0ct,30, 2012 11:064M

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STATE

OT'\ilISCONSIN

CIRCUIT COURT
4

COTINTY O['DANE

PEGGY Z. COYNE, MARY BELL, MARK W. TAYLOR, COAEY (}TIS, MARIE K. STANGEL, JANE }YEIDI{ER, aud I(RISTIN Ä. VOSS,

Flaintiffs,
V.

Case No,

lf-CV-4573

Csse Codel 30701

SCOTT \ryALKER, MICHAEL HUDBSCH, aud ANTHONY EVERS,
Defendnnts,

DNCISION AND ORDER ON MOTION$ F'(}R. SUMMARY JUDGMENT
This sase is before the court on dueling motions for summary judgment, Plaintiffs filed their Motion for Summary JudgmÊnt on February 3, 2012, and Defendants (other than
SupcrÍntendent Evers)r fited theil Motion

fol Surnmary Judgment

on May 25,2012. Also ort

May 25, a}lz,Dcfendanfs submitted a response brief. Flaintiffs frled a reply brief on June I,
2A12, nnd Defendarrts

filed a reply briof on June 22, 2012. On July 9, 2012, Superintendent

Evcrs filed a brief in support of Plaintiffs motio¡r, Defendants submitted a final reply brief on

August 6, 2012, Consisfent with its June 21, 2012 Scheduling Ordet,lhc coutt Íssues this Decision to address both molions,
For the reasons stated below, Plaintifïs' Motion for Summary Judgmerrt ís GRANTED,
and Dcfendants' Motion for Summflry Judgmsnt ís

DENIED'

As noted elsewhere in this Decision, Superintendent Bvers ¡g ¡ ¡¡ürËd dofgnd¡nt in this aclion, and remains so prnctical sense alig¡ecl fl$ â pilty in the case capilon, However, thc cou¡t concludes that Superinfondent-E'vcrs is in a plaintiffs in lh¡s case. Therefore, where the term "Defonda¡rts" is used in this DccÍsíon, it relates *oîi iligneú wiih Ìo Governor Walker and Secretary Huebsch'

I

I

0c

t, 30, 2012 1 I :064[4

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BACKGROUNI)
Article X gI of the Wisconsin Constitution provides that "[i]he supervision of public
instructiorr shall be vested in a state superintendent and such other officers as the legislatrue shall

direct." Interpreting this provisíon, the'Wisconsin Supreme Court held that "the legislatut'e måy
not give equal or superior authority to any 'other ofTiceÌ."' Thotnpson v. Craney,l99 Wis. 2d
674, 699, 546 N,W.2d 123 (1996). On May 23, 2011, Governor Scott Walker signed irrto law 20t

I

\Misconsin Act 21

((Act
hcaded

21"). Act 21 requires all state agencies-including the Department of Public Instruction,
by the State Superintendent of Public Instruction Althony

Evers-to $ubmit

scope statemËnts

and proposed administrative rules to the Govemor for approval. No fuither rule drafting

activities may oocur untit the Oovernor approvËs the scope stetement, In addition" if proposed administrative rules may lead to $20,000,000 or more in costs for businesses, municipalities or indivirluals, the proposed rule requiros fi¡rther teview and approval by the Sectetary of the
Department of Administuation

(í'DOA"), In such casÊs, the agency may not submit the proposed

rule to the Legislature for ïevie\Al$'ithgu! the DOA Secretflryi$ npproval,

Flaifüffs ask the court to declare that Act 2l violates Article X,

$1 of the Wisconsin

Constitution, and to enjoin its im¡lernerrtation, In his Answer f,rled October 21, 201l, State
Superintendeût Evers admíttcd Flaintiffs' allegatiorrs and requested the same relief,

STANIIARÐ OF REVIEW
Summnry judgment is appropriate when "the pleadings, depositions, ânslels to

integogatories, and admissíons on file, together with thc affidavits, if any, show that there is no
gcnuine issue as to any nnaterial fact and that the moving party is entitled to matter of
a

judgment as a

law," Wis, Stat. $ 802.0S(2) (2010), All doubts ryto the existerce of a genuine issue

2.

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No,6383 P, 4

of material fact must be resolved against the moving pä$y. Kraemer Bros., Inç u, US. Fire Ins' üo., 89 WÍs. 2d 555, 566, 278 N.W.zrt 857 (Wis, 1979), The "inferences to be drawn ftom the
underlying facts contained in the moving pärty's måtËrial mu$t be viewed in the light most favorablc to thc pafiy oÞÞosing the motiorr," Id, at567 (citation omitted),

If

the pleadings are suffrcient, the court considÈs the moving pafty's proûf t0 determine

whether that party pt'esents ùprlmüflaëie case for summary judgment,

/d, If the moving party so

presents, the opposing pnrty must sho\ry! by affidavit or othËl proof, the Êxistênte of disputed

material façts, or undisputcd material faots that nllow for teasonable conflicting irrfererrces, Id, "Legislatíve aot$ are presutnËd constitutional..."

tTE

Sprlnt Cammunìcations Corp.

v.

Wßconsin Bell, hnc.,155 Wis. 2d 184, 192,454N.W.2d 797, 800 (1990), The party challenging
a legislative enactment "must prove

it unconstitutronal beyond
Á.NÁ.LYSIS

fl rËflsonable

doubt,"

-Id.

The court first looks at the pleadings in this case, The court concludes that Flaintiffs have stated a claim, and that Defendants' Answer has asserted a defense, Therefore, the court turns its attention to the summüxyiudgment submissions by the parties.

Plaìntiffs contend that Act 2l is unconstitutional bçcause it gives superior authority over public instruction to officers other than the Superintendent. ln Thompsor, the Wiscon$in
Supreme Court invalidated a statutÊ because

it gave "equal or superiot authority to" other
cases

offiçers, Thompson,Igg Wis. 2d at 699. Eecause Act 2l gives the Govetrror, and in some

the Secret$y of DOA, the power to block the Supetintendcnt from pursuing the approval of adrninistrative tules, Flaintiffs maintain that Act 21 gives superior authority over public instruction to these offrcers, and is thus unconstitutional.

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Defendants respond by arguing thât 1) sirrce the plain languagc of futicle

X $l

provides

that the Superintendent's powers and duties are to "bê prescribed by law," the Legislature has

ffnple discretion in modiffing or reducing the Superintendent's uolel 2) constitutional debates
indicate that fhe fi'amers intended the Lcgislature to preseribe the Superintendent's duties; 3) the

first eduoation statute pa$sed after the constih¡tional provision took effect illusfiates that
tulemaking is not an essential component of the Superintendent's duty to supervise public instruction; 4) the Superintendent uÌtder Act

2l still

plays the greatest role in the supervision

of

public instruction; 5) other st¿te constitutions give the ultimate porryÊÌ over superintendentJike
positions to their legislafures¡ 6) rulemaking is a fom of legislative Þower that the Legislature
may delegate to agencies and other offîcers in any Tnaflner of its choosing; 7) since the

Legislaturc can constitutionally blook proposed rules, the ability to block rules was already with
"othÊr offlrcers;" 8) the Legislature has previously reduced the Superintendent's por¡¡Õrs by taking
a\ryay

fluthority over physical education, music education, and techrtical schools; 9) Thompson ís

distinguishable md does rrof coiltrol this casc; and l0) ruling Aot

2l unconstttutional would

oveúurn Fortney v. School Disît'iët ofWes Sale¿r, I08 \Mis, 2d 167, 32I N.W.2d 225 (1982),

Plaintiffs' reply brief argues that "[d]espite the unambiguous holdinginThompsonv.
Craney,rhe Defe¡rdants try to obflrscate the issuc by olaiming thatthis case is about the legislature's po\
/eu

to determine how adminisfrative rules are adopted and then reviewed by thc

legÍslature." (Reply Brief, p. 4.) In the FlaÌntiffs' view, 'o[t]he Defendants essentially claim that
the legislature's authority to set the process for the adoption and review t¡f administrative rulcs is unfettered, to the point where ít can allow other executive branch of,ficeus to corrtrol the Superintendent's policy choices." (/d,, p' 4-5')

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Plaintiffs also dispute Defendants' argument that fhe Legislature is composed of "other

officËrs." According to the Dçfendants, because these legislative "other officers" can block
rules, it makes no differcnce whether the Legislature givës other offrcers (such as the Govenror
and the DOA Secretary) the ability to block rulçs

too. (Response Brief; p. 27.) Flaintiffs

contend that adopting this argument would ov€rrule Thompson,because theThompson court rejected an argument that the legislature can allocate pôwex between the $uperintendent and other executíve offîcers however it wishes, ruling instend that the Superintendent must be

supeiior to the other offrcers, (Reply eriefl p, 7,) Because the Governot via Act 21 can stop the
Supetintendent from "even beginning the process ofadopting rules by not approving the scopÊ statemÊnt," ünd cân block proposed rules, Plaintiffs argue that Act

?l unconstitutionally allows

the Governor to stop the Superintendent from imBlementing hís policy choices. (Id., p. 4, ?,)

In addition to reiterating some earlier arguments, Defendants' reply brtef avers t̡at "Act
?1 has nothing whaßoeverto do with the supervision of public irrstruction." (Reply Briefl p. 4)

(italics in original), That is, '*[a]dministrative rule-making is not a meÊn$ by which the
Superintendent supervises public instruction; it is a delegation by the LegÍslature of some of its

legislative poweïs." (/d.) Defendants summåriee their flxglment as follorrus: (1) the Legislature prescribes the powers and duties of the Superintendcnt; (2) the Superirrtendent does not have any irùerent powërs; (3) the Legislature may delegate its constitutíonal, legislativç powcrs of rule-making tÍuough the state's administrative rulemaking processi (4) the Superintendent has no entitlemËnt to pûrticipate in the adrninistrative rule-making process nor to dictate how that process is to be established; and (5) the Legislature's administrative rule-making process doos not irnpaír, impact or impede the Superintendent's ability to supervise public instruction. (rd,)

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For the reåsoïrs stated below, the court deteimines that Act 21 is unconstitutional.2 In
this Decision, the court fitst explains why it holds that Act

2l

is uncorrstitutional, Next, fhc court

responds to the various arguments advanced by the Defendants,

In the court's view, the featurc that renders Act 21 unconstifutional beyond
doubt is the fact that Aot

a reasonable

2l

perrrrits the Governor, ând the DOA Secretûr! under oertain

circumstances, to stop the Superintendent from stsxting and/or pursuing the process

of

rulemaking. Under Act 21, before a $00pe statement can be sent to the Legislature, the tovernor
must approve it in uniting. The Governol is thereby able to block ploposed rules, Act 21 convÊys simitar authority to thc DOA Secretary to blockproposed ruies under certairt circumstançes,

Administrative rulernaking is an important way in which a Superintendent exercises his
or her constitutional authority over the supervision of publÍc instruction. Because Aût

2l

allows

the Governor to bar the Superintendent fromproposing rr¡le.$, or from even beginning thÊ process

of rulernaking by suhmittirrg a scopÊ statemçnt to the Legislature, Act 2l places the Governor in
a

position superior to the Superintendent i¡r the supetvision of public instruction, Similarly, by

requirÍng the DOA Secretary's approval to pur$uÊ proposed rules having certain fiscal implication$, Act

2l

places the DOA Secletauy in a position superior to the Superintendent in the

supervision of public instruction for those situations. Under the analysis set forth inThompson,

Act 2l as applied to this

ease violates the

lyisconsin Constitution.

Thc court has considered Defendants' rrumetous a.rgumilts, nonË of which the court finds to be persuasivç. The court analyzes these atguments, below,

This Decision is limited to Áct Zt in tho co¡rtoxt of tlris case (e.g., to the Superlntendent and DFI), This Decision docs not address Act 2l as applied to ofier agencies'
¡

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Dçfendants' first argument is that the plain language of Article X, $1 places the duties of
the Superintendent within the discretion of The Legislature, (Response Brief, p.

8.) The plain"

meaning of a constitutional provision is onç of the thlee factor$ coufis use in determining the

provision's constihrtionality.
The first sentençe of Article

,Srare v.

Beno,l

16 Wis.

2d 122,136-37, 341 N.TW,Zd 668 (1984).

X, $ 1 reads as follows: "The supervision of public insFuetion shall

be vested in a state superintendent ûnd such ofher offiçers as the legislature shall direct; arrd their

qualífication$r Fo\l'ets, duties and compensation shall be prescribed by Inw," Defendants aïgue that because the constitutional text itself "does nof define riny specific powers or duties of thc Superintendent...this cnn ortly mean that the Legislatul'Ë was

autholized,,,to prescribe the powers and duties of the Superinte¡rde¡rt, both by adding ncw
po\ryers and by redlrcing any already given

powers." (Response Buief, p, l0) (ítalics in original).

However, the corrstitutional text does providc that "supervision of public irtsttuctionl' iÊ "vöstcd"

u'ith the Superintendent. The question is thus whethçr proposing administrative rules, and scope
statements that precede these proposed rulÊs, år'e fundamenTal components of the supervision

of

public irrstructio¡r,
The court believes that they are, The idea that rulemaking "has nothingwhatsoever to do

with the supervision of publio instluction" is irnpossible for this court to accept. (Reply Brief, p,

a,) The Superintendent supeivises public instruotion by leading the Department of Public
Instruction þreafter

('DPI'), which operates-as most state govemment agencies

do-by

proposing, then uport promulgation implementing, administrative rules.
Chapter 115 of the Wisconsin Statutes, whích establishes the powers and duties of the Superintendent, is replete with requireinents that thc Superintenderrt prornulgate rules in specific âreas, TWo of the stafutÊ$ in this chapter alone, taken together, inolude no feweu than

td

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rcfetences to rules that the Superintendent is to prornulgate. \tr/Ís. Stat. $$ I15.28, 115.29,3 This
establishes beyond doubt that rulemakirrg is a flrndamental part of what it menns to supervise

public instruction at thc present tinre. As discussed below, the first statute passed after the 1902

ffneïdment illustrates that rulernaking was a component of the supelision of public instruction
at that time as

well.

Second, Defendants contÊnd that constitution¿l debates prove that the fl'amers intended the Legislatwe to prcscribe the poweis and duties of the Superintendent, (Response

Brief p'

12.) Suoh debates are the seco¡rd soucÊ examined by courts in evaluating

a

law's

constitutionality. .Bøna, 116 Wis. 2d at 137" The court finds this Êrgumönt undevcloped and
urrpersuasive, Courts are not required to consider undeveloped augumerrts. In arry case, since the

constitutional text itself provides that the Legislature prcscribes the Superintendent's powets and
duties, it is unnecessflry to show that this was fhe framers' intent.

Third, Defendants argue that the first stü.tute passed 4fter the constitution was adopted illustrates thc power of the Legislature to shnpe the Superíntendent's dutios and powers.
(Response Brief, p,

t2.)

The "earliest interpretation

of' a constitutional provision "by the

legislature as manifested in the first lawpæsed following the adoption of the constitution" is the
riVis. 2d at third source used by courts to determine whether a stâ,tute ís co¡rstitutional, .Bøno, 116

13?, The fîrst statute gave the Superintendent vatious responsibilities, and also required hÌm to

'þerfo¡m such other duties as thE legislature or govflnor of this state mfly direot," (Laws of
I B4B, p. 127

(Aug. 1 6, I 848,)) A book published in the 1920s asserted thnt the stetute "did rrot

confer any real povvers of control on the Superintendent," who "had absolutely no povvËr to
addítion, thc Wisconsin .A.dministrative Code provides mâny oxamples of how the Supelintendent has usecl rulemaí<ing to superviso publio insnuctÌon. ($uperintendent's Brief, p.4.) The cods includes rulos rolating to v¡rious rnflttËrs relevant to the supervision of public insüuction, stloh as high school equivalerrcy diplomas, special education nid, and the Milrvaukce Farental Choice Program. Wis' Admin.
3

¡t

Code $Ë PI 5, 30, 35.

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0ct.30, 2012 11:074M

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l0

enforce his views." Conrad E. Pateeu, Puhltc Educarion lrt lYlsconsln 38, 248 (1924). According

to Defendants, this illustrates that "[t]here is a difference betrveen the supetvision of public instruction (which is clearly vested in the Superintendent) and the power to create laws (a power

which is just

as clearly yested

in the legislatwe

,)"

(Rcsponse Brief, p.

I5.)
Court's

A major problem with this arg$ïnent ís thot it contradicts the

TÙgisconsin Supreme

finding nThompson that the Superintendent "was not intended to be sÍmply an advocate, but an officer with the nbility to put plans into action," Thompson, 199 Wis. 2d at 689. Today, putting
plans into aotion necessarily involves proposing, then implemÇnting, adrninistrative rules. Moreover, the Superintendent contends that the first laws passed afrsr the adoption of the co¡rstifutiorr, and after the amçndment in 1902, directed the Supelintendent to engage in

rulemaking. (superintendent's Brief, p, 3,) As summatized by the Thompson court, the first law
passed after the constitution's adoption requiled the SuperÌrrtefldent to "apportion school fi.rnds

between townships, propose regulations for making reports and conductirrg proceedíngs under the act, and to adjudicate contÍover$ies arising undcr the school lands." 199 Wis. 2d at 695' The Superintendent maintains thnt (Superintendent's Blief, p.

"[a]ll of these acts require thç creation

and administering of rules." amendment to

4.) In addition, the first lawpassed after the 1902

Article X, $ I provided that the Superintendent "had the power to 'r'evise, codiff, and edit the
school laws,"'and to 'þrescribe regulations for distriot libraries; to resolve appeals fi'om school

district decisionsi and to apportionlhe school flrnd income.o' Thatnpson, I99 Wis. 2d at 697.
These stafutes suggest that rulemaking has always been an essential aspect of the

Superintendent's duty 1o supervise public instruction, White it may be unclear whether the 1848 sta¡l]te empo\ryered the Superintendentto engagë in rulemaking, thele is no doubt thnt the frrst
statute passed after the 1902 amendment requfued rulemaking, The statute's directives to

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11

*'prescr'ibe "revise, codifir, a¡rd edit the school laïvs" and (as paraphrased in Thompson)

regulations for dishict libraries" nËce$sûïily entail sorne form of rulemaking. /d. Fourth, Defendants state that undcr Act 21, the Superintendent still has the greatest role

in the supewision of public instruotion. (Response Bríef, p,

t2,) Plaintiffs had argued that

"faJdministrative rules are the principal legal meåns by whíchthe Superintendent carties out his constitutionally vested responsibility to supervise public instruction." (Summary Judgnent

Bricf, p. 5.) Defendants aver that this seems hard to believc, gÍven the fact that the
Administrative Procedure Act was notpåEsed until 1943, and the Department of Publio Instruction only came into being in 1971. Did Superintendents tack the meÊn$ to caruy out their
duties before then?

Not nccessarily. As noted above, SuperintendÈnts wËIe rtquited to Ëngage in rulernaking in some form from at least the timc of the fÌrst statute passed after the 1902 amendmont, In
addition, regardless of what was involved in supervising public irrsttuction before the advent of
modei'n rulernaking, rulemakiûg is surely akey component of supervisirtg public instruction

today.

,Se¿

Ch. 115, Wis. Stats.

Defendants also quote fromthe ounent Superintendent's Inaugural Address, whioh mentioned a numbm of goals for his lerm, but said nothing about promulgating adminÍstrative

rules. (Response Brief, p. 17.) Simítarly, Defendanfs cite a "long list" in whieh the
Superintendent detailed his activitie$,
*'nonÞ

of which involved the promulgation of

administrative rules." (1d., p.1S.) The court does not find these data points particular'þ

insftuctivç or persuasive. These statements were presumably meant for consumption by
members of the general public, who would be unlikely to understand or apprcciate arry refcrence the Superinrendent made to rulemaking. Moreover, it Ís likelythat accomplishing the goals he

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12

listed would necessitatc promulgating and implementing new rules, even if thot detail was not insluded in his public addrpsses or press relenses. This court finds that Defendants' general algument that the Superintendcnt still would
have the greatest role in the supervision of public insfruction post-Act

2l

is unpersuasive, as

it

fails to

ans\ryËr

this fr¡ndamental question: Does Act

2l impermissibly

and unconstitutionally

grant other officçrs superior f,uthoríty over thÊ Superintendent? Whether or not the Superintendent still po$sesßðs a key role in public insttuction supewision afrer implementing Aot

2I

is not particularly material or responsive to this quÈstio$,

Fifth, Defendants disouss other state constitutions with sirnilæ ptovisions, to u¡rderline
the faot that other states' legislatures deftrre the powers and duties of superintendents,

(/d')

The

court does not find the quotes from other constitutiofls to be helpful in deciding this case, which
requires analysis and application of \Misconsin law.

Sixth, Dcfendants rnaintain that rulemaking is a form of legislative po\ryet that the Legislature nray delegate to other agenciss in whatever fnannÊr the Legislatufe sees

fit.

(/d., p'

23-27 )4 Yet even íf the Superintendent has ¡ro inherent powor to promulgate rules on his or her

own, the fact rcmains thatpur,ra/rrg the prornulgatíon of rules is among ttrre $uperintendent's core functions, as defined by the relevant stâtutes. See, e.g., \Mis, Stat, Ë$ 115.28, 115'29, Once this role has been nssigned to the SuperintendÊnt
â$

part of his or her duty to supeivise public

instruction, giving another offïcer the power to block the Superintendent from çven starting the
proçess of proposing ne\ry rules is unconstitutional, because it thereby gives superior authority over public instruction to another officçr.
Defendants flttempt to supporf this contçntíon by drawirrg on E ü, v. Etqte, I I I Wis. 2d 175, 330 N'\Ar'zd powors SS4 (IP83). (Brief inReply to Suporintendent's Briof, p, 2-3,J E,B. dealtwith the separation of judioiary and the leglslaturo, witlr rnspect to the judiciary's abÍlity to establish its own between tlio procedures, Since that area of the taw is not closely analogorrs to the issues ùr this oase, the cout't does not find this argument convincing.
4

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l3

Seventh, Defendants algue that beoause thÊ Legislature can constihrtionally block rules,

this means that the powor to vËto rules was already with 'bthet offtcsrs." (Response Brief, p.

27.) If this is the case, according to Defendants, then there could be nothing unconstihrtional
about the Legislature designating other officers, such as the Goveinot or DOA Secretaty, to veto proposed rules as committee, to bç

well, Yet it is not ueasonahle

to consider thc Legislaturë, or a legislative

"officçrs." The term "officer" refêrs to an individual person, not an

organization or institution, Desctibing eithcr the Legislatule or thÊ JoÍnt Committcc for Review of Administrative Rules
a,s

an

"officer" defies tommon $ense, Moreover, the terun'*officers,"

as

it is used iu futicle X, $1, clearly refers to executive branch of"ficials, As the Legislature is a
separate branch of govelnrnent and mentioned sepatately in Article

X, $1, the framers must

nOt

have mennt the term "offrcers" to encompass thÊ Legislatule or legislative committecs,

In nny eve.nt, the ídea thatthe Legislature can designate flnyone it uhooses to vcto the
Superintendent's proposed tules is inconsistentwith Thompson,whichprohibited giving superior

Ilower over public instruction to other executive officels. Sirrce the Legislatule def,ines the
Superintendent's powers and duties, it only makçs sense that the Legislature could allow itself

(or one of its committees) to blook rules proposed by the Superintendent, What contrâvËnËs
Thompson is granting this vçto power to other executive officers, because this gives thosc exeçutive officers gröâtËr authority over public insftuotion thanThe Superintendent.

Eighfh, Defendants contend that since the Legislature has previously reduced the
Superintendent's power.-by rcmoving authority over musical, physicnl and vocational

education-it must

be constitutional to give the Governor veto power over rulemaking.

(Response Brief, p. 2S.) However, musiç education, physical educatíon and vooational colleges
are peripheral

to thc core task given to the Superintendent: the supervision of public education in

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N0,6383 P. l4

grade schools and high schools. There is a differer¡ce beftveen reducing the Superintendent's

power (as in the above examples) and giving other ofücers superiot Èuthority over public ir¡struction in general (as in Thornpson and this case), Thompson,lgg Wis. 2d at 698-700'

Ninth, Defendants attempt to distinguishThompson, arguing that it is inapplicable to this
sase. Defeudaüts ffiaintain that Thompson "did not concern how the poïvels or duties of the
Superintendent were to be prescribed by
state that thc statute

law,"

(Response Briof, p.

31.) In addition, Defcndants

stuck down by Thompson r(was q,legislative aotion which directly çentercd

upon who woqld be setting the polioies fot public Ínstrltction in Wïsconsin," which is

'þlainly

not something contemplated or even implied in Act

2I." (Id-,p' 32,)

The court disagrees. As explained above, rulemaking is a key meshflnism fot setting and

implementiug policies, It should be noted that many of the sections of Chapter 115 direcfing the
Superintendent to promulgate rules give the SupeiÍntendent considerable discretion on the content of thesc rules. For cxâmplet urrder Wis. Stat. $ I15.28(3m)(b)' the Superintendent

"shall

,,,

[p]romulgate rules establishing procedutes for the reorganization of coopcrative

educational service agencies and boundary appeals," The statute does not elaborate, Also

without elaborating, another sÊofrQn in the same statute directs the Superintendent to "make rules
for the examination and certifîcation of school nutses." lVis. Stat, $ 115,28(7m). In these and many other situations, the Superintendent enjoys a wide margin of freedom to propose rules that
best

fit hís or her policy goals. It is not the case that rulernaking simply

irnplements the detailed

poliey choices already madç by the Legislahrre. On the coû1râ,ryr the Legislature often leaves
those choices forthe Superintendent, Because Act

2l

grants vËto po\ryer over thöse policy

choices to the Governor and in somo câses the Secretary of DOA, it makes the Superintendent subordinate to the Governor aud DOA Secretary in pubtic insüuction'related policymaking,

13

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15

Finally, Defcndants aver that declaring Act 2I unconstitutional would âmount t0
overturning West Salem, (Response Brief, p, 35.) That case, which related to school boards
rather than the Superintendcut, included the following passage:

,dfiicle X, section I, explicitly provides that the po\ryers and duties of the school supcrintendent and othçr officers charged by the Iegislature with governing school systems '*shall be prescribed by law," Beçause the constitution explioitly authorized the Iegislature to set the polyers and duties of public instruction offrcers, Article X, section I confers no morÕ authority upon those officers than that delineated by statute. Therefore, consistent with our holding that fhe albih'ator's deoision ând âwflrd violates no statutory provision relating to thc powÕrs and duties of the Board, we hold that it does not violate the Wisconsin Constitution,
108 'Wis. 2d at 182. Defendants point to this language as proof that Ihe Superintendent has no

irùrerentpowers. Defendants suggestthat ruling Ast

2l

unconstrfutíonal would only be possible

by holding that the Superintendenthas inherent po$/ers. (Response Brief, p, 30,)
Thís is not the Çase any more than it was in Thompson, and the court is not persuaded by

Defendants' argurnents in this regald. InThompson, the Supreme Court held that "the constitutional clifficulty with the cdr.rcationprovisions of 1995 Wis. Act 27 is notthat ittakes

W_awa.y from

the office of thq fSuperintendent], but rather that it gives the power

of

sunervision of nr¡blic education to an rother offtcer' instead of the" Superintendent. I99 \trÍs, 2d
at 698-99 (ernphasis added). TheThompsor? court then quoted the passage fromWest Salem

reproduced above, and explained: "This oase does not require us to dscide [he extent to which

the [Superintendent]'s po\ilËrs rnay be rcduced by the legislature, and we reserve judgment on
fhat issue," /d, at 699-700,

Act 21, Iike the steutÈ inThompson, involves not taking away srme specifio power from
the Superintendcnt, but rathcr giving another officer supeuior authority over public insttuction.
Since ruleffaking is one of the key ways the Superintendent supervises public itrsttuctio¡1, gÍving

the Governor, and in some oases the DOA Secretary, the rightto veto any attempts at submitting

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0ct,30, 2012

l1:OBAM

No,6383 P,

16

sçope statements or proposing new rules grants these offrcers superior authority over the

supervision of publio inshuction. Under Thompson,this is unconstinttional.

Plaintiffs havE esfablished their entitlçment to summary judgment. Plaintiffs have
established that Ast 21, as applied to the rulemaking activities of the Superintendent of Fublic

Instruction, is unconstitutional beyond a rcasonable doubt.

CONCLUSION
For the rea$ofls sta.ted above, Plaintiffs' Motion for Summary Judgment is GR.A.NTED,
arrd

Defendants' Motion for Summary Judgment is

DEI{IEII, This court dçclares Act 2l

as

applied to rulemaking activities of the Superintendent of Publio Instruction YOID,

Plaintiffs are ORIIERED to draft any Order(s) neoessary to effect the intcnt of this
Decision. Dated this 30th day of October,2012.

BY THE COURT:

Hon. Amy R. Smith Circuit,Court Judge, Branch 4
cci

Attorney Lestel Pines Attorney Malia Lazar Attomey Janct A. Jenkins

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