May 20, 2016 – The Wisconsin Supreme Court (4-3) recently struck down a 2011 law that gave the governor power to reject rules promulgated by the superintendent of public schools and effectively clipped the superintendent’s rulemaking authority.

After Gov. Scott Walker signed Wisconsin Act 21 in May 2011, numerous teachers filed a declaratory action. They argued that Act 21 unconstitutionally removed administrative rulemaking power from Wisconsin’s Superintendent of Public Instruction (SPI), currently Tony Evers, in his role as head of the Department of Public Instruction (DPI).

Walker and his then-secretary of administration argued that SPI’s power to promulgate rules is not “supervisory” and even if it were, the Wisconsin Legislature could delegate that power to other state officers, including the governor and his secretary of administration. But a circuit court judge disagre​ed and struck down portions of Act 21.

A panel for District IV Court of Appeals affirmed, concluding Act 21 could not dilute the SPI’s “supervisory” rulemaking power under the Wisconsin Constitution.

In Coyne v. Walker, 2016 WI 38 (May 18, 2016), four justices voted to affirm the appeals court, holding that “Act 21 is unconstitutional and therefore void as applied to the Superintendent of Public Instruction and his subordinates.”

The majority included Justice Michael Gableman, who wrote the lead opinion, and Justices David Prosser, Shirley Abrahamson, and Ann Walsh Bradley. Chief Justice Patience Roggensack dissented, as did Justices Annette Ziegler and Rebecca Bradley.

Although the teachers succeeded in striking Act 21 as applied to the SPI’s rulemaking authority in this case, a majority of justices suggested they would uphold a future law that stripped the SPI’s rulemaking authority in a different manner than Act 21.

Rulemaking Procedures

Under Wis. Stat. section 227.11(2), the legislature has delegated to agencies the power to make rules that implement or interpret provisions of statutes enforced or administered by that agency. But agencies must follow certain procedures when promulgating rules.

Before Act 21, rulemaking procedure required agencies, here DPI, to prepare a “scope statement” describing the proposed rule and its intended effect. That scope statement would go to the Legislative Reference Bureau (LRB) for publication.

The Secretary of Administration would receive a copy. Then, under Wis. Stat. section 227.135(2) (2009-10), an “individual or body with policy-making powers over the subject matter of a proposed rule,” here the SPI, would need to approve the scope statement.

Once approved, the agency could begin drafting the proposed rule. Any proposed rule would be submitted to the Wisconsin Legislature for review.

Act 21 allows the governor to intervene at two points in this process. The governor can reject the scope statement, halting the drafting process, or reject a draft rule that would normally be sent to the legislature for review.

Under Act 21, “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 at all,” wrote Justice Michael Gableman in the lead opinion.

SPI’s Rulemaking Power is Supervisory

The governor argued that rulemaking is not a “supervisory” power protected by the Wisconsin Constitution because the power is granted by the legislature.

The state constitution (Art. X, § 1) states that “[t]he supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct,” with qualifications, powers, duties and compensation “prescribed by law.” In this case, “prescribed by law” means “prescribed by statutory law,” Gableman noted.

Justice Gableman also noted that the legislature has required (prescribed by law) that SPI and DPI engage in rulemaking, and that SPI’s rulemaking is “not a constitutional power,” but a “delegation of power from the Legislature.”

“However, under the current statutory prescription, the SPI and DPI cannot carry out their duties and powers of supervision without rulemaking,” wrote Justice Michael Gableman. “Accordingly, under the current Legislative prescription of the SPI’s powers and duties of supervision of public instruction, rulemaking is a supervisory power.”

“Other Officers” Does Not Mean Governor

Gableman rejected the governor’s claim that rulemaking power, even if supervisory, can be divided among “other officers” under the Wisconsin Constitution (Art. X, § 1), which expressly mentions “other officers” in referencing the power of supervision.

In Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d 123 (1996), the state supreme court interpreted the same constitutional provision after then-Gov. Tommy Thompson created a new “Department of Education” and new “Secretary of Education” with equal or greater authority over the supervision of public instruction than the SPI.

The Wisconsin Supreme Court of 1995 ruled that the SPI must have superior power over “other officers” who are vested with power, by the Legislature, in the supervision of public instruction. The parties in this case, Coyne v. Walker, argued about the validity and applicability of the Thompson case.

Unlike the Thompson case, the majority noted, Act 21 attempted to vest powers in “other officers” – the governor and the administration secretary – who are not officers in the supervision of public instruction, such as a secretary of education would be.

Gableman said that Art. X, section 1 does not allow power to be vested in “other officers” not involved in the supervision of public instruction.

“[T]he most logical interpretation of Art. X, § 1 is that ‘other officers’ means ‘other officers’ whose offices relate to supervising education, i.e., other officers of supervision of public instruction,” wrote Justice Gableman. “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.”

Act 21 Unconstitutionally Vested Power in Governor

Gableman also ruled that Act 21 unconstitutionally vested the governor and the secretary of administration with power to supervise public instruction, a power it does not have, through provisions that allowed them to halt the SPI’s rulemaking power.

“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,” Justice Gableman wrote. “This unchecked power to stop a rule also gives the Governor the ability to supplant the policy choices of the SPI.”

He noted that under Act 21, the governor “could refuse to approve a scope statement or a rule until it met the Governor’s specifications.”  That does not mean the governor cannot be involved, the Gableman noted, just that the governor cannot halt the process.

The Legislature could change the rulemaking process, Gableman also explained, requiring the SPI to submit draft rules to the governor so the governor can request changes, so long as the SPI is not required to make the recommended changes.

“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 to the Legislature,” wrote Justice Gableman.

Gableman also noted that the state constitution gives the Legislature control over the SPI’s powers and duties, and can take those powers away:

“If the 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.”

Concurrences

Justice David Prosser wrote a concurring opinion. He recognized that the constitution gives the SPI initial authority to develop rules, but also gives the legislature “the ultimate authority to determine what the superintendent may or may not do. …”

But he rejected Act 21 because it gives the governor the authority to obstruct rule-making responsibilities that the legislature has granted to the SPI.

“An absolute veto power over a proposed rule is a check without a balance,” wrote Justice Prosser, who is retiring this summer.

“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,” he wrote.

He parted ways with Gableman’s lead opinion, which had noted that the SPI’s authority is superior to “other officers” vested with supervision of public instruction. That was the holding in the Thompson case, but Prosser said this holding was “unwarranted.”

“It disregards the plain language of the constitution; it disregards the discussion surrounding the constitution’s formation and amendment; and it disregards the subsequent legislation,” Justice Prosser wrote.

Prosser said the state constitution permits “other officers” to be vested with supervision of public instruction, and “[t]here is no limitation on the powers of the other officers.”

But Act 21 does something different, Prosser wrote: It “reallocates power without requiring accountability. Governing entails more than just saying ‘no.’”

Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradley, agreed that Act 21 is unconstitutional as applied to the SPI and DPI. But Abrahamson took issue with Justice Gableman’s assertion that the legislature can remove the SPI’s rulemaking power:

“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.”

Justice Abrahamson wrote to reaffirm the Thompson decision, and rejected other writings that attempted to minimize its controlling precedent. Justice Gableman distinguished Thompson and Justice Prosser said it was wrongly decided, she noted.

“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,” Justice Abrahamson wrote.

Dissents

Chief Justice Patience Roggensack wrote a 24-page dissent, joined by Justices Annette Ziegler and Rebecca Bradley. The chief justice said the SPI’s rulemaking authority is not a constitutional power but one that is delegated by the legislature.

She also asserted that Act 21 does not conflict with Thompson, and concluded that Act 21 “has not been applied to the superintendent in an unconstitutional manner.”

Justice Ziegler wrote a separate dissent. She noted that a majority of justices agree that the Wisconsin Legislature controls the SPI’s powers and “”may take away the powers and duties of the SPI and the other officers of supervision of public instruction.”