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.
No. 2013AP416
Supreme Court of Wisconsin
Decided May 18, 2016
2016 WI 38 | 879 N.W.2d 520
Oral argument November 17, 2015.
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 Depart-
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.
¶ 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. 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
¶ 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, 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
¶ 4. We hold that Act 21 is unconstitutional and therefore void as applied to the Superintendent of Public Instruction 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
¶ 7. Second, Section 21 of Act 21 amended
B. The Proceedings Below
¶ 9. The Coyne parties7 filed an action pursuant to
¶ 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
¶ 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 of appeals concluded that Act 21 places the Governor in a superior position to the SPI as to the supervision of
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 there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
¶ 15. This case requires us to interpret
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.”
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
¶ 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 Legislature created
¶ 19. A “rule” is defined by
to adopt general policies and interpretations of statutes that will govern the agency‘s enforcement or administration of that statute.
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.
¶ 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.
¶ 22. After approval by the individual or body with policy-making powers, the agency could begin drafting the proposed rule. See
¶ 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
B. Constitutional Challenges to Statutes
¶ 24. Coyne challenges the constitutionality of the aforementioned changes to
¶ 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
¶ 27. The dissents take issue with the procedural posture of this case, specifically commenting that “no proof has been submitted that either
¶ 28. The Uniform Declaratory Judgments Act,
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 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
¶ 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.
¶ 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
¶ 34.
¶ 35. The Legislature has “prescribed by law” the SPI‘s and DPI‘s duties and powers of supervision of public instruction in
¶ 36. To be clear, rulemaking is not a constitutional power of the SPI.
¶ 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
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
a. Thompson v. Craney
¶ 39. Thompson‘s examination of
¶ 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
¶ 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
b. General Principles Governing the Interpretation of a Constitutional Provision
¶ 42. “The surest guides to a proper interpretation of [
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,
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 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 consti-
¶ 44. When we examine the constitution as a whole, we conclude that
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
¶ 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 Daimler-Chrysler 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
¶ 47. Further evidence that the “other officers” referred to in
¶ 48. Another indication that the “other officers” in
¶ 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 longer the superintendent of
¶ 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 sentence. We cannot conclude that the plain language of
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
¶ 52. As originally proposed in 1846,
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 https://books.google.com/books?id=EYOUAAAAYAAJ&printsec=titlepage&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 conven-
¶ 53. As this court recognized in Thompson, discussion of the role or powers of the “other officers” mentioned in
¶ 54. However, two defeated proposals regarding the superintendent from the 1846 debates indicate that the framers envisioned the “other officers” in
¶ 56. Moreover, the history of the 1902 amendment to
¶ 57. Our review of the history of the drafting of the 1902 amendment reveals that like the drafters of
e. The First Laws Interpreting Article X, Section 1.
¶ 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 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
¶ 61. Similar to the Legislature‘s actions following the adoption of the 1848 constitution, the Legislature first interpreting the 1902 amendment to
¶ 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
¶ 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
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
¶ 66. As discussed previously, rulemaking is the primary means by which the SPI and DPI must carry
¶ 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 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
¶ 70. Additionally, the constitution gives the Legislature control over what powers the SPI and the
¶ 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 re
E. The Reasons the Dissents and the Lead Reach a Different Conclusion.
¶ 72. Now that we have fully presented our interpretation of
¶ 73. The main problem with the dissents’ analy
¶ 74. While
¶ 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
¶ 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 “pre
¶ 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 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
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 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
By the Court.—The decision of the court of appeals is affirmed.
¶ 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
¶ 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
¶ 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 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
¶ 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
¶ 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.
¶ 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);
¶ 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
¶ 94.
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 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
¶ 97. In analyzing the constitutionality of 1995
¶ 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:
- “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.
- 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.
- The framers of the Wisconsin Constitution considered and explicitly rejected a proposal to select a superintendent by gubernatorial
¶ 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
¶ 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
¶ 105. Justice Prosser‘s concurrence (¶ 168) disagrees with the Thompson court because it “in
¶ 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 [superintendent] and the other officers of supervision of public instruction. If
¶ 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
¶ 110. The superintendent is a constitutional officer. The office was created by
¶ 111.
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
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. . . .
¶ 113. In adopting
¶ 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, 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
¶ 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) 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.
¶ 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.
¶ 125. Prior to Act 21,
¶ 126. Section 4 of Act 21 changed subsection (2) of
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.
¶ 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 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.
¶ 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
¶ 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
¶ 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 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.
¶ 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 addi-
¶ 134. This expansive power, partly shared by the secretary of administration, applies to rules promulgated by an “agency.” “Agency” is defined in
¶ 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.
¶ 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
¶ 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.
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.
¶ 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 thejudges 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
¶ 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
¶ 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.
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 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.
¶ 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,
¶ 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:
- 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).
- 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. . . . - 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 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 sci-
ence. 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).
¶ 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
¶ 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:
Laws of 1848 at 128-29, quoted in Thompson, 199 Wis. 2d at 694 (emphasis added; ellipsis in original).2The 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, 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. . . .
¶ 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
¶ 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.
¶ 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.
III. THOMPSON V. CRANEY
¶ 157. The reason I have written separately and have not joined Justice Gableman‘s opinion is that my
¶ 158. In Thompson, the court stated:
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.
¶ 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.
¶ 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 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
¶ 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.
¶ 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 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.
¶ 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.
¶ 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 en-
¶ 174. I conclude that the legislature acted pursuant to its constitutional authority under
I. BACKGROUND
¶ 175. Before us, two sections of Act 21 are challenged:
¶ 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 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
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 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 constitu-
¶ 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).
¶ 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.
¶ 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.
¶ 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 “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.
¶ 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).
¶ 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.
¶ 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.
[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. . . . 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.
¶ 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 legis-
¶ 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
¶ 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,
¶ 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
¶ 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.”
¶ 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.”
¶ 202. It is important to recognize that DPI has no constitutional authority. See Martinez v. DILHR,
¶ 203. By
¶ 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.
¶ 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,
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:
1. General principles
¶ 208. DPI has no power to create a law, nor has the Superintendent.
¶ 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.
¶ 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,
¶ 212. Furthermore, “[n]o agency may promulgate a rule which conflicts with state law.”
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.
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 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.
¶ 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, 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
¶ 217. However, the lead opinion concludes that
¶ 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 and (2) it fails to recognize the legislature‘s constitutional authority under
¶ 219. To explain further, first, it was the legislature that granted the Superintendent the authority to direct and supervise DPI, as
¶ 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
¶ 221. There was no DPI when the Superintendent of Public Instruction was created by
¶ 222. Second, the legislature has the constitutional power to control the mechanism by which rulemaking is undertaken because rulemaking is a delegation of the legislature‘s legislative power granted in
¶ 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.
¶ 224. Furthermore, while statutes may create opportunities and obligations for the Superintendent,
¶ 225. In regard to the interaction of the Superintendent and the legislature,
¶ 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
¶ 228. In Thompson, we did not examine whether duties of the Superintendent that had been
¶ 229. However, without recognizing the effect of its decision, the lead opinion increases the executive power granted to the Superintendent in
D. Constitutional Violation
¶ 230. Finally, in order to succeed before us, the Superintendent must prove beyond a reasonable doubt that
¶ 231. No proof has been submitted that either
¶ 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 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.
III. CONCLUSION
¶ 233. I conclude that the legislature acted pursuant to its constitutional authority under
¶ 234. I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and REBECCA G. BRADLEY join this dissent.
¶ 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
¶ 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, 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).
¶ 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 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 [
¶ 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
¶ 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 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,
¶ 242. I cannot subscribe to this reasoning because it fails to account for the unconquerable nature of the first of the 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: ”
¶ 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
¶ 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 this be unconstitutional? The legislature is simply “prescribing” the “powers” of the SPI under
¶ 245.
¶ 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 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
¶ 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 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
¶ 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
¶ 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
¶ 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,
¶ 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 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
¶ 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 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 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.”
¶ 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 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.
Notes
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 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.
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.
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.
The complaint also objected to the enactment ofMembers 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 the duties of their respective offices to the best of their ability.
Coyne, 361 Wis. 2d 225, ¶ 31. The educational approval board is no longer involved with DPI, as it was in 1967.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.
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.
The Legislature also frequently requires an agency to promulgate a rule on a certain subject. See generally