Laws of 1848, 226-47, Sec.80-88.
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No. 2013AP416
powers of supervision that would have otherwise been vested in
the county superintendent. See, e.g., Laws of 1865, Chapter 268,
361-363 (creating a board of education to supervise public
instruction in the city of Appleton). The common thread between
these "other officers" is that they all are officers of public
instruction whose offices the Legislature created for the
purpose of supervising public education.
¶61 Similar to the Legislature's actions following the
adoption of the 1848 constitution, the Legislature first
interpreting the 1902 amendment to Article X, § 1 routinely and
exclusively vested the supervision of public instruction in
officers of supervision of public instruction. The Legislature
provided the qualifications, powers, duties, and compensation of
the SPI in the Laws of 1903, Chapter 37, 54. The Legislature
reintroduced the office of the County Superintendent of Common
Schools and the city superintendents were retained. Laws of
1903, Chapter 307, 480; see also Wis. Stat. ch. 27 sec. 461
(1911) (assigning duties of county superintendents that included
licensing teachers, examining schools in his district, and
advising on methods and courses of instruction). The Legislature
established the township system of school government in the
towns of Hiles and Laona. Laws of 1903, Chapter 36, 50. School
boards in large cities were given the power to establish schools
and hire support staff. Laws of 1903, Chapter 101, 150. In sum,
the first laws passed after the 1902 amendment to Article X, § 1
38
No. 2013AP416
reflect that Legislature's understanding that "other officers"
meant other officers of supervision of public instruction.31
¶62 In fact, the Legislature's vesting of supervision of
public instruction solely in officers of supervision of public
instruction has continued in an unbroken line from the founding
of our State in 1848 to the present. We were unable to find a
single instance in which the Legislature of this State gave
supervision of public instruction to officers whose office was
not dedicated to supervising public education.32 Even when the
Legislature attempted to restructure the entire system of public
instruction with the law at issue in Thompson, it created new
offices of supervision of public instruction such as a
Department of Education. See Thompson, 199 Wis. 2d at 678-79. To
be clear, the Legislature has never attempted to vest the
supervision of public instruction in "other officers" whose
offices——like the Governor's——were not devoted to that task, and
31
For a summary of the various ways the Legislature
organized the school system between 1848 and 1924, see Patzer,
Public Education in Wisconsin (1924).
32
There were some instances where the Mayor of a city was
designated as one of the members of the city board of education;
however, the vesting of supervision was in the board, not in the
mayor. See, e.g., Laws of 1865, Chapter 268, 361-362 (Appleton
city board of education to consist of the mayor, the director,
and the clerk of each school district, with the city
superintendent as an ex officio member).
39
No. 2013AP416
that is how we have uniformly interpreted "such other officers
as the legislature shall direct" as well.33
¶63 In sum, "[t]he surest guides to a proper
interpretation of [Article X, § 1] are the constitutions of 1846
and 1848, the 1902 amendment, the accompanying debates, our
legislature's first laws following adoption, and this court's
prior interpretation of Article X, § 1." Thompson, 199
Wis. 2d at 698. Our review of these sources leads us to a single
conclusion: that the "other officers" in whom the Legislature
may vest the supervision of public instruction must be other
officers of supervision of public instruction. It is self-
evident that neither the office of the Governor nor that of the
Secretary of Administration were created by the Legislature as
officers of supervision of public instruction. Accordingly, the
Legislature may not delegate to the Governor or the Secretary of
33
See Raymer v. Cunningham, 82 Wis. 39, 48, 51 N.W. 1133
(1892) ("[Article X, § 1] expressly declares that 'the
supervision of public instruction shall be vested in a state
superintendent and such other officers as the legislature shall
direct.' This left the legislature free to prescribe such
assistants and clerks as may be deemed essential." (emphasis
added)); Thompson v. Craney, 199 Wis. 2d 674, 707, 546 N.W.2d
123 (1996) (Wilcox, J., concurring) ("The ability of the
legislature to create other state officers who exercise
supervisory authority over public instruction was addressed by
this court in Burton v. State Appeal Bd. . . . [and the court
held the board members were Article X officers rather than mere
"employees"]." (emphasis added)); Fortney v. Sch. Dist. of W.
Salem, 108 Wis. 2d 167, 182, 321 N.W.2d 225 (1982) ("Because the
constitution explicitly authorized the legislature to set the
powers and duties of the public instruction officers, Article X,
§ 1 confers no more authority upon those officers than that
delineated by statute." (emphasis added)).
40
No. 2013AP416
Administration the power to "oversee, inspect, or superintend"
public instruction. To do so would result in the
unconstitutional vesting of the supervision of public
instruction in an officer who is not an officer of supervision
public instruction.
D. Act 21 And Supervision of Public Instruction.
¶64 Having determined that rulemaking is a supervisory
power granted to the SPI and DPI by the Legislature and that the
supervision of public instruction may not be vested in the
Governor or the Secretary of Administration, the remaining
question is whether Act 21 vests the Governor and the Secretary
of Administration with the supervision of public instruction.
Act 21 did not remove or reduce the rulemaking powers of the SPI
or DPI. Accordingly, the issue here is whether the power to halt
the rulemaking of the SPI and DPI vests the Governor and
Secretary of Administration with the supervision of public
instruction.
¶65 We hold that it does. By giving the Governor the power
to prevent the SPI's and DPI's proposed rules from being sent to
the Legislature, Act 21 gives the Governor the authority to
"oversee, inspect, or superintend" public instruction. Indeed,
Act 21 gives the Governor the power to decide upon the very
existence of any rules on all topics regarding the supervision
of public instruction. The Secretary of Administration holds
this same power if the rule at issue meets the conditions set
forth in Wis. Stat. § 227.137(6). Accordingly, Act 21 vests the
41
No. 2013AP416
Governor and the Secretary of Administration with the
supervision of public instruction.
¶66 As discussed previously, rulemaking is the primary
means by which the SPI and DPI must carry out their
legislatively-mandated duties. The SPI and DPI are statutorily
required to promulgate rules in order to adopt any statement of
general policy and any interpretation of a statute "to govern
[their] enforcement or administration of that statute," as well
as to "implement or enforce any standard, requirement, or
threshold" unless the same is explicitly required or permitted
by statute. Wis. Stat. § 227.10(1), (2m). Additionally, the
"Education" chapters of the statutes, Wis. Stat. chs. 115-121,
mandate no less than 71 times34 that the SPI or DPI make rules on
various subjects ranging from the licensing of teachers to the
34
Within Wis. Stat. chs. 115-121, there are 53 instances
where the statutes state that the SPI or the DPI "shall"
promulgate rules, and 18 instances where the statutes state that
a particular item will be administered "as defined [by the SPI
or DPI] by rule." This does not include statutes that the SPI or
DPI would have to promulgate a rule to administer or enforce due
to the requirements of Wis. Stat. § 227.10.
42
No. 2013AP416
commencement of the school term.35 This number does not even
include the statutes the SPI and DPI are tasked with
administering that do not include a command to promulgate a
rule. Under the current legislative prescription, the SPI and
DPI cannot supervise public instruction without rulemaking.
Pursuant to Act 21, they cannot promulgate rules without the
approval of the Governor. Consequently, Act 21 beyond a
reasonable doubt unconstitutionally vests the supervision of
public instruction in the Governor.
¶67 The Governor contends that Act 21 does not vest the
Governor with the supervision of public instruction because it
does not transfer the power to make rules regarding public
instruction to the Governor and Secretary of Administration, nor
does it infringe upon the SPI's ability to approve or deny the
DPI's scope statements. We disagree. The essence of supervision
includes the power to prevent an action at one's discretion.
While Act 21 does not give the Governor the power to promulgate
35
See, e.g., Wis. Stat. § 115.28(7) (SPI must make rules
establishing standards and procedures for licensing teachers);
Wis. Stat. § 115.28(59)(d) (SPI must promulgate rules to provide
academic and career planning to students); Wis. Stat.
§ 115.36(3)(a) (Department of Public Instruction must promulgate
rules to fund school district projects assisting minors with
drug or alcohol problems); Wis. Stat. § 115.415 (Department of
Public Instruction must promulgate rules on evaluating teacher
effectiveness); Wis. Stat. § 118.045(3) (Department of Public
Instruction shall promulgate rules to determine whether a school
board may commence the term before September 1); Wis. Stat.
§ 120.14 (Department of Public Instruction must establish by
rule a standard contract and minimum standards for school board
audits).
43
No. 2013AP416
rules regarding public instruction, it does give the Governor
the power "in his or her discretion"36 to decide that "there will
be no rule on a given subject irrespective of the judgment of
the SPI." Coyne, 361 Wis. 2d 225, ¶29.
¶68 It is granting the Governor and Secretary of
Administration the power to make the decision on whether the
rulemaking process can proceed that causes the constitutional
infirmity. This unchecked power to stop a rule also gives the
Governor the ability to supplant the policy choices of the SPI.
Like the court of appeals, we believe that "a Governor at
loggerheads with an SPI over the content of a proposed rule, or
a proposed rule change, could use the threat to withhold
approval as a means of affecting the rule content." Id., ¶35.
For example, the Governor could refuse to approve a scope
statement or a rule until it met the Governor's specifications.
¶69 This does not mean the Governor and the Secretary of
Administration cannot be involved in the rule-drafting process
at all; it simply means that they cannot be given the authority
to halt the process. The Legislature can require whatever
rulemaking steps it wants as long as the SPI and DPI are able to
make the final decision on the contents of a proposed rule and
submit that proposed rule to the Legislature at the end of the
process. For example, there is no constitutional infirmity in
requiring the SPI and DPI to prepare the economic impact
36
Wisconsin Stat. § 227.185.
44
No. 2013AP416
analysis and submit it to the Secretary of Administration and
the Governor as long as those officers are not permitted to
block the rule from being submitted to the Legislature.
Additionally, the Legislature could require the SPI to submit
the draft rule to the Governor and allow the Governor to send
the rule back to the SPI with requested changes (provided the
SPI is not required to incorporate them). The Legislature could
further require the SPI to hold additional hearings on the
Governor's proposed changes, to prepare a detailed report on the
Governor's proposed changes and a report on why the SPI does not
agree with them, to have a personal consultation with the
Governor, or to resubmit the rule to the Governor to get his
written opinion on it and submit that opinion to the Legislature
along with the draft rule. The Legislature can create whatever
rulemaking process it sees fit, as long as at the end of the
process the SPI and DPI are able to decide on the final content
of a proposed rule and submit that proposed rule to the
Legislature.37
¶70 Additionally, the constitution gives the Legislature
control over what powers the SPI and the other officers of
supervision of public instruction possess in order to supervise
public instruction. As a result, the Legislature may give, may
not give, and may take away the powers and duties of the SPI and
the other officers of supervision of public instruction. If the
37
This statement assumes that the Legislature continues to
require the SPI and DPI to promulgate rules.
45
No. 2013AP416
Legislature does not believe the SPI should engage in
rulemaking, it is free to change the statutory scheme so that
the SPI and DPI can carry out the duties with which they are
tasked through other means and are not required to promulgate
rules. Moreover, it could change the duties with which they are
tasked, or it could provide all of the definitions, standards,
requirements, thresholds, and terms or conditions of any
licenses issued by the SPI and DPI by statute. What it cannot do
is require the SPI and DPI to supervise public instruction
through rulemaking and then condition rulemaking on the approval
of an officer who is not an officer of supervision of public
instruction.
¶71 Accordingly, the constitutional problem with Act 21 is
that it contains no mechanism for the SPI and DPI to proceed
with rulemaking in the face of withheld approval by the Governor
or Secretary of Administration. Had the Legislature provided
some means for the SPI and DPI to continue the rulemaking
process if the Governor or the Secretary of Administration did
not approve the rule, the supervision of public instruction
would remain with the SPI and DPI. However, as currently
written, Act 21 gives the Governor and Secretary of
Administration the unchecked power to halt the SPI's and DPI's
promulgation of rules on any aspect of public instruction,
ranging from teachers' qualifications to the implementation of
the school milk program to nonresident waiting list requirements
46
No. 2013AP416
for pupils.38 In other words, Act 21 improperly vests the
Governor and Secretary of Administration with the supervision of
public instruction in violation of Article X, § 1. Consequently,
the portions of Act 21 allowing the Governor and Secretary of
Administration to halt the rulemaking process are void as
applied to the SPI and his subordinates.
E. The Reasons the Dissents and the Lead Reach a Different
Conclusion.
¶72 Now that we have fully presented our interpretation of
Article X, § 1, we turn to discuss a few of the points made in
Chief Justice Roggensack's and Justice Ziegler's dissents. We
begin with a brief summary of our analysis. First, Article X,
§ 1 states that "the supervision of public instruction shall be
vested in a state superintendent" and in "other officers of
supervision of public instruction." Thus, the constitution
grants the SPI the power to supervise public instruction.
Second, Article X, § 1 states that the SPI's "qualifications,
powers, duties, and compensation shall be prescribed by law."
This means the Legislature has the power to fill in the details
as to what supervision entails. The Legislature has required the
SPI to supervise public instruction through
rulemaking. Consequently, rulemaking is how the SPI exercises
his power to supervise public instruction. Under Act 21, the
Legislature has taken the SPI's power to supervise via
38
See Wis. Stat. § 115.28(7); Wis. Stat. § 115.343(1); Wis.
Stat. § 118.51(5)(d)3.
47
No. 2013AP416
rulemaking and conditioned it on the approval of the
Governor. The Governor is not an "officer of supervision or
public instruction;" therefore, the Legislature cannot vest him
with the supervision of public instruction.
¶73 The main problem with the dissents' analyses are their
singular focus on only half of Article X, § 1. Both dissents
emphasize the phrase "and their qualifications, powers, duties,
and compensation shall be prescribed by law." However, a
meaningful interpretation of Article X, § 1 should focus on two
equally important phrases: (1) "The supervision of public
instruction shall be vested in a state superintendent and such
other officers as the legislature shall direct," and (2) "and
their qualifications, powers, duties and compensation shall be
prescribed by law."
¶74 While Article X, § 1 gives the Legislature the broad
authority to both create "other officers of supervision of
public instruction" and to outline those officer's
"qualifications, powers, duties and compensation," Article X,
§ 1 also places some limits on the Legislature's power. Per the
words of Article X, § 1, the "other officers" the Legislature
creates must be "other officers of supervision of public
instruction." Additionally, the plain language of Article X, § 1
demands that "[t]he supervision of public instruction [] be
vested in a state superintendent and such other officers." Chief
Justice Roggensack's and Justice Ziegler's dissents refuse to
recognize these limitations.
48
No. 2013AP416
¶75 First, neither Chief Justice Roggensack's dissent nor
Justice Ziegler's dissent attempt to address the question at the
heart of the controversy in this case: in whom may the
Legislature vest the supervision of public instruction? Indeed,
Chief Justice Roggensack remarks, "[t]he matter before us does
not concern the 'other officers' mentioned in Article X, § 1."
Chief Justice Roggensack's dissent, ¶227. And Justice Ziegler
comments, "[I]t is not really the Governor who is supervising
(or even obstructing, if one prefers) the actions of the SPI; it
is the Legislature." Justice Ziegler's dissent, ¶247. Our
response to both is simply this: how is it not? How does the
matter before us not concern the "other officers" mentioned in
Article X, § 1? And how is the Governor not supervising public
instruction and the SPI when he is the one who halts the
rulemaking process? If neither Chief Justice Roggensack nor
Justice Ziegler will recognize that the constitution places a
limit on who the Legislature may vest the supervision of public
instruction in, then we can never reach the same conclusion
despite agreeing on many legal principles.39
39
The closest Chief Justice Roggensack's dissent comes to
answering this question is its statement that "[t]he legislature
has broad constitutional power over the Superintendent, so long
as the tasks assigned do not fall outside public instruction, as
it was alleged the statute did in School Dist. No. 3, supra."
Chief Justice Roggensack's dissent, ¶225 (emphasis added). Thus,
the dissent comments that the tasks assigned to the SPI must
relate to public instruction. But it fails to consider whether
the people to whom the tasks are assigned——the officers——must
relate to public instruction. We are confident that had Chief
Justice Roggensack undertaken her constitutional analysis with
(continued)
49
No. 2013AP416
¶76 Second, neither dissent is willing to acknowledge the
constitution's instruction that "[t]he supervision of public
instruction [] be vested in a state superintendent and such
other officers as the legislature shall direct." Both Chief
Justice Roggensack's dissent and Justice Ziegler's dissent
instead immediately proceed to focus exclusively on the
Legislature and its ability to outline the SPI and the "other
officers" "qualifications, powers, duties and compensation."
Because both dissents skip over the clause that vests
supervision of public instruction in the SPI and "other
officers," and instead only look at the "prescribed by law"
clause, both dissents read our opinion as stripping the
Legislature of its power under Article X, § 1. For example,
Chief Justice Roggensack remarks that our opinion "reduces the
constitutional power of the legislature to control its
delegations of legislative power in rulemaking." Chief Justice
Roggensack's dissent, ¶229. And according to Justice Ziegler,
our conclusion in this case gives "unfettered" authority to the
SPI and the "other officers." See Justice Ziegler's dissent,
¶248.
¶77 These allegations are simply not true. As we explained
earlier in this opinion, our determination in this case "does
not mean the Governor and the Secretary of Administration cannot
be involved in the rule-drafting process at all . . . . the
regard to the issue presented, she would have reached the same
conclusion we reach.
50
No. 2013AP416
Legislature can require whatever rulemaking steps it wants as
long as the SPI and DPI are able to make the final decision on
the contents of a proposed rule and submit that proposed rule to
the Legislature at the end of the process." See infra ¶69.
Moreover, we noted "[T]he Legislature may give, may not give,
and may take away the powers and duties of the SPI and the other
officers of supervision of public instruction. If the
Legislature does not believe the SPI should engage in
rulemaking, it is free to change the statutory scheme . . . ."
See infra ¶70.
¶78 To summarize, unlike Chief Justice Roggensack's
Justice Ziegler's dissents, we have attempted to meaningfully
interpret two equally important phrases: (1) "The supervision of
public instruction shall be vested in a state superintendent and
such other officers as the legislature shall direct," and (2)
"and their qualifications, powers, duties and compensation shall
be prescribed by law." If one chooses to address only half of
the question presented, as both dissents have done, or chooses
to emphasize only one of these two phrases, as both dissents
have done, then we can never reach the same conclusion
regardless of our agreement on many legal principles.
IV. CONCLUSION
¶79 Our constitution is the true expression of the will of
the people: it must be adopted by the people of this State, and
if it is to be changed, it must be ratified by the people of
this State. By adopting our constitution, the people of
51
No. 2013AP416
Wisconsin gave the Legislature broad discretion to define the
powers and duties of the Superintendent of Public Instruction
and the other officers of public instruction. However, the will
of the people as expressed by Article X, § 1 also requires the
Legislature to keep the supervision of public instruction in the
hands of the officers of supervision of public instruction. To
do otherwise would require a constitutional amendment. Because
Act 21 does not allow the SPI and DPI to proceed with their
duties of supervision without the Governor's, and in some
circumstances the Secretary of Administration's approval, Act 21
unconstitutionally vests the Governor and Secretary of
Administration with the supervision of public instruction in
violation of Article X, § 1. Accordingly, the court of appeals
is affirmed.
By the Court.—The decision of the court of appeals is
affirmed.
52
No. 2013AP416.ssa
¶80 SHIRLEY S. ABRAHAMSON, J. (concurring). I conclude,
as do the lead opinion (which represents the views of only
Justice Gableman) and Justice Prosser's concurrence, that 2011
Wis. Act 21, which altered the process of administrative
rulemaking,1 is unconstitutional as applied to the Superintendent
of Public Instruction and the Department of Public Instruction.
As a result, I concur in the mandate affirming the court of
appeals.
¶81 Two reasons prevent me from joining both the lead
opinion and Justice Prosser's concurrence.
¶82 First, both Justice Gableman's lead opinion and
Justice Prosser's concurrence give short shrift to Thompson v.
Craney, 199 Wis. 2d 674, 678, 546 N.W.2d 123 (1996). Thompson
has stood for 20 years as the seminal case interpreting Article
X, Section 1 of the Wisconsin Constitution, which vests "the
supervision of public instruction" in the superintendent. "This
court follows the doctrine of stare decisis scrupulously because
of our abiding respect for the rule of law."2
¶83 In Thompson, this court unanimously held that 1995
Wis. Act 27 was unconstitutional. Act 27 substantially
reorganized the roles of the superintendent and Department of
1
See Ronald Sklansky, Changing the Rules on Rulemaking,
Wis. Lawyer (Aug. 2011), available at
http://www.wisbar.org/newspublications/wisconsinlawyer/pages/art
icle.aspx?Volume=84&Issue=8&ArticleID=2092 (explaining 2011 Wis.
Act 21's salient modifications to the process of administrative
rulemaking).
2
Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003
WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257.
1
No. 2013AP416.ssa
Public Instruction and entrusted many of the powers of the
superintendent to appointed "other officers" who were not
subordinate to the superintendent. Thompson held that "the
legislature may not give equal or superior authority to any
'other officer.'"3
¶84 Although 2011 Wis. Act 21 does change the role of the
superintendent somewhat differently than did 1995 Wis. Act 27,
the effect of both laws is the same——both laws give "equal or
superior authority" over the supervision of public instruction
to officers other than those inferior to the superintendent.4
¶85 I agree with the court of appeals that, under
Thompson, rulemaking is part of the "supervision of public
instruction," which Article X, Section 1 vests in the
superintendent.5 Likewise, I agree with the court of appeals
that, under Thompson, 2011 Wis. Act 21 is unconstitutional
because it grants the governor (and the Secretary of the
Department of Administration) an unchecked veto power over the
superintendent's rulemaking powers, thereby making the
superintendent subordinate to the governor (and the Secretary)
in the supervision of public instruction.6
3
Thompson, 199 Wis. 2d at 699.
4
Thompson, 199 Wis. 2d at 699-700.
5
Coyne v. Walker, 2015 WI App 21, ¶21, 361 Wis. 2d 225, 862
N.W.2d 606.
6
Coyne, 361 Wis. 2d 225, ¶31.
2
No. 2013AP416.ssa
¶86 I write to reaffirm Thompson and, applying its
rationale, conclude that 2011 Wis. Act 21 is unconstitutional as
applied to the superintendent and the Department of Public
Instruction.
¶87 Second, I disagree with the lead opinion's unnecessary
and overly broad assertion that "the Legislature may give, may
not give, and may take away the powers and duties of the
[superintendent] and the other officers of supervision of public
instruction. If the Legislature does not believe the
[superintendent] should engage in rulemaking, it is free to
change the statutory scheme . . . ."7
¶88 If the legislature may, as the lead opinion suggests,
"take away the powers and duties" of the superintendent, then
the superintendent could be reduced to a role the framers of our
constitution expressly rejected——that of a mere advocate for
public education, unable to set standards or bring uniformity to
Wisconsin's public education system.
¶89 The instant case, like Thompson, "does not require us
to decide the extent to which the [superintendent's] powers may
be reduced by the legislature . . . ."8 As a result, we, like
the Thompson court, should reserve judgment on that issue.
7
Lead op., ¶70. A third reason I disagree with the lead
opinion is its failure to be guided by judicial restraint. It
goes far afield in discussing numerous matters not necessary to
decide the instant case.
8
Thompson, 199 Wis. 2d at 699-700.
3
No. 2013AP416.ssa
¶90 Justice Prosser's concurrence explains that "the very
nature of the office of superintendent required the ability to
make rules, irrespective of a specific grant of authority from
the legislature,"9 and that the superintendent "must possess some
inherent authority to proceed to fulfill its responsibilities."10
¶91 This explanation is based on our interpretive tools:
the plain meaning of the words in the constitution in the
context used (considering "not alone . . . the words of any part
of the instrument, but by ascertaining the general purpose of
the whole"11); the constitutional debates; the earliest
legislative enactment interpreting the constitutional
provision;12 and judicial interpretation of the constitutional
provision.13 These tools of constitutional interpretation
confirm that the superintendent "was intended as a crucial
position, distinct from the 'other officers,' and possessing the
ability to do more than merely act as an advocate for
education."14
9
Justice Prosser's concurrence, ¶150.
10
Justice Prosser's concurrence, ¶152.
11
Lead op., ¶43 (quotation omitted); see also lead op.,
¶64.
12
Lead op. ¶15. The importance of non-partisan, non-
sectarian education was recognized in the Northwest Ordinance of
1787.
13
Lead op. ¶42.
14
Thompson, 199 Wis. 2d at 690.
(continued)
4
No. 2013AP416.ssa
¶92 For the reasons set forth, I concur and write
separately.
I
¶93 First, I agree with the court of appeals' conclusion
that, adhering to Thompson v. Craney, 199 Wis. 2d 674, 546
N.W.2d 123 (1996), 2011 Wis. Act 21 unconstitutionally infringes
on the "supervision of public instruction" vested in the
superintendent by Article X, Section 1 of the Wisconsin
Constitution.
¶94 Article X, Section 1 currently reads as follows:
The supervision of public instruction shall be vested
in a state superintendent and such other officers as
the legislature shall direct; and their
qualifications, powers, duties and compensation shall
be prescribed by law. The state superintendent shall
be chosen by the qualified electors of the state at
the same time and in the same manner as members of the
supreme court, and shall hold office for 4 years from
the succeeding first Monday in July. The term of
office, time and manner of electing or appointing all
other officers of supervision of public instruction
shall be fixed by law.
¶95 In Thompson, the court addressed the constitutionality
of 1995 Wis. Act 27.15 Among other things, 1995 Wis. Act 27
For differences in methodology of interpreting the
Wisconsin constitution, compare, for example, Chief Justice
Roggensack's dissent, ¶¶180-206; Justice Ziegler's dissent, ¶249
n.2; State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 184, 204
N.W. 803 (1925); Buse v. Smith, 74 Wis. 2d 550, 568, 247
N.W.2d 141 (1976); State v. Beno, 116 Wis. 2d 122, 136-37, 341
N.W.2d 668 (1984); Thompson v. Craney, 199 Wis. 2d 674, 680,
690, 693, 54 N.W.2d 123 (1996); State v. Cole, 2003 WI 112, ¶10,
264 Wis. 2d 520, 665 N.W.2d 328; Dairyland Greyhound Park, Inc.
v. Doyle, 2006 WI 107, ¶¶114-118, 295 Wis. 2d 1, 719 N.W.2d 408
(Prosser, J., concurring in part and dissenting in part).
15
Thompson, 199 Wis. 2d at 678.
5
No. 2013AP416.ssa
created a new state Department of Education, Education
Commission, and Secretary of Education appointed by the
governor. Under 1995 Wis. Act 27, the Secretary of Education
and the Education Commission (chaired by the superintendent of
public instruction but made up of members appointed by the
governor and legislative leaders) were to be responsible for
"many functions related to education in Wisconsin, including
some of the former duties of the [superintendent] . . . ."16
¶96 Craney, the respondent in Thompson, argued that 1995
Wis. Act 27 violated Article X, Section 1 of the Wisconsin
Constitution by stripping the superintendent of powers of
supervision of public instruction and vesting those powers in
"other officers" not subordinate to the superintendent. The
court unanimously agreed.17
¶97 In analyzing the constitutionality of 1995 Wis. Act
27, the Thompson court reviewed the text, history, judicial
interpretations, and purpose of Article X, Section 1, and held
that 1995 Wis. Act 27 was unconstitutional because it gave "the
former powers of the elected state Superintendent of Public
Instruction to appointed 'other officers' at the state level who
are not subordinate to the superintendent."18
16
Thompson, 199 Wis. 2d at 679.
17
Thompson, 199 Wis. 2d at 698-99; see also Thompson, 199
Wis. 2d at 700 (Wilcox, J., concurring).
18
Thompson, 199 Wis. 2d at 678-80 (citing Polk Cnty. v.
State Pub. Defender, 188 Wis. 2d 665, 674, 524 N.W.2d 389
(1994)).
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¶98 The Thompson court's holding that "the legislature may
not give equal or superior authority to any "other officer" was
based on grounds that are relevant to the instant case. In
particular:
(1) "The debates at the 1846 and 1847-48 Wisconsin
constitutional conventions show that the drafters of
the Wisconsin Constitution intended the public schools
to be under the supervision of the [superintendent],
and that the [superintendent] was to be an elected,
not appointed, public official." Thompson, 199
Wis. 2d at 685.
(2) The Thompson court noted "two consistent themes from
these statements of the delegates: first, that the
system of education required uniformity; second, that
the SPI [superintendent of public instruction] was to
provide this uniformity in an active manner by
implementing the system of education." Thompson, 199
Wis. 2d at 688-89.
(3) The framers of the Wisconsin Constitution considered
and explicitly rejected a proposal to select a
superintendent by gubernatorial appointment and a
proposal that would have allowed the legislature to
vest "the supervision of public instruction . . . in
such officers as shall hereafter be created by law."
Thompson, 199 Wis. 2d at 685-86. Simply put, the
framers viewed the superintendent as "indispensible,"
"the foundation, the life of progressive education"
7
No. 2013AP416.ssa
who "alone c[ould] give uniformity, energy, and
efficiency to the system." Journal of the Convention,
reprinted in The Convention of 1846, at 568, 570-71
(Milo M. Quaife ed. 1919).
¶99 In the instant case, the court of appeals relied on
Thompson in concluding that rulemaking is a supervisory power of
the superintendent and that 2011 Wis. Act 21 unconstitutionally
gives the governor and the secretary of the Department of
Administration the unchecked authority to block rulemaking by
the superintendent.19
¶100 I agree with the court of appeals' reliance on
Thompson in concluding that 2011 Wis. Act 21 is
unconstitutional. Although 2011 Wis. Act 21 does change the
role of the superintendent somewhat differently than did 1995
Wis. Act 27, the effect of both laws is the same——both laws give
"equal or superior authority" over the supervision of public
instruction to officers other than those inferior to the
superintendent.20 Thus, 2011 Wis. Act 21 is unconstitutional; it
gives "equal or superior authority [over the supervision of
public instruction] to . . . '[an]other officer.'"21
¶101 The lead opinion declares that Thompson's examination
of Article X, Section 1 is instructive but not dispositive
19
Coyne, 316 Wis. 2d 225, ¶¶35-36.
20
Thompson, 199 Wis. 2d at 699-700.
21
Thompson, 199 Wis. 2d at 699.
8
No. 2013AP416.ssa
because Thompson and the instant case pose different
constitutional questions.22
¶102 In Thompson, according to the lead opinion, the
question presented was whether other officers of public
instruction could constitutionally be given equal or greater
authority than the superintendent over the supervision of public
instruction.23 The lead opinion describes the question presented
in the instant case as whether the supervision of public
instruction may be vested in any officers the legislature
chooses, including constitutional officers like the governor,
whose offices were not created to supervise public instruction.24
¶103 The lead opinion's distinction of Thompson is without
a difference. It is not persuasive. Like the court of appeals,
I conclude that Thompson is on point and controls the instant
case: Thompson determines the superiority of the constitutional
office of superintendent over all officers in the supervision of
public instruction.
¶104 Justice Prosser's concurrence (¶159) essentially
argues that Thompson was wrongly decided because it disregarded
the plain language of the constitution, the discussion
surrounding the adoption of the 1902 amendment to Article X,
Section 1, and subsequent legislation.
22
Lead op., ¶39.
23
Lead op., ¶39.
24
Lead op., ¶40.
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No. 2013AP416.ssa
¶105 Justice Prosser's concurrence (¶168) disagrees with
the Thompson court because it "in effect . . . preclude[s]
serious changes in the present system without a constitutional
amendment." Justice Prosser's concurrence (¶169) would allow
constructive legislative changes regarding the superintendent of
public instruction but would preclude the changes in Act 21
because they "are not constructive changes because they
reallocate power without requiring accountability. Governing
entails more than saying 'no.'"
¶106 I agree with Justice Prosser's ultimate conclusion
that Act 21 is unconstitutional as applied to the superintendent
of public instruction. I disagree, however, with Justice
Prosser's treatment of Thompson.
II
¶107 Second, I caution the reader that, like Thompson, the
instant case "does not require us to decide the extent to which
[the superintendent of public instruction's] powers may be
reduced by the legislature . . . ."25 Thus our opinions should
be read as "reserv[ing] judgment on that issue."26
¶108 Nevertheless, the lead opinion and the dissents
unnecessarily suggest that "the Legislature may give, may not
give, and may take away the powers and duties of the
25
Thompson, 199 Wis. 2d at 699-700.
26
Thompson, 199 Wis. 2d at 700; see also State v. Castillo,
213 Wis. 2d 488, ¶12, 570 N.W.2d 44 (1997) ("An appellate court
should decide cases on the narrowest possible grounds.") (citing
State v. Bialock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App.
1989)).
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No. 2013AP416.ssa
[superintendent] and the other officers of supervision of public
instruction. If the Legislature does not believe the
[superintendent] should engage in rulemaking, it is free to
change the statutory scheme . . . ."27
¶109 I do not believe it is necessary in the instant case
to address or resolve the extent of the legislature's control
over the superintendent's powers. The instant case concerns the
constitutional relationship between the superintendent and the
governor and executive branch officials. If legislative control
were an issue in the instant case, however, I would agree with
Justice Prosser's concurrence that the superintendent, as a
constitutional officer, "must possess some inherent authority to
proceed to fulfill its responsibilities."28 "The very nature of
the office of superintendent required the ability to make rules,
irrespective of a specific grant of authority from the
legislature."29
27
Lead op., ¶70; see also Justice Ziegler's dissent, ¶237;
Chief Justice Roggensack's dissent, ¶¶184-185.
28
Justice Prosser's concurrence, ¶152. We have recognized
a similar point in other contexts. For example, in discussing
the powers of sheriffs, who are constitutional officers, in
Kocken v. Wis. Council 40, AFSCME, AFL-CIO, 2007 WI 72, 301
Wis. 2d 266, 732 N.W.2d 828, the court defined the sheriffs'
constitutional powers in reference to the nature of the office
of sheriff as it existed when the constitution was adopted,
namely the "immemorial principal and important duties that
characterized and distinguished the office." Kocken, 301
Wis. 2d 266, ¶¶31-43 (citation omitted).
29
Justice Prosser's concurrence, ¶150.
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No. 2013AP416.ssa
¶110 The superintendent is a constitutional officer. The
office was created by Article X of the Wisconsin Constitution.
Article X is entitled "Education." By addressing education and
vesting the supervision of public instruction in an independent
constitutional officer, the framers of the Wisconsin
Constitution set education and the superintendent apart from
other constitutional officers, such as, for example, the
governor and lieutenant governor (Article V); the secretary of
state, treasurer, attorney general, sheriffs, coroners,
registers of deeds, and district attorneys (Article VI); the
legislature (Article IV); and the judiciary (Article VII).
¶111 Article X, Section 1 vests the supervision of public
instruction in a state superintendent as follows:
The supervision of public instruction shall be vested
in a state superintendent and such other officers as
the legislature shall direct; and their
qualifications, powers, duties and compensation shall
be prescribed by law. The state superintendent shall
be chosen by the qualified electors of the state at
the same time and in the same manner as members of the
supreme court, and shall hold office for 4 years from
the succeeding first Monday in July. The term of
office, time and manner of electing or appointing all
other officers of supervision of public instruction
shall be fixed by law.
¶112 The original version of Article X, Section 1 included
in the 1848 Wisconsin Constitution provided as follows:
The supervision of public instruction shall be vested
in a state superintendent, and such other officers as
the legislature shall direct. The state
superintendent shall be chosen by the qualified
electors of the state, in such manner as the
legislature shall provide; his powers, duties, and
compensation shall be prescribed by law. . . .
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No. 2013AP416.ssa
¶113 In adopting Article X, Section 1, the framers of the
1848 constitution repeatedly expressed the fundamental
importance of a robust system of public education and the
"indispensable" role of the superintendent in maintaining,
organizing, and advocating for public education.
¶114 Justice Prosser's concurrence (as well as Thompson,
199 Wis. 2d at 687-90) recounts much of the relevant
constitutional history.30 I restate and supplement these
discussions of the relevant constitutional debates as follows.
¶115 First, as I stated before, the delegates to the
constitutional conventions considered and explicitly rejected a
proposal that a superintendent be selected by gubernatorial
appointment and a proposal that the legislature vest "the
supervision of public instruction . . . in such officers as
shall hereafter be created by law."31
¶116 Second, the delegates to the Wisconsin constitutional
convention repeatedly referred to the superintendent as
"indispensable" or "necessary" to "give uniformity, energy, and
efficiency to the [public education] system."32
¶117 The delegates suggested the superintendent would have
a variety of responsibilities, including, among other things:
(1) "instituting normal schools for the education of teachers,
30
Justice Prosser's concurrence, ¶149.
31
Thompson, 199 Wis. 2d at 685-86.
32
Thompson, 199 Wis. 2d at 687-89 (quoting Journal of the
Convention, reprinted in The Convention of 1846, at 568, 570-71,
573-74 (Milo M. Quaife ed. 1919)) (emphasis added).
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No. 2013AP416.ssa
appointing local superintendents, and visiting every
county . . . ,"33 (2) providing an annual report to the
legislature regarding the state of schools throughout the state
and keeping "a constant and vigilant watch . . . over our
schools,"34 and (3) "know[ing] what has been done in other states
and countries——what has worked well and what ill——and who has
practical good sense enough to select and put in operation what
has been found by experience to be the best . . . ."35
¶118 In short, "[t]he 1846 and 1847-48 debates [at the
Wisconsin constitutional conventions] demonstrate that the
position of [superintendent] was intended as a crucial position,
distinct from the 'other officers,' and possessing the ability
to do more than merely act as an advocate for education."36
¶119 In light of this history and the text of the Wisconsin
constitution, I agree with Justice Prosser's concurrence (¶150)
33
Thompson, 199 Wis. 2d at 688 (quoting The Convention of
1846, at 570-71) (emphasis added)
34
Thompson, 199 Wis. 2d at 688 (quoting The Convention of
1846, at 570-71).
35
Thompson, 199 Wis. 2d at 689 (quoting Journal of the
Convention, reprinted in The Attainment of Statehood, 560-61
(Milo M. Quaife ed. 1928)).
The 1846 constitutional convention emphasized uniformity
and central control. The convention created a superintendent of
public instruction whose exclusive job would be to establish a
statewide system. See Joseph A. Ranney, "Absolute Common
Ground": The Four Eras of Assimilation in Wisconsin Education
Law, 1998 Wis. L. Rev. 791, 794.
36
Thompson, 199 Wis. 2d at 690 (emphasis added).
14
No. 2013AP416.ssa
that the role of the superintendent, as envisioned by the
framers, requires the authority to set standards:
[T]he framers of the constitution contemplated a
superintendent of public instruction who would set
standards for public schools and seek a certain
uniformity among public schools throughout Wisconsin.
It is self-evident that standards for schools
throughout Wisconsin could not be set without the
power to make rules. "Uniformity" could not be sought
or enforced without rules. "Putting a system in
operation" could not be achieved without rules.
Consequently, the very nature of the office of
superintendent required the ability to make rules,
irrespective of a specific grant of authority from the
legislature. It is hard to believe that the
superintendent would have been powerless to begin to
develop standards without prior legislative sanction.
¶120 For the reasons set forth, I concur and write
separately.
¶121 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
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No. 2013AP416.dtp
¶122 DAVID T. PROSSER, J. (concurring). In the spring of
2011, the legislature enacted 2011 Wisconsin Act 21, which made
numerous changes in the statutes pertaining to administrative
rules. Three of these changes are at issue in this case. Peggy
Coyne challenged the constitutionality of the changes embodied
in sections 4, 21, and 32 of Act 21 as applied to the
superintendent of public instruction, and the court of appeals
affirmed the circuit court's voiding of these sections as
applied to the superintendent.
¶123 Like any justice, the author of this concurrence seeks
to promote readability in judicial opinions, but in attempting
to interpret the constitution and the statutes correctly, this
concurring opinion will follow closely the words of the
constitutional provisions and the statutes to be interpreted.
I. ACT 21
A. Section 4
¶124 Wisconsin Stat. § 227.135 addresses "Statements of
scope of proposed rules." Subsection (1) provides that "[a]n
agency shall prepare a statement of the scope of any rule that
it plans to promulgate." It then lists six pieces of
information required in the statement of scope, including a
description of the objective of the proposed rule and the
statutory authority for the rule.
¶125 Prior to Act 21, Wis. Stat. § 227.135 (2009-10)
provided in subsections (2), (3), and (4) that no state employee
or official could perform any activity in connection with
drafting a proposed rule until "the individual or body with
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No. 2013AP416.dtp
policy-making power over the subject matter approved the
statement of scope." The individual or body could not approve
the statement of scope until the 11th day after its publication
by the legislative reference bureau, which was notified of the
statement immediately by the agency. Notice of the statement of
scope also was sent to the secretary of administration.
¶126 Section 4 of Act 21 changed subsection (2) of Wis.
Stat. § 227.135, in part, as follows:
An agency that has prepared a statement of the
scope of the proposed rule shall present the statement
to the governor and to the individual or body with
policy-making powers over the subject matter of the
proposed rule for approval. The agency may not send
the statement to the legislative reference bureau for
publication . . . until the governor issues a written
notice of approval of the statement. The individual
or body with policy-making powers may not approve the
statement until at least 10 days after publication of
the statement under sub. (3). No state employee or
official may perform any activity in connection with
the drafting of a proposed rule except for an activity
necessary to prepare the statement of the scope of the
proposed rule until the governor and the individual or
body with policy-making powers over the subject matter
of the proposed rule approve the statement.
2011 Wis. Act 21, Section 4 (emphasis added).
¶127 These changes in the law vest the governor with the
power to suppress publication of the scope of a proposed rule
and thus prevent the individual or body with policy-making power
over the subject matter of the rule from approving any statement
of scope. The governor is not required to approve the proposed
rule or even to act on the rule, but no state employee in the
"agency" (or elsewhere in state government) may take any action
2
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to draft the proposed rule until the governor approves the
statement of scope in writing.
B. Section 21
¶128 Under prior law, several entities outside state
government could petition the department of administration to
direct any of five enumerated departments to prepare an economic
impact report for any of the department's proposed rules. Wis.
Stat. § 227.137(1)-(2) (2009-10). The secretary of
administration could act on his own to order an economic impact
report from any of these five departments if he determined that
there would be certain economic impacts from a proposed rule.
¶129 Section 9 of Act 21 now requires every "agency" to
prepare an economic impact analysis for a proposed rule before
submitting it to the legislative council staff under Wis. Stat.
§§ 227.15, 227.137(3).
¶130 Section 21 of the Act then reads:
If an economic impact analysis regarding a
proposed rule indicates that a total of $20,000,000 or
more in implementation and compliance costs are
reasonably expected to be incurred by or passed along
to businesses, local governmental units, and
individuals as a result of the proposed rule, the
department of administration shall review the proposed
rule and issue a report. The agency may not submit a
proposed rule to the legislature for review under s.
227.19(2) until the agency receives a copy of the
department's report and the approval of the secretary
of administration.
(Emphasis added.) See Wis. Stat. § 227.137(6).
¶131 Act 21 dramatically expands the number of economic
impact analyses or reports, but section 21 of the Act also
permits the secretary of administration, in select cases, to
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block a proposed rule from being submitted to the legislature
for review.
C. Section 32
¶132 Section 32 is entirely new and reads as follows:
Approval by governor. After a proposed rule is
in final draft form, the agency shall submit the
proposed rule to the governor for approval. The
governor, in his or her discretion, may approve or
reject the proposed rule. If the governor approves a
proposed rule, the governor shall provide the agency
with a written notice of that approval. No proposed
rule may be submitted to the legislature for review
under s. 227.19(2) unless the governor has approved
the proposed rule in writing.
Wis. Stat. § 227.185 (emphasis added).
¶133 The effect of sections 4, 21, and 32 and related
sections of Act 21 is to give the governor legal authority to
block potential administrative rules before a statement of their
scope has been published and to block draft rules before they
can be submitted to the legislature for review and possible
approval. These changes go beyond providing the governor with
additional notice and additional information about a proposed
rule. In essence, they vest the governor with a veto power over
proposed rules——without imposing any standards on how that power
is exercised and without indicating how the exercise of that
power may be overridden by anyone.
¶134 This expansive power, partly shared by the secretary
of administration, applies to rules promulgated by an "agency."
"Agency" is defined in Wis. Stat. § 227.01(1): "'Agency' means a
board, commission, committee, department or officer in state
government, except the governor, a district attorney or a
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military or judicial officer." The breadth of this definition
means that Act 21's changes apply not only to all cabinet
departments but also to the department of employee trust funds
and to independent boards and commissions such as the investment
board, the public service commission, and the tax appeals
commission.
¶135 "Rule" also is broadly defined:
"Rule" means a regulation, standard, statement of
policy, or general order of general application which
has the effect of law and which 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.
Wis. Stat. § 227.01(13). The statute then lists multiple
exceptions, including a rule which "[c]oncerns the internal
management of an agency and does not affect private rights or
interests." § 227.01(13)(a).
¶136 Act 21 did not alter the legislature's established
powers to review proposed rules, seek the modification of
proposed rules, and, if deemed necessary, suspend proposed
rules. See Wis. Stat. § 227.19; see also Wis. Stat. § 227.26.
However, sections 4 and 32 of Act 21 are different from Wis.
Stat. § 227.19 because they do not provide specific grounds upon
which the governor may choose not to approve a proposed rule.
The governor is given unlimited "discretion" not to approve a
proposed rule——"discretion" to do nothing about a proposed rule.
By contrast, the legislature must take action if it suspends a
rule.
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¶137 This concentration of power in the governor may not
raise serious legal questions when it is applied to a cabinet
department already under the governor's control. However, the
application of this new gubernatorial power to an independently
elected constitutional officer who is not otherwise under the
governor's direction is a different matter.
¶138 In evaluating the constitutionality of sections 4, 21,
and 32 of Act 21 as applied to the superintendent of public
instruction, we must remember that constitutionality should not
be evaluated solely in terms of the present governor but also in
terms of any future governor. It should not be evaluated solely
in situations when a governor is supported by a friendly
legislature but also in situations when a governor is opposed by
the legislature. In other words, the legislation must be judged
in light of different possible fact situations by neutral
principles of law.
II. APPLICATION OF ACT 21 TO THE SUPERINTENDENT OF PUBLIC
INSTRUCTION
¶139 The office of superintendent of public instruction was
created by the Wisconsin Constitution in 1848. Article X,
Section 1 provided:
The supervision of public instruction shall be
vested in a state superintendent of public
instruction, and such other officers as the
legislature shall direct. The state superintendent
shall be chosen by the qualified electors of the
state, in such manner as the legislature shall
provide; his powers, duties, and compensation shall be
prescribed by law. Provided, that his compensation
shall not exceed the sum of twelve hundred dollars
annually.
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Wis. Const. art. X, § 1 (1848) (emphasis added).
¶140 It is notable that the 1848 constitution established
the office of superintendent in the same manner as it
established the senate and assembly, the governor, and the
judiciary:
● Article IV, Section 1: "The legislative
power shall be vested in a senate and assembly."
(Emphasis added.)
● Article V, Section 1: "The executive power
shall be vested in a governor, who shall hold his
office for two years; a lieutenant governor shall be
elected at the same time, and for the same term."
(Emphasis added.)
● Article VII, Section 2: "The judicial power
of this state, both as to matters of law and equity,
shall be vested in a supreme court, circuit courts,
courts of probate, and in justices of the peace. The
legislature may also vest such jurisdiction as shall
be deemed necessary in municipal courts, and shall
have power to establish inferior courts in the several
counties, with limited civil and criminal
jurisdiction. Provided, that the jurisdiction which
may be vested in municipal courts shall not exceed, in
their respective municipalities, that of circuit
courts, as prescribed in this constitution; and that
the legislature shall provide as well for the election
of judges of the municipal courts as of the judges of
inferior courts, by the qualified electors of the
respective jurisdictions. The term of office of the
judges of said municipal and inferior courts shall not
be longer than that of the judges of the circuit
courts. (Emphasis added.)
¶141 The 1848 constitution also located the office of
superintendent of public instruction in Article X, entitled
"Education." There was no mention of the superintendent in
Article V entitled "Executive," which discussed the governor and
lieutenant governor and their respective powers. Nor was there
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No. 2013AP416.dtp
any mention of the superintendent in Article VI entitled
"Administrative," which discussed the secretary of state,
treasurer, and attorney general, as well as sheriffs, coroners,
registers of deeds, and district attorneys.
¶142 Because the "supervision of public instruction" is
vested in the superintendent and because his position is set out
in a separate article of the constitution, the superintendent
appears to have a more significant status than the lieutenant
governor and the officials named in Article VI.
¶143 At the same time, while the supervision of public
instruction was vested in the state superintendent of public
instruction, the constitution did not say, "The power to
supervise public instruction is vested in the state
superintendent of public instruction." On the contrary, the
constitution specifically assigned to the legislature the
authority to determine the superintendent's "powers, duties, and
compensation"——as well as the "manner" of his election. The
1848 constitution also "vests" the supervision of public
instruction in "such other officers as the legislature shall
direct."
¶144 The 1848 constitution thus sent mixed signals about
the status of the superintendent of public instruction.
¶145 Article X, Section 1 was amended in 1902 to read:
The supervision of public instruction shall be
vested in a state superintendent and such other
officers as the legislature shall direct; and their
qualifications, powers, duties, and compensation shall
be prescribed by law. The state superintendent shall
be chosen by the qualified electors of the state at
8
No. 2013AP416.dtp
the same time and in the same manner as members of the
supreme court, and shall hold his office for four
years from the succeeding first Monday in July. The
state superintendent chosen at the general election in
November, 1902, shall hold and continue in his office
until the first Monday in July, 1905, and his
successor shall be chosen at the time of the judicial
election in April, 1905. The term of office, time and
manner of electing or appointing all other officers of
supervision of public instruction shall be fixed by
law.
Wis. Const. art. X, § 1 (1902).
¶146 In one way, the 1902 amendment heightened the unique
position of the superintendent by moving his election from the
partisan elections in November of the even-numbered years to the
nonpartisan elections in the spring when supreme court justices
are elected. Many of the early superintendents had been elected
with a party affiliation at the same time as Wisconsin
governors. The amendment removed them from a partisan ticket.
In addition, the amendment gave the superintendent a four-year
term many decades before the governor and other state officials
in the executive branch received four-year terms.
¶147 On the other hand, the 1902 amendment reemphasized the
role of the legislature in directing what "other officers" are
vested with the supervision of public instruction and
prescribing the "qualifications, powers, duties, and
compensation" of both the superintendent and the "other
officers." The amendment added, "The term of office, time and
manner of electing or appointing all other officers of
supervision of public instruction [besides the superintendent]
shall be fixed by law." This sentence dispensed with any notion
that "other officers" were mere "assistants and clerks" to the
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superintendent, as was mistakenly suggested in State ex rel.
Raymer v. Cunningham, 82 Wis. 39, 48, 51 N.W. 1133 (1892), ten
years earlier.
¶148 This court interprets provisions of the Wisconsin
Constitution de novo. Thompson v. Craney, 199 Wis. 2d 674, 680,
546 N.W.2d 123 (1996). In Dairyland Greyhound Park v. Doyle,
2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408, I restated the
familiar methodology we use in constitutional interpretation:
1. Courts should give priority to the plain
meaning of the words of a constitutional provision in
the context used. Buse v. Smith, 74 Wis. 2d 550, 568,
247 N.W.2d 141 (1976). The plain meaning of the words
is best discerned by understanding their obvious and
ordinary meaning at the time the provision was
adopted, taking into account other (especially
contemporary) provisions of the constitution. See
State ex rel. Bare v. Schinz, 194 Wis. 397, 403-04,
216 N.W. 509 (1927).
2. Courts may view the "historical analysis of
the constitutional debates and of what practices were
in existence in 1848 which the court may reasonably
presume were also known to the framers of the 1848
constitution." Id. This principle permits courts to
consider the debates surrounding amendments to the
constitution and the circumstances at the time these
amendments were adopted. We have said that courts may
examine "the history of the times," meaning not only
the legislative history of a provision (including word
changes in the drafts of amendments) but also "the
state of society at the time," with special emphasis
on the "practices and usages" then in existence, so as
to identify the concerns the provision sought to
address. . . .
3. Courts may scrutinize the earliest
interpretations of the provision by the legislature as
manifested in the first laws passed following adoption
of the provision. Legislation that implements a
constitutional provision is thought to be a fair gauge
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of contemporary interpretation and is entitled to
great deference.
Id., ¶117 (Prosser, J., concurring in part; dissenting in part)
(citation omitted).
¶149 In its decision in Thompson, the court focused on the
second point in our methodology by emphasizing the proceedings
in the 1846 and 1848 constitutional conventions, including
comments by delegates about the role of the superintendent of
public instruction. See Thompson, 199 Wis. 2d at 685-90. Three
quotes from the 1846 and 1848 debates are especially pertinent:
● Delegate Wallace Wilson Graham (1846) said
that he "considered that officer [the superintendent]
indispensable. There could be no uniform system
without him. There must be an annual report of the
state of schools throughout the state. There could be
none, said he, so satisfactory as from a man whose
entire business it is to visit and know of all the
schools. He considered it a matter of the greatest
importance that the legislature have all this
information." Id. at 687-88 (emphasis added).
● Delegate Lorenzo Bevans (1846) said: "All
admit that the children of the state are to be
instructed in political economy and in the various
branches of science. How is it to be accomplished?
Is it by striking the word 'superintendent' from the
first section of the article, by dispensing with this
state officer, who alone can give uniformity, energy,
and efficiency to the system." Id. at 688 (emphasis
added).
● Delegate Louis P. Harvey (1848) said he
wanted a superintendent who "knows what has been done
in other states and countries——what has worked well
and what ill and who has practical good sense enough
to select and put in operation what has been found by
experience to be the best. . . . An acquaintance with
the particular subject of public instruction, with the
peculiar qualities requisite for putting a system in
operation with life and energy, was what was wanted."
Id. at 689 (ellipsis in original).
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¶150 These quotations clearly suggest that the framers of
the constitution contemplated a superintendent of public
instruction who would set standards for public schools and seek
a certain uniformity among public schools throughout Wisconsin.1
It is self-evident that standards for schools throughout
Wisconsin could not be set without the power to make rules.
"Uniformity" could not be sought or enforced without rules.
"Putting a system in operation" could not be achieved without
rules. Consequently, the very nature of the office of
superintendent required the ability to make rules, irrespective
of a specific grant of authority from the legislature. It is
hard to believe that the superintendent would have been
powerless to begin to develop standards without prior
legislative sanction.
¶151 The legislature understood this, and so it referenced
"forms and regulations for making all reports and conducting all
necessary proceedings under this act" in the first legislation
setting forth the duties of the superintendent:
The superintendent shall have a general
supervision over public instruction in this state, and
it shall be his duty to devote his whole time to the
advancement of the cause of education, and for that
purpose to visit as far and as often as practicable,
1
Article X, Section 3 of the 1848 constitution mirrored the
uniformity theme: "The legislature shall provide by law for the
establishment of district schools, which shall be as nearly
uniform as practicable, and such schools shall be free and
without charge for tuition to all children between the ages of
four and twenty years, and no sectarian instruction shall be
allowed therein." (Emphasis added.)
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No. 2013AP416.dtp
every town and school in the state for the purpose of
inspecting the schools and diffusing as widely as
possible by public addresses . . . and personal
communication with school officers teachers and
parents, a knowledge of existing defects and desirable
improvements in the administration of the system, and
the government and instruction of the schools: To
recommend the introduction and use of the most
approved text books, and to secure as far as
practicable uniformity in education throughout the
state: . . . To recommend the establishment of school
libraries and to advise in the selection of books for
the same: To collect such information as may be deemed
important in reference to common schools in each
county, town precinct and school district: . . . to
ascertain the condition of all the school funds in
this state with the amount of the school funds due to
each township from lands or other sources: to propose
suitable forms and regulations for making all reports
and conducting all necessary proceedings under this
act: to adjust and decide all controversies and
disputes arising under the school lands without costs
to the parties: . . . to perform such other duties as
the legislature or governor of this state may
direct . . . .
Laws of 1848 at 128-29, quoted in Thompson, 199 Wis. 2d at 694
(emphasis added; ellipsis in original).2
2
The reference to "school funds" in the statute is grounded
in three specific provisions in Article X of the 1848
constitution, namely, Sections 2, 4, and 5. Section 2 describes
the sources of revenue for a "school fund." Sections 4 and 5
read as follows:
4. Each town and city shall be required to
raise, by tax, annually for the support of common
schools therein a sum not less than one-half the
amount received by such town or city respectively for
school purposes, from the income of the school fund.
5. Provision shall be made by law for the
distribution of the income of the school fund among
the several towns and cities of the state, for the
support of common schools therein in some just
proportion to the number of children and youth
resident therein, between the ages of four and twenty
(continued)
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¶152 The legislature has very broad power to make law. It
can certainly authorize an "agency" to promulgate rules and it
can establish procedures for doing so. It can change law so
that the rules implementing former law must be changed. But a
constitutional office must possess some inherent authority to
proceed to fulfill its responsibilities. For example, it must
have some authority to develop rules for its "internal
management." See Wis. Stat. § 227.01(13)(a). For the
superintendent of public instruction, the constitution provides
the initial authority to develop rules because the constitution
states the superintendent's mission. The constitution, of
course, also gives the legislature the ultimate authority to
determine what the superintendent may or may not do by
prescribing the superintendent's powers and duties.
¶153 Over the years, the legislature has granted general
authority to the superintendent to make rules. Wis. Stat.
§§ 227.10, 227.11(2)(a). The legislature has sometimes required
the superintendent to make rules. See, e.g., Wis. Stat.
§ 118.045. This has resulted in administrative rules on at
least 40 different subjects, from "School district boundary
years and no appropriation shall be made from the
school fund to any city or town for the year in which
said city or town shall fail to raise such tax, nor to
any school district for the year in which a school
shall not be maintained at least three months.
Wis. Const. art. X, §§ 4-5 (1848).
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appeals" and "School district standards" to "Commencement of
school term" and "Grants for tribal language revitalization."
¶154 The issue in this case is whether legislation giving
the governor complete authority to block a proposed rule by the
superintendent of public instruction is constitutional, even
when the proposed rule is authorized——perhaps required——by
statute and is submitted in complete conformity with statute.
¶155 The answer cannot be yes, because it would give a
governor authority to obstruct the work of an independent
constitutional officer to such an extent that the officer would
be unable to discharge the responsibilities that the legislature
has given him. An absolute veto power over a proposed rule is a
check without a balance. It is a power greater than the
gubernatorial veto power in the constitution. Wis. Const. art
V, § 10(2).
¶156 The power given to the governor in Act 21 provides the
governor with the means not to enforce a law, even if the
legislature wants it enforced, and is arguably inconsistent with
the governor's obligation to take care that the laws be
faithfully executed. Wis. Const. art. V, § 4.
III. THOMPSON V. CRANEY
¶157 The reason I have written separately and have not
joined Justice Gableman's opinion is that my position does not
depend on the superintendent of public instruction having
superiority over all other officers who are or may be vested
with supervision of public instruction.
¶158 In Thompson, the court stated:
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No. 2013AP416.dtp
Our review of these sources demonstrates beyond a
reasonable doubt that the office of state
Superintendent of Public Instruction was intended by
the framers of the constitution to be a supervisory
position, and that the "other officers" mentioned in
the provision were intended to be subordinate to the
state Superintendent of Public Instruction. . . .
. . . .
. . . Under our holding in the present case, the
legislature may not give equal or superior authority
to any "other officer."
Thompson, 199 Wis. 2d at 698-99.
¶159 This holding in Thompson is unwarranted for multiple
reasons. It disregards the plain language of the constitution;
it disregards the discussion surrounding the constitution's
formation and amendment; and it disregards subsequent
legislation.
¶160 The text of Article X, Section 1 of the 1848
constitution provided:
The supervision of public instruction shall be
vested in a state superintendent of public
instruction, and such other officers as the
legislature shall direct. The state superintendent
shall be chosen by the qualified electors of the
state, in such manner as the legislature shall
provide; his powers, duties, and compensation shall be
prescribed by law. Provided, that his compensation
shall not exceed the sum of twelve hundred dollars
annually.
Wis. Const. art. X, § 1 (1848).
¶161 Section 1 twice mentioned "the legislature" and gave
the legislature the power to prescribe the "powers" and "duties"
of the superintendent and to "vest" "other officers" with
"supervision of public institutions."
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¶162 The framers understood the realities of local
education in 1848. They did not expect the superintendent to
operate local schools. "Other officers" would run the public
schools in Green Bay, in Milwaukee, in Prairie du Chien, in
Madison. The superintendent would not run them. The
superintendent would not hire teachers in Baraboo or fire school
superintendents in Beloit. In the governance and operation of
local schools, the superintendent was not "superior." The
superintendent would be accomplishing a lot if he were able to
visit local schools, as the first statute on the superintendent
charged him to do.
¶163 He also did not control the University of Wisconsin.
The "state university, at or near the seat of government" was
never under the supervision of the superintendent of public
instruction. Yet it is referenced in Article X, Section 6,
directly below the section mentioning the superintendent of
public instruction. The creation of a public university was
part of the same "Yankee Assimilation" reform movement that
inspired creation of a superintendent of public instruction.
Joseph A. Ranney, "Absolute Common Ground": The Four Eras of
Assimilation in Wisconsin Education Law, 1998 Wis. L. Rev. 791,
792-796.
¶164 The superintendent played no role in the sale of
"school and university lands," which is mentioned in Article X,
Section 7, of the 1848 Constitution. The constitution gave the
secretary of state, treasurer, and attorney general that
authority.
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¶165 "Vested" is a potent word, but the constitution
permits "other officers" to be vested with "supervision of
public instruction." It should be noted that the 1848
Constitution, in Article VII, Section 2, provided that "the
legislature may also vest such jurisdiction as shall be deemed
necessary in municipal courts . . . . Provided, that the
jurisdiction which may be vested in municipal courts shall not
exceed . . . that of circuit courts." (Emphasis added.) There
is no limitation on the powers of the "other officers" in
Article X, Section 1, like the limitation on the jurisdiction of
municipal courts.
¶166 The 1902 amendment benefitted the Superintendent in
two respects, but it also firmed up the power of the legislature
to prescribe the qualifications, powers, and duties of "other
officers," thereby rebutting any notion that the elected or
appointed "officers" described were mere "assistants and clerks"
of the superintendent. The Thompson court conceded that Article
X, Section 1 used the term "other officers," not the term
"inferior officers," which appears in Article IV, Section 28 of
the 1848 constitution. Thompson, 199 Wis. 2d at 683.3 It was
3
Article IV, Section 28 of the 1848 Wisconsin Constitution
provided:
Members of the legislature, and all officers,
executive and judicial, except such inferior officers
as may be by law exempted, shall before they enter
upon the duties of their respective offices, take and
subscribe an oath or affirmation to support the
constitution of the United States and the constitution
of the state of Wisconsin, and faithfully to discharge
(continued)
18
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not too many years after the 1902 amendment was approved that
the legislature created a State Board of Education consisting of
the superintendent, the governor, and the secretary of state, as
well as one person approved by the board of regents of the
University of Wisconsin and one person approved by the board of
regents of the normal schools. Laws of 1915, ch. 497, § 1.
¶167 The Thompson decision acknowledged that the language
of Article X, Section 1 permits a reading that the "power of
supervision may be allocated by the legislature between" the
superintendent and the "'other officers' because Article X, § 1
vests supervision in the SPI and the 'other officers.'"
Thompson, 199 Wis. 2d at 684. The opinion continues:
We cannot conclude that the plain meaning of Article
X, § 1 requires the SPI, and the SPI alone, to be the
ultimate supervisor of public education in Wisconsin.
The section is ambiguous, in that it can be read
either as granting the power of supervision solely to
the SPI, or as granting power to both the SPI and the
"other officers" referred to in the section.
Id.
¶168 The court then adopted the narrow reading by relying
on excerpts from the early constitutional debates. In so doing,
it elevated individual statements (as interpreted by the court)
over explicit constitutional text. The result, in effect, was
to preclude serious changes in the present system without a
constitutional amendment. Id. at 698. But this rigidity is
contrary not only to the text but also to the statements
the duties of their respective offices to the best of
their ability.
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authored by the drafter of the 1902 amendment, Superintendent of
Public Instruction Lorenzo Dow Harvey, who wrote:
The last sentence [of the amendment], the one
complained of, gives the legislature power at any time
in the future, to entirely remodel the superintendency
system if it sees fit to do so. . . . [T]his sentence
of the amendment would give the legislature full power
to make whatever provision might at the time be
necessary.
Id. at 692 (quoting Letter from Lorenzo Dow Harvey to Karl
Mathie (Oct. 15, 1902)).
¶169 State supervision of public instruction may be working
beautifully as is, or it may need adjustment. But it can never
be viewed as off limits to constructive change by the
legislature. Unfortunately, the changes in Act 21 affecting the
superintendent of public instruction are not constructive
changes because they reallocate power without requiring
accountability. Governing entails more than saying "no."
IV. CONCLUSION
¶170 In my view, the challenged sections of Act 21 are as
unnecessary as they are unconstitutional. There are established
methods for the governor to address undesirable or controversial
administrative rules——by negotiation or, if necessary, by
legislative suspension. In addition, the governor has the power
to affect the superintendent's budget and to propose eliminating
or transferring part of the superintendent's statutory
authority.
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¶171 All these options require the cooperation of the
legislature. If the governor is unable to obtain that
cooperation, he arguably should not succeed.
¶172 For the foregoing reasons, I respectfully concur.
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No. 2013AP416.pdr
¶173 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). The
lead opinion errs for at least three reasons: First, the lead
opinion fails to recognize that when the Superintendent of
Public Instruction engages in rulemaking with the Department of
Public Instruction (DPI), the Superintendent is exercising
legislative authority delegated to him by the legislature under
Wis. Stat. § 15.37 (2013-14),1 not constitutional authority
delegated by Article X, Section 1 of the Wisconsin Constitution.
Second, the lead opinion fails to recognize the legislature's
constitutional authority to control its legislative delegation
exercised as rulemaking by state administrative departments such
as DPI.2 Third, Act 21 has not been applied to the
Superintendent in an unconstitutional manner.
¶174 I conclude that the legislature acted pursuant to its
constitutional authority under Article IV, Section 1 and Article
X, Section 1 when it enacted Act 21, which creates procedural
safeguards to be employed in rulemaking by DPI and many other
administrative agencies. I also conclude that Act 21 does not
conflict with Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d
123 (1996). And finally, I conclude that the plaintiffs have
not proved beyond a reasonable doubt that Act 21 has been
applied unconstitutionally to the Superintendent. Accordingly,
1
All further references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
Lead op., ¶¶4, 57, 63.
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No. 2013AP416.pdr
I would reverse the decision of the court of appeals, and I
respectfully dissent from the lead opinion.
I. BACKGROUND
¶175 Before us, two sections of Act 21 are challenged:
Wis. Stat. § 227.135(2) and Wis. Stat. § 227.185.3 The
plaintiffs and the Superintendent4 herein claim these provisions
are unconstitutional as applied to the Superintendent because
they permit the Governor to reject a proposed rule or scope
statement created by DPI.
¶176 The Superintendent also contends that Act 21 is an
unconstitutional delegation of legislative power to the Governor
because it contains neither legislative nor procedural standards
for exercising that power. The Superintendent contends that Act
21 places the Governor in a superior position to the
Superintendent through regulation of DPI's rulemaking in
violation of Thompson.
¶177 The State contends that rulemaking is a legislative
delegation to administrative agencies, and that as part of that
legislative delegation, the legislature has the authority to
enact procedural safeguards that apply to rulemaking. The State
3
The complaint also objected to the enactment of Wis. Stat.
§ 227.137(6), which together with § 227.137(2) and the repeal of
Wis. Stat. § 227.137(1), imposes an obligation on DPI to provide
an economic impact statement for programs that are expected to
exceed $20,000,000. Before us, it has not been argued that this
requirement is unconstitutional as applied to the
Superintendent.
4
For convenience, hereinafter, I refer to plaintiffs and
the Superintendent of Public Instruction as "the
Superintendent."
2
No. 2013AP416.pdr
asserts that Act 21 is such a procedural safeguard for
legislative rulemaking delegations. The State acknowledges that
Article X, Section 1 of the Wisconsin Constitution vests
supervision of public instruction in the Superintendent, as an
executive function. The State also contends that Article X,
Section 1 requires that the power and duties of the
Superintendent are to be established by the legislature.
¶178 Upon the Superintendent's motion for summary judgment,
the circuit court struck down Wis. Stat. § 227.135(2) and Wis.
Stat. § 227.185 as unconstitutional infringements of the
Superintendent's constitutional powers. The court of appeals
agreed with the circuit court and affirmed. As I explain below,
the lead opinion errs because it fails to analyze, and instead
glosses over, foundational legal principles that underlie this
case.
II. DISCUSSION
A. Standard of Review
¶179 In order to decide the claims presented, we interpret
provisions of the Wisconsin Constitution, which we undertake
independently of the interpretations of the court of appeals and
circuit court, while benefitting from their discussions.
Custodian of Records for the Legislative Tech. Servs. Bureau,
2004 WI 65, ¶6, 272 Wis. 2d 208, 680 N.W.2d 792. We also
interpret the challenged statutes, as their meanings are
important to our decision. Statutory interpretation and
application present questions of law that we decide
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independently. State v. Hanson, 2012 WI 4, ¶14, 338 Wis. 2d
243, 808 N.W.2d 390.
B. Constitutional Delegations
¶180 The Superintendent's assertions require us to begin by
ascertaining the nature and scope of two constitutional
delegations under Article X, Section 1 of the Wisconsin
Constitution: (1) the delegation to the Superintendent for the
"supervision" of public instruction and (2) the delegation to
the legislature to decide the extent of the Superintendent's
"qualifications, powers, duties and compensation." We must
understand both constitutional delegations to determine whether
Act 21 violates the Superintendent's constitutional authority.
This is so because the Superintendent obtains authority to
supervise public instruction from the Constitution and from the
legislature. Therefore, we must decide whether the statutes at
issue in this review affect supervision that is constitutionally
vested in the Superintendent or supervision that is
legislatively created for the Superintendent.
¶181 When we interpret a constitutional provision, we
examine the plain meaning of the words employed, the
constitutional debates at the time of the enactment of the
provision and the earliest interpretation after enactment as
manifested in legislation. Schilling v. Crime Victims Rights
Bd., 2005 WI 17, ¶16, 278 Wis. 2d 216, 692 N.W.2d 623 (citing
Wis. Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40,
¶44, 270 Wis. 2d 318, 677 N.W.2d 612).
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No. 2013AP416.pdr
¶182 The constitutional delegations of authority to the
Superintendent and the legislature, as first enacted, provided
in relevant part:
The supervision of public instruction shall be
vested in a state superintendent, and such other
officers as the legislature shall direct. The state
superintendent shall be chosen by the qualified
electors of the state, in such manner as the
legislature shall provide; his powers, duties and
compensation shall be prescribed by law: Provided,
That his compensation shall not exceed the sum of
twelve hundred dollars annually.
Wis. Const. art. X, § 1 (1848) (emphases added).
¶183 In 1902, Article X, Section 1 was amended to provide
in relevant part:
The supervision of public instruction shall be
vested in a state superintendent and such other
officers as the legislature shall direct; and their
qualifications, powers, duties and compensation shall
be prescribed by law.
Wis. Const. art. X, § 1 (1902) (emphasis added).
¶184 Article X, Section 1 vests "[t]he supervision of
public instruction" in the Superintendent. This constitutional
delegation has not changed materially since 1848 when Article X,
Section 1 was first enacted, nor has the constitutional
delegation to the legislature been changed, which delegation
requires the legislature to establish the powers and duties of
the Superintendent through legislation.
¶185 "Supervision" is a key term, but it is not defined in
Article X, Section 1. However, as I set forth below,
examination of the meaning of "supervision" at the time of the
Constitutional Conventions of 1846 and 1848 shows that
5
No. 2013AP416.pdr
"supervision," as used in Article X, Section 1, was understood
as an executive function. It was to the legislature that the
Constitution accorded the authority to determine what actions
the Superintendent would be permitted to take ("powers"), and
what obligations ("duties") the Superintendent must shoulder in
regard to public education. Wis. Const. art. X, § 1. Stated
otherwise, the framers of the Constitution chose no specific
duties for the Superintendent in regard to "supervision of
public instruction;" instead, the legislature was given
authority to control the powers and duties of the Superintendent
through legislation.
¶186 During the constitutional debates, the executive
nature of the Superintendent was discussed. For example, during
the Convention of 1846, Marshall M. Strong was reported to have
"thought we needed [the superintendent] to travel over the
state, organize the system, and awaken the people to the
importance of this subject." Journal of the Convention,
reprinted in The Convention of 1846, 569 (Milo M. Quaife, ed.,
1919).
¶187 During the Convention of 1848, all writers were
reported to have agreed that the "office should have nothing to
do with the machinery of the school system or the management of
the funds. . . . His province was to put the system in
operation." Journal of the Convention, reprinted in The
Attainment of Statehood, 556-57 (Milo M. Quaife, ed., 1928).
Mr. Jackson is reported to have explained, "The duties of a
superintendent were not of a fixed and well-known kind, like
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No. 2013AP416.pdr
those of political officers. Public instruction was yet in its
infancy, though there had been experimenting upon it for the
last fifty years." Id. at 561.
¶188 The dictionary definition of "superintend" from
Webster's An American Dictionary of the English Language (new
rev. ed. 1847-50) provided:
To have or exercise the charge or oversight of; to
oversee with the power of direction; to take care of
with authority; as an officer superintends the
building of a ship or construction of a fort.
Thompson, 199 Wis. 2d at 683. Accordingly, vesting supervision
of public instruction in the Superintendent granted non-
specific, executive authority to the Superintendent.
¶189 However, even though in neither 1848 nor 1902 was the
Superintendent's constitutional authority defined, the plain
meaning of Article X, Section 1's delegation to the legislature
to establish the Superintendent's "qualifications, powers,
duties and compensation" was clearly expressed. Article X,
Section 1 plainly granted the legislature control over both the
power that the Superintendent could exercise and the duties that
the Superintendent must undertake. Early cases support this
plain meaning interpretation of the legislature's control over
the Superintendent.
¶190 In Raymer v. Cunningham, 82 Wis. 39, 51 N.W. 1133
(1892), we reviewed a challenge to Superintendent Wells'
directive to Thomas J. Cunningham, the Secretary of State, for
payments of his salary, a clerk's salary and claimed travel
expenses. Id. at 39-41. In 1891, the Constitution provided
that the Superintendent be paid an annual salary of not more
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No. 2013AP416.pdr
than $1,200 per year. Raymer, a citizen and taxpayer,
complained that Wells had directed Cunningham to make payments
in excess of $1,200, with which direction Cunningham complied.
Id. at 39, 42. It was alleged that although Wells charged the
state $1,000 for "clerk hire," he incurred no such expense and
that Wells was paid $1,500 for traveling expenses, when he did
not incur more than $800. Id. at 41-42.
¶191 During our discussion of the question presented, we
construed the relationship of the Superintendent and the
legislature. We said:
While the section of the constitution cited
prohibited the legislature from increasing the
compensation of that officer beyond the amount named,
yet it expressly authorized them to increase his
duties and enlarge his powers and responsibilities ad
libitum. This authority of the legislature has been
from time to time freely exercised by especially
enjoining new duties and imposing new and more onerous
responsibilities.
Id. at 47. We concluded that although the legislature had
increased the duties of the Superintendent since 1848 when the
Constitution was ratified, nevertheless, the Superintendent had
no legislative delegation to audit his own expenses and he could
not receive payment above the constitutional limit even when the
legislature increased his duties. Id. at 52.
¶192 The first legislation passed after Wisconsin's
Constitution was ratified that bore on Article X, Section 1 was
Section 3 of the Laws of 1848. Thompson, 199 Wis. 2d 693-94.
The law assigned the Superintendent:
[G]eneral supervision over public instruction in this
state, and it shall be his duty to devote his whole
time to the advancement of the cause of education
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No. 2013AP416.pdr
. . . . To recommend the introduction and use of the
most approved text books, and to secure as far as
practicable uniformity in education throughout the
state . . . . To collect such information as may be
deemed important in reference to common schools in
each county, town precinct and school district . . .
to perform such other duties as the legislature or
governor of this state may direct . . . .
Id. at 694 (quoting Laws of 1848, at 128-29) (emphasis added).
Therefore, since 1848, the legislature has "by law" set the
Superintendent's powers and duties, as Article X, Section 1
clearly requires. Furthermore, in 1848, the legislature
permitted the governor to direct duties that the Superintendent
was obligated to undertake.
¶193 The 1902 amendment to Article X, Section 1 did not
impart a more definite meaning to "supervision of public
instruction," nor did the amendment diminish the legislature's
constitutional power over the Superintendent. The scope of the
Superintendent's constitutional authority remained non-specific,
executive authority as it had been in 1848.
¶194 The first law passed after the 1902 amendment was ch.
37 of the Laws of 1903. Id. at 696-97. Section 1 of ch. 37
Laws of 1903 established qualifications for the office of the
Superintendent and Section 2 imposed 14 duties on the
Superintendent. Briefly stated, the legislature directed the
Superintendent to: ascertain conditions of Wisconsin's public
schools; advise in selection of books; investigate different
systems of common schools; move public sentiment to favor
industrial and commercial education; formulate study for listed
schools; prescribe rules for management of school libraries;
examine and determine appeals referred to the Superintendent;
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No. 2013AP416.pdr
collect and purchase maps, charts, books, etc. for use in common
schools; apportion and distribute the school fund; make copies
of papers deposited in his office; prepare in even numbered
years reports on all common schools; supervise teachers'
institutes; hold one convention annually to confer with county
superintendents; and "perform all other duties imposed upon him
by law." §§ 1 & 2, ch. 37, Laws of 1903.
¶195 The above referenced ch. 37 of the Laws of 1903
exemplifies the breadth of the legislature's constitutional
control over the powers that the Superintendent could exercise
and the duties the Superintendent was, by law, obligated to
fulfill. It also shows the executive nature of the
constitutional grant to the Superintendent to supervise public
instruction because all legislative requirements of the
Superintendent relate to public instruction, and it was the
legislature, not the Superintendent, that was making the choices
about what tasks would be undertaken.
¶196 We previously have reviewed the legislature's power in
regard to a claimed conflict between a statute and Article X.
In City of Manitowoc v. Town of Manitowoc Rapids, 231 Wis. 94,
285 N.W. 403 (1939), we expressed approval of the reasoning of
In re Kindergarten Schools, 32 P. 422, 422 (Colo. 1893), which
provided that unless "the constitution, in express terms or by
necessary implication, limits it, the legislature may exercise
its sovereign power in any way that, in its judgment, will best
subserve the general welfare." City of Manitowoc, 231 Wis. at
98. In so stating, we rejected a challenge based on Article X,
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Section 3 to various statutes that provided for a statewide
system of vocational schools in Wisconsin municipalities of over
5,000 inhabitants and the opportunity for free education beyond
20 years of age. Id. at 98-99.
¶197 In School District No. 3 of the Town of Adams v.
Callahan, 237 Wis. 560, 297 N.W. 407 (1941), we reviewed a claim
that the Superintendent's legislatively assigned task exceeded
the legislature's power. There, we considered Wis. Stat.
§ 40.30(1) (1939), which provided: "The state superintendent is
authorized, on his own motion, by order to attach districts with
valuations of less than one hundred thousand dollars to
contiguous districts." Id. at 566.
¶198 School District No. 3 contended that the legislature's
grant of authority to the Superintendent to combine contiguous
districts with valuations of less than $100,000 was
unconstitutional because monetary valuation was not "germane to
the purpose of the act," and the legislative delegation was
outside of "matters pertaining to public instruction," which
limited what power and duties the legislature could confer on
the Superintendent. Id. at 566-67. We reasoned that the
Superintendent acted in strict compliance with the law, Wis.
Stat. § 40.30(1) (1939), and that the legislative delegation to
the Superintendent was in accord with the legislature's
constitutional power under Article X, Section 1. Id. at 571.
¶199 It also is significant that DPI was not in existence
in 1848 when the Superintendent's authority to supervise public
instruction was created. When the Constitution was enacted, the
11
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Superintendent acted by issuing executive orders, some of which
were held unlawful because they exceeded both the legislature's
grant of authority to the Superintendent and the
Superintendent's constitutional authority, as we held in Raymer,
supra.
¶200 DPI was created by the legislature in 1967.5 In 1967,
the legislature also created the "educational approval board"
that was "attached to the department of public instruction under
s. 15.03." Wis. Stat. § 15.375 (1967). The educational
approval board consisted of "representatives of state agencies
and other persons with a demonstrated interest in educational
programs appointed to serve at the pleasure of the governor."
Id.
¶201 The educational approval board was to "exercise its
powers, duties and functions prescribed by law, including rule-
making . . . independently of the head of the department . . .
but budgeting, program co-ordination and related management
functions shall be performed under the direction and supervision
of the head of the department." Wis. Stat. § 15.03 (1967).
Therefore, from DPI's inception, the Superintendent was granted
executive management duties; however, others (members of the
educational approval board) participated with DPI, independent
5
"There is created a department of public instruction under
the direction and supervision of the state superintendent."
Wis. Stat. § 15.37 (1967).
12
No. 2013AP416.pdr
from the Superintendent, on issues involving public instruction,
including rule-making.6
¶202 It is important to recognize that DPI has no
constitutional authority. See Martinez v. DILHR, 165 Wis. 2d
687, 698, 478 N.W.2d 582 (1992). It is simply one of many
administrative departments and agencies that the legislature has
created. Id. at 697.
¶203 By Wis. Stat. § 15.37, as enacted and then as
companion statutes were amended, the legislature granted the
Superintendent authority to oversee DPI and later to engage in
rulemaking with DPI. However, the Superintendent did not get
his powers to supervise DPI and to engage in rulemaking from the
Constitution. The Superintendent obtained these powers from the
legislature through statutory enactment.
¶204 Stated otherwise, the Superintendent's rulemaking with
DPI is legislatively granted supervision of DPI, not
constitutionally granted supervision of DPI. This distinction
about the source of the Superintendent's powers relative to DPI
is important because in order for a statute to be
unconstitutional as applied, it must adversely affect a
constitutional power of the Superintendent. Statutes that
affect statutory powers of the Superintendent are simply
statutory amendments, which the legislature is always free to
enact. City of Manitowoc, 231 Wis. at 98.
6
The educational approval board is no longer involved with
DPI, as it was in 1967.
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No. 2013AP416.pdr
¶205 The Attorney General also has examined the
constitutional delegation to the Superintendent and has
concluded that the scope of the Superintendent's authority "is
placed within the discretion of the legislature by the use of
the phrase in art. X, sec. 1, 'powers, duties and compensation
shall be prescribed by law.'" 37 Op. Att'y. Gen. 347, 353
(1948).
¶206 Accordingly, I conclude that Article X, Section 1
granted the Superintendent only non-specific executive authority
with regard to free public schools on a statewide basis. The
Attainment of Statehood, 556-57. That is the extent of the
Superintendent's constitutional powers. I also conclude that
Article X, Section 1 granted the legislature authority to
legislate which activities (powers) the Superintendent could
pursue and which obligations (duties) he was required to meet.
C. Statutory Interpretation
¶207 Now that I have determined the scope of the
constitutional delegations to the Superintendent and to the
legislature under Article X, Section 1 of the Wisconsin
Constitution, the next step is to decide whether Act 21 collides
in an unconstitutional way with the executive authority of the
Superintendent. This requires interpretation and application of
those provisions of Act 21 about which complaint has been lodged
before us: Wis. Stat. § 227.135(2) and Wis. Stat. § 227.185.
1. General principles
¶208 DPI has no power to create a law, nor has the
Superintendent. Article IV, Section 1 of the Wisconsin
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Constitution clearly provides: "The legislative power shall be
vested in a senate and assembly." Any rulemaking authority DPI
has is a delegation of power from the legislature. Martinez,
165 Wis. 2d at 698-99.
¶209 In Martinez, we addressed whether the legislature's
delegation to the Joint Committee for Review of Administrative
Rules (JCRAR) to "temporarily suspend administrative rules
pending bicameral review by the legislature and presentment to
the governor for veto or other action" was lawful. Id. at 691.
When JCRAR notified DILHR that it was suspending part of Wis.
Admin. Code § IND. 72.01(16), DILHR told Wisconsin employers to
ignore JCRAR's action suspending its rule. Id. at 692-93. The
Martinez litigation followed.
¶210 In upholding JCRAR's action, we explained that
"administrative agencies are creations of the legislature and []
they can exercise only those powers granted by the legislature."
Id. at 697. We also explained that "rule-making powers can be
repealed by the legislature." Id. at 698. Thereafter, we
concluded that DILHR's arguments lacked merit in part because
"it is incumbent on the legislature, pursuant to its
constitutional grant of legislative power, to maintain some
legislative accountability over rule-making." Id. at 701.
¶211 Here, DPI engages in rulemaking to administer statutes
that involve education, which have been enacted by the
legislature and signed into law by the Governor. DPI cannot
make rules on any subject matter it chooses. Rather, all of its
rules must relate to education. For example, Wis. Admin. Code
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§ PI 2 establishes procedures for school district boundary
appeals under Wis. Stat. ch. 117. Wisconsin Admin. Code § PI 5
establishes procedures for granting high school equivalency
diplomas and certificates pursuant to Wis. Stat. § 115.29(4)(a).
Wisconsin Admin. Code § PI 18 establishes course requirements to
meet the graduation standards outlined by the legislature in
Wis. Stat. § 118.33.
¶212 Furthermore, "[n]o agency may promulgate a rule which
conflicts with state law." Wis. Stat. § 227.10(2). It is well
established precedent that "[a]n administrative rule that
conflicts with an unambiguous statute exceeds the authority of
the agency that promulgated it." Thomas More High Sch. v.
Burmaster, 2005 WI App 204, ¶15, 287 Wis. 2d 220, 704 N.W.2d 349
(internal quotation marks omitted) (quoting Seider v. O'Connell,
2000 WI 76, ¶28, 236 Wis. 2d 211, 612 N.W.2d 659).
2. Wis. Stat. § 227.135(2) and Wis. Stat. § 227.185
¶213 As usual when statutory interpretation is at issue, we
begin with the words chosen by the legislature. Wis. Indus.
Energy Grp., Inc. v. Pub. Serv. Comm'n, 2012 WI 89, ¶15, 342
Wis. 2d 576, 819 N.W.2d 240. If their meaning is plain, we
apply that meaning and go no further. State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110.
¶214 Wisconsin Stat. § 227.135(2) is at the forefront of
plaintiffs' challenge. It provides:
An agency that has prepared a statement of the
scope of the proposed rule shall present the statement
to the governor and to the individual or body with
policy-making powers over the subject matter of the
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No. 2013AP416.pdr
proposed rule for approval. The agency may not send
the statement to the legislative reference bureau for
publication under sub. (3) until the governor issues a
written notice of approval of the statement. The
individual or body with policy-making powers may not
approve the statement until at least 10 days after
publication of the statement under sub. (3). No state
employee or official may perform any activity in
connection with the drafting of a proposed rule except
for an activity necessary to prepare the statement of
the scope of the proposed rule until the governor and
the individual or body with policy-making powers over
the subject matter of the proposed rule approve the
statement.
Section 227.135(2) unambiguously requires approval of proposed
scope statements by both the Governor and the Superintendent,
"the individual . . . with policy-making powers," when DPI is
rulemaking. Wisconsin Stat. § 227.185 unambiguously requires
that proposed rules be approved by the Governor before they can
proceed further.7 Therefore, unless they have been proved
unconstitutional beyond a reasonable doubt, they must be
enforced according to the plain meaning of their terms.
¶215 As I explained above, administrative rulemaking is
undertaken to facilitate application of statutes that the
legislature creates. It is the legislature that sets, by
statute, the policy to be furthered in rulemaking. In addition,
7
Wisconsin Stat. § 227.185 provides:
After a proposed rule is in final draft form, the
agency shall submit the proposed rule to the governor
for approval. The governor, in his or her discretion,
may approve or reject the proposed rule. If the
governor approves a proposed rule, the governor shall
provide the agency with a written notice of that
approval. No proposed rule may be submitted to the
legislature for review under s. 227.19(2) unless the
governor has approved the proposed rule in writing.
17
No. 2013AP416.pdr
rulemaking is accomplished only through legislative delegation
to an administrative agency or department. Martinez, 165
Wis. 2d at 698-99. The legislature controls the delegation of
legislative authority that it accords to administrative agencies
and departments to employ in rulemaking. Id. at 701.
¶216 Requiring the Superintendent to approve the scope
statement of a new rule that facilitates application of statutes
relating to education, clearly is within the legislature's
constitutional power under Article IV, Section 1 and its
authority in regard to the Superintendent under Article X,
Section 1 of the Wisconsin Constitution. The lead opinion seems
to agree that the legislature can require the Superintendent to
approve the scope statement of proposed DPI rules.
¶217 However, the lead opinion concludes that Wis. Stat.
§ 227.135(2) and Wis. Stat. § 227.185 are unconstitutional as
applied to the Superintendent because rulemaking is a
supervisory power of the Superintendent, and by granting the
Governor the power to approve the scope of a rule under
§ 227.135(2) and proposed rules under § 227.185, the legislature
has given the Governor the power to supervise public
instruction.8
¶218 The lead opinion errs because it misperceives two
foundational legal principles that underlie this case: (1) it
fails to recognize that the legislature accorded the
Superintendent the power to participate with DPI in rulemaking
8
Lead op., ¶¶59-62.
18
No. 2013AP416.pdr
and (2) it fails to recognize the legislature's constitutional
authority under Article IV, Section 1 of the Wisconsin
Constitution to control delegations of legislative power such as
occurred with DPI's rulemaking.
¶219 To explain further, first, it was the legislature that
granted the Superintendent the authority to direct and supervise
DPI, as Wis. Stat. § 15.37 very clearly provides: "There is
created a department of public instruction under the direction
and supervision of the state superintendent of public
instruction."
¶220 This is a statutory grant of authority from the
legislature to the Superintendent. The Superintendent did not
obtain the power to direct and supervise DPI from Article X,
Section 1 of the Wisconsin Constitution. He got those powers
from Wis. Stat. § 15.37. Therefore, in regard to rulemaking
with DPI, the Superintendent has only legislative power.
¶221 There was no DPI when the Superintendent of Public
Instruction was created by Article X, Section 1, nor was there
rulemaking. Rather, it was the legislature that set obligations
for the Superintendent with regard to DPI. Stated otherwise, it
was the legislature that gave the Superintendent the power to
direct and supervise DPI; not the Constitution. Compare Wis.
Stat. § 15.37 with Wis. Const. art. X, Section 1. Therefore,
supervision of DPI rulemaking is a statutory power of the
Superintendent, not a constitutional power.
¶222 Second, the legislature has the constitutional power
to control the mechanism by which rulemaking is undertaken
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No. 2013AP416.pdr
because rulemaking is a delegation of the legislature's
legislative power granted in Article IV, Section 1. Without
legislation, DPI would not exist and could not engage in
rulemaking. Martinez, 165 Wis. 2d at 698 (explaining that an
agency "has no inherent constitutional authority to make rules,
and, furthermore, its rule-making powers can be repealed by the
legislature").
¶223 A review of the evolution of DPI rulemaking is
helpful. Initially, DPI rulemaking was directed by the
educational approval board, not by the Superintendent. Wis.
Stat. § 15.03 (1967). The legislature subsequently modified DPI
rulemaking, granting more power over rulemaking to the
Superintendent. In the statutes now under examination, the
legislature again has modified DPI rulemaking by inserting
procedural safeguards for the Superintendent and the Governor to
oversee. This is similar to what the legislature did in
Martinez when it inserted safeguards for JCRAR to oversee with
regard to DILHR's rulemaking. Simply because Act 21 affects
rulemaking of DPI (and many, many other agencies), it does not
follow that the legislature's constitutional powers to control
its own rulemaking delegations have been diminished. Id. at
701.
¶224 Furthermore, while statutes may create opportunities
and obligations for the Superintendent, those opportunities and
obligations come from the legislature not from the Constitution.
Therefore, legislative modification of the powers and duties of
20
No. 2013AP416.pdr
the Superintendent in DPI rulemaking are within the
legislature's constitutional authority.
¶225 In regard to the interaction of the Superintendent and
the legislature, Article X, Section 1 grants the legislature the
right to exercise control over duties that relate to education
that the Superintendent must undertake. The legislature has
broad constitutional power over the Superintendent, so long as
the duties assigned do not fall outside of public instruction,
as it was alleged to have occurred in School District No. 3,
supra. No challenge in this regard has been raised with regard
to Wis. Stat. § 227.135(2) and Wis. Stat. § 227.185.
¶226 Furthermore, simply because the legislature creates an
opportunity or an obligation for the Superintendent, it does not
follow that those opportunities and obligations are of
constitutional magnitude. However, the lead opinion has
conflated the Superintendent's constitutional executive
authority to supervise public instruction with his statutory
authority to supervise DPI, which later type of supervision is
not of constitutional dimension.
¶227 In addition, my decision is consistent with Thompson.
Thompson was concerned with "other officers" mentioned in
Article X, Section 1, one of which was to be Secretary of
Education, and whether their authority was inferior to that of
the Superintendent. Thompson, 199 Wis. 2d at 683-84. The
matter before us does not concern the "other officers" mentioned
in Article X, Section 1.
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No. 2013AP416.pdr
¶228 In Thompson, we did not examine whether duties of the
Superintendent that had been required by legislation could
subsequently be modified by the legislature.9 Thompson was not
concerned with rulemaking; therefore, we did not consider the
constitutional power of the legislature when it delegates
rulemaking authority, as I have done here.
¶229 However, without recognizing the effect of its
decision, the lead opinion increases the executive power granted
to the Superintendent in Article X, Section 1 to include the
power to legislate, which the Constitution clearly reserves to
the legislature; treats the DPI as though it has constitutional
power; and reduces the constitutional power of the legislature
to control its delegations of legislative power in rulemaking,
all in contravention of Article IV, Section 1 and Article X,
Section 1. However, courts are not free to change
constitutional delegations, and Article X, Section 1 explicitly
states how the constitutional delegations to the legislature and
to the Superintendent are to coexist.
D. Constitutional Violation
¶230 Finally, in order to succeed before us, the
Superintendent must prove beyond a reasonable doubt that Wis.
Stat. § 227.135(2) or Wis. Stat. § 227.185 was
unconstitutionally enforced against him. Society Ins. v. LIRC,
9
In Thompson, we left open "the extent to which the
[Superintendent's] powers may be reduced by the legislature, and
we reserve[ed] judgment on that issue." Thompson v. Craney, 199
Wis. 2d 674, 700, 546 N.W.2d 123 (1996).
22
No. 2013AP416.pdr
2010 WI 68, ¶27, 326 Wis. 2d 444, 786 N.W.2d 385. In examining
the constitutionality of the challenged statutes, the phrase
"beyond a reasonable doubt" expresses the "force or conviction"
with which we must conclude, as a matter of law, that a statute
has been enforced unconstitutionally against the Superintendent.
See League of Women Voters of Wis. Educ. Network, Inc. v.
Walker, 2014 WI 97, ¶17, 357 Wis. 2d 360, 851 N.W.2d 302.
¶231 No proof has been submitted that either Wis. Stat.
§ 227.235(2) or Wis. Stat. § 227.185 has been unconstitutionally
enforced against the Superintendent. First, in order for either
statute to be unconstitutional as applied, enforcement of
§ 227.235(2) or § 227.185 must adversely affect a constitutional
power of the Superintendent. However, Act 21's administrative
rulemaking safeguards impose conditions on only the
Superintendent's statutory powers, not on his constitutional
authority. There has been no proof that either § 227.235(2) or
§ 227.185 interferes with the Superintendent's executive
authority to supervise existing rules and laws affecting public
instruction.
¶232 Second, the Superintendent concedes that the
legislature could take away all rulemaking power from the
Superintendent because rulemaking is a legislative delegation of
authority.10 This concession belies the Superintendent's
assertion that rulemaking is constitutionally granted
supervision of public instruction. Furthermore, when rulemaking
10
Coyne Brief at 15, 23.
23
No. 2013AP416.pdr
was introduced to DPI in 1967, the "educational approval board"
exercised "powers, duties and functions prescribed by law,
including rule-making," which actions were set out independently
from the executive functions reserved to the Superintendent.
Wis. Stat. § 15.03 (1967) (emphasis added). In addition,
members of the "educational approval board" were appointed by
the Governor.11 Accordingly, I conclude that the Superintendent
has failed to meet his burden of proof; and therefore, his
constitutional challenge before us fails.
III. CONCLUSION
¶233 I conclude that the legislature acted pursuant to its
constitutional authority under Article IV, Section 1 and Article
X, Section 1 of the Wisconsin Constitution when it enacted Act
21, which creates procedural safeguards to be employed in
rulemaking by DPI and many other administrative agencies. I
also conclude that Act 21 does not conflict with Thompson. And
finally, I conclude that the plaintiffs have not proved beyond a
reasonable doubt that Act 21 has been applied unconstitutionally
to the Superintendent. Accordingly, I would reverse the
decision of the court of appeals and I respectfully dissent from
the lead opinion.
11
The involvement of the Governor in education in the 1967
statute is consistent with the first legislation passed after
Wisconsin's Constitution was ratified in 1848, where some of the
duties of the Superintendent were described specifically and
some generally as, "such other duties as the legislature or
governor of this state may direct." § 3, Laws of 1848, at 129
(emphasis added).
24
No. 2013AP416.pdr
¶234 I am authorized to state that Justices ANNETTE
KINGSLAND ZIEGLER and REBECCA G. BRADLEY join this dissent.
25
No. 2013AP416.akz
¶235 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I join
the dissent authored by Chief Justice Roggensack because I agree
that, based on the arguments raised in this case, the
respondents have failed to establish that the provisions of 2011
Wisconsin Act 21 ("Act 21") at issue are unconstitutional beyond
a reasonable doubt as applied to the Superintendent of Public
Instruction ("SPI"). I write to emphasize a few points.
¶236 First, there are numerous significant areas of
agreement between the lead opinion and Chief Justice
Roggensack's dissent. Most importantly, the lead opinion and
the dissent agree that the Wisconsin Constitution "gives the
Legislature control over what powers the SPI and the other
officers of supervision of public instruction possess in order
to supervise public instruction" such that "the Legislature may
give, may not give, and may take away the powers and duties of
the SPI and the other officers of supervision of public
instruction." Lead op., ¶70; see dissent, ¶189. The lead
opinion and the dissent also agree that the SPI's ability to
participate in the rulemaking process derives from statute, not
the Wisconsin Constitution. Lead op., ¶¶35-37; dissent, ¶¶203-
04.
¶237 One need look no further than Article X, Section 1
itself for these propositions: "The supervision of public
instruction shall be vested in a state superintendent and such
other officers as the legislature shall direct; and their
qualifications, powers, duties, and compensation shall be
1
No. 2013AP416.akz
prescribed by law." Wis. Const. Art. X, § 1 (emphases added).
Our case law confirms this notion:
Article X, sec. 1, explicitly provides that the powers
and duties of the school superintendent and other
officers charged by the legislature with governing
school systems "shall be prescribed by law." Because
the constitution explicitly authorized the legislature
to set the powers and duties of public instruction
officers, Article X, sec. 1 confers no more authority
upon those officers than that delineated by statute.
Fortney v. Sch. Dist. of West Salem, 108 Wis. 2d 167, 182, 321
N.W.2d 225 (1982) (emphasis added). Article X, Section 1
therefore does little more than create a constitutional
position: the framers of the Wisconsin Constitution wanted to
ensure that some officer was in place to oversee Wisconsin's
system of public instruction. What supervision means in the
context of public instruction, the framers left to the
legislature to decide. The framers provided the clay; the
legislature shapes it.
¶238 So much for the areas of agreement. Broadly speaking,
the lead opinion and the dissent part ways on the question of
whether the legislature can tie its own hands depending on the
powers it grants the SPI and the duties it requires of the SPI.
The court of appeals below clearly thought the answer to this
question is yes. It stated, "[T]he legislature has the
authority to give, to not give, or to take away SPI supervisory
powers, including rulemaking power. What the legislature may
not do is give the SPI a supervisory power relating to education
and then fail to maintain the SPI's supremacy with respect to
that power." Coyne v. Walker, 2015 WI App 21, ¶25, 361
2
No. 2013AP416.akz
Wis. 2d 225, 862 N.W.2d 606. Importantly, the court of appeals
premised this principle on Thompson v. Craney, 199 Wis. 2d 674,
546 N.W.2d 123 (1996), in which we held that "the 'other
officers' mentioned in [Article X, Section 1 of the Wisconsin
Constitution] were intended to be subordinate to the state
[SPI]" and that therefore "the legislature may not give equal or
superior authority to any 'other officer.'" Thompson, 199
Wis. 2d at 698-99.
¶239 The lead opinion and the dissent agree that Thompson
is not really at issue in this case, however, because the
Governor and the Secretary of Administration are not Article X
officers of public instruction. See lead op., ¶¶39-40 ("[T]his
case poses a different constitutional question than the question
posed in Thompson. . . . [H]ere, the Legislature is attempting
to give officers who are not officers of supervision of public
instruction the ability to prevent the SPI from promulgating
rules."); dissent, ¶227 ("Thompson was concerned with 'other
officers' mentioned in Article X, § 1 . . . . The matter before
us does not concern the 'other officers' mentioned in Article X,
§ 1.").
¶240 Thus, the lead opinion does something new: it takes
the Thompson idea that, with regard to Article X officers, "the
legislature may not . . . give the SPI a supervisory power
relating to education and then fail to maintain the SPI's
supremacy with respect to that power," and applies it to
individuals——the Governor and the Secretary of Administration——
who are not Article X officers. Put differently, the lead
3
No. 2013AP416.akz
opinion decides today that if the legislature grants the SPI a
power, the SPI must have "supremacy with respect to that power"
both with regard to Article X officers and with regard to non-
Article X officers.
¶241 In so doing, the lead opinion seriously errs. To see
why, let us follow the lead opinion's chain of reasoning. We
begin with the lead opinion's premises: (1) the legislature may
"give, may not give, and may take away the powers and duties of
the SPI and the other officers of supervision of public
instruction," that is, the manner in which the SPI and other
officers supervise public instruction, lead op., ¶¶70, 72; (2)
the legislature has defined the supervision of public
instruction to include rulemaking, lead op., ¶35; (3) the
supervision of public instruction, however defined by the
legislature, must be vested in the SPI and the other officers of
supervision of public instruction, lead op., ¶63; (4) the
Governor and the Secretary of Administration are not Article X
officers, id.; and (5) the legislature has given the Governor
and the Secretary of Administration "the power to make the
decision on whether the rulemaking process can proceed," lead
op., ¶68. Now, the denouement: "By giving the Governor the
power to prevent the SPI's and DPI's proposed rules from being
sent to the Legislature, Act 21 [unconstitutionally] gives the
Governor the authority to [supervise] public instruction." Lead
op., ¶65.
¶242 I cannot subscribe to this reasoning because it fails
to account for the unconquerable nature of the first of the
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No. 2013AP416.akz
premises listed above: the legislature may give, may not give,
and may take away the powers and duties of the SPI and the other
officers of supervision of public instruction, that is, the
manner in which the SPI and other officers supervise public
instruction. We have stated this idea before: "Article X, sec.
1 confers no more authority upon . . . officers [of supervision
of public instruction] than that delineated by statute."
Fortney, 108 Wis. 2d at 182. Thus, the supposed limit on the
legislature's authority envisioned by the lead opinion is not
really a limit at all; the legislature can simply redefine the
"supervision of public instruction" in a way that accommodates
that which the legislature wishes to achieve.
¶243 More specifically, in the lead opinion's view, the
legislature defined "supervision of public instruction" to mean
(in part) "rulemaking," and "rulemaking" to mean "the ability to
promulgate public instruction-related rules." But rulemaking is
not some unchangeable Platonic Form. I see nothing in Article,
X, § 1 that prevents the legislature from defining "supervision
of public instruction" to mean (in part) "rulemaking," and
"rulemaking" to mean "the ability to promulgate public
instruction-related rules subject to gubernatorial approval."
¶244 Imagine that, prior to 2011, the legislature had never
given the SPI any authority to participate in the rulemaking
process, and that Act 21 represented the legislature's first
grant of rulemaking authority to the SPI——rulemaking subject to
gubernatorial approval. Act 21 would thus represent an
expansion, not a contraction, of the SPI's powers. Why would
5
No. 2013AP416.akz
this be unconstitutional? The legislature is simply
"prescrib[ing]" the "powers" of the SPI under Article X, Section
1 of the Wisconsin Constitution. It cannot be that the
legislature can only expand, and never contract, powers. Under
the lead opinion's reasoning, the legislature's ability to
"prescribe[]" the SPI's "powers" is so limited. The lead
opinion's logic suggests that if any power is to be prescribed
to the SPI, it must be prescribed without any limitation. This
logic is fundamentally flawed because this requirement is not
found in the Wisconsin Constitution.
¶245 Article X, Section 1 vests the SPI with the
supervision of public instruction and states that the SPI's
"powers . . . shall be prescribed by law," not that its "other
powers" shall be prescribed by law. Wis. Const. Art. X, § 1;
see Fortney, 108 Wis. 2d at 182. Thus while it is true that
Article X vests the SPI with "[t]he supervision of public
instruction," Act 21 cannot be unconstitutional because the
"supervision of public instruction" is some independent power of
the SPI. Further, this court has already determined that
"[p]ublic instruction and its governance had no long-standing
common law history at the time the Wisconsin Constitution was
6
No. 2013AP416.akz
enacted." Fortney, 108 Wis. 2d at 182. "Supervision of public
instruction" connotes no special grant of common law powers.1
¶246 So this case is not, ultimately, about the powers of
the SPI. It is instead about whether the legislature can create
a chain of command. The lead opinion concludes that it is not
within the province of the legislature to create such a chain of
command. The words of the constitution do not so limit the
legislature.
¶247 Is the lead opinion correct to conclude that if the
SPI supervises public instruction, and the Governor supervises
the SPI, then the Governor is (unconstitutionally) supervising
public instruction? The answer is no, because it is not really
the Governor who is supervising (or even obstructing, if one
prefers) the actions of the SPI; it is the legislature. That
is, built into the very idea of the SPI's supervision of public
instruction is the idea that this supervision will forever be
qualified and controlled by the legislature. It is the
legislature that defines what "supervision of public
instruction" is; "[p]ublic instruction and its governance had no
1
This case, which involves the SPI's authority under
Article X, section 1 of the Wisconsin Constitution, should
therefore be distinguished from cases involving a provision
"which incorporates an ancient common law office, possessing
defined powers and duties, into the constitution." Fortney v.
School Dist. of West Salem, 108 Wis. 2d 167, 182, 321 N.W.2d 225
(1982). For instance, "[p]rior decisions of this court held
that the sheriff, under common law, had certain powers and
duties in his relationship to the courts which were incorporated
into the constitution. The sheriff cannot be divested of those
powers and duties by statute." Id. The lead opinion today
would not affect existing law on these types of offices.
7
No. 2013AP416.akz
long-standing common law history at the time the Wisconsin
Constitution was enacted." Fortney, 108 Wis. 2d at 182. It is
the legislature which determines the powers the SPI may wield,
and the way in which the SPI may wield those powers. See Wis.
Const. Art. X, § 1. In short, it is the legislature which
decides what it means to supervise public instruction in
Wisconsin. The legislature has determined through Act 21 that
the supervision of public instruction in Wisconsin means, in
part, participation in the rulemaking process with respect to
specific matters and subject to gubernatorial approval. Alas,
the lead opinion determines that our state constitution
prohibits the legislature's actions.
¶248 The lead opinion's conclusions today could yield
undesirable and unintended consequences. Suppose the
legislature, in light of school shootings in recent years,
decides to increase security at Wisconsin's public schools. The
legislature might wish to provide the SPI with rulemaking
authority over the implementation of this plan. But, given the
nature of the issue, the legislature might also conclude that
the Governor's input on any proposed rules should be
dispositive. Under the lead opinion today, it seems that the
legislature could: (1) give the SPI the authority to pass rules
on school security without conditioning the submission of these
rules to the legislature on the Governor's approval; or (2) give
the Governor's office a measure of authority over the
implementation of the plan, without involving the SPI at all.
What it could not do, at least apparently, is give the SPI the
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authority to pass rules on school security, subject to the
approval of the Governor; the lead opinion's reasoning suggests
that while the legislature need not give any authority at all to
the SPI on a matter such as public school security, if it in
fact chooses to give any such authority, that authority must be
unfettered. I fail to see why Article X, Section 1 would
require such an outcome, given that that provision provides that
the powers of the SPI are prescribed by the legislature. Wis.
Const. Art. X, § 1. The legislature may reasonably wish to give
the SPI qualified authority over the implementation of the law
at issue, yet the lead opinion forces the legislature to choose
between two imperfect solutions.
¶249 I suspect that the reason the dissent's view leaves a
sour taste in the lead opinion's mouth is because the SPI, under
the dissent's interpretation, is a rather weak entity, at least
insofar as it is subject to the changing whims of the
legislature. But this consequence is dictated by the broad
language of Article X, Section 1, which gives virtually complete
authority over the SPI to the legislature. The framers did not
provide that the SPI constitutes the fourth branch of our state
government. That the plain language2 of Article X does not leave
2
The lead opinion states:
When interpreting a constitutional provision we
do not rest our analysis on the language of the
provision alone. Rather, we also consult the
constitutional debates and the practices in existence
at the time of the writing of the constitutional
provision and the interpretation of the provision by
the Legislature as manifested in the laws passed
following its adoption.
(continued)
9
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the SPI with some set of "core" powers is not a problem for this
court to resolve. See Lead op., ¶79.
Lead op., ¶52 (citation omitted).
"Our methodology in interpreting a constitutional provision
is not identical to our methodology in interpreting a statute."
Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶114, 295
Wis. 2d 1, 719 N.W.2d 408 (Prosser, J., concurring in part,
dissenting in part). Although justifications for this
divergence have, in the past, been provided, see, e.g., id.,
¶116, I am not convinced that the current methodology this court
uses to interpret constitutional language is sound. See, e.g.,
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶52, 271 Wis. 2d 633, 681 N.W.2d 110 ("Ours is 'a government of
laws not men,' and 'it is simply incompatible with democratic
government, or indeed, even with fair government, to have the
meaning of a law determined by what the lawgiver meant, rather
than by what the lawgiver promulgated.' . . . 'It is the law
that governs, not the intent of the lawgiver. . . . Men may
intend what they will; but it is only the laws that they enact
which bind us" (citations omitted).); Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 375
(2012) ("The English judges have frequently observed, in answer
to the remark that the legislature meant so and so, that they in
that case have not so expressed themselves, and therefore the
maxim applied, quod voluit non dixit [What it wanted it did not
say]." (quoting 1 James Kent, Commentaries on American Law 467
(1826)); Daniel R. Suhr, Interpreting the Wisconsin
Constitution, 97 Marq. L. Rev. 93, 120 (2012) ("The
considerations that drove the [Wisconsin Supreme Court's]
majority in Kalal should lead it to reject the current method it
uses to interpret the state constitution. The [current]
methodology relies on flawed sources in a futile attempt to
discover a mythical common intent.").
Additionally, this methodology was not previously applied
in Coulee. See Coulee Catholic Schools v. LIRC, 2009 WI 88, 320
Wis. 2d 275, ¶57, 768 N.W.2d 868 (interpreting the Wisconsin
Constitution and stating, "The authoritative, and usually final,
indicator of the meaning of a provision is the text——the actual
words used"); id., n.25 ("In this case, we see little reason to
extend our interpretation beyond the text."). Consequently, I
would be willing to reexamine the methodology this court
currently employs when interpreting constitutional text.
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¶250 The last point I wish to discuss is the lead opinion's
conclusion that Act 21 is unconstitutional "as applied." Unlike
the lead opinion, I conclude that the respondents fail to
establish that Act 21 is unconstitutional beyond a reasonable
doubt as applied to the SPI because they have not shown that Act
21 has actually been applied to the SPI. The respondents do not
assert that the Governor or the Secretary of Administration have
rejected a rule proposed by the SPI or the DPI, or have, for
instance, rendered the SPI powerless by rejecting every rule it
and the DPI have promulgated since Act 21's passage. See
dissent, ¶231 ("No proof has been submitted that either Wis.
Stat. § 227.235(2) or Wis. Stat. § 227.185 has been
unconstitutionally enforced against the Superintendent.").
Despite the lead opinion's conclusions, I am not convinced that
this case is in fact an as-applied challenge. The SPI is really
arguing that Act 21 is always unconstitutional when the entity
concerned is the SPI. And although this is a declaratory
judgment action, this matter is not ripe.
¶251 The lead opinion responds that "Act 21 does not have
to have been enforced for Coyne to properly bring a claim via a
declaratory judgment action," because the "Uniform Declaratory
Judgments Act, Wis. Stat. § 806.04, allows 'controversies of a
justiciable nature to be brought before the courts for
settlement and determination prior to the time that a wrong has
been threatened or committed.'" Lead op., ¶¶27-28 (citing Olson
v. Town of Cottage Grove, 2008 WI 51, ¶28, 309 Wis. 2d 365, 749
N.W.2d 211). This argument is fine so far as it goes, but the
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problem is that it is not clear how far it goes: "Though the
authority to declare rights under the Uniform Declaratory
Judgment Act is broad, it is not unlimited in scope." Putnam v.
Time Warner Cable of Se. Wis., 2002 WI 108, ¶72, 255
Wis. 2d 447, 649 N.W.2d 626 (Sykes, J., dissenting in part)
(citation omitted). As the lead opinion points out, a
controversy is not justiciable for purposes of a declaratory
judgment action unless it is "ripe for judicial determination."
Lead op., ¶28 (citation omitted). "The basic rationale of the
'ripeness' doctrine is to prevent courts, through avoidance of
premature adjudication, from entangling themselves in abstract
disagreements over administrative or . . . legislative
policies." Lister v. Bd. of Regents, 72 Wis. 2d 282, 308, 240
N.W.2d 610 (1976). Ripeness requires that "the facts be
sufficiently developed to allow a conclusive adjudication."
Olson, 309 Wis. 2d 365, ¶43 (citations omitted). I have
significant doubts that this court possesses the information it
needs to pronounce a wholesale invalidation of the challenged
provisions of Act 21 as they apply to the SPI.
¶252 The lead opinion argues that Walker and Huebsch did
not contest ripeness (among other things) below, lead op., ¶28,
but that is not dispositive. "[T]he question of ripeness may be
considered on a court's own motion." Nat'l Park Hosp. Ass'n v.
Department of Interior, 538 U.S. 803, 808 (2003) (citation
omitted); see also Blanchette v. Conn. General Ins. Corps., 419
U.S. 102, 138 (1974) ("[T]o the extent that questions of
ripeness involve the exercise of judicial restraint from
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unnecessary decision of constitutional issues, the [c]ourt must
determine whether to exercise that restraint and cannot be bound
by the wishes of the parties.").
¶253 Though styling the case as an as-applied challenge,
the lead opinion concludes that, beyond a reasonable doubt, the
challenged provisions of Act 21 can never be applied
constitutionally to the SPI. See lead op., ¶¶4, 24-30. In my
view, the facts have not sufficiently developed to permit such a
sweeping conclusion. Assuming the Governor will eventually
reject a proposed rule, we do not know what the substance of
that rule will be, whether the rule impinges on any
constitutional powers of the Governor, what reasons, if any, the
Governor might have for rejecting a proposed rule, what changes,
if any, the Governor might request, and so on. "[I]n an as-
applied challenge, we assess the merits of the challenge by
considering the facts of the particular case in front of us,
'not hypothetical facts in other situations.'" State v. Wood,
2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63 (citation
omitted). Yet the focus of the lead opinion is precisely that——
hypothetical facts in other situations. See, e.g., lead op.,
¶68 ("[A] Governor at loggerheads with an SPI over the content
of a proposed rule, or a proposed rule change, could use the
threat to withhold approval as a means of affecting the rule
content" (citation omitted).).
¶254 Although it would not formally invalidate Act 21 as
under a facial challenge——Act 21 remains in effect with respect
to entities other than the SPI——the lead opinion acknowledges
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No. 2013AP416.akz
that the respondents' action "contains elements of . . . a
facial . . . challenge." Lead op., ¶26. The respondents claim
that, where the SPI is involved, Act 21 "cannot be enforced
'under any circumstances.'" Wood, 323 Wis. 2d 321, ¶13. It
seems, then, that as to the SPI, the lead opinion concludes that
Act 21 is always invalid, not just under "the facts of the
particular case in front of us." Id. I would conclude that
this facial challenge does not survive scrutiny.
¶255 The Supreme Court of the United States has stated:
Facial challenges are disfavored for several
reasons. Claims of facial invalidity often rest on
speculation. As a consequence, they raise the risk of
"premature interpretation of statutes on the basis of
factually barebones records." Facial challenges also
run contrary to the fundamental principle of judicial
restraint that courts should neither "anticipate a
question of constitutional law in advance of the
necessity of deciding it" nor "formulate a rule of
constitutional law broader than is required by the
precise facts to which it is to be applied." Finally,
facial challenges threaten to short circuit the
democratic process by preventing laws embodying the
will of the people from being implemented in a manner
consistent with the Constitution. We must keep in
mind that "[a] ruling of unconstitutionality
frustrates the intent of the elected representatives
of the people."
Wash. State Grange v. Wash. State Republican Party, 552 U.S.
442, 450-51 (2008). These considerations apply to the present
case, and bolster my conclusion that this case is not in the
proper posture for the determination the lead opinion makes
today.
¶256 Today's decision is not really a victory for the SPI——
or Wisconsin, for that matter. It is easy to see where Coyne v.
Walker could take us. If the legislature cannot maintain what
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No. 2013AP416.akz
it views as sufficient control over the SPI's exercise of its
powers, it could simply exercise its own authority to remove
those powers, even though a grant of qualified authority to the
SPI might well have benefitted public instruction in Wisconsin
more than a complete absence of any such authority. Rulemaking
stems in part from the fact that "[t]he legislature recognizes
the need for efficient administration of public policy. . . .
The delegation of rule-making authority is intended to eliminate
the necessity of establishing every administrative aspect of
general public policy by legislation." Wis. Stat.
§ 227.19(1)(b) (2013-14) (emphasis added). Given today's
decision, the legislature may feel compelled to pass legislation
regarding these administrative aspects of public instruction,
even though it might otherwise have delegated this authority to
the SPI, subject to gubernatorial review. In my view, Article
X, Section 1 does not require such an inefficient result.
¶257 In sum, I join the dissent authored by Chief Justice
Roggensack because I agree that, based on the arguments raised
in this case,3 the respondents have failed to establish that the
3
The legislation in this case raises a host of
constitutional questions that, appropriately, are not answered
by the lead opinion. For instance, the lead opinion does not
examine whether Act 21's grant of authority to the Governor and
Secretary of Administration to reject proposed rules contains or
need contain an ascertainable legislative purpose and procedural
safeguards to ensure that the Governor and Secretary of
Administration act within that purpose in exercising their
authority. Cf. J.F. Ahern Co. v. Wisconsin State Bldg. Com'n,
114 Wis. 2d 69, 90, 336 N.W.2d 679 (Ct. App. 1983) (citing
Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526, 536, 182
N.W.2d 257 (1971)).
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No. 2013AP416.akz
provisions of Act 21 at issue are unconstitutional beyond a
reasonable doubt as applied to the SPI.
¶258 For the foregoing reasons, I respectfully dissent.
¶259 I am authorized to state that Justice REBECCA G.
BRADLEY joins this dissent.
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No. 2013AP416.akz
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