Peggy Z. Coyne v. Scott Walker

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.

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 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.

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 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
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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

20
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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).

21
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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.

22
 No. 2013AP416

§ 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

24
 No. 2013AP416

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
25
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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

26
 No. 2013AP416

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

27
 No. 2013AP416

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.

28
 No. 2013AP416

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).

30
 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.

31
 No. 2013AP416

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

32
 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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 No. 2013AP416

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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 No. 2013AP416

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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 No. 2013AP416

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.

37
 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

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 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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 No. 2013AP416.ssa

¶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)).

10
 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.

11
 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. . . .

12
 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).

13
 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

1
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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
 No. 2013AP416.dtp

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
3
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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
4
 No. 2013AP416.dtp

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.

5
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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.
6
 No. 2013AP416.dtp

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

7
 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
9
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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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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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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
 No. 2013AP416.dtp

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.

19
 No. 2013AP416.dtp

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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 No. 2013AP416.dtp

¶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

3
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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).

4
 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

6
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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
7
 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
8
 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

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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
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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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¶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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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
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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.

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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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¶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.

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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).

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 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
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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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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
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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.

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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)
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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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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
14
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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)).

15
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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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1