MICHAEL J. GABLEMAN, J.
¶ 1 This is a review of a published decision of the court of appeals
¶ 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, 862 N.W.2d 606. 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 Article X, § 1 of the Wisconsin Constitution allows the Legislature to vest the supervision of public instruction in any "other officers" it chooses. The third is whether Act 21 vests the supervision of public instruction in the Governor and the Secretary of Administration by giving them the authority to prevent the SPI and DPI's promulgation of rules.
¶ 4 We hold that Act 21 is unconstitutional and therefore void as applied to the Superintendent of Public Instruction and his subordinates. Article X, § 1 requires the Legislature to vest the supervision of public instruction in officers of supervision of public instruction. The current statutory scheme requires the SPI to promulgate rules in order to supervise public instruction. Because Act 21 does not provide a way for the SPI and DPI to proceed with rulemaking if the Governor or Secretary of Administration withholds approval, Act 21 gives the Governor and the Secretary of Administration the power to "manage, direct, or oversee" the primary means by which the SPI and DPI are required to carry out their supervisory duties. Thus, Act 21 unconstitutionally vests the supervision of public instruction in officers who are not officers of supervision of public instruction in violation of Article X, § 1. Consequently, Act 21 is void as applied to the SPI and his subordinates.
¶ 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 Wis. Stat. ch. 227 sub. II (2009-10), the Wisconsin Administrative Procedure Act. This Act prescribes the procedures state agencies must follow in order to promulgate administrative rules. Three sections of Act 21 are especially relevant to the present case: Section 4, Section 21, and Section 32.
¶ 6 First, Section 4 of Act 21 amended Wis. Stat. § 227.135(2) (2009-10). Wisconsin Stat. § 227.135(2) previously required agencies that had prepared a "scope statement"
¶ 7 Second, Section 21 of Act 21 amended Wis. Stat. § 227.138(2) (2009-10) and renumbered the subsection to Wis. Stat. § 227.137(6). Wisconsin Stat. § 227.138(2) previously required only those agencies listed in Wis. Stat. § 227.137(1) to receive the Secretary of Administration's approval to submit proposed rules that could result in costs of $20,000,000 or more to the Legislature. Wisconsin Stat. § 227.137(6) now requires all agencies to receive the Secretary of Administration's approval to submit such proposed rules to the Legislature.
¶ 8 Third, Section 32 of Act 21 created Wis. Stat. § 227.185. Prior to Act 21, agencies would submit final drafts of proposed rules directly to the Legislature for review. See Wis. Stat. §§ 227.135-.19 (2009-10). Wisconsin Stat. § 227.185 now requires agencies to submit any final draft of a proposed rule to the Governor for approval before submitting the draft rule to the Legislature.
¶ 9 The Coyne parties
¶ 10 Superintendent Evers filed an answer agreeing with Coyne; he has taken the same position as Coyne throughout this litigation. Governor Walker and Secretary Heubsch
¶ 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 Wisconsin Constitution." Accordingly, the circuit court declared void the provisions of Act 21 that "require approval of the Governor or the Secretary of the Department of Administration over the administrative rule-making activities in which the State Superintendent of Public Instruction engages or supervises, with respect to the supervision of public instruction."
¶ 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, 862 N.W.2d 606. 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, 546 N.W.2d 123). 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 public instruction; consequently, the court found the challenged provisions of Act 21 unconstitutional as applied to the SPI. Id., ¶ 36. The Governor appealed, and we granted review on June 12, 2015.
¶ 14 We review a grant of summary judgment de novo, independently applying
¶ 15 This case requires us to interpret Article X, § 1 of the Wisconsin Constitution. "We interpret provisions of the Wisconsin Constitution de novo." Polk Cty. v. State Pub. Def., 188 Wis.2d 665, 674, 524 N.W.2d 389 (1994). This court turns to three sources to interpret provisions of the Wisconsin Constitution: "(1) the plain meaning of the words in the context used, (2) the historical analysis of the constitutional debates and of what practices were in existence [at the time the provision was drafted or amended]; and (3) the earliest interpretation of the provision by the Legislature as manifested in the earliest law passed following the adoption of the constitution." Id.
¶ 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.
¶ 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.
¶ 18 In order to implement the policy decisions of the Legislature, the Legislature delegates to agencies, by statute, the power to promulgate administrative rules.
¶ 19 A "rule" is defined by Wis. Stat. § 227.01(13) as "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."
¶ 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. Wis. Stat. § 227.135(1). Among other things, the scope statement gives an overview of the proposed rule and the effect it is likely to have on entities and government resources. Wis. Stat. § 227.135(1)(a)-(f).
¶ 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. Wis. Stat. § 227.135(3) (2009-10). The "individual or body with policy-making powers over the subject matter of a proposed rule" then had to approve the scope statement. Wis. Stat. § 227.135(2)(2009-10).
¶ 22 After approval by the individual or body with policy-making powers, the agency could begin drafting the proposed rule. See Wis. Stat. §§ 227.135(2)-.18 (2009-10). Once the drafting process was complete, the agency submitted the draft rule in its final form along with a detailed report about the proposed rule to the Legislature for review.
¶ 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.
¶ 24 Coyne challenges the constitutionality of the aforementioned changes to Wis. Stat. ch. 227. Generally, there are two types of constitutional challenges to statutes: facial and as applied. Tammy W-G v. Jacob T., 2011 WI 30, ¶ 46, 333 Wis.2d 273, 797 N.W.2d 854. In either case, the statute is presumed constitutional. See id., ¶¶ 46-48. A facial challenge "attacks the law itself as drafted by the legislature, claiming the law is void from its beginning to the end and that it cannot be constitutionally enforced under any circumstances." Soc'y Ins. v. LIRC, 2010 WI 68, ¶ 26, 326 Wis.2d 444, 786 N.W.2d 385.
¶ 25 In an as applied challenge, the party does not attack the statute itself as unconstitutional; rather, the party claims that the statute has been applied to him or her in an unconstitutional manner. Id., ¶ 48. "The analysis of an as-applied challenge is determined by the constitutional right that is alleged to have been affected by the application of the statute."
¶ 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 claiming that the entirety of Act 21 can never be applied in any circumstance to any agency, but rather that Act 21 cannot be constitutionally applied to the SPI. See Soc'y Ins., 326 Wis.2d 444, ¶ 26, 786 N.W.2d 385.
¶ 27 The dissents take issue with the procedural posture of this case, specifically commenting that "no proof has been submitted that either Wis. Stat. § 227.135(2) or Wis. Stat. § 227.185 has been unconstitutionally enforced against the Superintendent." Chief Justice Roggensack's dissent, ¶ 231; see also Justice Ziegler's dissent, ¶¶ 250-52. Contrary to the dissents' positions otherwise, Act 21 does not have to have been enforced for Coyne to properly bring a claim via a declaratory judgment action. Coyne properly seeks — through a declaratory judgment — that the court determine her "rights, status, and other legal relations" in a justiciable controversy. Wis. Stat. § 806.04(1).
¶ 28 The Uniform Declaratory Judgments Act, Wis. Stat. § 806.04, allows
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, 862 N.W.2d 606. 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.
¶ 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,
309 Wis.2d 365, ¶ 43, 749 N.W.2d 211 (internal citations omitted). The facts before this court are sufficiently developed to determine whether Act 21 violates the constitution with respect the SPI. There are no details of any proposed rule or other facts that could come to light in the drafting process that would have any bearing on whether the contested portions of Act 21 violate Article X, § 1. The germane facts, namely, the constitutional provision and the text of the statutes, are already before us.
¶ 30 Consequently, this case is properly before us as an as applied challenge to the constitutionality of Act 21. See Waushara Cty. v. Graf, 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, 786 N.W.2d 385.
¶ 31 We first address whether rulemaking is a supervisory power of the
¶ 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 Wis. Stat. ch. 227. This means they are statutorily required by the Legislature to engage in rulemaking in order to "implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency." Wis. Stat. § 227.10(2m). The SPI and DPI cannot take any legally binding action pursuant to any of the statutes they are tasked with administering without making rules unless the statute specifically provides for another course of action. Id. Because rulemaking is the only means by which the SPI and the DPI can currently perform most of their legislatively-mandated duties of supervision of public instruction,
¶ 34 Article X, § 1 states, "[t]he 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." Though we have never interpreted the phrase "shall be prescribed by law" in specific reference to Article X, "[t]his court has consistently stated that the phrase `prescribed by law' in art. VI, § 3 plainly means prescribed by statutory law." State v. City of Oak Creek, 2000 WI 9, ¶ 19, 232 Wis.2d 612, 605 N.W.2d 526. Neither reason nor precedent leads us to interpret this same phrase differently in this provision.
¶ 35 The Legislature has "prescribed by law" the SPI's and DPI's duties and powers of supervision of public instruction in Wis. Stat. chs. 115-121. By enacting Wis. Stat. § 15.37, the Legislature has "prescribed by law" that the SPI oversee the DPI. It has also "prescribed by law" that the SPI and DPI are agencies bound by Wis. Stat. ch. 227. See Wis. Stat. § 227.01(1). Further, the Legislature has "prescribed by law" that the SPI and DPI must engage in rulemaking. See, e.g., infra n. 39; Wis. Stat. §§ 227.10. Thus, rulemaking
¶ 36 To be clear, rulemaking is not a constitutional power of the SPI. Article X, § 1 "is not [a provision] which incorporates an ancient common law office [such as the sheriff], possessing defined powers and duties, into the constitution." Fortney v. Sch. Dist. of W. Salem, 108 Wis.2d 167, 182, 321 N.W.2d 225 (1982). There were no common law duties and powers that the SPI or any other officers of supervision of public instruction had traditionally possessed prior to the adoption of the Wisconsin Constitution because neither the office of the SPI nor a uniform system of public instruction existed prior the adoption of our constitution in 1848. See id.
¶ 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 Wis. Stat. § 227.10; see also infra n. 39. Accordingly, under the current Legislative prescription of the SPI's powers and duties of supervision of public instruction, rulemaking is a supervisory power.
¶ 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 Article X, § 1 of the Wisconsin Constitution. Both parties spent a substantial amount of effort arguing about the applicability and validity of our decision in Thompson, in which we held that the Legislature must maintain the superiority of the SPI over the "other officers" in whom supervision of public instruction is vested. 199 Wis.2d 674, 546 N.W.2d 123. Thus, we begin with a discussion of Thompson.
¶ 39 Thompson's examination of Article X, § 1 is instructive to our analysis here, and much of what was said there applies to this case because we are interpreting the same constitutional provision under similar circumstances. However, this case poses a different constitutional question than the question posed in Thompson. In Thompson, the Legislature had redistributed nearly all of the SPI's powers of supervision of public instruction among other officers whose roles all related to the supervision of public instruction: a new Department of Education, a new Education Commission, and a new Secretary of Education. Id. at 678-79, 546 N.W.2d 123 (emphasis added). There, the question was not whether those officers could constitutionally be vested with the supervision of public instruction at all, but rather, whether the constitution allowed such "other officers" of supervision of public instruction to be given equal or greater authority over the supervision of public instruction than the SPI. Id.
¶ 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 Article X, § 1 allows some supervision of public instruction to be vested in any other officers the Legislature chooses,
¶ 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 Article X, § 1 applies to this case, Thompson does not answer the precise constitutional question before us. Accordingly, we proceed to consider the first question left unanswered by Thompson: whether the Legislature vested the supervision of public instruction in a proper "other officer."
¶ 42 "The 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 Article X, § 1." Thompson, 199 Wis.2d at 698, 546 N.W.2d 123. Applying this approach, we begin by looking at the language of Article X, § 1 when it was adopted in 1848 and when it was amended in 1902. See Polk Cty., 188 Wis.2d at 674, 524 N.W.2d 389. First adopted in 1848, Article X, § 1 stated,
In 1902, Article X, § 1 was amended to read,
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 constitutional provision to accomplish we first look at the
¶ 44 When we examine the constitution as a whole, we conclude that Article X, § 1's reference to "other officers" means officers of supervision of public instruction other than the SPI. Article X is titled "Education," and the eight sections that lay within Article X form the foundation of Wisconsin's public education system. It follows then that the most logical interpretation of Article X, § 1 is that "other officers" means "other officers" whose offices relate to supervising education, i.e., other officers of supervision of public instruction.
¶ 45 The structure and language of Section 1 itself supports our interpretation as well. When the plain language of Article X, § 1 is read within the context of the entire section, it becomes clear that the "other officers" in whom the Legislature may vest the supervision of public instruction are other officers of supervision of public instruction.
¶ 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.
¶ 47 Further evidence that the "other officers" referred to in Article X, § 1 were intended exclusively to be other officers of supervision of public instruction is found throughout Section 1. The Legislature is empowered to define the qualifications, powers, duties, compensation, term of office, and time and manner of selection of all "other officers" authorized by Article X. The very existence of their offices is dependent upon the Legislature. With this in mind, the most straightforward interpretation of "such other officers as the
¶ 48 Another indication that the "other officers" in Article X, § 1 must be other officers of supervision of public instruction is found in the provision for a state superintendent. See Thompson, 199 Wis.2d at 698-99, 546 N.W.2d 123. The first portion of Article X, § 1 vests supervision of public instruction in "a state superintendent and such other officers as the legislature may direct." The constitution does not define "superintendent," so we look to a dictionary from around the time of the provision's adoption to determine the common, ordinary meaning of the word at the time of the adoption of the constitution. See Xcel Energy Servs., Inc. v. LIRC, 2003 WI 64, ¶ 32, 349 Wis.2d 234, 833 N.W.2d 665. A superintendent is "[o]ne who has the oversight and charge of something, with the power of direction."
¶ 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 public instruction.
¶ 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 Article X, § 1 unambiguously precludes this interpretation, so we move on to our second source of constitutional interpretation: the constitutional debates and practices in existence at the time of the writing of the constitutional provision. Polk Cty., 188 Wis.2d at 674, 524 N.W.2d 389.
¶ 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 Article X, § 1 and the 1902 amendment show that the "other officers" authorized by the provision were meant to be officers of supervision of public instruction whose positions were created by the Legislature exclusively for that purpose.
¶ 52 As originally proposed in 1846, Article X, § 1 read:
The Convention of 1846, 538 (Milo M. Quaife, ed., 1919) available at https:// books.google.com/books?id=EY0 UAAAAYAAJ&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 convention was called in 1847. The Attainment of Statehood, VI-VIII, (Milo M. Quaife, ed.1928). The wording of the 1846 provision was largely retained; the only changes made were regarding the method of selection of the superintendent. See Thompson, 199 Wis.2d at 686, 546 N.W.2d 123.
¶ 53 As this court recognized in Thompson, discussion of the role or powers of the "other officers" mentioned in Article X is completely absent from the constitutional debates of 1846 and 1848. 199 Wis.2d at 687, 546 N.W.2d 123; see also Conrad Patzer, Public Education in Wisconsin 17-27 (1925); Journal and Debates, reprinted in The Attainment of Statehood, (Milo M. Quaife, ed., 1928). The debates focused mainly on the other sections of the Article and the importance of the superintendent. The phrase "such other officers as the legislature shall direct" went virtually unchallenged. Thompson, 199 Wis.2d at 687, 546 N.W.2d 123.
¶ 54 However, two defeated proposals regarding the superintendent from the 1846 debates indicate that the framers envisioned the "other officers" in Article X, § 1 to be officers of public instruction whose offices were created by the Legislature. One delegate to the 1846 convention sought to amend Section 1 by eliminating the superintendent altogether. His proposed amendment read "[t]he supervision of public instruction shall be vested in such officers as shall hereafter be created by law." The Convention of 1846, 568. Another delegate thought that the superintendent was unnecessary and that "the duties [of supervision of public instruction] for a time might be done by the secretary of state or some other officer already provided for, leaving to the legislature to provide for this office when the time came." Id.
¶ 55 The framers of the 1846 constitution rejected a model where the supervision of public instruction was vested in "other officer[s] already provided for," and all other proposed amendments to the section always left it to the Legislature to provide for new officers to supervise public instruction. The framers decided that a superintendent was crucial and rejected
¶ 56 Moreover, the history of the 1902 amendment to Article X, § 1 indicates that the drafter of the amendment and those who ratified it also understood the "other officers" to be other officers of supervision of public instruction. The 1902 amendment, which substantially provided Article X, § 1 as we know it today, was drafted and supported by then-Superintendent of Public Instruction Lorenzo Dow Harvey. See Conrad Patzer, Lorenzo Dow Harvey, 93 (1936). Harvey was concerned that local, elected county superintendents had been using the office for political gain rather than for furthering the cause of education, so he introduced the amendment in order to allow the Legislature to provide for the appointment of local public instruction officials. See id. at 93; see also Thompson, 199 Wis.2d at 691-92, 546 N.W.2d 123. Additionally, Harvey was concerned with ensuring that there was enough flexibility to overhaul the public school system, as Justice Wilcox pointed out in his concurrence in Thompson, 199 Wis.2d at 702-03, 546 N.W.2d 123 (Wilcox, J., concurring).
¶ 57 Our review of the history of the drafting of the 1902 amendment reveals that like the drafters of the original provision, Harvey only ever contemplated the Legislature vesting the supervision of public instruction in officers whose offices were created by the Legislature for that purpose. See Thompson, 199 Wis.2d at 690-693, 546 N.W.2d 123; see also Thompson, 199 Wis. Stat. § at 701-05 (Wilcox, J., concurring); Conrad Patzer, Lorenzo Dow Harvey, 93-95. Harvey's stated purpose of amendment was to allow the Legislature to appoint public instruction officers, if necessary, in order to ensure that the officers supervising public instruction were dedicated solely to the task of education rather than using the office as a political stepping stone. In fact, it was Harvey who added the "other officers of supervision of public instruction" language to the section. It strains credulity to accept that Harvey intended Article X, § 1 to allow the Legislature to vest the supervision of public instruction in officials who are not officers of supervision of public instruction when he is the person who added that language to 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, 524 N.W.2d 389. 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.
¶ 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;
¶ 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 district officers and boards were entrusted with all functions of the public schools. Id. All of these officers whom the Act vested with the supervision of public instruction are, aside from the SPI, officers whose positions the Legislature created for the purpose of supervising public instruction.
¶ 61 Similar to the Legislature's actions following the adoption of the 1848 constitution, the Legislature first interpreting the 1902 amendment to Article X, § 1 routinely and exclusively vested the supervision of public instruction in officers of supervision of public instruction. The Legislature provided the qualifications, powers, duties, and compensation of the SPI in the Laws of 1903, Chapter 37, 54. The Legislature reintroduced the office of the County Superintendent of Common Schools and the city superintendents were retained. Laws of 1903, Chapter 307, 480; see also Wis. Stat. ch. 27 sec. 461 (1911) (assigning duties of county superintendents that included licensing teachers, examining schools in his district, and advising on methods and courses of instruction). The Legislature established the township system of school government in the towns of Hiles and Laona. Laws of 1903, Chapter 36, 50. School boards in large cities were given the power to establish schools and hire support staff. Laws of 1903, Chapter 101, 150. In sum, the first laws passed after the 1902 amendment to Article X, § 1 reflect that Legislature's understanding
¶ 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.
¶ 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 Article X, § 1." Thompson, 199 Wis.2d at 698, 546 N.W.2d 123. Our review of these sources leads us to a single conclusion: that the "other officers" in whom the Legislature may vest the supervision of public instruction must be other officers of supervision of public instruction. It is self-evident that neither the office of the Governor nor that of the Secretary of Administration were created by the Legislature as officers of supervision of public instruction. Accordingly, the Legislature may not delegate to the Governor or the Secretary of Administration the power to "oversee, inspect, or superintend" public instruction. To do so would result in the unconstitutional vesting of the supervision of public instruction in an officer who is not an officer of supervision public instruction.
¶ 64 Having determined that rulemaking is a supervisory power granted to the SPI and DPI by the Legislature and
¶ 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 Wis. Stat. § 227.137(6). Accordingly, Act 21 vests the Governor and the Secretary of Administration with the supervision of public instruction.
¶ 66 As discussed previously, rulemaking is the primary means by which the SPI and DPI must carry out their legislatively-mandated duties. The SPI and DPI are statutorily required to promulgate rules in order to adopt any statement of general policy and any interpretation of a statute "to govern [their] enforcement or administration of that statute," as well as to "implement or enforce any standard, requirement, or threshold" unless the same is explicitly required or permitted by statute. Wis. Stat. § 227.10(1), (2m). Additionally, the "Education" chapters of the statutes, Wis. Stat. chs. 115-121, mandate no less than 71 times
¶ 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
¶ 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 Secretary of Administration cannot be involved in the rule-drafting process at all; it simply means that they cannot be given the authority to halt the process. 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. For example, there is no constitutional infirmity in requiring the SPI and DPI to prepare the economic impact analysis and submit it to the Secretary of Administration and the Governor as long as those officers are not permitted to block the rule from being submitted to the Legislature. Additionally, the Legislature could require the SPI to submit the draft rule to the Governor and allow the Governor to send the rule back to the SPI with requested changes (provided the SPI is not required to incorporate them). The Legislature could further require the SPI to hold additional hearings on the Governor's proposed changes, to prepare a detailed report on the Governor's proposed changes and a report on why the SPI does not agree with them, to have a personal consultation with the Governor, or to resubmit the rule to the Governor to get his written opinion on it and submit that opinion to the Legislature along with the draft rule. The Legislature can create whatever rulemaking process it sees fit, as long as at the end of the process the SPI and DPI are able to decide on the final content of a proposed rule and submit that proposed rule to the Legislature.
¶ 70 Additionally, the 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. As a result, 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. If the Legislature does not believe the SPI should engage in rulemaking, it is free to change the statutory scheme so that the SPI and DPI can carry out the duties with which they are tasked through other means and are not required to promulgate rules. Moreover, it could change the duties with which they are tasked, or it
¶ 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 requirements for pupils.
¶ 72 Now that we have fully presented our interpretation of Article X, § 1, we turn to discuss a few of the points made in Chief Justice Roggensack's and Justice Ziegler's dissents. We begin with a brief summary of our analysis. First, Article X, § 1 states that "the supervision of public instruction shall be vested in a state superintendent" and in "other officers of supervision of public instruction." Thus, the constitution grants the SPI the power to supervise public instruction. Second, Article X, § 1 states that the SPI's "qualifications, powers, duties, and compensation shall be prescribed by law." This means the Legislature has the power to fill in the details as to what supervision entails. The Legislature has required the SPI to supervise public instruction through rulemaking. Consequently, rulemaking is how the SPI exercises his power to supervise public instruction. Under Act 21, the Legislature has taken the SPI's power to supervise via rulemaking and conditioned it on the approval of the Governor. The Governor is not an "officer of supervision or public instruction;" therefore, the Legislature cannot vest him with the supervision of public instruction.
¶ 73 The main problem with the dissents' analyses are their singular focus on only half of Article X, § 1. Both dissents emphasize the phrase "and their qualifications, powers, duties, and compensation shall be prescribed by law." However, a meaningful interpretation of Article X, § 1 should focus on 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."
¶ 74 While Article X, § 1 gives the Legislature the broad authority to both create "other officers of supervision of public instruction" and to outline those officer's "qualifications, powers, duties and compensation,"
¶ 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 Article X, § 1." Chief Justice Roggensack's dissent, ¶ 227. And Justice Ziegler comments, "[I]t is not really the Governor who is supervising (or even obstructing, if one prefers) the actions of the SPI; it is the Legislature." Justice Ziegler's dissent, ¶ 247. Our response to both is simply this: how is it not? How does the matter before us not concern the "other officers" mentioned in Article X, § 1? And how is the Governor not supervising public instruction and the SPI when he is the one who halts the rulemaking process? If neither Chief Justice Roggensack nor Justice Ziegler will recognize that the constitution places a limit on who the Legislature may vest the supervision of public instruction in, then we can never reach the same conclusion despite agreeing on many legal principles.
¶ 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 "prescribed by law" clause, both dissents read our opinion as stripping the Legislature of its power under Article X, § 1. For example, Chief Justice Roggensack remarks that our opinion "reduces the constitutional power of the legislature to control its delegations of legislative power in rulemaking." Chief Justice Roggensack's dissent, ¶ 229. And according to Justice Ziegler, our conclusion in this case gives "unfettered" authority to the SPI and the "other officers." See Justice Ziegler's dissent, ¶ 248.
¶ 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
¶ 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 dissents have done, or chooses to emphasize only one of these two phrases, as both dissents have done, then we can never reach the same conclusion regardless of our agreement on many legal principles.
¶ 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 Article X, § 1 also requires the Legislature to keep the supervision of public instruction in the hands of the officers of supervision of public instruction. To do otherwise would require a constitutional amendment. Because Act 21 does not allow the SPI and DPI to proceed with their duties of supervision without the Governor's, and in some circumstances the Secretary of Administration's approval, Act 21 unconstitutionally vests the Governor and Secretary of Administration with the supervision of public instruction in violation of Article X, § 1. Accordingly, the court of appeals is affirmed.
The decision of the court of appeals is affirmed.
SHIRLEY S. ABRAHAMSON, J. (concurring).
¶ 80 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 altered the process of administrative rulemaking,
¶ 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 Article X, Section 1 of the Wisconsin Constitution, which vests "the supervision of public instruction"
¶ 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.'"
¶ 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.
¶ 85 I agree with the court of appeals that, under Thompson, rulemaking is part of the "supervision of public instruction," which Article X, Section 1 vests in the superintendent.
¶ 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 Legislature does not believe the [superintendent] should engage in rulemaking, it is free to change the statutory scheme...."
¶ 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...."
¶ 90 Justice Prosser's concurrence explains that "the very nature of the office of
¶ 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"
¶ 92 For the reasons set forth, I concur and write separately.
¶ 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 Article X, Section 1 of the Wisconsin Constitution.
¶ 94 Article X, Section 1 currently reads as follows:
¶ 95 In Thompson, the court addressed the constitutionality of 1995 Wis. Act 27.
¶ 96 Craney, the respondent in Thompson, argued that 1995 Wis. Act 27 violated Article X, Section 1 of the Wisconsin Constitution by stripping the superintendent of powers of supervision of public instruction and vesting those powers in "other officers" not subordinate to the superintendent. The court unanimously agreed.
¶ 97 In analyzing the constitutionality of 1995 Wis. Act 27, the Thompson court reviewed the text, history, judicial interpretations, and purpose of Article X, Section 1, and held that 1995 Wis. Act 27 was unconstitutional because it gave "the former powers of the elected state Superintendent of Public Instruction to appointed `other officers' at the state level who are not subordinate to the superintendent."
¶ 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:
¶ 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.
¶ 101 The lead opinion declares that Thompson's examination of Article X, Section 1 is instructive but not dispositive because Thompson and the instant case pose different constitutional questions.
¶ 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.
¶ 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 Article X, Section 1, and subsequent legislation.
¶ 105 Justice Prosser's concurrence (¶ 168) disagrees with the Thompson court because it "in effect ... preclude[s] serious changes in the present system without a constitutional amendment." Justice Prosser's concurrence (¶ 169) would allow constructive legislative changes regarding the superintendent of public instruction but would preclude the changes in Act 21 because they "are not constructive changes because they reallocate power without requiring accountability. Governing entails more than saying `no.'"
¶ 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.
¶ 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...."
¶ 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 the Legislature does not believe the [superintendent] should engage in rulemaking, it is free to change the statutory scheme...."
¶ 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."
¶ 110 The superintendent is a constitutional officer. The office was created by Article X of the Wisconsin Constitution. Article X is entitled "Education." By addressing education and vesting the supervision of public instruction in an independent constitutional officer, the framers of the Wisconsin Constitution set education and the superintendent apart from other constitutional officers, such as, for example, the governor and lieutenant governor (Article V); the secretary of state, treasurer, attorney general, sheriffs, coroners, registers of deeds, and district attorneys (Article VI); the legislature (Article IV); and the judiciary (Article VII).
¶ 111 Article X, Section 1 vests the supervision of public instruction in a state superintendent as follows:
¶ 112 The original version of Article X, Section 1 included in the 1848 Wisconsin Constitution provided as follows:
¶ 113 In adopting Article X, Section 1, the framers of the 1848 constitution repeatedly expressed the fundamental importance of a robust system of public education and the "indispensable" role of the superintendent in maintaining, organizing, and advocating for public education.
¶ 114 Justice Prosser's concurrence (as well as Thompson, 199 Wis.2d at 687-90, 546 N.W.2d 123) recounts much of the relevant constitutional history.
¶ 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."
¶ 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."
¶ 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...,"
¶ 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."
¶ 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.
DAVID T. PROSSER, J. (concurring).
¶ 122 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.
¶ 124 Wisconsin Stat. § 227.135 addresses "Statements of scope of proposed rules." Subsection (1) provides that "[a]n agency shall prepare a statement of the scope of any rule that it plans to promulgate." It then lists six pieces of information required in the statement of scope, including a description of the objective of the proposed rule and the statutory authority for the rule.
¶ 125 Prior to Act 21, Wis. Stat. § 227.135 (2009-10) provided in subsections (2), (3), and (4) that no state employee or official could perform any activity in connection with drafting a proposed rule until "the individual or body with policy-making power over the subject matter approved the statement of scope." The individual or body could not approve the statement of scope until the 11th day after its publication by the legislative reference bureau, which was notified of the statement immediately by the agency. Notice of the statement of scope also was sent to the secretary of administration.
¶ 126 Section 4 of Act 21 changed subsection (2) of Wis. Stat. § 227.135, in part, as follows:
2011 Wis. Act 21, Section 4 (emphasis added).
¶ 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.
¶ 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. Wis. Stat. § 227.137(1)-(2) (2009-10). The secretary of administration could act on his own to order an economic impact report from any of these five departments if he determined that there would be certain economic impacts from a proposed rule.
¶ 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 Wis. Stat. §§ 227.15, 227.137(3).
¶ 130 Section 21 of the Act then reads:
(Emphasis added.) See Wis. Stat. § 227.137(6).
¶ 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.
¶ 132 Section 32 is entirely new and reads as follows:
Wis. Stat. § 227.185 (emphasis added).
¶ 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 additional notice and additional information about a proposed rule. In essence, they vest the governor with a veto power over proposed rules — without imposing any standards on how that power is exercised and without indicating how the exercise of that power may be overridden by anyone.
¶ 134 This expansive power, partly shared by the secretary of administration, applies to rules promulgated by an "agency." "Agency" is defined in Wis. Stat. § 227.01(1): "`Agency' means a board, commission, committee, department or officer in state government, except the governor, a district attorney or a military or judicial officer." The breadth of this definition means that Act 21's changes apply not only to all cabinet departments but also to the department of employee trust funds and to independent boards and commissions such as the investment board, the public service commission, and the tax appeals commission.
¶ 135 "Rule" also is broadly defined:
Wis. Stat. § 227.01(13). The statute then lists multiple exceptions, including a rule which "[c]oncerns the internal management of an agency and does not affect private rights or interests." § 227.01(13)(a).
¶ 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 Wis. Stat. § 227.19; see also Wis. Stat. § 227.26. However, sections 4 and 32 of Act 21 are different from Wis. Stat. § 227.19 because they do not provide specific grounds upon which the governor may choose not to approve a proposed rule. The governor is given unlimited "discretion" not to approve a proposed rule — "discretion" to do nothing about a proposed rule. By contrast, the legislature must take action if it suspends a rule.
¶ 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.
¶ 139 The office of superintendent of public instruction was created by the Wisconsin Constitution in 1848. Article X, Section 1 provided:
Wis. Const. art. X, § 1 (1848) (emphasis added).
¶ 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:
¶ 141 The 1848 constitution also located the office of superintendent of public instruction in Article X, entitled "Education." There was no mention of the superintendent in Article V entitled "Executive," which discussed the governor and lieutenant governor and their respective powers. Nor was there any mention of the superintendent in Article VI entitled "Administrative," which discussed the secretary of state, treasurer, and attorney general, as well as sheriffs, coroners, registers of deeds, and district attorneys.
¶ 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 Article VI.
¶ 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
¶ 144 The 1848 constitution thus sent mixed signals about the status of the superintendent of public instruction.
¶ 145 Article X, Section 1 was amended in 1902 to read:
Wis. Const. art. X, § 1 (1902).
¶ 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, powers, duties, and compensation" of both the superintendent and the "other officers." The amendment added, "The term of office, time and manner of electing or appointing all other officers of supervision of public instruction [besides the superintendent] shall be fixed by law." This sentence dispensed with any notion that "other officers" were mere "assistants and clerks" to the superintendent, as was mistakenly suggested in State ex rel. Raymer v. Cunningham, 82 Wis. 39, 48, 51 N.W. 1133 (1892), ten years earlier.
¶ 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:
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, 546 N.W.2d 123. Three quotes from the 1846 and 1848 debates are especially pertinent:
¶ 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.
¶ 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, 546 N.W.2d 123 (emphasis added; ellipsis in original).
¶ 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
¶ 153 Over the years, the legislature has granted general authority to the superintendent to make rules. Wis. Stat. §§ 227.10, 227.11(2)(a). The legislature has sometimes required the superintendent to make rules. See, e.g., Wis. Stat. § 118.045. This has resulted in administrative rules on at least 40 different subjects, from "School district boundary appeals" and "School district standards" to "Commencement of school term" and "Grants for tribal language revitalization."
¶ 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. Wis. Const. art. V, § 10(2).
¶ 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. Wis. Const. art. V, § 4.
¶ 157 The reason I have written separately and have not joined Justice Gableman's opinion is that my position does not depend on the superintendent of public instruction having superiority over all other officers who are or may be vested with supervision of public instruction.
¶ 158 In Thompson, the court stated:
Thompson, 199 Wis.2d at 698-99, 546 N.W.2d 123.
¶ 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:
Wis. Const. art. X, § 1 (1848).
¶ 161 Section 1 twice mentioned "the legislature" and gave the legislature the power to prescribe the "powers" and "duties" of the superintendent and to "vest" "other officers" with "supervision of public institutions."
¶ 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.
¶ 165 "Vested" is a potent word, but the constitution permits "other officers" to be vested with "supervision of public instruction." It should be noted that the 1848 Constitution, in Article VII, Section 2, provided that "the legislature may also vest such jurisdiction as shall be deemed necessary in municipal courts.... Provided, that the jurisdiction which may be vested in municipal courts shall not exceed ... that of circuit courts." (Emphasis added.) There is no limitation on the powers of the "other officers" in Article X, Section 1, like the limitation on the jurisdiction of municipal courts.
¶ 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, 546 N.W.2d 123.
¶ 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, 546 N.W.2d 123. The opinion continues:
Id.
¶ 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, 546 N.W.2d 123. 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:
Id. at 692, 546 N.W.2d 123 (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."
¶ 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.
PATIENCE DRAKE ROGGENSACK, Chief Justice (dissenting).
¶ 173 The lead opinion errs for at least three reasons: First, the lead opinion fails to recognize that when the Superintendent of Public Instruction engages in rulemaking with the Department of Public Instruction (DPI), the Superintendent is exercising legislative authority delegated to him by the legislature under Wis. Stat. § 15.37 (2013-14),
¶ 174 I conclude that the legislature acted pursuant to its constitutional authority under Article IV, Section 1 and Article X, Section 1 when it enacted Act 21, which creates procedural safeguards to be employed in rulemaking by DPI and many other administrative agencies. I also conclude that Act 21 does not conflict with Thompson v. Craney, 199 Wis.2d 674, 546 N.W.2d 123 (1996). And finally, I conclude that the plaintiffs have not proved beyond a reasonable doubt that Act 21 has been applied unconstitutionally to the Superintendent. Accordingly, I would reverse the decision of the court of appeals, and I respectfully dissent from the lead opinion.
¶ 175 Before us, two sections of Act 21 are challenged: Wis. Stat. § 227.135(2) and Wis. Stat. § 227.185.
¶ 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
¶ 178 Upon the Superintendent's motion for summary judgment, the circuit court struck down Wis. Stat. § 227.135(2) and Wis. Stat. § 227.185 as unconstitutional infringements of the Superintendent's constitutional powers. The court of appeals agreed with the circuit court and affirmed. As I explain below, the lead opinion errs because it fails to analyze, and instead glosses over, foundational legal principles that underlie this case.
¶ 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.
¶ 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 constitutional authority. This is so because the Superintendent obtains authority to supervise public instruction from the Constitution and from the legislature. Therefore, we must decide whether the statutes at issue in this review affect supervision that is constitutionally vested in the Superintendent or supervision that is legislatively created for the Superintendent.
¶ 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:
Wis. Const. art. X, § 1 (1848) (emphases added).
¶ 183 In 1902, Article X, Section 1 was amended to provide in relevant part:
Wis. Const. art. X, § 1 (1902) (emphasis added).
¶ 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. Wis. Const. art. X, § 1. Stated otherwise, the framers of the Constitution chose no specific duties for the Superintendent in regard to "supervision of public instruction;" instead, the legislature was given authority to control the powers and duties of the Superintendent through legislation.
¶ 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).
¶ 187 During the Convention of 1848, all writers were reported to have agreed that the "office should have nothing to do with the machinery of the school system or the management of the funds.... His province was to put the system in operation." Journal of the Convention, reprinted in The Attainment of Statehood, 556-57 (Milo M. Quaife, ed., 1928). Mr. Jackson is reported to have explained, "The duties of a superintendent were not of a fixed and well-known kind, like those of political officers. Public instruction was yet in its infancy, though there had been experimenting upon it for the last fifty years." Id. at 561.
¶ 188 The dictionary definition of "superintend" from Webster's An American Dictionary of the English Language (new rev. ed. 1847-50) provided:
Thompson, 199 Wis.2d at 683, 546 N.W.2d 123. 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:
Id. at 47, 51 N.W. 1133. 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, 51 N.W. 1133.
¶ 192 The first legislation passed after Wisconsin's Constitution was ratified that bore on Article X, Section 1 was Section 3 of the Laws of 1848. Thompson, 199 Wis.2d at 693-94, 546 N.W.2d 123. The law assigned the Superintendent:
Id. at 694, 546 N.W.2d 123 (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, 546 N.W.2d 123. 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. Briefly stated,
¶ 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, 18 Colo. 234, 32 P. 422, 422 (1893), which provided that unless "the constitution, in express terms or by necessary implication, limits it, the legislature may exercise its sovereign power in any way that, in its judgment, will best subserve the general welfare." City of Manitowoc, 231 Wis. at 98, 285 N.W. 403. In so stating, we rejected a challenge based on Article X, Section 3 to various statutes that provided for a statewide system of vocational schools in Wisconsin municipalities of over 5,000 inhabitants and the opportunity for free education beyond 20 years of age. Id. at 98-99, 285 N.W. 403.
¶ 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 Wis. Stat. § 40.30(1) (1939), which provided: "The state superintendent is authorized, on his own motion, by order to attach districts with valuations of less than one hundred thousand dollars to contiguous districts." Id. at 566, 297 N.W. 407.
¶ 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, 297 N.W. 407. We reasoned that the Superintendent acted in strict compliance with the law, Wis. Stat. § 40.30(1) (1939), and that the legislative delegation to the Superintendent was in accord with the legislature's constitutional power under Article X, Section 1. Id. at 571, 297 N.W. 407.
¶ 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 Constitution
¶ 200 DPI was created by the legislature in 1967.
¶ 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." Wis. Stat. § 15.03 (1967). Therefore, from DPI's inception, the Superintendent was granted executive management duties; however, others (members of the educational approval board) participated with DPI, independent from the Superintendent, on issues involving public instruction, including rule-making.
¶ 202 It is important to recognize that DPI has no constitutional authority. See Martinez v. DILHR, 165 Wis.2d 687, 698, 478 N.W.2d 582 (1992). It is simply one of many administrative departments and agencies that the legislature has created. Id. at 697, 478 N.W.2d 582.
¶ 203 By Wis. Stat. § 15.37, as enacted and then as companion statutes were amended, the legislature granted the Superintendent authority to oversee DPI and later to engage in rulemaking with DPI. However, the Superintendent did not get his powers to supervise DPI and to engage in rulemaking from the Constitution. The Superintendent obtained these powers from the legislature through statutory enactment.
¶ 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, 285 N.W. 403.
¶ 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
¶ 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: Wis. Stat. § 227.135(2) and Wis. Stat. § 227.185.
¶ 208 DPI has no power to create a law, nor has the Superintendent. Article IV, Section 1 of the Wisconsin Constitution clearly provides: "The legislative power shall be vested in a senate and assembly." Any rulemaking authority DPI has is a delegation of power from the legislature. Martinez, 165 Wis.2d at 698-99, 478 N.W.2d 582.
¶ 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, 478 N.W.2d 582. 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, 478 N.W.2d 582. The Martinez litigation followed.
¶ 210 In upholding JCRAR's action, we explained that "administrative agencies are creations of the legislature and [] they can exercise only those powers granted by the legislature." Id. at 697, 478 N.W.2d 582. We also explained that "rule-making powers can be repealed by the legislature." Id. at 698, 478 N.W.2d 582. Thereafter, we concluded that DILHR's arguments lacked merit in part because "it is incumbent on the legislature, pursuant to its constitutional grant of legislative power, to maintain some legislative accountability over rule-making." Id. at 701, 478 N.W.2d 582.
¶ 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, Wis. Admin. Code § PI 2 establishes procedures for school district boundary appeals under Wis. Stat. ch. 117. Wisconsin Admin. Code § PI 5 establishes procedures for granting high school equivalency diplomas and certificates pursuant to Wis. Stat. § 115.29(4)(a). Wisconsin Admin. Code § PI 18 establishes course requirements to meet the graduation standards outlined by the legislature in Wis. Stat. § 118.33.
¶ 212 Furthermore, "[n]o agency may promulgate a rule which conflicts with state law." Wis. Stat. § 227.10(2). It is well established precedent that "[a]n administrative rule that conflicts with an unambiguous statute exceeds the authority of the agency that promulgated it." Thomas More High Sch. v. Burmaster, 2005 WI App 204, ¶ 15, 287 Wis.2d 220, 704 N.W.2d 349 (internal quotation marks omitted) (quoting Seider v. O'Connell, 2000 WI 76, ¶ 28, 236 Wis.2d 211, 612 N.W.2d 659).
¶ 213 As usual when statutory interpretation is at issue, we begin with the words
¶ 214 Wisconsin Stat. § 227.135(2) is at the forefront of plaintiffs' challenge. It provides:
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. Wisconsin Stat. § 227.185 unambiguously requires that proposed rules be approved by the Governor before they can proceed further.
¶ 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, 478 N.W.2d 582. The legislature controls the delegation of legislative authority that it accords to administrative agencies and departments to employ in rulemaking. Id. at 701, 478 N.W.2d 582.
¶ 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 Article IV, Section 1 and its authority in regard to the Superintendent under Article X, Section 1 of the Wisconsin Constitution. The lead opinion seems to agree that the legislature can require the Superintendent to approve the scope statement of proposed DPI rules.
¶ 217 However, the lead opinion concludes that Wis. Stat. § 227.135(2) and Wis. Stat. § 227.185 are unconstitutional as applied to the Superintendent because rulemaking is a supervisory power of the Superintendent, and by granting the Governor the power to approve the scope of a
¶ 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 Article IV, Section 1 of the Wisconsin Constitution to control delegations of legislative power such as occurred with DPI's rulemaking.
¶ 219 To explain further, first, it was the legislature that granted the Superintendent the authority to direct and supervise DPI, as Wis. Stat. § 15.37 very clearly provides: "There is created a department of public instruction under the direction and supervision of the state superintendent of public instruction."
¶ 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 Article X, Section 1 of the Wisconsin Constitution. He got those powers from Wis. Stat. § 15.37. Therefore, in regard to rulemaking with DPI, the Superintendent has only legislative power.
¶ 221 There was no DPI when the Superintendent of Public Instruction was created by Article X, Section 1, nor was there rulemaking. Rather, it was the legislature that set obligations for the Superintendent with regard to DPI. Stated otherwise, it was the legislature that gave the Superintendent the power to direct and supervise DPI; not the Constitution. Compare Wis. Stat. § 15.37 with Wis. Const. art. X, Section 1. Therefore, supervision of DPI rulemaking is a statutory power of the Superintendent, not a constitutional power.
¶ 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 Article IV, Section 1. Without legislation, DPI would not exist and could not engage in rulemaking. Martinez, 165 Wis.2d at 698, 478 N.W.2d 582 (explaining that an agency "has no inherent constitutional authority to make rules, and, furthermore, its rule-making powers can be repealed by the legislature").
¶ 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. Wis. Stat. § 15.03 (1967). The legislature subsequently modified DPI rulemaking, granting more power over rulemaking to the Superintendent. In the statutes now under examination, the legislature again has modified DPI rulemaking by inserting procedural safeguards for the Superintendent and the Governor to oversee. This is similar to what the legislature did in Martinez when it inserted safeguards for JCRAR to oversee with regard to DILHR's rulemaking. Simply because Act 21 affects rulemaking of DPI (and many, many other agencies), it does not follow that the legislature's constitutional powers to control its own rulemaking delegations have been diminished. Id. at 701, 478 N.W.2d 582.
¶ 224 Furthermore, while statutes may create opportunities and obligations for the Superintendent, those opportunities and obligations come from the legislature not from the Constitution. Therefore, legislative modification of the powers and duties of the Superintendent in DPI rulemaking
¶ 225 In regard to the interaction of the Superintendent and the legislature, Article X, Section 1 grants the legislature the right to exercise control over duties that relate to education that the Superintendent must undertake. The legislature has broad constitutional power over the Superintendent, so long as the duties assigned do not fall outside of public instruction, as it was alleged to have occurred in School District No. 3, supra. No challenge in this regard has been raised with regard to Wis. Stat. § 227.135(2) and Wis. Stat. § 227.185.
¶ 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 Article X, Section 1, one of which was to be Secretary of Education, and whether their authority was inferior to that of the Superintendent. Thompson, 199 Wis.2d at 683-84, 546 N.W.2d 123. The matter before us does not concern the "other officers" mentioned in Article X, Section 1.
¶ 228 In Thompson, we did not examine whether duties of the Superintendent that had been required by legislation could subsequently be modified by the legislature.
¶ 229 However, without recognizing the effect of its decision, the lead opinion increases the executive power granted to the Superintendent in Article X, Section 1 to include the power to legislate, which the Constitution clearly reserves to the legislature; treats the DPI as though it has constitutional power; and reduces the constitutional power of the legislature to control its delegations of legislative power in rulemaking, all in contravention of Article IV, Section 1 and Article X, Section 1. However, courts are not free to change constitutional delegations, and Article X, Section 1 explicitly states how the constitutional delegations to the legislature and to the Superintendent are to coexist.
¶ 230 Finally, in order to succeed before us, the Superintendent must prove beyond a reasonable doubt that Wis. Stat. § 227.135(2) or Wis. Stat. § 227.185 was unconstitutionally enforced against him. Society Ins. v. LIRC, 2010 WI 68, ¶ 27, 326 Wis.2d 444, 786 N.W.2d 385. In examining the constitutionality of the challenged statutes, the phrase "beyond a reasonable doubt" expresses the "force or conviction" with which we must conclude, as a matter of law, that a statute has been enforced unconstitutionally against the Superintendent. See League of Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97, ¶ 17, 357 Wis.2d 360, 851 N.W.2d 302.
¶ 231 No proof has been submitted that either Wis. Stat. § 227.135(2) or Wis. Stat. § 227.185 has been unconstitutionally enforced against the Superintendent.
¶ 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.
¶ 233 I conclude that the legislature acted pursuant to its constitutional authority under Article IV, Section 1 and Article X, Section 1 of the Wisconsin Constitution when it enacted Act 21, which creates procedural safeguards to be employed in rulemaking by DPI and many other administrative agencies. I also conclude that Act 21 does not conflict with Thompson. And finally, I conclude that the plaintiffs have not proved beyond a reasonable doubt that Act 21 has been applied unconstitutionally to the Superintendent. Accordingly, I would reverse the decision of the court of appeals and I respectfully dissent from the lead opinion.
¶ 234 I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and REBECCA G. BRADLEY join this dissent.
ANNETTE KINGSLAND ZIEGLER, J. (dissenting).
¶ 235 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 beyond a reasonable doubt as applied to the Superintendent of Public Instruction ("SPI"). I write to emphasize a few points.
¶ 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
¶ 237 One need look no further than Article X, Section 1 itself for these propositions: "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." Wis. Const. Art. X, § 1 (emphases added). Our case law confirms this notion:
Fortney v. Sch. Dist. of West Salem, 108 Wis.2d 167, 182, 321 N.W.2d 225 (1982) (emphasis added). Article X, Section 1 therefore does little more than create a constitutional position: the framers of the Wisconsin Constitution wanted to ensure that some officer was in place to oversee Wisconsin's system of public instruction. What supervision means in the context of public instruction, the framers left to the legislature to decide. The framers provided the clay; the legislature shapes it.
¶ 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 [Article X, Section 1 of the Wisconsin Constitution] were intended to be subordinate to the state [SPI]" and that therefore "the legislature may not give equal or superior authority to any `other officer.'" Thompson, 199 Wis.2d at 698-99, 546 N.W.2d 123.
¶ 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 instruction. See lead op., ¶¶ 39-40 ("[T]his case poses a different constitutional question than the question posed in Thompson. ... [H]ere, 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."); dissent, ¶ 227 ("Thompson was concerned with `other officers' mentioned in Article X, § 1.... The matter before us does not concern the `other officers' mentioned in Article X, § 1.").
¶ 240 Thus, the lead opinion does something new: it takes the Thompson idea that, with regard to Article X officers, "the
¶ 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, lead op., ¶ 63; (4) the Governor and the Secretary of Administration are not Article X officers, id.; and (5) the legislature has given the Governor and the Secretary of Administration "the power to make the decision on whether the rulemaking process can proceed," lead op., ¶ 68. Now, the denouement: "By giving the Governor the power to prevent the SPI's and DPI's proposed rules from being sent to the Legislature, Act 21 [unconstitutionally] gives the Governor the authority to [supervise] public instruction." Lead op., ¶ 65.
¶ 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: "Article X, sec. 1 confers no more authority upon ... officers [of supervision of public instruction] than that delineated by statute." Fortney, 108 Wis.2d at 182, 321 N.W.2d 225. Thus, the supposed limit on the legislature's authority envisioned by the lead opinion is not really a limit at all; the legislature can simply redefine the "supervision of public instruction" in a way that accommodates that which the legislature wishes to achieve.
¶ 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 Article, X, § 1 that prevents the legislature from defining "supervision of public instruction" to mean (in part) "rulemaking," and "rulemaking" to mean "the ability to promulgate public instruction-related rules subject to gubernatorial approval."
¶ 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 "prescrib[ing]" the "powers" of the SPI under Article X, Section 1 of the Wisconsin Constitution. It cannot be that the legislature can only expand, and never contract,
¶ 245 Article X, Section 1 vests the SPI with the supervision of public instruction and states that the SPI's "powers ... shall be prescribed by law," not that its "other powers" shall be prescribed by law. Wis. Const. Art. X, § 1; see Fortney, 108 Wis.2d at 182, 321 N.W.2d 225. Thus while it is true that Article X vests the SPI with "[t]he supervision of public instruction," Act 21 cannot be unconstitutional because the "supervision of public instruction" is some independent power of the SPI. Further, this court has already determined that "[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, 321 N.W.2d 225. "Supervision of public instruction" connotes no special grant of common law powers.
¶ 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, 321 N.W.2d 225. It is the legislature which determines the powers the SPI may wield, and the way in which the SPI may wield those powers. See Wis. Const. Art. X, § 1. In short, it is the legislature which decides what it means to supervise public instruction in Wisconsin. The legislature has determined through Act 21 that the supervision of public instruction in Wisconsin means, in part, participation in the rulemaking process with respect to specific matters and subject to gubernatorial approval. Alas, the lead opinion determines that our state constitution prohibits the legislature's actions.
¶ 248 The lead opinion's conclusions today could yield undesirable and unintended consequences. Suppose the legislature, in light of school shootings in recent years,
¶ 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 Article X, Section 1, which gives virtually complete authority over the SPI to the legislature. The framers did not provide that the SPI constitutes the fourth branch of our state government. That the plain language
¶ 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 that the Governor or the Secretary of Administration have rejected a rule proposed by the SPI or the DPI, or have, for instance, rendered the SPI powerless by rejecting every rule it and the DPI have promulgated since Act 21's passage. See dissent, ¶ 231 ("No proof has been submitted that either Wis. Stat. § 227.135(2) or Wis. Stat. § 227.185 has been unconstitutionally enforced against the Superintendent."). Despite the lead opinion's conclusions, I am not convinced that this case is in fact an as-applied challenge. The SPI is really arguing that Act 21 is always unconstitutional when the entity concerned is the SPI. And although this is a declaratory judgment action, this matter is not ripe.
¶ 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, Wis. Stat. § 806.04, allows `controversies of a justiciable nature to be brought before the courts for settlement and determination prior to the time that a wrong has been threatened or committed.'" Lead op., ¶¶ 27-28 (citing Olson v. Town of Cottage Grove, 2008 WI 51, ¶ 28, 309 Wis.2d 365, 749 N.W.2d 211). This argument is fine so far as it goes, but the problem is that it is not clear how far it goes: "Though the authority to declare rights under the Uniform Declaratory Judgment Act is broad, it is not unlimited in scope." Putnam v. Time Warner Cable of Se. Wis., 2002 WI 108, ¶ 72, 255 Wis.2d 447, 649 N.W.2d 626 (Sykes, J., dissenting in part) (citation omitted). As the lead opinion points out, a controversy is not justiciable for purposes of a declaratory judgment action unless it is "ripe for judicial determination." Lead op., ¶ 28 (citation omitted). "The basic rationale of the `ripeness' doctrine is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative or ... legislative policies." Lister v. Bd. of Regents, 72 Wis.2d 282, 308, 240 N.W.2d 610 (1976). Ripeness requires that "the facts be sufficiently developed to allow a conclusive adjudication." Olson, 309 Wis.2d 365, ¶ 43, 749 N.W.2d 211 (citations omitted). I have significant doubts that this court possesses the information it needs to pronounce a wholesale invalidation of the challenged provisions of Act 21 as they apply to the SPI.
¶ 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, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (citation omitted); see also Blanchette
¶ 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 rule, what changes, if any, the Governor might request, and so on. "[I]n an as-applied challenge, we assess the merits of the challenge by considering the facts of the particular case in front of us, `not hypothetical facts in other situations.'" State v. Wood, 2010 WI 17, ¶ 13, 323 Wis.2d 321, 780 N.W.2d 63 (citation omitted). Yet the focus of the lead opinion is precisely that — hypothetical facts in other situations. See, e.g., lead op., ¶ 68 ("[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" (citation omitted).).
¶ 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, 780 N.W.2d 63. 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:
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51, 128 S.Ct. 1184, 170 L.Ed.2d 151 (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
¶ 257 In sum, I join the dissent authored by Chief Justice Roggensack because I agree that, based on the arguments raised in this case,
¶ 258 For the foregoing reasons, I respectfully dissent.
¶ 259 I am authorized to state that Justice REBECCA G. BRADLEY joins this dissent.
The Legislature also frequently requires an agency to promulgate a rule on a certain subject. See generally Wis. Stat. § 41.11(1g)(b)(5) (requiring the Department of Tourism to "establish by rule" a reporting and verification requirement for recipients of grants or loans under state economic development programs); Wis. Stat. § 118.045 (requiring the Department of Public Instruction to promulgate rules to implement and administer the statute section regarding commencement of the school term); Wis. Stat. § 150.03 (requiring the Department of Health Services to adopt rules and set standards to administer subchapters I and II of Wis. Stat. ch. 150).
For differences in methodology of interpreting the Wisconsin constitution, compare, for example, Chief Justice Roggensack's dissent, ¶¶ 180-206; Justice Ziegler's dissent, ¶ 249 n. 2; State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 184, 204 N.W. 803 (1925); Buse v. Smith, 74 Wis.2d 550, 568, 247 N.W.2d 141 (1976); State v. Beno, 116 Wis.2d 122, 136-37, 341 N.W.2d 668 (1984); Thompson v. Craney, 199 Wis.2d 674, 680, 690, 693, 546 N.W.2d 123 (1996); State v. Cole, 2003 WI 112, ¶ 10, 264 Wis.2d 520, 665 N.W.2d 328; Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶¶ 114-118, 295 Wis.2d 1, 719 N.W.2d 408 (Prosser, J., concurring in part and dissenting in part).
The 1846 constitutional convention emphasized uniformity and central control. The convention created a superintendent of public instruction whose exclusive job would be to establish a statewide system. See Joseph A. Ranney, "Absolute Common Ground": The Four Eras of Assimilation in Wisconsin Education Law, 1998 Wis. L. Rev. 791, 794.
Wis. Const. art. X, §§ 4-5 (1848).
Lead op., ¶ 52 (citation omitted).
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.