Kristi Koschkee v. Carolyn Stanford Taylor

2019 WI 76, 929 N.W.2d 600, 387 Wis. 2d 552
Wisconsin Supreme Court·Decided June 25, 2019·No. 2017AP002278-OA·Published·Cited by 40 cases

Opinions

PATIENCE DRAKE ROGGENSACK, C.J.

*556¶1 This is an original action brought by Kristi Koschkee et al., two licensed teachers and two school board *557members, against Superintendent of Public Instruction (SPI) Carolyn Stanford Taylor and the Department of Public Instruction (DPI). The petitioners argue that the SPI and DPI must comply with the statutory requirement that, prior to drafting or promulgating an administrative rule, they must receive written approval from the governor.1 The SPI and DPI argue that this requirement of gubernatorial approval is unconstitutional as applied to the SPI because, pursuant to Article X, Section 1 of the Wisconsin Constitution, no other officer may be placed in a position equal or superior to that of the SPI with regard to the "supervision of public instruction."

¶2 We conclude that the gubernatorial approval requirement for rulemaking is constitutional as applied to the SPI and DPI, whether such approval authority is found in 2017 Wis. Act 57 or in previous provisions of ch. 227. Article X, Section 1 vests supervision of public instruction, an executive function, in the SPI. In contrast, when the SPI, through the DPI, promulgates rules, it is exercising legislative power that comes not from the constitution but from the legislature. Stated otherwise, the legislature delegates part of its constitutional power to legislate to the SPI, *558DPI, and many other agencies in the form of rulemaking power. That the SPI also *603has the executive constitutional function to supervise public instruction does not transform the SPI's legislatively delegated rulemaking power into a constitutional supervisory function. Therefore, it is of no constitutional concern that the governor is given equal or greater legislative authority than the SPI in rulemaking.

I. BACKGROUND

¶3 2011 Wis. Act 21 (Act 21) amended sections of Wis. Stat. ch. 227 (2009-10), the Wisconsin Administrative Procedure Act. Prior to the passage of Act 21, an agency2 planning to draft an administrative rule submitted a "statement of scope" to the Legislative Reference Bureau (LRB) for publication, and to the "individual or body with policy-making powers over the subject matter of a proposed rule" for approval. Wis. Stat. § 227.135(2) (2009-10). A scope statement describes the rule and its objectives, the statutory authority for promulgating the rule, the time and resources required to develop the rule, the entities affected, and a summary of relevant federal regulations. Wis. Stat. § 227.135(1)(a)-(f) (2017-18).3 After submitting the scope statement, the agency drafted the proposed rule and submitted it to the legislature for review. Wis. Stat. §§ 227.135 -.19 (2009-10).

*559¶4 Act 21 altered this procedure. Act 21 required an agency first to submit its scope statement to the governor for approval; agencies were prohibited from submitting a scope statement to the LRB until the governor issued a written notice of approval. An agency could not "perform any activity in connection with the drafting of a proposed rule ... until the governor and the individual or body with policy-making powers over the subject matter of the proposed rule approve[d]." Wis. Stat. § 227.135(2). Additionally, rather than submitting final drafts of proposed rules directly to the legislature for approval, agencies were required first to submit final drafts of proposed rules to the governor for approval. Wis. Stat. § 227.185. The proposed rule could not be submitted to the legislature for approval unless and until the governor again approved the rule in writing. Id.

¶5 We reviewed these gubernatorial approval requirements in Coyne v. Walker, 2016 WI 38, ¶6, 368 Wis. 2d 444, 879 N.W.2d 520, and decided that they were "void as applied to the [SPI] and his subordinates." Id., ¶4. There was no majority opinion in Coyne. Our mandate resulted from a one-justice lead opinion, a two-justice concurrence, and a one-justice concurrence, all of which agreed only on the outcome of the case.

¶6 In 2017, the Wisconsin legislature passed the Regulations from the Executive in Need of Scrutiny Act, 2017 Wis. Act 57 (REINS Act). The REINS Act added the requirement that agencies submit scope statements to the Department of Administration (DOA), which determines whether the agency has authority to promulgate the rule. REINS Act, § 3. The DOA also makes a non-binding recommendation to the governor. REINS Act, § 3. The REINS Act required *560agencies to hold a preliminary public hearing and comment period on the scope statement at the request of a co-chairperson of the Joint *604Committee on Review of Administrative Rules (JCROR). REINS Act, § 5.

¶7 The REINS Act did not alter Act 21's requirement that an agency (1) submit a statement of scope to the governor for approval prior to drafting a proposed rule, and (2) submit a final draft of a rule to the governor for approval before submitting it to the legislature.

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Kristi Koschkee v. Carolyn Stanford Taylor, 2019 WI 76, 929 N.W.2d 600, 387 Wis. 2d 552 (Wis. 2019).

2019 WI 76 (Kristi Koschkee v. Carolyn Stanford Taylor) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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