Another one of the bills advanced by Governor Walker early in the 2011-12 session has suffered a setback in court.  As you may have heard by now, a ruling Tuesday by Dane County Circuit Court Judge Amy Smith concluded that the Wisconsin Constitution does not allow the legislature to give the governor power to review and block rules proposed by the state superintendent of public instruction. The law in question, Act 21, is one of several measures enacted last year that consolidate power within the executive branch (either by transferring legislative authority or giving the governor more control of power exercised by state agencies).  Act 21 requires all state agencies, including the Dept. of Public Instruction (DPI), to submit statements to the Governor (and in some cases to the DOA Secretary) explaining the scope of a proposed administrative rule.  Under that 2011 law, the agency cannot proceed with drafting or approving the rule unless or until the “scope statement” has been approved by the Governor.

Judge Smith concluded that the application of the law to DPI rules would violate a provision in the state constitution that says that “the supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct.”  That provision (Article X, section 1) was interpreted by the WI Supreme Court in a 1996 ruling as meaning that “the legislature may not give equal or superior authority to any other officer.”

Judge Smith concluded that the application of Act 21 to DPI rulemaking “is unconstitutional beyond a reasonable doubt.” She said it may be permissible for the legislature to narrow the Superintendent’s authority, but transferring some of that authority elsewhere in the executive branch violated Article X, as interpreted in the 1996 ruling.  Her opinion states:

“Because Act 21 grants veto power over these [DPI] policy choices to the Governor and in some cases the Secretary of DOA, it makes the superintendent subordinate to the Governor and DOA Secretary in  public instruction-related policymaking.”

The ruling, which is likely to be appealed, does not strike down Act 21, but agrees with Superintendent Evers and the plaintiffs who initiated the lawsuit that the law cannot be applied to proposed DPI rules. The plaintiffs include parents of students and members of Madison Teachers Inc. and the Wisconsin Education Association Council.

In the Journal Sentinel article about the ruling, reporter Jason Stein noted that the authority granted to Wisconsin governors by Act 21 is less important in the case of most state agencies, which “are already controlled by the governor.” But he adds that, “the law also gives the governor a say for the first time in rules written by agencies such as the Department of Justice and Department of Public Instruction, which are overseen by independently elected constitutional officers, and the Government Accountability Board, which oversees state ethics and elections laws and is run by an independent board.”

Although the logic of Judge Smith’s ruling only applies to DPI rulemaking, I wonder whether a constitutional challenge could be brought to enjoin application of the law to rules proposed by the State Attorney General or the Government Accountability Board.

Jon Peacock