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  • WisBar News
    February 19, 2015

    Appeals Court Says Gov. Walker Cannot Intervene on Public Education Rulemaking

    Joe Forward
    Legal Writer

    Feb. 19, 2015 – Portions of a law that gives Gov. Scott Walker power to reject rules promulgated by the state Superintendent of Public Instruction (SPI) is unconstitutional, a state appeals court has ruled in a lawsuit by school teachers.

    Before 2011 Wisconsin Act 21 was enacted in 2011, state agencies could draft rules once the agency head approved and published a “scope statement,” which describes the proposed rule’s objective, the policies that would change under the rule, the resources necessary to develop the rule, and the entities affected, among other things.

    Under Act 21, a state agency cannot promulgate rules unless the Governor, or in some cases the Secretary of the Department of Administration, approves the scope statement. 

    If the Governor approves the scope statement and a proposed rule is drafted after public input, the Governor must approve the proposed final rule also.

    Numerous public school teachers filed a declaratory action against Gov. Walker and then-Secretary of Administration Michael Huebsch. The teachers argued that Act 21 is unconstitutional as applied to the administrative rulemaking power of Wisconsin’s SPI, currently Tony Evers, who was elected in 2009 and reelected in 2013.

    Walker and Huebsch (Walker) argued that the SPI’s rulemaking power is not supervisory; it’s a legislative power that may be delegated, and Act 21 grants the Governor the power to approve rules. The Dane County judge disagreed and ruled for the teachers after rejecting Walker’s argument that the teachers lacked standing.

    In Coyne v. Walker, 2013AP416 (Feb. 19, 2015), a three-judge panel for the District IV Court of Appeals affirmed, concluding that Act 21 is unconstitutional because the Wisconsin Constitution gives the Superintendent (SPI) supervisory rulemaking power.

    Wis. Const. Art. X, section 1, says 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.”

    In 1996, the Wisconsin Supreme Court held that provisions of a 1995 law unconstitutionally violated Art. X, section 1 by creating a State Department of Education and Secretary of Education that were controlled by then-Governor Tommy Thompson.

    The appeals court panel noted that the supreme court’s 1996 decision in Thompson v. Craney confirmed that the SPI’s powers are supervisory and cannot be subordinate to other powers legislatively delegated for the purpose of supervising public education.

    The Thompson court noted a law enacted by the Wisconsin Legislature in 1848 that specifically granted the SPI supervisory power, including rulemaking authority.

    “The legislature has the authority to give, to not give, or to take away the SPI’s supervisory powers, including rulemaking power,” wrote Judge Gary Sherman for the panel. “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.”

    The panel noted that Wisconsin’s education system requires uniformity, and the SPI uses rulemaking to promote uniformity, as the supreme court explained in Thompson.

    The panel also rejected Walker’s claim that even if the SPI has supervisory rulemaking power, Act 21 does not unconstitutionally strip those powers from the SPI.

    “If Walker and Huebsch mean to suggest that the power relative to rulemaking given to the governor under Act 21 is subservient to the power relative to rulemaking retained by the SPI under Act 21, we disagree,” Judge Sherman wrote.

    “The practical effect of Act 21, with respect to administrative rules proposed by the SPI, is to give the Governor the ability to halt the process of drafting administrative rules affecting education at two key stages in the process.”

    The panel noted that Act 21 lets the Governor decide whether rules are promulgated or not, which allows the Governor to leverage changes irrespective of the SPI’s judgment.

    The panel affirmed the circuit court’s declaratory judgment that neither the Governor nor the Secretary of Administration may intervene in the drafting and rulemaking process as applied to the SPI. It did not rule whether Act 21 is unconstitutional as applied to other state agencies or officers with administrative rulemaking powers.

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