Kristi Koschkee, Amy Rosno, Christopher Martinson and Mary Carney, Petitioners,
Carolyn Stanford Taylor, in her official capacity as Wisconsin Superintendent of Public Instruction and Wisconsin Department of Public Instruction, Respondents.
ACTION for declaratory judgment.
Argument: April 10, 2019
the petitioners, there were briefs filed by Richard M.
Esenberg, Brian McGrath, CJ Szafir, and Wisconsin Institute
For Law & Liberty, Milwaukee. There was an oral argument
by Richard M. Esenberg.
the respondents, there was a brief filed by Ryan Nilsestuen,
Benjamin R. Jones, and Wisconsin Department of Public
Instruction, Madison. There was an oral argument by Lester A.
Pines and Pines Bach LLP, Madison.
amicus curiae brief was filed on behalf of Wisconsin
Association of School Boards, Inc., and the Wisconsin School
Administrators' Alliance, Inc., by Michael J. Julka,
Richard F. Verstegen, M. Tess 0'Brien-Heinzen, and
Wisconsin Association of School Boards, Inc. and School
Administrators' Alliance, Inc., Madison. There was an
oral argument by Richard F. Verstegen.
amicus curiae brief was filed on behalf of Peggy Coyne, Mary
Bell, Mark W. Taylor, Corey Otis, Marie Stangel, Jane
Weidner, and Kristin A. Voss, by lester A. Pines and Pines
Bach IIP, Madison. With whom on the brief was Christina M.
Ripley and Wisconsin Education Association Council, Madison.
There was an oral argument by Jeffrey A. Mandell and Stafford
Rosenbaum IIP, Madison.
PATIENCE DRAKE ROGGENSACK, C.J.
This is an original action brought by Kristi Koschkee et al.,
two licensed teachers and two school board members, against
Superintendent of Public Instruction (SPI) Carolyn Stanford
Taylor and the Department of Public Instruction (DPI). The
petitioners argue that the SPI and DPI must comply with the
statutory requirement that, prior to drafting or promulgating
an administrative rule, they must receive written approval
from the governor. 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."
We conclude that the gubernatorial approval requirement for
rulemaking is constitutional as applied to the SPI and DPI,
whether such approval authority is found in 2017 Wis. Act 57
or in previous provisions of ch. 227. Article X, Section 1
vests supervision of public instruction, an executive
function, in the SPI. In contrast, when the SPI, through the
DPI, promulgates rules, it is exercising legislative power
that comes not from the constitution but from the
legislature. Stated otherwise, the legislature delegates part
of its constitutional power to legislate to the SPI, DPI, and
many other agencies in the form of rulemaking power. That the
SPI also has the executive constitutional function to
supervise 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.
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 agency 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). After submitting the scope statement, the
agency drafted the proposed rule and submitted it to the
legislature for review. Wis.Stat. §§ 227.135-.19
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.
We reviewed these gubernatorial approval requirements in
Coyne v. Walker, 2016 WI 38, ¶6, 368 Wis.2d
444, 879 N.W.2d 520');">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
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 agencies to hold
a preliminary public hearing and comment period on the scope
statement at the request of a co-chairperson of the Joint
Committee on Review of Administrative Rules (JCROR). REINS
Act, § 5.
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.
The petitioners conceded at oral argument that the SPI and
DPI had submitted scope statements to the DOA and held
preliminary public hearings and comment periods upon request.
However, the petitioners assert that the REINS Act
"variously amends and reenacts parts of a comprehensive
statutory scheme" and that their challenge therefore
encompasses the "full suite of requirements" of ch.
The petitioners ask us to overrule Coyne's
mandate and hold that the SPI and DPI must comply with the
"full suite of requirements" of ch. 227, including
the requirement for written gubernatorial approval both
before drafting a proposed rule and before submitting a final
draft of a proposed rule to the legislature. We accepted the
petition for original action, and now conclude that the
requirement that agencies receive gubernatorial approval
prior to drafting a proposed rule and again before submitting
it to the legislature for approval is constitutional as
applied to the SPI and DPI. Accordingly, we overrule our
prior decision in Coyne v. Walker, 368 Wis.2d
Standard of Review
We are required to interpret Article X, Section 1 in order to
decide the pending controversy. Interpretations of provisions
of the Wisconsin Constitution present legal questions.
Custodian of Records for the LTSB v. State, 2004 WI
65, ¶6, 272 Wis.2d 208, 680 N.W.2d 792. This case also
requires us to apply a statute. The interpretation and
application of a statute to a given set of facts present
questions of law as well. Marder v. Bd. of Regents of
Univ. Wis. Sys., 2005 WI 159, ¶19, 286 Wis.2d 252,
706 N.W.2d 110. B. Rulemaking Authority
The Wisconsin Constitution establishes three separate
branches of government, with "no branch subordinate to
the other, no branch to arrogate to itself control over the
other except as is provided by the constitution, and no
branch to exercise the power committed by the constitution to
another." State ex rel. Friedrich v. Dane Cty. Cir.
Ct., 192 Wis.2d 1, 13, 531 N.W.2d 32 (1995) (citation
omitted). Legislative power is vested in a senate and
assembly, executive power is vested in a governor, and
judicial power is vested in a unified court system. Wis.
Const. art. IV, V, VII.
"Legislative power, as distinguished from executive
power, is the authority to make laws, but not to enforce
them." Schuette v. Van De Hey, 205 Wis.2d 475,
480-81, 556 N.W.2d 127 (1996). Powers constitutionally vested
in the legislature include the powers: "'to declare
whether or not there shall be a law; to determine the general
purpose or policy to be achieved by the law; [and] to fix the
limits within which the law shall operate.'"
See, e.g., Schmidt v. Dep't of Res.
Dev., 39 Wis.2d 46, 59, 158 N.W.2d 306 (1968) (quoting
State ex rel. Wis. Inspection Bureau v. Whitman, 196
Wis. 472, 505220 N.W. 929 (1928)).
A "rule" is "a regulation, standard, statement
of policy, or general order of general application that has
the force of law and that is issued by an agency to
implement, interpret, or make specific legislation enforced
or administered by the agency or to govern the organization
or procedure of the agency." Wis.Stat. §
227.01(13). Therefore, when administrative agencies
promulgate rules, they are exercising legislative power that
the legislature has chosen to delegate to them by statute.
See id. at 505-06 (the legislature "may
delegate to administrative agencies the authority to exercise
such legislative power as is necessary to carry into effect
the general legislative purpose . . . . It  leads to
confusion and error to say that the power to fill up the
details and promulgate rules and regulations is not
legislative power."); Brown Cty. v. DHFS, 103
Wis.2d 37, 43, 307 N.W.2d 247 (1981) ("Where the
legislature has set forth the 'fundamentals of a law, it
may delegate to administrative agencies the authority to
exercise such legislative power as is necessary to carry into
effect the general legislative purpose.'")
From time to time, the legislature has used its power to
create administrative agencies, such as the Department of
Health Services and the Department of Financial Institutions,
and to delegate to agencies certain legislative powers. The
legislature created DPI in 1967. Wis.Stat. § 15.37
Agencies are considered part of the executive branch.
Citizens Concerned for Cranes and Doves v. DNR, 2004
WI 40, ¶14, 270 Wis.2d 318, 677 N.W.2d 612. They possess
"'only those powers [that] are expressly conferred
or [that] are necessarily implied by the statutes under which
[they] operate.'" See, e.g.,
Kimberly-Clark Corp. v. Pub. Serv. Comm'n, 110
Wis.2d 455, 461-62, 329 N.W.2d 143 (1983). The DPI is the
administrative agency responsible for promulgating rules
related to public instruction, and acts "under the
direction and supervision of the [SPI]." Wis.Stat.
The powers delegated to administrative agencies by the
legislature include the power to promulgate rules within the
boundaries of enabling statutes passed by the legislature.
See Wis. Stat. § 227.11(2)(a) ("Each
agency may promulgate rules interpreting the provisions of
any statute enforced or administered by the agency, if the
agency considers it necessary to effectuate the purpose of
the statute, but a rule is not valid if the rule exceeds the
bounds of correct interpretation."); State ex rel.
Castaneda v. Welch, 2007 WI 103, ¶26, 303 Wis.2d
570, 735 N.W.2d 131.
In Wis.Stat. § 227.19(1)(b), the legislature explained
that its delegation of legislative power is a recognition of
"the need for efficient administration of public
policy," and it also outlined reservations of that
in its general rulemaking delegation, the legislature
"reserves to itself" all of the following:
1. The right to retract any delegation of rule-making
2. The right to establish any aspect of general policy by
legislation, notwithstanding any delegation of rule-making
3. The right and responsibility to designate the method for
rule promulgation, review and modification.
4. The right to delay or suspend the implementation of any
rule or proposed rule while under review by the legislature.
§ 227.19 (1)(b)1.-4.
We have long recognized that "the delegation of the
power to make rules and effectively administer a given policy
is a necessary ingredient of an efficiently functioning
government." Gilbert v. Med. Examining Bd., 119
Wis.2d 168, 184, 349 N.W.2d 68 (1984); see also
Schmidt, 39 Wis.2d at 58 ("[O]ur government could
not efficiently operate without the administrator and
administrative agency."). The administration of state
government is complex. For example, "[t]he Wisconsin
Administrative Code is more than 11, 000 pages long with just
under 1, 800 chapters of regulations that affect businesses,
local governments, licensed professionals, and consumers and
touch[es] virtually every industry in Wisconsin."
See, e.g., Jodi E. Jensen, Regulatory Reform:
Moving Policymaking from State Agencies to the
Legislature, 91 Wis. Law. 24, 25 (Oct. 2018).
However, while the breadth of government legislation has
resulted in some delegation of legislative power to agencies,
such agencies remain subordinate to the legislature with
regard to their rulemaking authority. Stated otherwise,
agencies "ha[ve] no inherent constitutional authority to
make rules, and, furthermore, [their] rule-making powers can
be repealed by the legislature." Martinez v.
DILHR, 165 Wis.2d 687, 698, 478 N.W.2d 582 (1992);
Wis.Stat. § 227.19(1)(b)1.
In addition, the case before us does not present issues that
should give rise to a dogmatic exposition on the merits, or
lack thereof, of administrative agencies. Rather, we are
asked to determine the extent to which the legislature can
change a past delegation of rulemaking authority when the
SPI's rulemaking is affected.
Legislative change and control of rulemaking are within the
constitutional power of the legislature. Martinez,
165 Wis.2d at 698. As we have explained, an agency's
"'powers, duties and scope of authority are fixed
and circumscribed by the legislature and subject to
legislative change.'" Id. (quoting
Schmidt, 39 Wis.2d at 56). Because the legislature
has the authority to take away an administrative agency's
rulemaking authority completely, it follows that the
legislature may place limitations and conditions on an
agency's exercise of rulemaking authority, including
establishing the procedures by which agencies may promulgate
rules. The legislature may therefore retract or limit any
delegation of rulemaking authority, determine the methods by
which agencies must promulgate rules, and review rules prior
to implementation. Wis.Stat. § 227.19(1)(b)1.-4.;
see, e.g., Wis. Realtors Ass'n v. Pub. Serv.
Comm'n, 2015 WI 63, ¶23, 363 Wis.2d 430, 867
After the enactment of Act 21, agencies must first submit
scope statements to the governor for approval; agencies may
not submit scope statements to the LRB, or begin drafting any
proposed rule, "until the governor issues a written
notice of approval of the statement." Wis.Stat. §
227.135(2). Additionally, rather than submit final drafts of
proposed rules directly to the legislature for approval,
agencies must first submit final drafts of proposed rules to
the governor for approval. Wis.Stat. § 227.185. A
proposed rule may not be submitted to the legislature without
a second approval of the governor. § 227.185. Act 21
therefore altered the legislature's delegation of
rulemaking power to agencies by allowing the governor to
block a proposed rule at two separate stages of the
rulemaking process. C. SPI's Constitutional Authority
The constitutional genesis of the SPI is found in Article X,
Section 1, which provides:
The supervision of public instruction shall be vested in a
state superintendent and such other officers as the
legislature shall direct; and their qualifications, powers,
duties and compensation shall be prescribed by law. The state
superintendent shall be chosen by the qualified electors of
the state at the same time and in the same manner as members
of the supreme court, and shall hold office for 4 years from
the succeeding first Monday in July. The term of office, time
and manner of electing or appointing all other officers of
supervision of public instruction shall be fixed by law.
Wis. Const. art. X, § 1. Article X, Section 1 does not
define the term "supervision."
When we interpret an undefined constitutional term we examine
the common law as it existed at the time the constitutional
provision was enacted, the constitutional debates that bore
on the undefined term, the plain meaning of the term at the
time the constitutional provision was adopted, and the
earliest interpretation in laws passed shortly after adoption
of the constitutional provision or our opinions that
interpreted the provision. See Polk Cty. v. State Pub.
Def., 188 Wis.2d 665, 674, 524 N.W.2d 389 (1994) (citing
State v. Beno, 116 Wis.2d 122, 136-38, 341 N.W.2d
Our examination of the common law functions of the SPI at
statehood provides no guidance, because an officer
responsible for public education did not exist prior to 1848.
Therefore, Article X, Section 1 did not "incorporate
an ancient common law office, possessing defined powers and
duties, into the constitution. Public instruction and its
governance had no long-standing common law history at the
time the Wisconsin ...