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  • WisBar News
    June 25, 2019

    Supreme Court Reverses Course on Governor’s Power Over School Rulemaking

    Joe Forward


    June 25, 2019 – A Wisconsin Supreme Court majority has overruled its prior 2016 decision, which struck down a 2011 law that gave the governor power to reject administrative rules promulgated by the state’s superintendent of public schools.

    The four-justice majority in the 2016 decision in Coyne v. Walker, which reviewed a challenge to 2011 Wis. Act 21, included Justice Michael Gableman and Justice David Prosser. Both have since retired.

    A current majority today reversed course, overruling the Coyne decision and upholding the governor’s power to reject rules proposed by the Superintendent of Public Instruction (SPI) through the Wisconsin Department of Public Instruction (DPI).

    The Wisconsin Legislature reignited the issue addressed in Coyne in 2017 by passing the Regulations from the Executive in Need of Scrutiny Act (REINS Act), 2017 Wis. Act 57, which requires agencies to submit rulemaking proposals to the Department of Administration.

    The REINS Act reaffirmed the governor’s authority, under Act 21, to reject or approve proposed administrative rules under the Wisconsin Administrative Procedure Act. Teachers and school board members sued, asking the court to overrule Coyne.

    Today, in Koschkee v. Taylor, 2019 WI 76 (June 25, 2019), the court (4-2) overruled Coyne, upholding as constitutional a requirement that the SPI and DPI “receive gubernatorial approval” before attempting to promulgate administrative rules.

    How It Started

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

    Prior to 2011, state agencies submitted “scope statements” to the Legislative Reference Bureau (LRB) for publication. The scope statement described the proposed rule and its objectives. A proposed rule would be submitted to the Legislature for review.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    But 2011 Wis. Act 21 amended the Wisconsin Administrative Procedure Act. Scope statements need approval by the governor before the process of promulgating the proposed administrative rule can begin. Even if a scope statement is approved, the governor can reject the proposed rule before review by the Legislature.

    In Coyne, teachers filed a declaratory action, arguing that Act 21 unconstitutionally removed administrative rulemaking power from the elected SPI because the state constitution grants those powers – they are not legislatively delegated.

    That is, the plaintiffs argued that the SPI’s rulemaking power is vested by the state constitution, which says “[t]he supervision of public instruction shall be vested in a state superintendent,” and this specific “supervisory authority” could not be superseded.

    Then-Justice Gableman, who wrote the lead opinion, noted that Art. X, §1, says the superintendent’s duties “shall be prescribed by law.” Gableman said “prescribed by law” means “prescribed by statutory law,” and the Legislature creates statutory law.

    At the same time, Gableman (and Justice Prosser) said the Legislature, by statute, had delegated rulemaking power to the SPI and DPI as a function of “supervision,” and another law that undermined that rulemaking power could not stand.

    “[U]nder the current statutory prescription, the SPI and DPI cannot carry out their duties and powers of supervision of public instruction,” Justice Gableman wrote.

    In addition, Justice Gableman said the duties delegated by the Legislature could not be divided among “other officers” who are not involved in the supervision of public instruction. In other words, the governor could not share or supersede the SPI’s power.

    However, Justice Gableman noted that the Legislature could change the statutes to remove the SPI’s power to promulgate administrative rules. That is, he did not conclude that the SPI’s rulemaking power was vested by the state constitution.

    Chief Justice Patience Roggensack, who wrote the majority opinion overruling Coyne in Koschkee v. Taylor, noted that Coyne was a splintered decision with concurrences and only four justices agreed on the ultimate outcome, highlighting Coyne’s vulnerability.

    Majority Reverses Coyne

    A four-justice majority, in Koschkee, reiterated that administrative rulemaking is an exercise of legislative power delegated to administrative agencies by the Legislature.

    “Because the legislature has the authority to take away an administrative agency’s rulemaking authority completely, it follows that the legislature may place limitations and conditions on an agency’s exercise of rulemaking authority, including establishing the procedures by which agencies may promulgate rules,” the chief justice wrote.

    She said Act 21 properly “altered the legislature’s delegation of rulemaking power to agencies by allowing the governor to block a proposed rule at two separate stages of the rulemaking process,” and the state constitution does not change that conclusion.

    Roggensack examined the constitutional history of the SPI as an executive function and concluded that SPI’s rulemaking power is not derived from the state constitution.

    “Because rulemaking is not ‘supervision of public instruction’ within the meaning of Article X, Section 1, it is of no constitutional concern whether the governor is given equal or greater legislative authority than the SPI in rulemaking,” she wrote.

    Justice Rebecca Bradley agreed that the Legislature can require gubernatorial approval of administrative rulemaking. But she wrote a separate concurrence to question the constitutionality of legislative delegations of power to agencies.

    “Through the Wisconsin Constitution, the people conferred exclusive powers on an elective executive, an elected legislature, and an elected judiciary, respectively,” she wrote. “Noticeably absent from the Wisconsin Constitution is any apportionment of power to unelected and unaccountable administrators.”

    Justice Daniel Kelly joined the majority opinion, aside from one passage suggesting the delegation of power to administrative agencies to make rules and administer policies “is a necessary ingredient of an efficiently functioning government.”

    Dissenters Point to Stare Decisis

    Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Justice Rebecca Dallet, noting Coyne was recently decided and little has changed.

    “Although nothing in our Constitution has changed since Coyne was decided, what has changed is the membership of the court,” Justice A.W. Bradley wrote.

    “This time around, a new majority of this court does an about-face and now concludes that the substance of Act 57 is constitutional. To reach this conclusion, it throws the doctrine of stare decisis out the window.”

    Justice A.W. Bradley said that in Coyne, four justices held that Act 21 was unconstitutional and therefore void as applied to the SPI.

    “Such a decision creates no uncertainty and fosters no confusion,” she wrote. “Act 57, at issue here, does not differ in any material respect from Act 21. Accordingly, I conclude the doctrine of stare decisis applies here with full force.”

    Justice Shirley Abrahamson, who is in the majority in Coyne along with A.W. Bradley, withdrew from participation in the case.

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