2019 WI 76
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP2278-OA
COMPLETE TITLE: Kristi Koschkee, Amy Rosno, Christopher
Martinson and Mary Carney,
Petitioners,
v.
Carolyn Stanford Taylor, in her official
capacity as Wisconsin Superintendent of Public
Instruction and Wisconsin Department of Public
Instruction,
Respondents.
ORIGINAL ACTION
OPINION FILED: June 25, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 10, 2019
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: R.G. BRABLEY, J. concurs. (opinion filed).
KELLY, J. concurs. (opinion filed).
DISSENTED: A.W. BADLEY, J. dissents, joined by DALLET, J.
(opinion filed).
NOT PARTICIPATING: ABRAHAMSON, J. withdrew from participation.
ATTORNEYS:
For the petitioners, there were briefs filed by Richard M.
Esenberg, Brian McGrath, CJ Szafir, and Wisconsin Institute For
Law & Liberty, Milwaukee. There was an oral argument by Richard
M. Esenberg.
For the respondents, there was a brief filed by Ryan
Nilsestuen, Benjamin R. Jones, and Wisconsin Department of
Public Instruction, Madison. There was an oral argument by
Lester A. Pines and Pines Bach LLP, Madison.
An amicus curiae brief was filed on behalf of Wisconsin
Association of School Boards, Inc., and the Wisconsin School
Administrators’ Alliance, Inc., by Michael J. Julka, Richard F.
Verstegen, M. Tess O’Brien-Heinzen, and Wisconsin Association of
School Boards, Inc. and School Administrators’ Alliance, Inc.,
Madison. There was an oral argument by Richard F. Verstegen.
An amicus curiae brief was filed on behalf of Peggy Coyne,
Mary Bell, Mark W. Taylor, Corey Otis, Marie Stangel, Jane
Weidner, and Kristin A. Voss, by Lester A. Pines and Pines Bach
LLP, Madison. With whom on the brief was Christina M. Ripley and
Wisconsin Education Association Council, Madison. There was an
oral argument by Jeffrey A. Mandell and Stafford Rosenbaum LLP,
Madison.
2
2019 WI 76
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2278-OA
STATE OF WISCONSIN : IN SUPREME COURT
Kristi Koschkee, Amy Rosno, Christopher
Martinson and Mary Carney,
Petitioners,
v. FILED
Carolyn Stanford Taylor, in her official JUN 25, 2019
capacity as Wisconsin Superintendent of Public
Instruction and Wisconsin Department of Public Sheila T. Reiff
Instruction, Clerk of Supreme Court
Respondents.
ORIGINAL ACTION for declaratory judgment. Declaration of
rights; relief granted.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This is an original
action brought by Kristi Koschkee et al., two licensed teachers
and two school board members, against Superintendent of Public
Instruction (SPI) Carolyn Stanford Taylor and the Department of
Public Instruction (DPI). The petitioners argue that the SPI
and DPI must comply with the statutory requirement that, prior
to drafting or promulgating an administrative rule, they must
No. 2017AP2278-OA
receive written approval from the governor.1 The SPI and DPI
argue that this requirement of gubernatorial approval is
unconstitutional as applied to the SPI because, pursuant to
Article X, Section 1 of the Wisconsin Constitution, no other
officer may be placed in a position equal or superior to that of
the SPI with regard to the "supervision of public instruction."
¶2 We conclude that the gubernatorial approval
requirement for rulemaking is constitutional as applied to the
SPI and DPI, whether such approval authority is found in 2017
Wis. Act 57 or in previous provisions of ch. 227. Article X,
Section 1 vests supervision of public instruction, an executive
function, in the SPI. In contrast, when the SPI, through the
DPI, promulgates rules, it is exercising legislative power that
comes not from the constitution but from the legislature.
Stated otherwise, the legislature delegates part of its
constitutional power to legislate to the SPI, DPI, and many
other agencies in the form of rulemaking power. That the SPI
also has the executive constitutional function to supervise
1
The legislature imposed this requirement on all
administrative agencies in 2011 with the passage of 2011
Wis. Act 21. The petitioners initially argued that they sought
to force the SPI and DPI to comply with the Regulations from the
Executive in Need of Scrutiny Act, 2017 Wis. Act 57 (REINS Act)
which introduced the requirements that (1) agencies submit scope
statements to the Department of Administration (DOA), and
(2) hold a public comment and hearing period on proposed rules.
The petitioners later conceded that the SPI and DPI complied
with these two requirements, and that their challenge was based
on the constitutionality of the gubernatorial approval
requirement as applied to the SPI and DPI.
2
No. 2017AP2278-OA
public instruction does not transform the SPI's legislatively
delegated rulemaking power into a constitutional supervisory
function. Therefore, it is of no constitutional concern that
the governor is given equal or greater legislative authority
than the SPI in rulemaking.
I. BACKGROUND
¶3 2011 Wis. Act 21 (Act 21) amended sections of Wis.
Stat. ch. 227 (2009-10), the Wisconsin Administrative Procedure
Act. Prior to the passage of Act 21, an agency2 planning to
draft an administrative rule submitted a "statement of scope" to
the Legislative Reference Bureau (LRB) for publication, and to
the "individual or body with policy-making powers over the
subject matter of a proposed rule" for approval. Wis. Stat.
§ 227.135(2) (2009-10). A scope statement describes the rule
and its objectives, the statutory authority for promulgating the
rule, the time and resources required to develop the rule, the
entities affected, and a summary of relevant federal
regulations. Wis. Stat. § 227.135(1)(a)-(f) (2017-18).3 After
submitting the scope statement, the agency drafted the proposed
2
"Agency" is defined broadly. An agency is "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 SPI
meets this description, and is therefore also considered an
"agency" within the meaning of ch. 227.
3
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
3
No. 2017AP2278-OA
rule and submitted it to the legislature for review. Wis. Stat.
§§ 227.135-.19 (2009-10).
¶4 Act 21 altered this procedure. Act 21 required an
agency first to submit its scope statement to the governor for
approval; agencies were prohibited from submitting a scope
statement to the LRB until the governor issued a written notice
of approval. An agency could not "perform any activity in
connection with the drafting of a proposed rule . . . until the
governor and the individual or body with policy-making powers
over the subject matter of the proposed rule approve[d]." Wis.
Stat. § 227.135(2). Additionally, rather than submitting final
drafts of proposed rules directly to the legislature for
approval, agencies were required first to submit final drafts of
proposed rules to the governor for approval. Wis. Stat.
§ 227.185. The proposed rule could not be submitted to the
legislature for approval unless and until the governor again
approved the rule in writing. Id.
¶5 We reviewed these gubernatorial approval requirements
in Coyne v. Walker, 2016 WI 38, ¶6, 368 Wis. 2d 444, 879 N.W.2d
520, and decided that they were "void as applied to the [SPI]
and his subordinates." Id., ¶4. There was no majority opinion
in Coyne. Our mandate resulted from a one-justice lead opinion,
a two-justice concurrence, and a one-justice concurrence, all of
which agreed only on the outcome of the case.
¶6 In 2017, the Wisconsin legislature passed the
Regulations from the Executive in Need of Scrutiny Act, 2017
Wis. Act 57 (REINS Act). The REINS Act added the requirement
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No. 2017AP2278-OA
that agencies submit scope statements to the Department of
Administration (DOA), which determines whether the agency has
authority to promulgate the rule. REINS Act, § 3. The DOA also
makes a non-binding recommendation to the governor. REINS Act,
§ 3. The REINS Act required agencies to hold a preliminary
public hearing and comment period on the scope statement at the
request of a co-chairperson of the Joint Committee on Review of
Administrative Rules (JCROR). REINS Act, § 5.
¶7 The REINS Act did not alter Act 21's requirement that
an agency (1) submit a statement of scope to the governor for
approval prior to drafting a proposed rule, and (2) submit a
final draft of a rule to the governor for approval before
submitting it to the legislature.
¶8 The petitioners conceded at oral argument that the SPI
and DPI had submitted scope statements to the DOA and held
preliminary public hearings and comment periods upon request.
However, the petitioners assert that the REINS Act "variously
amends and reenacts parts of a comprehensive statutory scheme"
and that their challenge therefore encompasses the "full suite
of requirements" of ch. 227.4 The petitioners ask us to overrule
Coyne's mandate and hold that the SPI and DPI must comply with
the "full suite of requirements" of ch. 227, including the
requirement for written gubernatorial approval both before
drafting a proposed rule and before submitting a final draft of
4 Petitioner's Reply Br. at 3.
5
No. 2017AP2278-OA
a proposed rule to the legislature. We accepted the petition
for original action, and now conclude that the requirement that
agencies receive gubernatorial approval prior to drafting a
proposed rule and again before submitting it to the legislature
for approval is constitutional as applied to the SPI and DPI.
Accordingly, we overrule our prior decision in Coyne v. Walker,
368 Wis. 2d 444.5
5 Because our decision in Coyne v. Walker, 2016 WI 38, 368
Wis. 2d 444, 879 N.W.2d 520 addressed some of the same statutory
provisions and constitutional concerns we examine today, we
consider whether the doctrine of stare decisis should be
employed in the case before us. Progressive N. Ins. Co. v.
Romanshek, 2005 WI 67, ¶41, 281 Wis. 2d 300, 697 N.W.2d 417.
Stare decisis is a principle of policy that can add
certainty to the law. State v. Denny, 2017 WI 17, ¶71, 373
Wis. 2d 390, 891 N.W.2d 144. However, stare decisis does not
require us to retain constitutional interpretations that were
objectively wrong when made. See Wenke v. Gehl Co., 2004 WI
103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405. This is so because
such interpretations are unsound in principle. State v.
Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863 N.W.2d 592
(citations omitted).
Furthermore, our mandate in Coyne arises from a lead
opinion, joined by one justice, a two-justice concurrence, and a
one-justice concurrence. When we are asked to overturn one of
our prior decisions, lead opinions that have no common legal
rationale with their concurrences are troublesome. For example,
we cannot analyze whether "[c]hanges or developments in the law
have undermined the rationale behind a decision," Luedtke, 362
Wis. 2d 1, ¶40, if there is no "rationale" to analyze. We are
in such a circumstance in the matter now before us.
Accordingly, for the reasons set forth below, we conclude that
an independent analysis of the issues presented herein better
serves the interests of the public.
6
No. 2017AP2278-OA
II. DISCUSSION
A. Standard of Review
¶9 We are required to interpret Article X, Section 1 in
order to decide the pending controversy. Interpretations of
provisions of the Wisconsin Constitution present legal
questions. Custodian of Records for the LTSB v. State, 2004 WI
65, ¶6, 272 Wis. 2d 208, 680 N.W.2d 792. This case also
requires us to apply a statute. The interpretation and
application of a statute to a given set of facts present
questions of law as well. Marder v. Bd. of Regents of Univ.
Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.
B. Rulemaking Authority
¶10 The Wisconsin Constitution establishes three separate
branches of government, with "no branch subordinate to the
other, no branch to arrogate to itself control over the other
except as is provided by the constitution, and no branch to
exercise the power committed by the constitution to another."
State ex rel. Friedrich v. Dane Cty. Cir. Ct., 192 Wis. 2d 1,
13, 531 N.W.2d 32 (1995) (citation omitted). Legislative power
is vested in a senate and assembly, executive power is vested in
a governor, and judicial power is vested in a unified court
system. Wis. Const. art. IV, V, VII.
¶11 "Legislative power, as distinguished from executive
power, is the authority to make laws, but not to enforce them."
Schuette v. Van De Hey, 205 Wis. 2d 475, 480-81, 556 N.W.2d 127
(1996). Powers constitutionally vested in the legislature
include the powers: "'to declare whether or not there shall be
7
No. 2017AP2278-OA
a law; to determine the general purpose or policy to be achieved
by the law; [and] to fix the limits within which the law shall
operate.'" See, e.g., Schmidt v. Dep't of Res. Dev., 39 Wis. 2d
46, 59, 158 N.W.2d 306 (1968) (quoting State ex rel. Wis.
Inspection Bureau v. Whitman, 196 Wis. 472, 505 220 N.W. 929
(1928)).
¶12 A "rule" is "a regulation, standard, statement of
policy, or general order of general application that has the
force of law and that 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." Wis. Stat. § 227.01(13). Therefore, when
administrative agencies promulgate rules, they are exercising
legislative power that the legislature has chosen to delegate to
them by statute. See id. at 505-06 (the legislature "may
delegate to administrative agencies the authority to exercise
such legislative power as is necessary to carry into effect the
general legislative purpose . . . . It [] leads to confusion
and error to say that the power to fill up the details and
promulgate rules and regulations is not legislative power.");
Brown Cty. v. DHFS, 103 Wis. 2d 37, 43, 307 N.W.2d 247 (1981)
("Where the legislature has set forth the 'fundamentals of a
law, it may delegate to administrative agencies the authority to
exercise such legislative power as is necessary to carry into
effect the general legislative purpose.'") (citations omitted).
¶13 From time to time, the legislature has used its power
to create administrative agencies, such as the Department of
8
No. 2017AP2278-OA
Health Services and the Department of Financial Institutions,
and to delegate to agencies certain legislative powers. The
legislature created DPI in 1967. Wis. Stat. § 15.37 (1967).
¶14 Agencies are considered part of the executive branch.
Citizens Concerned for Cranes and Doves v. DNR, 2004 WI 40, ¶14,
270 Wis. 2d 318, 677 N.W.2d 612. They possess "'only those
powers [that] are expressly conferred or [that] are necessarily
implied by the statutes under which [they] operate[].'" See,
e.g., Kimberly-Clark Corp. v. Pub. Serv. Comm'n, 110 Wis. 2d
455, 461-62, 329 N.W.2d 143 (1983). The DPI is the
administrative agency responsible for promulgating rules related
to public instruction, and acts "under the direction and
supervision of the [SPI]." Wis. Stat. § 15.37.
¶15 The powers delegated to administrative agencies by the
legislature include the power to promulgate rules within the
boundaries of enabling statutes passed by the legislature. See
Wis. Stat. § 227.11(2)(a) ("Each agency may promulgate rules
interpreting the provisions of any statute enforced or
administered by the agency, if the agency considers it necessary
to effectuate the purpose of the statute, but a rule is not
valid if the rule exceeds the bounds of correct
interpretation."); State ex rel. Castaneda v. Welch, 2007 WI
103, ¶26, 303 Wis. 2d 570, 735 N.W.2d 131.
¶16 In Wis. Stat. § 227.19(1)(b), the legislature
explained that its delegation of legislative power is a
recognition of "the need for efficient administration of public
policy," and it also outlined reservations of that delegation.
9
No. 2017AP2278-OA
Accordingly, in its general rulemaking delegation, the
legislature "reserves to itself" all of the following:
1. The right to retract any delegation of rule-
making authority.
2. The right to establish any aspect of general
policy by legislation, notwithstanding any delegation
of rule-making authority.
3. The right and responsibility to designate the
method for rule promulgation, review and modification.
4. The right to delay or suspend the
implementation of any rule or proposed rule while
under review by the legislature.
§ 227.19 (1)(b)1.-4.
¶17 We have long recognized that "the delegation of the
power to make rules and effectively administer a given policy is
a necessary ingredient of an efficiently functioning
government." Gilbert v. Med. Examining Bd., 119 Wis. 2d 168,
184, 349 N.W.2d 68 (1984); see also Schmidt, 39 Wis. 2d at 58
("[O]ur government could not efficiently operate without the
administrator and administrative agency."). The administration
of state government is complex. For example, "[t]he Wisconsin
Administrative Code is more than 11,000 pages long with just
under 1,800 chapters of regulations that affect businesses,
local governments, licensed professionals, and consumers and
touch[es] virtually every industry in Wisconsin." See, e.g.,
Jodi E. Jensen, Regulatory Reform: Moving Policymaking from
State Agencies to the Legislature, 91 Wis. Law. 24, 25 (Oct.
2018).
10
No. 2017AP2278-OA
¶18 However, while the breadth of government legislation
has resulted in some delegation of legislative power to
agencies, such agencies remain subordinate to the legislature
with regard to their rulemaking authority. Stated otherwise,
agencies "ha[ve] no inherent constitutional authority to make
rules, and, furthermore, [their] rule-making powers can be
repealed by the legislature." Martinez v. DILHR, 165 Wis. 2d
687, 698, 478 N.W.2d 582 (1992); Wis. Stat. § 227.19(1)(b)1.
¶19 In addition, the case before us does not present
issues that should give rise to a dogmatic exposition on the
merits, or lack thereof, of administrative agencies. Rather, we
are asked to determine the extent to which the legislature can
change a past delegation of rulemaking authority when the SPI's
rulemaking is affected.
¶20 Legislative change and control of rulemaking are
within the constitutional power of the legislature. Martinez,
165 Wis. 2d at 698. As we have explained, an agency's "'powers,
duties and scope of authority are fixed and circumscribed by the
legislature and subject to legislative change.'" Id. (quoting
Schmidt, 39 Wis. 2d at 56). Because the legislature has the
authority to take away an administrative agency's rulemaking
authority completely, it follows that the legislature may place
limitations and conditions on an agency's exercise of rulemaking
authority, including establishing the procedures by which
agencies may promulgate rules. The legislature may therefore
retract or limit any delegation of rulemaking authority,
determine the methods by which agencies must promulgate rules,
11
No. 2017AP2278-OA
and review rules prior to implementation. Wis. Stat.
§ 227.19(1)(b)1.-4.; see, e.g., Wis. Realtors Ass'n v. Pub.
Serv. Comm'n, 2015 WI 63, ¶23, 363 Wis. 2d 430, 867 N.W.2d 364.
¶21 After the enactment of Act 21, agencies must first
submit scope statements to the governor for approval; agencies
may not submit scope statements to the LRB, or begin drafting
any proposed rule, "until the governor issues a written notice
of approval of the statement." Wis. Stat. § 227.135(2).
Additionally, rather than submit final drafts of proposed rules
directly to the legislature for approval, agencies must first
submit final drafts of proposed rules to the governor for
approval. Wis. Stat. § 227.185. A proposed rule may not be
submitted to the legislature without a second approval of the
governor. § 227.185. Act 21 therefore altered the
legislature's delegation of rulemaking power to agencies by
allowing the governor to block a proposed rule at two separate
stages of the rulemaking process.
C. SPI's Constitutional Authority
¶22 The constitutional genesis of the SPI is found in
Article X, Section 1, which provides:
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
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No. 2017AP2278-OA
other officers of supervision of public instruction
shall be fixed by law.
Wis. Const. art. X, § 1. Article X, Section 1 does not define
the term "supervision."
¶23 When we interpret an undefined constitutional term we
examine the common law as it existed at the time the
constitutional provision was enacted, the constitutional debates
that bore on the undefined term, the plain meaning of the term
at the time the constitutional provision was adopted, and the
earliest interpretation in laws passed shortly after adoption of
the constitutional provision or our opinions that interpreted
the provision. See Polk Cty. v. State Pub. Def., 188 Wis. 2d
665, 674, 524 N.W.2d 389 (1994) (citing State v. Beno, 116
Wis. 2d 122, 136-38, 341 N.W.2d 668 (1984)).
¶24 Our examination of the common law functions of the SPI
at statehood provides no guidance, because an officer
responsible for public education did not exist prior to 1848.
Therefore, Article X, Section 1 did not "incorporate[] an
ancient common law office, possessing defined powers and duties,
into the constitution. Public instruction and its governance
had no long-standing common law history at the time the
Wisconsin Constitution was enacted." Fortney v. Sch. Dist. of
West Salem, 108 Wis. 2d 167, 182, 321 N.W.2d 225 (1982).
¶25 However, an examination of the plain language of
Article X, Section 1, the Constitutional Conventions of 1846 and
1848, and early cases and statutes addressing the SPI's
supervisory authority demonstrates that supervision is an
13
No. 2017AP2278-OA
executive function. "Stated otherwise, the framers of the
Constitution chose no specific duties for the [SPI] in regard to
'supervision of public instruction.'" Coyne, 368 Wis. 2d 444,
¶185 (Roggensack, C.J., dissenting). Rather, powers and duties
of the SPI were prescribed by law. Id., ¶143 (Prosser, J.
concurring).
¶26 Furthermore, the debates during the 18466 and 1848
constitutional conventions surrounding the creation of the SPI
confirm this plain-meaning interpretation of "supervision" as
executive authority. Delegate Marshall M. Strong, for example,
thought the SPI should "travel over the state, organize the
system, and awaken people to the importance of [public
education]." Journal of the Convention, reprinted in The
Convention of 1846, 569 (Milo M. Quaife, ed., 1919). Another
delegate, Wallace W. Graham, thought "there could be no uniform
system" of public education without an SPI, because the
legislature needed to receive "an annual report of the state of
schools throughout the state" from "a man whose entire business
it is to visit and know all of the schools." Id. at 568.
Others disagreed and thought "the duties for a time might be
6 As we have explained previously, the constitution drafted
in 1846 was not approved by Wisconsin voters. However, it was
rejected for reasons other than the article on education, and
the 1846 and 1848 versions of the article on education were
substantially identical. See Thompson v. Craney, 199 Wis. 2d
674, 685 n.5, 546 N.W.2d 123 (1996). For this reason, the
debates of 1846 are instructive in discerning the meaning of
"supervision" as used in Article X.
14
No. 2017AP2278-OA
done by the secretary of state or some other officer already
provided for, leaving to the legislature to [create an SPI] when
the time came." Id. at 569. None, however, appeared to believe
that the SPI would possess the power to make laws.
¶27 The debates during the Constitutional Convention of
1848, which led to the ratification of the Wisconsin
Constitution, similarly demonstrate that supervision of public
education is an executive function. All writers reportedly "had
agreed that the office [of the SPI] should have nothing to do
with the machinery of the school system, or the management of
the funds. He might be a most improper person for that duty.
His province was to put the system in operation." Journal of
the Convention to Form a Constitution for the State of Wisconsin
324, Wisconsin Constitutional Convention (Tenney, Smith & Holt,
printers, 1848). Delegates recognized that "[t]he duties of a
superintendent were not of a fixed and well known kind, like
those of political officers." Id. at 327. As previously
mentioned, neither the office of the SPI nor a uniform system of
public instruction existed in Wisconsin prior to 1848. For this
reason, some argued that even the manner of choosing the SPI
should be left to the legislature to decide. No part of the
discussion, however, involved the suggestion that the SPI should
have the power to make laws.
¶28 The dictionary definition of "superintend" at the time
of the debates further suggests that the framers viewed the SPI
as possessing executive, but not legislative, authority.
Webster's An American Dictionary of the English Language (new
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No. 2017AP2278-OA
rev. ed. 1847-50) defined "superintend" as: "[t]o 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."
Similarly, "superintendent" was defined as "one who has the
oversight and charge of something with the power of direction."
Id.; see Thompson v. Craney, 199 Wis. 2d 674, 684, 546
N.W.2d 123 (1996). The framers of the Wisconsin Constitution
understood the SPI's superintending function to be executive,
not legislative, in nature.
¶29 Our early cases regarding the SPI similarly confirm
this plain-meaning analysis of Article X, Section 1 as granting
the SPI the executive superintending function over public
instruction, while giving the legislature the authority to
determine the SPI's "qualifications, powers, duties and
compensation." For example, in State ex rel. Raymer v.
Cunningham, 82 Wis. 39, 51 N.W.2d 1133 (1892), the SPI directed
the Secretary of State to pay him more than his $1,200 salary,
plus the expenses actually incurred for his clerk's salary and
actual travel costs. Id. at 39-40. However, in 1892, the
Wisconsin Constitution provided that the SPI's "compensation
shall not exceed the sum of twelve hundred dollars annually."
Id. at 46.
¶30 Wisconsin's public education system had grown
considerably since the ratification of the Constitution in 1848.
For example, the number of school age children had grown from
80,000 to more than 600,000, the value of public school property
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No. 2017AP2278-OA
had grown from $50,000 to more than $10 million, and tax
distributions for public education had grown from $92,000 to
more than $4 million. Id. Raymer argued that the SPI had
requested payment for greater expenses than he actually incurred
as a way of evading the maximum constitutional salary of $1,200.
Id. at 47-48.
¶31 In our examination of the relationship between the
legislature and Article X, Section 1, we said:
[T]he 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 even though the constitution
allowed the SPI a maximum salary of $1,200, the legislature
remained free to define the SPI's activities and obligations
however it chose. It was the legislature's province to make
laws, and the SPI's province to administer them. See id. at 50
("[I]t is a maxim, in construing a state constitution, that the
legislature is authorized to exercise any and all legislative
powers not delegated to the general government nor expressly nor
by necessary implication prohibited by the national or state
constitution.").
¶32 Similarly, after the Wisconsin Constitution was
ratified in 1848, the first legislation passed regarding Article
X, Section 1 provided:
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No. 2017AP2278-OA
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 . . . . 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
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
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.
Thompson, 199 Wis. 2d at 694 (quoting Section 3 of the Laws of
1848, at 127-29). The specific instructions that the
legislature gave to the SPI, such as his obligation to recommend
"the most approved books" and to "ascertain the condition of all
the school funds in this state" as well as a general directive
that the SPI was "to perform such other duties as the
legislature or governor of this state may direct" support the
conclusion that the legislature defines the SPI's powers and
duties, while the SPI administers them.
D. Application
¶33 Agencies in Wisconsin have no inherent authority to
make rules. Their rulemaking authority comes from the
legislature, and may be limited, conditioned, or taken away by
the legislature. See, e.g., Martinez, 165 Wis. 2d at 697; Wis.
Stat. § 227.19(1)(b)1.-4.
¶34 The Wisconsin Constitution vests "supervision of
public instruction," which is an executive function, in the SPI.
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However, the SPI's powers and duties are set by the legislature.
The SPI therefore has two different sources for its authority,
one which arises from the Wisconsin Constitution and the other
which is created by legislative delegation. The source for
rulemaking is legislative delegation. Because rulemaking is not
"supervision of public instruction" within the meaning of
Article X, Section 1, it is of no constitutional concern whether
the governor is given equal or greater legislative authority
than the SPI in rulemaking.
¶35 This conclusion is consistent with our decision in
Thompson, where we reviewed then-governor Thompson's original
action to have 1995 Wis. Act 27 (Act 27) declared
constitutional. Thompson, 199 Wis. 2d at 677-78. Act 27
"created a new state department, the Department of Education; a
new Education Commission, which supervises the DOE; and a new
office, the Secretary of Education." Id. at 678. The SPI was
one of nine voting members of the Education Commission. Id. at
679. The Secretary of Education served at the pleasure of the
governor and could not be removed by the Education Commission.
Id. at 678. The newly created Secretary of Education and
Education Commission were given some of the SPI's constitutional
functions to supervise education. Id. at 679.
¶36 We held that Act 27 violated Article X, Section 1. We
identified two "consistent themes" regarding the SPI from the
constitutional debates: "first, that the system of education
required uniformity; second, that the SPI was to provide this
uniformity in an active manner by implementing the system of
19
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education." Id. at 688-89. We concluded that "the 'other
officers' mentioned in [Article X, Section 1] were intended to
be subordinate to the [SPI]" with regard to the "supervision of
public instruction" as the phrase is used in Article X, Section
1. Id. at 698-99. Because Act 27 elevated others to a position
equal or superior to the SPI with regard to the supervision of
public instruction, it was unconstitutional. Id. at 698-99.
¶37 The respondents argue that the provisions in this case
are similarly unconstitutional because they elevate the governor
to a position greater or equal to the SPI with regard to
something the SPI does, as did 1995 Wis. Act 27. The
respondents point out that we held in Thompson that "the
legislature may not give equal or superior authority to any
'other officer'" over the supervision of public instruction.
Id. at 699. Article X, Section 1 requires that any "other
officer" who participates in the "supervision of public
instruction" must be subordinate to the SPI with regard to
supervision of public instruction. Id.
¶38 A major flaw in the respondents' argument is the
assumption that everything the SPI does arises from a
constitutional grant of authority to the SPI under Article X,
Section 1. In reality, the SPI engages in some activities that
arise from legislative enactments. Rulemaking is one of those
activities.
¶39 Although Thompson requires that no other officer be
placed in a position superior or equal to the SPI with regard to
the SPI's exercise of supervision of public instruction under
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No. 2017AP2278-OA
Article X, Section 1, rulemaking is not such a function.
Rulemaking is a legislative power that does not fall within the
SPI's supervisory constitutional authority under Article X,
Section 1. Rulemaking is a legislative delegation to the SPI;
therefore, it may be limited or taken away, as the legislature
chooses. Wis. Stat. § 227.19(1)(b)1.-4. That the governor may
be placed in a position superior or equal to the SPI with regard
to rulemaking is consistent with Thompson and with Article X,
Section 1.
III. CONCLUSION
¶40 We conclude that the gubernatorial approval
requirement for rulemaking is constitutional as applied to the
SPI and DPI, whether they are found in the REINS Act or in
previous provisions of ch. 227. Article X, Section 1 vests
supervision of public instruction, an executive function, in the
SPI. In contrast, when the SPI, through the DPI, promulgates
rules, the SPI is exercising legislative power that comes not
from the constitution but the legislature. Stated otherwise,
the legislature delegates part of its constitutional power to
legislate to the SPI, DPI, and many other agencies in the form
of rulemaking power. That the SPI also has the executive
constitutional function to supervise public instruction does not
transform the SPI's legislatively delegated rulemaking power
into a constitutional supervisory function. Therefore, it is of
no constitutional concern that the governor is given equal or
greater legislative authority than the SPI in rulemaking.
By the Court.—Declaration of rights; relief granted.
21
No. 2017AP2278-OA
¶41 SHIRLEY S. ABRAHAMSON, J., withdrew from
participation.
22
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¶42 REBECCA GRASSL BRADLEY, J. (concurring). The
majority correctly upholds the constitutionality of the
legislature's decision to require gubernatorial approval of
administrative rulemaking. I join the opinion except for those
portions espousing the ostensible importance and necessity of
the legislature's delegation of power to the administrative
state. See majority op., ¶17.1 The concentration of power
within an administrative leviathan clashes with the
constitutional allocation of power among the elected and
accountable branches of government at the expense of individual
liberty. Although this case does not involve a challenge to the
constitutionality of legislative delegations of power to
administrative agencies, I encourage the court to be mindful of
the structural separation of powers and the safeguards it
employs to preserve the rule of law.
¶43 The majority repeats the judiciary's longstanding
perception that "the delegation of the power to make rules and
effectively administer a given policy is a necessary ingredient
of an efficiently functioning government." Majority op., ¶17
(quoting Gilbert v. Medical Examining Bd., 119 Wis. 2d 168, 184,
349 N.W.2d 68 (1984) (emphasis added)). The majority reiterates
the notion that "[o]ur government could not efficiently operate
1I agree with the majority that the issues in this case do
not require an "exposition"——"dogmatic" or otherwise——of the
constitutional legitimacy of the administrative state. Majority
op., ¶19. I write in response to the majority's endorsement of
the necessity of delegating legislative power to administrative
agencies. See majority op., ¶17.
1
No. 2017AP2278-OA.rgb
without the administrator and administrative agency." Majority
op., ¶17 (quoting Schmidt v. Department of Res. Dev., 39
Wis. 2d 46, 58, 158 N.W.2d 306 (1968) (emphasis added)). The
majority restates discredited principles, disregarding the
incompatibility of "the system of bureaucratic rule that took
root in the Progressive era and now reaches into virtually every
realm of American life,"2 with the constitution's "deliberate
calibration of incentives and control between the branches"
reflected in the structural separation of powers. Gabler v.
Crime Victims Rights Bd., 2017 WI 67, ¶7, 376 Wis. 2d 147, 897
N.W.2d 384.
¶44 The idea that the administrative state is necessary
for good and efficient government "reflect[s] this belief that
bureaucrats might more effectively govern the country than the
American people" and facilitated "the progressives usher[ing] in
significant expansions of the administrative state, ultimately
culminating in the New Deal." Perez v. Mortgage Bankers Ass'n,
135 S. Ct. 1199, 1223 n.6 (2015) (Thomas, J., concurring).
Underlying the movement toward a burgeoning administrative state
was the governing class's sneering contempt for the people who
elect its members, along with impatience at any resistance of
the people to the views of the enlightened:
In government . . . the hardest of hard things is
to make progress. . . . Nowadays the reason is that
the many, the people, who are sovereign have no single
ear which one can approach, and are selfish, ignorant,
2
Charles J. Cooper, Confronting the Administrative State,
25 National Affairs 96, 96 (Fall 2015).
2
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timid, stubborn, or foolish with the selfishnesses,
the ignorances, the stubbornnesses, the timidities, or
the follies of several thousand persons,——albeit there
are hundreds who are wise.
Woodrow Wilson, The Study of Administration, Political Science
Quarterly, Vol. 2, No. 2, 197, 207-08 (June 1887). Wilson
lamented the inability of the unwashed masses to appreciate the
suppositions of "perfectly instructed heads" who would produce
"infallible, placidly wise maxims of government" because "[t]he
bulk of mankind is rigidly unphilosophical, and nowadays [alas!]
the bulk of mankind votes." Id. at 209.
¶45 The philosophical roots of rule by bureaucratic
overlords are antithetical to the Founders' vision of our
constitutional Republic, in which supreme power is held by the
people through their elected representatives, and "the creation
of rules of private conduct" is "an irregular and infrequent
occurrence." DOT v. Association of Am. R.Rs., 135 S. Ct. 1225,
1252 (2015) (Thomas, J., concurring). The people can keep their
rightful powers only if each branch of government "jealously
guard[s]" the responsibilities the people conferred upon them.
Gabler, 376 Wis. 2d 147, ¶31 (quoting Barland v. Eau Claire
Cty., 216 Wis. 2d 560, 573, 575 N.W.2d 691 (1998)). "The co-
ordinate branches of the government . . . should not abdicate or
permit others to infringe upon such powers as are exclusively
committed to them by the Constitution." Rules of Court Case,
204 Wis. 501, 514, 236 N.W. 717 (1931). Transferring to
administrative agencies the core legislative duty of making laws
abnegates powers the people gave their elected representatives.
The consolidation of power within executive branch agencies
3
No. 2017AP2278-OA.rgb
"often leaves Americans at the[ir] mercy" endowing agencies with
"a nearly freestanding coercive power" and "[t]he agencies
thereby become rulers of a sort unfamiliar in a republic, and
the people must jump at their commands." Phillip Hamburger, Is
Administrative Law Unlawful? 335 (2014).
¶46 More recently, "necessity" as a justification for the
administrative state has been tied to the philosophy of a living
constitution, under which the law may be molded to reflect
changing circumstances in society, regardless of what the text
actually says. Hamburger, supra ¶4, at 429. Living
constitutionalism is grounded in sociology, not the law,3 and is
inconsistent with the founding principle that "[t]o adapt the
law to changing circumstances . . . the collective wisdom of the
people's representatives is needed." Gutierrez-Brizuela v.
Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J.,
concurring). Those to whom the people have conferred
constitutional powers may not circumvent those grants simply
"because they believe that more or different power is
necessary." A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495, 529 (1935). Necessity "cannot be allowed to
obscure the limitations of the authority to delegate, if our
constitutional system is to be maintained." Id. at 530. Even
"[e]xtraordinary conditions do not create or enlarge
constitutional power." Id. at 528.
3Phillip Hamburger, Is Administrative Law Unlawful? 429
(2014).
4
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¶47 The United States and Wisconsin Constitutions both
vest exclusive powers in each of three independent branches of
government, not four. "The Constitution does not vest the
Federal Government with an undifferentiated 'governmental
power,'" but rather, it "identifies three types of governmental
power and, in the Vesting Clauses, commits them to three
branches of Government." Association of Am. R.Rs., 135 S. Ct.
at 1240 (Thomas, J., concurring). Like the federal system, the
Wisconsin Constitution establishes three branches of government,
and "[t]he separation of powers doctrine is implicit in this
tripartite division." Gabler, 376 Wis. 2d 147, ¶11 (quoting
Panzer v. Doyle, 2004 WI 52, ¶48, 271 Wis. 2d 295, 680
N.W.2d 666; alteration in original). Article IV, Section 1
"vest[s]" the "legislative power . . . in a senate and
assembly"; Article V, Section 1 "vest[s]" the "executive
power . . . in a governor"; and Article VII, Section 2 "vest[s]"
the "judicial power of this state . . . in a unified court
system." See Gabler, 376 Wis. 2d 147, ¶11. These
constitutional "grants are exclusive," which has been understood
to mean "only the vested recipient of that power can perform
it." Association of Am. R.Rs., 135 S. Ct. at 1241 (Thomas, J.,
concurring).
¶48 "The people bestowed much power on the legislature,
comprised of their representatives whom the people elect to make
the laws." Gabler, 376 Wis. 2d 147, ¶60. "The separation of
powers 'operates in a general way to confine legislative powers
to the legislature.'" League of Women Voters of Wis. v. Evers,
5
No. 2017AP2278-OA.rgb
2019 WI __, ¶35, __ Wis. 2d __, __ N.W.2d __ (quoting Goodland
v. Zimmerman, 243 Wis. 459, 467, 10 N.W.2d 180 (1943)).
Applying an originalist interpretation of the Constitution, some
United States Supreme Court justices and several commentators
have opined against the legislature relinquishing its vested
legislative power "or otherwise reallocat[ing] it," echoing the
historical understanding that "[t]he legislative c[ould not]
transfer the power of making laws to any other hands: for it
being but a delegated power from the people, they who have it
[could not] pass it over to others." Association of Am. R.Rs.,
135 S. Ct. at 1243-44 (Thomas, J., concurring) (quoting John
Locke, Second Treatise of Civil Government § 141, 71 (J. Gough
ed. 1947) (emphasis added; alterations in original). See also
Richard A. Epstein, Why the Modern Administrative State Is
Inconsistent with the Rule of Law, 3 N.Y.U.J. of Law & Liberty
491, 496 (2008) (the argument "that the Constitution authorizes
the creation of independent agencies with aggregated powers of a
legislative, executive, and judicial nature . . . fails so long
as it depends on any form of originalism" and "the text itself
points to a system whereby the tripartite division is meant to
be rigid in law"); Hamburger, supra ¶4, at 336 ("[T]he
government can bind Americans only through laws, and only
through courts with juries and judges, thus preserving the most
basic conditions of freedom.")
¶49 Although a revival of the non-delegation doctrine has
not garnered the votes of a majority on the Court, this was not
always the case. In the past, the Court recognized "[t]he
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No. 2017AP2278-OA.rgb
Congress is not permitted to abdicate or to transfer to others
the essential legislative functions with which it is thus
vested." A.L.A. Schechter Poultry Corp, 295 U.S. at 529.
Despite acknowledging that the constitutional "text permits no
delegation of those [legislative] powers" the Court has afforded
much leeway for the legislature to transfer its constitutional
powers to executive branch agencies, provided that "when
Congress confers decisionmaking authority upon agencies Congress
must 'lay down by legislative act an intelligible principle to
which the person or body authorized to [act] is directed to
conform.'" Whitman v. American Trucking Ass'ns, Inc., 531 U.S.
457, 472 (2001) (alteration in original). However, "the
Constitution does not speak of 'intelligible principles.'
Rather, it speaks in much simpler terms: 'All legislative
Powers herein granted shall be vested in a Congress.'" Id. at
487 (Thomas, J., concurring).
¶50 Reallocating the making of rules, voluminous in number
and significant in substance, from the legislature to
administrative agencies housed within the executive branch,
aggrandizes the power of the latter, at the risk of replacing
the rule of law with the rule of men:
The idea that the Executive may not formulate
generally applicable rules of private
conduct . . . has ancient roots in the concept of the
'rule of law,' which has been understood . . . to mean
that a ruler must be subject to the law in exercising
his power and may not govern by will alone.
Association of Am. R.Rs., 135 S. Ct. at 1242 (Thomas, J.,
concurring) (quoted source omitted). The concept of the rule of
7
No. 2017AP2278-OA.rgb
law "presupposes at least two distinct operations, the making of
law, and putting it into effect." Id. (quoted source omitted;
emphasis added). Delegating legislative functions to
administrative agencies transforms the executive from the
executor of laws into the lawmaker. Blackstone——whose
separation of powers principles "profoundly influenced" the
Founders——"defined a tyrannical government as one in which 'the
right both of making and of enforcing the laws, is vested in one
and the same man, or one and the same body of men,' for
'wherever these two powers are united together, there can be no
public liberty.'" Id. at 1244 (quoted source omitted).
¶51 The Founders recognized that maintaining the formal
separation of powers was essential to preserving individual
liberty.
This devotion to the separation of powers is, in
part, what supports our enduring conviction that the
Vesting Clauses are exclusive and that the branch in
which a power is vested may not give it up or
otherwise reallocate it. The Framers were concerned
not just with the starting allocation, but with the
"gradual concentration of the several powers in the
same department." The Federalist No. 51, at 321 (J.
Madison).
Id.. "Under the original understanding of the Constitution,"
the function of creating "generally applicable rules of private
conduct . . . requires the exercise of legislative power," and
"the discretion inherent in executive power does not comprehend
the discretion to formulate generally applicable rules of
private conduct." Id. at 1242. The judiciary, however, has
blurred the lines distinguishing legislative power from
executive power, classifying rulemaking as executive in nature
8
No. 2017AP2278-OA.rgb
rather than the core legislative function it was formerly
recognized to be. See id. at 1246.
¶52 The Wisconsin Constitution replicates the "separation
of powers principles[] established at the founding of our nation
and enshrined in the structure of the United States
Constitution." See Gabler, 376 Wis. 2d 147, ¶11. "'Each branch
has exclusive core constitutional powers into which other
branches may not intrude.'" Id., ¶30 (quoting State v. Horn,
226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999)). These zones "are
to be jealously guarded by each branch of government." Gabler,
376 Wis. 2d 147, ¶31 (quoting Barland, 216 Wis. 2d at 573)
(internal marks omitted).
¶53 The concept of the administrative state is nonexistent
in either the United States or Wisconsin Constitutions, which
means "administrative power runs outside the law." Hamburger,
supra ¶4, at 6.
We have too long abrogated our duty to enforce the
separation of powers required by our Constitution. We
have overseen and sanctioned the growth of an
administrative system that concentrates the power to
make laws and the power to enforce them in the hands
of a vast and unaccountable administrative apparatus
that finds no comfortable home in our constitutional
structure. The end result may be trains that run on
time (although I doubt it), but the cost is to our
Constitution and the individual liberty it protects.
Association of Am. R.Rs., 135 S. Ct. at 1254-55 (Thomas, J.,
concurring). In facilitating the vast expansion of the
administrative state, the legislative and executive branches
transferred power from the people's elected representatives and
elected executives, bestowing it upon unelected and
9
No. 2017AP2278-OA.rgb
unaccountable bureaucrats, thereby jeopardizing the
constitution's safeguards against the tyrannical concentration
of power. "The administrative regime consolidates in one branch
of government the powers that the Constitution allocates to
different branches" resulting in "the exercise of power outside
and above the law." Hamburger, supra ¶4, at 6.
To the Framers of the United States Constitution,
the concentration of governmental power presented an
extraordinary threat to individual liberty: "The
accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a
few, or many, . . . may justly be pronounced the very
definition of tyranny." The Federalist No. 47, at 298
(James Madison) (Clinton Rossiter ed., 1961).
Gabler, 376 Wis. 2d 147, ¶4 (ellipsis by Gabler).
¶54 In Tetra Tech EC, Inc. v. Wisconsin Department of
Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21, we "end[ed]
our practice of deferring to administrative agencies'
conclusions of law," thereby reclaiming the judiciary's
constitutionally-vested authority to say what the law is. Id.,
¶3 (Kelly, J., lead opinion).4 Rather than placidly accepting
the administrative state as a necessary appendage to the
government, this court should reconsider its acquiescence to
4
The legislature codified this principle in Wis. Stat.
§ 227.57 (11) ("Upon review of an agency action or decision, the
court shall accord no deference to the agency's interpretation
of law.").
10
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subdelegations5 of legislative power to administrative agencies
within the executive branch when the appropriate case presents
the opportunity. It "is the obligation of the Judiciary not
only to confine itself to its proper role, but to ensure that
the other branches do so as well." City of Arlington v. F.C.C.,
569 U.S. 290, 327 (2013) (Roberts, C.J., dissenting). In this
case, however, none of the parties raise the issue of whether
"our delegation jurisprudence has strayed too far from our
Founders' understanding of separation of powers." Whitman, 531
U.S. at 487 (Thomas, J., concurring).
¶55 Passing legislation sometimes requires political
courage. Legislative initiatives may move slowly and some bills
never become laws. Consequently, "Congress often prefers to set
a politically uncontroversial goal and leave it to the agencies
to figure out the politically controversial means of achieving
that goal." Charles J. Cooper, Confronting the Administrative
State, 25 National Affairs 96, 103 (Fall 2015). Returning all
lawmaking responsibilities to the legislature would remove the
shroud over administrative rulemaking, placing the lawmaking
process back in the public eye where it constitutionally
belongs.
5
Because the people delegate power through constitutional
grants, "when Congress purports to give its legislative power to
the executive, the question is not whether the principal can
delegate the power, but whether the agent can subdelegate it."
Hamburger, supra ¶5 note 2, at 377. "[T]he agent ordinarily
cannot subdelegate the power to a sub-agent, as this runs
counter to the apparent intent of the principal." Id. at 380.
11
No. 2017AP2278-OA.rgb
¶56 The objective of our Founders was not an "efficiently
functioning government."6 The Founders designed a Constitution
to safeguard individual rights and liberty. The Wilsonian
vision of rule by enlightened bureaucrats diminishes the power
of the people, in derogation of the principles on which America
was founded. "The vesting of legislative power in a distinct
political body is a stumbling block to modern intellectuals and
a stone rejected by the builders of the federal bureaucracy, but
it has been and remains a cornerstone in the constitutional
architecture of free government." Texas v. United States, 300
F. Supp. 3d 810, 841 (N.D. Tex. 2018). "Admittedly, the
legislative process can be an arduous one. But that's no bug in
the constitutional design: it is the very point of the design."
Gutierrez-Brizuela, 834 F.3d at 1151 (Gorsuch, J., concurring).
By separating the lawmaking and law enforcement
functions, the framers sought to thwart the ability of
an individual or group to exercise arbitrary or
absolute power. And by restricting lawmaking to one
branch and forcing any legislation to endure
bicameralism and presentment, the framers sought to
make the task of lawmaking more arduous still.
United States v. Nichols, 784 F.3d 666, 670 (10th Cir. 2015)
(Gorsuch, J., dissenting). The "inefficiency" inherent in the
legislative process "'serves a valuable' liberty-preserving
'function.'" Id. (quoted source omitted). "While the
separation of powers may prevent us from righting every wrong,
it does so in order to ensure that we do not lose liberty."
6 Majority op., ¶17.
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Morrison v. Olson, 487 U.S. 654, 710 (1988) (Scalia, J.,
dissenting).
¶57 "The Framers could hardly have envisioned . . . the
authority administrative agencies now hold over our economic,
social, and political activities." City of Arlington, 569 U.S.
at 313 (Roberts, C.J., dissenting). Rather than extolling the
necessity of the administrative behemoth in Wisconsin, this
court should "glance at the Constitution to see what it says
about how [governmental] authority must be exercised and by
whom." See Association of Am. R.Rs., 135 S. Ct. at 1240
(Thomas, J., concurring). Through the Wisconsin Constitution,
the people conferred exclusive powers on an elected executive,
an elected legislature, and an elected judiciary, respectively.
Noticeably absent from the Wisconsin Constitution is any
apportionment of power to unelected and unaccountable
administrators. Because the majority lends unquestioned
credence to the extra-constitutional apparatus of the
administrative state, I respectfully concur.
13
No. 2017AP2278-OA.dk
¶58 DANIEL KELLY, J. (concurring). I join the majority
opinion except with respect to ¶17.
1
No. 2017AP2278-OA.awb
¶59 ANN WALSH BRADLEY, J. (dissenting). A mere three
years ago, this court decided the very issue that it is
reconsidering today. In Coyne v. Walker, a majority of the
court determined that 2011 Act 21 (Act 21) is "unconstitutional
and therefore void as applied to the Superintendent of Public
Instruction and his subordinates." 2016 WI 38, ¶4, 368
Wis. 2d 444, 879 N.W.2d 520.
¶60 Yet despite this clear mandate, here we are again. A
provision that does the very same thing as Act 21 is back before
the court. It comes to us through a new enactment (2017 Wis.
Act 57) and with a catchy new name (the REINS Act), but the
substance is identical.1
¶61 And why are we here again? At oral argument, counsel
for the petitioners was asked, "you wouldn't be here asking a
supreme court of the state of Wisconsin to overturn a decision
that it just made two years ago if it were the same court, would
you?" In response, counsel acknowledged, "any lawyer has to
make strategic decisions about what is likely to be successful."
Indeed.
¶62 Although nothing in our Constitution has changed since
Coyne was decided, what has changed is the membership of the
court. This time around, a new majority of this court does an
about-face and now concludes that the substance of Act 57 is
1 See majority op., ¶7 ("The REINS Act did not alter Act
21's requirement that an agency (1) submit a statement of scope
to the governor for approval prior to drafting a proposed rule,
and (2) submit a final draft of a rule to the governor for
approval before submitting it to the legislature.").
1
No. 2017AP2278-OA.awb
constitutional. To reach this conclusion, it throws the
doctrine of stare decisis out the window.2
¶63 Not only is the majority opinion doctrinally
erroneous, it is also analytically unpersuasive. As Justice
Abrahamson wrote in Coyne: "rulemaking is part of the
'supervision of public instruction,' which Article X, Section 1
vests in the superintendent."3 368 Wis. 2d 444, ¶85 (Abrahamson,
J., concurring). 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)
2"Stare decisis" is fundamental to the rule of law.
Johnson Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108,
¶94, 264 Wis. 2d 60, 665 N.W.2d 257. It refers to the principle
that requires courts to "stand by things decided." State v.
Harrell, 199 Wis. 2d 654, 667, 546 N.W.2d 115 (1996)
(Abrahamson, J., concurring); see Black's Law Dictionary 1626
(10th ed. 2014) defining "stare decisis" as "[t]he doctrine of
precedent, under which a court must follow earlier judicial
decisions when the same points arise again in litigation").
3Article X, Section 1 of the Wisconsin Constitution
provides:
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.
2
No. 2017AP2278-OA.awb
in the supervision of public instruction." Id. Act 57 suffers
the same infirmity.
¶64 Because the majority disregards binding precedent and
arrives at a result that unconstitutionally transfers the vested
authority of the Superintendent of Public Instruction to the
governor, I respectfully dissent.
I
¶65 This case arises from a petition for original action
filed by the Petitioners against the Superintendent of Public
Instruction (SPI) and the Department of Public Instruction
(DPI). Majority op., ¶1. The Petitioners seek a declaration
that the SPI and DPI must comply with 2017 Wis. Act 57's (Act
57) requirement that they receive the governor's approval prior
to drafting or promulgating an administrative rule. Id. In
response, the SPI and DPI argue, consistent with Coyne, 368
Wis. 2d 444, that such a requirement is an unconstitutional
usurpation of the SPI's vested constitutional authority. Id.
¶66 Relegating the discussion of stare decisis to a
footnote, the majority states that it "consider[ed] whether the
doctrine of stare decisis should be employed in the case before
us." Id., ¶8 n.5 (citation omitted). It acknowledges that
Coyne "addressed some of the same statutory provisions and
constitutional concerns we examine today . . . ." Id.
¶67 However, it declines to apply the doctrine of stare
decisis, reasoning that "stare decisis does not require us to
retain constitutional interpretations that were objectively
wrong when made . . . because such interpretations are unsound
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in principle." Id. (citations omitted). Further, it asserts
that it is not required to follow Coyne because "our mandate in
Coyne arises from a lead opinion, joined by one justice, a two-
justice concurrence, and a one-justice concurrence." Id.
Unsurprisingly, the majority ultimately grants the petitioners'
requested relief. Id., ¶2.
II
¶68 Neither of the majority's proffered rationales for
departing from stare decisis is persuasive. Stare decisis is
fundamental to the rule of law. Johnson Controls, Inc. v.
Emp'rs Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665
N.W.2d 257. Indeed, "[t]his court follows the doctrine of stare
decisis scrupulously because of our abiding respect for the rule
of law." Id.
¶69 "Fidelity to precedent ensures that existing law will
not be abandoned lightly. When existing law is open to revision
in every case, deciding cases becomes a mere exercise of
judicial will, with arbitrary and unpredictable results."
Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653
N.W.2d 266 (internal quotation and citations omitted).
¶70 "No change in the law is justified by a change in the
membership of the court . . . ." Bartholomew v. Wis. Patients
Comp. Fund, 2006 WI 91, ¶32, 293 Wis. 2d 38, 717 N.W.2d 216
(citation omitted). Adherence to precedent fosters confidence
in the reliability of court decisions, promotes consistent
development of legal principles, and contributes to the actual
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and perceived integrity of the Wisconsin judiciary. See Johnson
Controls, 264 Wis. 2d 60, ¶95.
¶71 Throwing caution to the wind, the majority disregards
the principles that fundamentally underlie our legal system. It
contends that Coyne was "objectively wrong." Majority op., ¶8
n.6. Further, it ascribes significance to the fact that the
majority in Coyne consisted of three separate opinions. Id.
¶72 Apparently, "objectively wrong" is defined by the
majority as what it subjectively thinks is wrong. The majority
provides no explanation for the assertion that Coyne was
"objectively wrong" other than that it disagrees with it.
¶73 Additionally, the split nature of the Coyne opinion is
of no import. The mandate of Coyne was clear despite the
fractured nature of the opinions. Although the four justices in
the majority subscribed to differing rationales, they agreed on
the essential conclusion: "We hold that Act 21 is
unconstitutional and therefore void as applied to the
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Superintendent of Public Instruction and his subordinates."
Coyne, 368 Wis. 2d 444, ¶4.4 Full stop.
¶74 Such a decision creates no uncertainty and fosters no
confusion. Act 57, at issue here, does not differ in any
material respect from Act 21.
¶75 Accordingly, I conclude that the doctrine of stare
decisis applies here with full force. The rule of law and the
"actual and perceived integrity of the judicial process" demand
it. See Johnson Controls, 264 Wis. 2d 60, ¶95.
III
¶76 The majority errs further in its substantive analysis
of the separation of powers issues this case presents. I joined
Justice Abrahamson's concurrence in Coyne, and I believe that it
remains the correct analysis here.
¶77 In Coyne, Justice Abrahamson's concurrence determined
that 2011 Wis. Act 21, which is in all material respects
identical to Act 57, "unconstitutionally infringes on the
'supervision of public instruction' vested in the superintendent
4
See also Coyne v. Walker, 2016 WI 38, ¶80, 368
Wis. 2d 444, 879 N.W.2d 520 (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, is unconstitutional as applied to the Superintendent
of Public Instruction and the Department of Public
Instruction."); id., ¶155 (Prosser, J., concurring) (concluding
that Act 21 is unconstitutional "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.").
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by Article X, Section 1 of the Wisconsin Constitution." Coyne,
368 Wis. 2d 444, ¶93 (Abrahamson, J., concurring). It reached
this conclusion because Act 21 "gives 'equal or superior
authority' [over the supervision of public instruction]
to . . . '[an]other officer.'" Id., ¶100 (Abrahamson, J.,
concurring) (citing Thompson v. Craney, 199 Wis. 2d 674, 699,
546 N.W.2d 123 (1996)).5 The same is true of Act 57.
¶78 Such a conclusion is supported by significant
constitutional history as has been previously set forth by this
court in Thompson and Coyne. See Coyne, 368 Wis. 2d 444, ¶98
(Abrahamson, J., concurring); Thompson, 199 Wis. 2d at 685-98.
"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
SPI, and that the SPI was to be an elected, not appointed,
public official." Thompson, 199 Wis. 2d at 685.
¶79 Delegates to the constitutional conventions echoed two
consistent themes: "first, that the system of education
required uniformity[, and] second, that the SPI was to provide
this uniformity in an active manner by implementing the system
of education." Id. at 688-89. Accordingly, the framers
"considered and explicitly rejected a proposal to select a
superintendent by gubernatorial appointment and a proposal that
5
This court previously determined in Thompson that the
former powers of the elected SPI cannot constitutionally be
given to appointed "other officers" at the state level who are
not subordinate to the SPI. Thompson v. Craney, 199
Wis. 2d 674, 678, 546 N.W.2d 123 (1996).
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would have allowed the legislature to vest 'the supervision of
public instruction . . . in such officers as shall hereafter be
created by law.'" Coyne, 368 Wis. 2d 444, ¶98 (Abrahamson, J.,
concurring) (citing Thompson, 199 Wis. 2d at 685-86). "Simply
put, the framers viewed the superintendent as 'indispensable,'
'the foundation, the life of progressive education' who 'alone
c[ould] give uniformity, energy, and efficiency to the system.'"
Id. (citing Journal of the Convention, reprinted in The
Convention of 1846, at 568, 570-71 (Milo M. Quaife ed. 1919).
¶80 Consistent with this history and the determination of
the Thompson court, the concurrence concluded 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." Coyne, 368
Wis. 2d 444, ¶99 (Abrahamson, J., concurring). Act 57 does
exactly the same thing. Thus, the analysis presented in Justice
Abrahamson's concurrence in Coyne is equally applicable to the
issue in this case. Just as Act 21 was unconstitutional three
years ago, Act 57 remains unconstitutional today.
¶81 For the foregoing reasons, I respectfully dissent.
¶82 I am authorized to state that Justice REBECCA FRANK
DALLET joins this dissent.
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