                                                              2016 WI 38

                  SUPREME COURT               OF   WISCONSIN
CASE NO.:               2013AP416
COMPLETE TITLE:         Peggy Z. Coyne, Mary Bell, Mark W. Taylor, Corey
                        Otis,
                        Marie K. Stangel, Jane Weidner and Kristin A.
                        Voss,
                                  Plaintiffs-Respondents,
                              v.
                        Scott Walker and Scott Neitzel,
                                  Defendants-Appellants-Petitioners,
                        Anthony Evers,
                                  Defendant-Respondent.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                          (Reported at 361 Wis. 2d 225, 862 N.W.2d 606)
                                    (Ct. App. 2015 – Published)
                                       PDC No. 2015 WI App 21

OPINION FILED:          May 18, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          November 17, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Amy R. Smith

JUSTICES:
   CONCURRED:           ABRAHAMSON, J., concurs, joined by BRADLEY,
                        A.W., J.
                        PROSSER, J. concurs
  DISSENTED:            ROGGENSACK, C.J. dissents, joined by ZIEGLER, J.
                        and BRADLEY, R.G., J.
                        ZIEGLER, J. dissents, joined by BRADLEY, R.G.,
                        J.
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    defendants-appellants-petitioners,      the     cause   was
argued by David V. Meany, assistant attorney general, with whom
on   the     briefs      was   Daniel   P.   Lennington,   assistant    attorney
general, Andrew C. Cook, deputy attorney general and Brad D.
Schimel, attorney general.
    For the plaintiffs-respondents, there were briefs by Susan
M. Crawford, Lester A. Pines, Aaron G. Dumas, and Cullen Weston
Pines & Bach LLP, Madison, and Randall Garczynski, Wisconsin
Education Association, Madison and oral argument by Susan M.
Crawford.


    For        the   defendant-respondent,     there   briefs    by    Ryan
Nilsestuen, Janet A. Jenkins, and Wisconsin Department of Public
Instruction, Madison, and oral argument by Ryan Nilsestuen.


    There was an amicus curiae brief by Richard M. Esenberg,
Charles J. Szafir, Brian W. McGrath, and Wisconsin Institute for
Law & Liberty, Milwaukee on behalf of Wisconsin Manufacturers &
Commerce, Metropolitan Milwaukee Association of Commerce, School
Choice    of    Wisconsin,   the   Honorable   Jason   Fields,   and   the
Honorable Scott Jensen.      Oral argument by Richard M. Esenberg.


    There was an amicus curiae brief by Richard F. Verstegen,
Michael J. Julka, M. Tess O’Brien-Heinzen, and Boardman & Clark
LLP, Madison on behalf of The Wisconsin Association of School
Boards and School Administrators Alliance.             Oral argument by
Michael J. Julka.




                                     2
                                                                          2016 WI 38
                                                                     NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.   2013AP416
(L.C. No.   2011CV4573)

STATE OF WISCONSIN                              :            IN SUPREME COURT

Peggy Z. Coyne, Mary Bell, Mark W. Taylor,
Corey Otis, Marie K. Stangel, Jane Weidner and
Kristin A. Voss,

             Plaintiffs-Respondents,

      v.
                                                                        FILED
                                                                  MAY 18, 2016
Scott Walker and Scott Neitzel,
                                                                     Diane M. Fremgen
                                                                  Clerk of Supreme Court
             Defendants-Appellants-Petitioners,

Anthony Evers,

             Defendant-Respondent.




      REVIEW of a decision of the Court of Appeals.                    Affirmed.



      ¶1     MICHAEL      J.   GABLEMAN,   J.    This      is    a     review    of    a

published decision of the court of appeals1 affirming the Dane

County circuit court's2 grant of summary judgment in favor of

Peggy Z. Coyne, Mary Bell, Mark W. Taylor, Corey Otis, Marie K.


      1
       Coyne v. Walker, 2015 WI App 21, 361 Wis. 2d 225, 862
N.W.2d 606.
      2
          The Honorable Amy Smith, presiding.
                                                                         No.    2013AP416



Stangel,         Jane    Weidner   and    Kristin    A.   Voss    ("Coyne").      Coyne

sought a declaratory judgment that 2011 Wisconsin Act 21 ("Act

21") is unconstitutional as applied to the Superintendent of

Public        Instruction       ("SPI")    and      the   Department       of    Public

Instruction ("DPI"). Among other things, Act 21 amended portions

of     Wis.      Stat.    ch.   227,     which   governs    the    procedures        for

administrative rulemaking and now allows the Governor (and in

some instances the Secretary of Administration) to permanently

halt the rulemaking process. The circuit court concluded that

Act 21 is unconstitutional as applied to the SPI because it

gives superior authority over public instruction to officers who

are not subordinate to the SPI. As a result, it permanently

enjoined Governor Scott Walker and Secretary of Administration

Michael Huebsch3 from proceeding thereunder with respect to the

SPI.

       ¶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. Applying Thompson's reasoning,


       3
       After we accepted the petition for review in this case
Scott   Neitzel   replaced   Huebsch  as   the  Secretary   of
Administration. Consequently, on June 18, 2015, Huebsch was
removed from the caption and Neitzel was added as a defendant-
appellant-petitioner.


                                            2
                                                                            No.    2013AP416



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.
                                             3
                                                                                 No.    2013AP416



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.

                I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
                                 A. 2011 Wisconsin Act 21

      ¶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"4       to

submit that scope statement to the Legislative Reference Bureau
for   publication           in    the    administrative             register    and     to    "the

individual or body with policy-making powers over the subject

matter     of    a     proposed         rule"       for      approval.       Wisconsin        Stat.

§ 227.135(2)          now    additionally              requires      an   agency       that     has


      4
       To begin the rule-drafting process, agencies must prepare
a scope statement that, among other things, describes the
objectives, policies, authority, and use of government resources
that the rule may affect. See Wis. Stat. § 227.135(1).


                                                   4
                                                                             No.     2013AP416



prepared a scope statement to submit the scope statement to the

Governor     for   approval.       The    agency       may      not    submit      the    scope

statement to the Legislative Reference Bureau for publication in

the     Administrative      Register           nor    "perform         any   activity       in

connection with the drafting of a proposed rule" unless and

until the Governor approves the scope statement in writing. Wis.

Stat. § 227.135(2).

      ¶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.5

      ¶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


      5
       Wisconsin Stat. § 227.137(7) requires the Secretary of
Administration to approve the rule if the "agency has adequately
addressed   the  issues   raised   during   the  department  [of
administration]'s review of the rule," but the determination of
whether the agency has "adequately addressed the issues" is left
to the discretion of the Secretary of Administration.


                                               5
                                                                     No.   2013AP416



rule to the Governor for approval before submitting the draft

rule to the Legislature.6 The Governor then has sole discretion

to approve or reject the rule. Wis. Stat. § 227.185. An agency

may not submit the proposed rule to the Legislature for review

unless the Governor "has approved the proposed rule in writing."

Id.

                           B. The Proceedings Below

      ¶9     The Coyne parties7 filed an action pursuant to Wis.

Stat.      § 806.04   seeking   declaratory          judgment   and    injunctive

relief in the Dane County Circuit Court on October 11, 2011. The

complaint     named   as    defendants       Governor   Walker,      Secretary    of

Administration Huebsch, and Superintendent Anthony Evers, all in

their      official   capacities,    and        it    sought    to    enjoin     the

      6
          Specifically, Wis. Stat. § 227.185 states,

      After a proposed rule is in final draft form, the
      agency shall submit the proposed rule to the governor
      for approval. The governor, in his or her discretion,
      may approve or reject the proposed rule. If the
      governor approves a proposed rule, the governor shall
      provide the agency with a written notice of that
      approval.   No proposed rule may be submitted to the
      legislature for review under s.227.19(2) unless the
      governor has approved the proposed rule in writing.
      7
       Peggy Z. Coyne and Mary Bell are taxpayers and school
teachers who are the current presidents of Madison Teacher Inc.,
the labor organization that represents most employees of the
Madison   Metropolitan  School   District,   and  the  Wisconsin
Education Association Counsel, a labor organization representing
thousands of teachers throughout Wisconsin, respectively. Corey
Otis and Jane Weidner are taxpayers and teachers in Wisconsin
public schools. Kristin A. Voss, Marie K. Stangel, and Mark W.
Taylor are taxpayers and parents whose children attend and
receive services from Wisconsin public schools.


                                         6
                                                                      No.   2013AP416



defendants from proceeding with rulemaking under Act 21. The

complaint alleged that by requiring the SPI and DPI to obtain

the Governor's and the Secretary of Administration's approval to

proceed    with    rulemaking,     Act    21    gives     the   Governor    and    the

Secretary of Administration equal or superior authority to that

of   the    SPI    over     the    supervision       of     public     instruction.

Consequently, the complaint alleged that Act 21 violates Article

X, section 1 of the Wisconsin Constitution and is inconsistent

with our holding in Thompson.

     ¶10    Superintendent        Evers    filed     an   answer     agreeing     with

Coyne; he has taken the same position as Coyne throughout this

litigation. Governor Walker and Secretary Heubsch8 filed a motion

to dismiss the case for lack of standing. Prior to disposition

of that motion, Coyne filed a motion for summary judgment. On

April 6, 2012, the circuit court denied the Governor's motion to

dismiss, and thereafter the Governor answered the complaint. On

May 25, 2012, the Governor filed a motion for summary judgment

and opposed Coyne's previously filed motion.
     ¶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


     8
       For ease of reading, we will refer mainly to the Governor,
though our analysis and conclusion apply with equal force to the
Secretary of Administration.


                                          7
                                                                                No.    2013AP416



"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.

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). 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
                                               8
                                                                            No.     2013AP416



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.

                             II. STANDARD OF REVIEW
       ¶14    We    review     a    grant       of      summary    judgment       de     novo,

independently applying the same methodology as the circuit court

and the court of appeals while benefitting from their analyses.

Preisler      v.      Gen.   Cas.     Ins.        Co.,    2014     WI     135,    ¶16,       360

Wis. 2d 129, 857 N.W.2d 136. Summary judgment "shall be rendered

if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that the moving party is entitled to a judgment as a matter of

law." Wis. Stat. § 802.08(2).

       ¶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


                                              9
                                                                 No.   2013AP416



in   the    earliest    law     passed   following   the   adoption      of   the

constitution." Id.

                                 III. DISCUSSION
                        A. Administrative Rulemaking

      ¶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.9

      ¶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.10 "Agency" is defined very broadly in Wisconsin:

"'Agency' means a board, commission, committee, department or

officer in the state government, except the governor, a district

attorney     or    a   military    or    judicial    officer."    Wis.      Stat.

§ 227.01(1). The DPI is a "department in the state government"

      9
       Administrative rulemaking is a complicated process, and we
do not endeavor to explicate the required steps for each agency
nor the requirements of each subdivision of Wis. Stat. ch. 227.
We merely provide a general summary of the process.
      10
       See generally Wis. Stat. § 227.19(1)(b) ("The legislature
recognizes the need for efficient administration of public
policy. . . . The delegation of rule-making authority is
intended to eliminate the necessity of establishing every
administrative    aspect   of    general    public   policy   by
legislation."); Wis. Stat. ch. 15, Structure of the Executive
Branch; Wis. Stat. § 15.001(2)(a) ("As the chief administrative
officer of the state, the governor should be provided with the
administrative facilities and the authority to carry out the
functions of the governor's office efficiently and effectively
within the policy limits established by the legislature.").


                                         10
                                                                         No.     2013AP416



created by the Legislature that is "under the direction and

supervision of the state superintendent of public instruction."11

Wis.    Stat.       § 15.37.      The    SPI    is    an    "officer    in   the    state

government" who is not the governor, a district attorney, or a

military and judicial officer; thus, the SPI is also considered

an "agency" to which Wis. Stat. ch. 227 applies.

       ¶18     In    order   to    implement        the    policy   decisions      of   the

Legislature, the Legislature delegates to agencies, by statute,

the    power    to    promulgate        administrative       rules.12   In     1943,    the




       11
       The DPI is the administrative agency that interprets,
implements, administers, and enforces the statutes in Wis. Stat.
chs. 115-121 governing the supervision of public instruction at
the state level. See Wis. Stat. § 115.001(2); see also Wis.
Admin. Code PI (2013-14). The DPI is created by the Legislature
and is "under the direction and supervision of the state
superintendent of public instruction" Wis. Stat. § 15.37, and it
is the agency that promulgates rules when it or the SPI are
required to do so. For example, Wis. Stat. § 115.28(5) requires
the SPI to promulgate rules establishing procedures for bringing
appeals before the SPI, but the rule itself is drafted and
promulgated by the DPI. See Wis. Admin. Code PI 1; CR 87-84,
384B Wis. Admin. Reg. (Dec. 31, 1987). The SPI is the
"individual or body with policy making powers" who must approve
rules proposed by the DPI.
       12
       Wis. Stat. § 227.11(2)(a) (an agency may promulgate rules
to effectuate the purpose of any statute administered by it);
see also, e.g., Wis. Stat. § 85.16 (giving the Secretary of
Transportation the authority to make rules "deemed necessary to
the discharge of the powers, duties and functions vested in the
department [of transportation]").

                                                                             (continued)
                                               11
                                                                No.   2013AP416



Legislature created Wis. Stat. ch. 227, entitled "Administrative

Procedure       and     Review."13 The   Legislature   sought    to   promote

efficiency and create a uniform set of procedures administrative

agencies were to follow when promulgating rules. Chapter 227 of

the Wisconsin Statutes has henceforth prescribed the procedure

agencies must follow to promulgate valid rules and regulations.

See,    e.g.,    Wis.    Stat.   §§ 227.01(1)-.08   (1943-44);    Wis.   Stat.

§§ 227.01(1)-.30 (2013-14).

       ¶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 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).
       13
       See Ralph M. Hoyt, The Wisconsin Administrative Procedure
Act, 1944 Wis. L. Rev. 214 (1944).


                                         12
                                                                        No.   2013AP416



the   organization         or    procedure       of    the   agency."14       Agencies

generally must promulgate rules to take any action pursuant to

the   statutes    they     are     tasked    with      administering     unless    the

statute    explicitly           contains     the      threshold,       standard,    or

requirement      to   be    enforced.15      All      agencies   are    required    to

      14
       The statute gives a long list of agency actions or
inactions that are not considered rules even though they would
otherwise fit the definition given, such as actions concerning
the internal management of an agency that do not affect private
rights or interests, decisions or orders in contested cases,
actions which relate to military or naval affairs, etc. See Wis.
Stat. § 227.01(13)(a)-(zz).
      15
       Agencies generally cannot take any legally binding action
pursuant to a statute without promulgating a rule. For example,
the COP-W/CIP-II program allows individuals who would qualify
for Medicaid institutional care to instead receive services at
home. The Department of Health and Family Services (DHFS) (now
Department of Health Services) is tasked with administering this
statute.   Wis.   Stat.   § 49.43(3e),  .45(1).     Wis.   Stat.
§ 49.45(6m)(i) states that this benefit is only available for
persons receiving skilled, intermediate, or limited levels of
nursing care as defined by the DHFS. In 2005, DHFS gave a
written instruction to county "screeners" that changed how the
screeners assessed whether someone qualified for "limited" care,
but did not promulgate a rule to implement the new definition of
needing limited care. Cholvin v. DHFS, 2008 WI App 127, ¶13, 313
Wis. 2d 749, 758 N.W.2d 118. Previously, screeners were to
assess people based upon their needs on a "bad day." Id., ¶19.
The new instruction required screeners to assess a person as
fully functional unless they needed assistance one-third of the
time or more. Id. The court of appeals determined that the
instruction was invalid and had to be promulgated as a rule. The
court found that the instruction "interprets law because it
removes from consideration a number of possible functional
limitations" and that it created a new standard because it
imposed "an entirely new eligibility condition established by
DHFS." Id., ¶¶32-33. Thus, pursuant to Wis. Stat. § 227.10(1)
and .10(2m), DHFS screeners could not use the instruction to
determine whether someone qualified for limited care until it
validly promulgated the instruction as a rule.


                                            13
                                                                              No.    2013AP416



promulgate rules to adopt general policies and interpretations

of   statutes     that    will     govern        the    agency's          enforcement       or

administration      of    that        statute.         Wis.       Stat.       § 227.10(1).16

Additionally,      an    agency       may   not       "implement         or    enforce     any

standard,    requirement,        or    threshold,        including        as    a   term    or

condition    of   any    license       issued     by    the       agency,      unless     that

standard, requirement, or threshold is explicitly required or

explicitly   permitted      by    statute        or    by     a   rule    that      has   been

promulgated in accordance with [Wis. Stat. ch. 227, subchapter

II] . . . ." Wis. Stat. § 227.10(2m).

                  1. Agency Rulemaking Prior to Act 2117

     ¶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).



     16
       "Each agency shall promulgate as a rule each statement of
general policy and each interpretation of a statute which it
specifically adopts to govern its enforcement or administration
of that statute." Wis. Stat. § 227.10(1).
     17
       Again, we do not endeavor to recite every step of the
process in detail, and there are many more requirements that
must be met for a rule to be properly promulgated. See Wis.
Stat. ch. 227 sub. II.


                                            14
                                                                               No.    2013AP416



      ¶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.18    Wis.    Stat.

§ 227.19(2)-(7)(2009-10).

                                2. Rulemaking After Act 21

      ¶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.19    See    Wis.    Stat.

      18
       The   legislative   review   process  is   elaborate and
complicated, and again we are merely giving a summary and not a
comprehensive analysis of the process. The full legislative
review process can be found in Wis. Stat. §§ 227.19-.265.
      19
       As noted previously, in some circumstances Wis. Stat.
§ 227.137(6) as amended by Act 21 also allows the Secretary of
Administration to keep a draft rule from being reviewed by the
Legislature.


                                                 15
                                                                                  No.     2013AP416



§ 227.135(2);         Wis.     Stat.    § 227.185.            At    either       juncture——and

regardless      of     the    approval     of      the    "individual         or        body    with

policy-making         powers    over     the       subject         matter    of    a     proposed

rule"——the agency may not proceed with the rulemaking process

unless    the    agency       receives     the      Governor's         written          approval,

which can be withheld for any reason or for no reason. Id.

                 B. Constitutional Challenges to Statutes

       ¶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




                                              16
                                                                         No.     2013AP416



statute."20 Tammy W-G, 333 Wis. 2d 273, ¶49. Accordingly, in an

as applied challenge, the court "assess[es] the merits 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 (quoting State v. Hamdan, 2003 WI 113, ¶43, 264

Wis. 2d 433, 665 N.W.2d 785).

       ¶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.


       20
       Stated otherwise, the analysis changes depending on the
right at issue. For example, when the challenge to the
application of the statute involves an issue of freedom of
conscience based on religious beliefs, we apply the "compelling
state interest/least restrictive alternative test." See Tammy W-
G v. Jacob T., 2011 WI 30, ¶50, 333 Wis. 2d 273, 797 N.W.2d 854.


                                             17
                                                                           No.    2013AP416



       ¶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 "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."

Olson    v.     Town     of     Cottage    Grove,     2008     WI    51,         ¶28,     309

Wis. 2d 365, 749 N.W.2d 211. We have explained,

       A controversy is justiciable when the following four
       factors are present:    (1) A controversy in which a
       claim of right is asserted against one who has an
       interest in contesting it. (2) The controversy must be
       between persons whose interests are adverse. (3) The
       party seeking declaratory relief must have a legal
       interest in the controversy——that is to say, a legally
       protectable interest. (4) The issue involved in the
       controversy must be ripe for judicial determination.
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

                                           18
                                                                        No.     2013AP416



thus    had    no    standing    to    bring    this   action.    See     Coyne,      361

Wis. 2d 225,        ¶4.   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.21

       ¶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,

       By definition, the ripeness required in declaratory
       judgment actions is different from the ripeness
       required in other actions. . . . potential defendants
       'may seek a construction of a statute or a test of its
       constitutional validity without subjecting themselves
       to forfeitures or prosecution.' Thus, a plaintiff
       seeking a declaratory judgment need not actually
       suffer an injury before availing himself of the Act.
       What is required is that the facts be sufficiently
       developed to allow a conclusive adjudication.
309    Wis. 2d 365,       ¶43   (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


       21
       "Unlike the federal courts, which can only hear 'cases'
or 'controversies,' standing in Wisconsin is not a matter of
jurisdiction, but of sound judicial policy." McConkey v. Van
Hollen, 2010 WI 57, ¶15, 326 Wis. 2d 1, 783 N.W.2d 855.
Accordingly, we are not required to reexamine this issue before
proceeding.


                                           19
                                                                                No.        2013AP416



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.     Graff,       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.

   C. Rulemaking, Supervision, and the Language of Article X

                     1. Rulemaking Is A Supervisory Power.

    ¶31       We first address whether rulemaking is a supervisory

power    of    the     SPI    and     DPI.       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." The SPI's and DPI's

powers and duties are "prescribed by" the Legislature and found

throughout      Wis.       Stat.    chs.        115–121.    If     rulemaking         is     not    a

supervisory power, then there is no constitutional impediment to




                                                 20
                                                                       No.    2013AP416



Act 21 because it would not affect the supervision of public

instruction.22

     ¶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


     22
       "Public instruction" has been interpreted as "the
elementary and high schools supported by pubic taxation." Wis.
Stat. § 115.01(1). The SPI is tasked with the supervision of the
public schools grades K-12, and the supervision of programs for
the public schools that are supported by public taxation. See,
e.g., Wis. 115.28 (1), (3), (20)-(23).


                                            21
                                                                            No.     2013AP416



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,23 rulemaking is a supervisory

power       that   the   DPI    and    SPI      must    use     to    supervise      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.

       23
       See Wis. Stat. chs. 115-121; see also Part D., infra;
n.35, infra.


                                             22
                                                                            No.     2013AP416



§ 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 is a supervisory

power    because   it   is    the    means     by    which    the     Legislature          has

prescribed the SPI and DPI to carry out the majority of their

statutorily-mandated         duties      and        powers.        Stated     otherwise,

rulemaking is the means by which the Legislature has "prescribed

by law" that the SPI must carry out his Legislatively-defined

duties of supervision.

      ¶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
                                         23
                                                              No.   2013AP416



supervision of public instruction, rulemaking is a supervisory

power.

       2. The Legislature May Delegate Supervision of Public
       Instruction Only to Officers of Supervision of Public
                            Instruction.
      ¶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. Thus, we begin with a discussion of

Thompson.

                           a. Thompson v. Craney

      ¶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 (emphasis added). There, the question


                                      24
                                                                                    No.    2013AP416



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,       including          other       constitutional           officers

whose offices were not created to supervise public instruction.

      ¶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
                                                25
                                                                          No.     2013AP416



vested the supervision of public instruction in a proper "other

officer."

        b. General Principles Governing the Interpretation of a
                        Constitutional Provision
       ¶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.
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.     First

adopted in 1848, Article X, § 1 stated,

       The supervision of public instruction shall be vested
       in a state superintendent, and such other officers as
       the legislature shall direct. The state superintendent
       shall be chosen by the qualified electors of the
       state, in such manner as the legislature shall
       provide; his powers, duties, and compensation shall be
       prescribed by law. Provided, that his compensation
       shall not exceed the sum of twelve hundred dollars
       annually.
In 1902, Article X, § 1 was amended to read,

       The supervision of public instruction shall be vested
       in a state superintendent and such other officers as
       the    legislature    shall    direct;    and    their
       qualifications, powers, duties and compensation shall
       be prescribed by law. The state superintendent shall
       be chosen by the qualified electors of the state at
       the same time and in the same manner as members of the
       supreme court, and shall hold office for four years
       from the succeeding first Monday in July. The state
       superintendent chosen at the general election in
       November, 1902, shall hold and continue in his office
       until the first Monday in July, 1905, and his

                                            26
                                                                         No.     2013AP416


         successor shall be chosen at the time of the judicial
         election in April, 1905. The term of office, time and
         manner of electing or appointing all other officers of
         supervision of public instruction shall be fixed by
         law.
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 plain language and meaning of

the amendment they ratified." Appling, 358 Wis. 2d 132, ¶22. It

is   a    paramount      rule   of   constitutional      construction          that   the

intent of a provision "is to be ascertain[ed], not alone by

considering the words of any part of the instrument, but by

ascertaining the general purpose of the whole[.]" Kayden Indus.,

Inc.     v.    Murphy,     34   Wis.2d    718,    730,   150    N.W.2d     447    (1967)

(quoting State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 184,

204 N.W. 803, 805 (1925)).

         ¶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

                                           27
                                                                    No.     2013AP416



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.

            c. The Plain Language Of Article X, Section 1.

      ¶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 DaimlerChrysler 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.24 The final sentence

of Article X, § 1 refers to "all other officers of supervision

of    public    instruction."    (Emphasis       added.)      Thus,        the    most


      24
       "The state superintendent shall be chosen by the
qualified electors of the state at the same time and in the same
manner as members of the supreme court, and shall hold office
for 4 years from the succeeding first Monday in July." Wis.
Const. Art. X, sec. 1.


                                       28
                                                                      No.     2013AP416



reasonable construction of Section 1——as a whole——is that the

term "all other officers" in the last sentence of Section 1 is

referring to "all officers authorized by Article X, § 1 other

than the superintendent." The final sentence specifically states

that these "other officers" are "other officers of supervision

of public instruction." It would defy our basic principles of

construction to conclude that the drafters of Article X, § 1

were    referring       to   different    "other     officers"       in    the     first

sentence than in the last, particularly when read in context

with the rest of Section 1. See, e.g., State v. Cole, 2003 WI

112, ¶13, 264 Wis. 2d 520, 665 N.W.2d 328 ("In interpreting a

constitutional provision, we first turn to the plain meaning of

the amendment in context").

       ¶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

Legislature may direct" is that the "other officers" are meant

to be "creatures of the Legislature" whose offices were created

to supervise public instruction. See, e.g., City of Sun Prairie

v.     Davis,    226    Wis. 2d 738,      ¶¶29-31,      595    N.W.2d 635        (1999)
(nothing that although municipal courts are authorized by the
                                          29
                                                                  No.       2013AP416



constitution, they exist only if the Legislature creates them;

thus, they are "creatures of the legislature" with no inherent

powers).

       ¶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. 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."25

       ¶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




       25
       Superintendent, Noah Webster, An American Dictionary of
the English Language, 810 (J.E. Worcester ed., New York, N. & J.
White, 15th abr. ed. 1838).


                                        30
                                                                         No.    2013AP416



longer the superintendent of public instruction.26 See Thompson,

199 Wis.2d at 698-99. Article X, § 1 gives the Legislature the

freedom to shape and reshape a system of public education that

fits the needs of the people of our State at any given time. See

id.,    see       also   Thompson,    199      Wis. 2d at     701-02     (Wilcox,    J.,

concurring). To that end, the Legislature is free to create or

eliminate         the    positions       of     whatever     "other    officers"      of

supervision of public instruction it wants. The Legislature may

also grant, withhold, or take away those officers' powers and

duties       as     it     sees   fit.        However,     supervision     of    public

instruction         must     remain      in    the   hands     of     officers    whose

activities the SPI oversees and directs; otherwise, the SPI is

no longer supervising public instruction, which would constitute

a violation of Article X, § 1. See Thompson, 199 Wis. 2d at 698-

99.

       ¶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

       26
       This does not mean that the SPI must have direct control
over every decision made by the other officers of supervision of
public   instruction.     See,   e.g., Wis.   Stat.  § 118.01(1)
(outlining the responsibilities of the superintendent, the
school boards, the parents and guardians of pupils, and the
state in public education). Rather, the SPI has the "power of
direction" of the other officers of supervision of public
instruction if those officers are not free to ignore the
directives of the SPI made pursuant to the statutes he is tasked
with administering by the Legislature. Compare Wis. Stat.
ch. 115 with Wis. Stat. ch. 118.


                                               31
                                                                                    No.   2013AP416



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.

          d. The Constitutional Debates Regarding Article X.

       ¶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 supervision of public instruction shall be vested
       in a state superintendent and such other officers as
       the legislature may direct. The state superintendent
       shall be chosen by the electors of the state once in
       every two years. The legislature shall provide for
       filling   vacancies    in   the    office   of    state
       superintendent and prescribe his powers and duties.
The    Convention         of     1846,       538        (Milo    M.    Quaife,       ed.,    1919)
available                                                                                         at


                                                   32
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https://books.google.com/books?id=EY0UAAAAYAAJ&printsec=titlepag

e&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.

     ¶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; 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.
     ¶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
                                             33
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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

both proposals, but clearly they were considering a system where

the   supervision     of    public     instruction      was    vested       in   a

superintendent and officers whose offices were created for that

purpose. That the "other officers" were intended to be officers

of supervision of public instruction was never in contention.

      ¶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
                                       34
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Legislature      to    provide        for       the    appointment       of     local       public

instruction officials. See id. at 93; see also Thompson, 199

Wis. 2d at      691-92.       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       (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; 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.
         e. The First Laws Interpreting Article X, Section 1.
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       ¶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. 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.27 See Xcel Energy Servs.,

Inc., 349 Wis. 2d 234, ¶32. "Supervision" is defined as "[t]he

act of overseeing; inspection; superintendence."28

       ¶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




       27
       The term "supervision" was not changed by the 1902
amendment, so we use a dictionary from around the time Article
X, § 1 was initially adopted. Additionally, the definition has
not changed substantially since 1848. "Supervision" is defined
as "[t]he series of acts involved in managing, directing, or
overseeing persons or projects"; Supervision, Black's Law
Dictionary (10th ed. 2014).
       28
       Supervision, Noah Webster, An American Dictionary of the
English Language, 811 (J.E. Worcester ed., New York, N. & J.
White, 15th abr. ed. 1838).


                                         36
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1848,    127-29;29    Laws    of    1848,       209.    The     duties    of     the   town

superintendent of common schools included qualifying teachers,

examining the condition of schools, and advising on the course

of studies to be pursued. See Laws of 1848, 219, Sec.1-2. The

town superintendent of common schools was "in all cases under

the control and direction of the state superintendent of public

instruction." Laws of 1848, 219, Sec.3.

    ¶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.30      See    Laws       of   1848,      127-29,    226-47.       The

Legislature created county superintendents of schools in 1866.
See, e.g., Laws of 1866, Chapter 111. Some Legislatures created

city boards of education and city superintendents to supervise

public instruction in the cities; these officers wielded the

    29
       The laws of 1848 did not provide separate numbers for
each act. Thus, we will cite to these laws by the page on which
it appears in the bound volume of the Laws and the section
number where appropriate.
    30
       Some record-keeping responsibilities were given to the
town clerk. See Laws of 1848, 226-47, Sec.80-88.


                                           37
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powers of supervision that would have otherwise been vested in

the county superintendent. See, e.g., Laws of 1865, Chapter 268,

361-363    (creating      a     board    of     education          to    supervise     public

instruction in the city of Appleton). The common thread between

these "other officers" is that they all are officers of public

instruction      whose     offices       the       Legislature           created     for     the

purpose of supervising public education.

    ¶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




                                              38
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reflect that Legislature's understanding that "other officers"

meant other officers of supervision of public instruction.31

      ¶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.32 Even when the

Legislature attempted to restructure the entire system of public

instruction with the law at issue in Thompson, it created new

offices     of    supervision     of    public       instruction    such     as     a

Department of Education. See Thompson, 199 Wis. 2d at 678-79. To

be   clear,      the   Legislature     has   never    attempted    to    vest     the

supervision       of   public   instruction    in     "other   officers"     whose

offices——like the Governor's——were not devoted to that task, and




      31
       For a summary of the various ways the Legislature
organized the school system between 1848 and 1924, see Patzer,
Public Education in Wisconsin (1924).
      32
       There were some instances where the Mayor of a city was
designated as one of the members of the city board of education;
however, the vesting of supervision was in the board, not in the
mayor. See, e.g., Laws of 1865, Chapter 268, 361-362 (Appleton
city board of education to consist of the mayor, the director,
and the clerk of each school district, with the city
superintendent as an ex officio member).


                                        39
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that is how we have uniformly interpreted "such other officers

as the legislature shall direct" as well.33

      ¶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. 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

      33
       See Raymer v. Cunningham, 82 Wis. 39, 48, 51 N.W. 1133
(1892)   ("[Article  X,   § 1]  expressly  declares   that  'the
supervision of public instruction shall be vested in a state
superintendent and such other officers as the legislature shall
direct.' This left the legislature free to prescribe such
assistants and clerks as may be deemed essential." (emphasis
added)); Thompson v. Craney, 199 Wis. 2d 674, 707, 546 N.W.2d
123 (1996) (Wilcox, J., concurring) ("The ability of the
legislature to create other state officers who exercise
supervisory authority over public instruction was addressed by
this court in Burton v. State Appeal Bd. . . . [and the court
held the board members were Article X officers rather than mere
"employees"]." (emphasis added)); Fortney v. Sch. Dist. of W.
Salem, 108 Wis. 2d 167, 182, 321 N.W.2d 225 (1982) ("Because the
constitution explicitly authorized the legislature to set the
powers and duties of the public instruction officers, Article X,
§ 1 confers no more authority upon those officers than that
delineated by statute." (emphasis added)).


                                           40
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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.

             D. Act 21 And Supervision of Public Instruction.

       ¶64     Having      determined        that       rulemaking         is    a    supervisory

power granted to the SPI and DPI by the Legislature and that the

supervision         of    public      instruction            may    not    be    vested      in     the

Governor       or    the       Secretary     of        Administration,           the       remaining

question is whether Act 21 vests the Governor and the Secretary

of Administration with the supervision of public instruction.

Act 21 did not remove or reduce the rulemaking powers of the SPI

or DPI. Accordingly, the issue here is whether the power to halt

the    rulemaking         of    the    SPI    and       DPI        vests   the    Governor         and

Secretary       of       Administration       with          the     supervision        of        public

instruction.

       ¶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


                                                  41
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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 times34 that the SPI or DPI make rules on

various subjects ranging from the licensing of teachers to the




      34
       Within Wis. Stat. chs. 115-121, there are 53 instances
where the statutes state that the SPI or the DPI "shall"
promulgate rules, and 18 instances where the statutes state that
a particular item will be administered "as defined [by the SPI
or DPI] by rule." This does not include statutes that the SPI or
DPI would have to promulgate a rule to administer or enforce due
to the requirements of Wis. Stat. § 227.10.


                                               42
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commencement of the school term.35 This number does not even

include       the    statutes      the     SPI   and    DPI     are     tasked     with

administering that do not include a command to promulgate a

rule. Under the current legislative prescription, the SPI and

DPI    cannot       supervise     public    instruction       without       rulemaking.

Pursuant to Act 21, they cannot promulgate rules without the

approval      of     the    Governor.      Consequently,       Act     21     beyond   a

reasonable      doubt      unconstitutionally      vests      the     supervision      of

public instruction in the Governor.

       ¶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 it infringe upon the SPI's ability to approve or deny the

DPI's scope statements. We disagree. The essence of supervision

includes the power to prevent an action at one's discretion.

While Act 21 does not give the Governor the power to promulgate

       35
       See, e.g., Wis. Stat. § 115.28(7) (SPI must make rules
establishing standards and procedures for licensing teachers);
Wis. Stat. § 115.28(59)(d) (SPI must promulgate rules to provide
academic   and  career   planning  to   students);   Wis.  Stat.
§ 115.36(3)(a) (Department of Public Instruction must promulgate
rules to fund school district projects assisting minors with
drug or alcohol problems); Wis. Stat. § 115.415 (Department of
Public Instruction must promulgate rules on evaluating teacher
effectiveness); Wis. Stat. § 118.045(3) (Department of Public
Instruction shall promulgate rules to determine whether a school
board may commence the term before September 1); Wis. Stat.
§ 120.14 (Department of Public Instruction must establish by
rule a standard contract and minimum standards for school board
audits).


                                           43
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rules regarding public instruction, it does give the Governor

the power "in his or her discretion"36 to decide that "there will

be no rule on a given subject irrespective of the judgment of

the SPI." Coyne, 361 Wis. 2d 225, ¶29.

       ¶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


       36
            Wisconsin Stat. § 227.185.


                                               44
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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.37
         ¶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

         37
       This statement assumes that the Legislature continues to
require the SPI and DPI to promulgate rules.


                                                    45
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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 could provide all of the definitions, standards,

requirements,       thresholds,           and        terms    or     conditions       of    any

licenses issued by the SPI and DPI by statute. What it cannot do

is    require    the    SPI    and       DPI    to    supervise       public     instruction

through rulemaking and then condition rulemaking on the approval

of an officer who is not an officer of supervision of public

instruction.

       ¶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




                                                46
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for   pupils.38       In    other   words,      Act   21    improperly       vests   the

Governor and Secretary of Administration with the supervision of

public instruction in violation of Article X, § 1. Consequently,

the portions of Act 21 allowing the Governor and Secretary of

Administration        to     halt   the   rulemaking        process    are    void   as

applied to the SPI and his subordinates.

       E. The Reasons the Dissents and the Lead Reach a Different
                            Conclusion.
      ¶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


      38
       See Wis. Stat. § 115.28(7); Wis. Stat. § 115.343(1); Wis.
Stat. § 118.51(5)(d)3.


                                           47
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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,"                             Article X,
§ 1 also places some limits on the Legislature's power. Per the

words of Article X, § 1, the "other officers" the Legislature

creates     must   be     "other       officers          of   supervision      of    public

instruction." Additionally, the plain language of Article X, § 1

demands     that   "[t]he    supervision            of    public    instruction       []    be

vested in a state superintendent and such other officers." Chief

Justice Roggensack's and Justice Ziegler's dissents refuse to

recognize these limitations.


                                              48
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     ¶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.39


     39
       The closest Chief Justice Roggensack's dissent comes to
answering this question is its statement that "[t]he legislature
has broad constitutional power over the Superintendent, so long
as the tasks assigned do not fall outside public instruction, as
it was alleged the statute did in School Dist. No. 3, supra."
Chief Justice Roggensack's dissent, ¶225 (emphasis added). Thus,
the dissent comments that the tasks assigned to the SPI must
relate to public instruction. But it fails to consider whether
the people to whom the tasks are assigned——the officers——must
relate to public instruction. We are confident that had Chief
Justice Roggensack undertaken her constitutional analysis with
                                                     (continued)
                                              49
                                                                              No.        2013AP416



      ¶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

regard to the issue presented, she would have reached the same
conclusion we reach.


                                               50
                                                                               No.   2013AP416



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."     See     infra    ¶69.

Moreover, we noted "[T]he 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 . . . ."

See infra ¶70.

       ¶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.

                                    IV. CONCLUSION
       ¶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


                                               51
                                                                     No.   2013AP416



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.

    By   the    Court.—The     decision     of   the    court   of     appeals    is

affirmed.




                                      52
                                                                          No.    2013AP416.ssa


       ¶80       SHIRLEY S. ABRAHAMSON, J.               (concurring).           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,1 is unconstitutional as applied to the Superintendent

of Public Instruction and the Department of Public Instruction.

As a result, I concur in the mandate affirming the court of

appeals.

       ¶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" in the superintendent.                                 "This

court follows the doctrine of stare decisis scrupulously because

of our abiding respect for the rule of law."2
       ¶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

       1
       See Ronald Sklansky, Changing the Rules on Rulemaking,
Wis.       Lawyer      (Aug.       2011),      available       at
http://www.wisbar.org/newspublications/wisconsinlawyer/pages/art
icle.aspx?Volume=84&Issue=8&ArticleID=2092 (explaining 2011 Wis.
Act 21's salient modifications to the process of administrative
rulemaking).
       2
       Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003
WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257.


                                                1
                                                                         No.    2013AP416.ssa


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.'"3

     ¶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.4

     ¶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.5           Likewise, I agree with the court of appeals

that,    under   Thompson,          2011    Wis.   Act    21      is    unconstitutional

because    it    grants       the    governor      (and     the    Secretary           of   the

Department of Administration) an unchecked veto power over the

superintendent's           rulemaking        powers,        thereby            making        the
superintendent subordinate to the governor (and the Secretary)

in the supervision of public instruction.6




     3
         Thompson, 199 Wis. 2d at 699.
     4
         Thompson, 199 Wis. 2d at 699-700.
     5
       Coyne v. Walker, 2015 WI App 21, ¶21, 361 Wis. 2d 225, 862
N.W.2d 606.
     6
         Coyne, 361 Wis. 2d 225, ¶31.


                                             2
                                                                             No.   2013AP416.ssa


      ¶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 . . . ."7

      ¶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 . . . ."8                          As a result, we, like

the Thompson court, should reserve judgment on that issue.




      7
       Lead op., ¶70.   A third reason I disagree with the lead
opinion is its failure to be guided by judicial restraint.   It
goes far afield in discussing numerous matters not necessary to
decide the instant case.
      8
          Thompson, 199 Wis. 2d at 699-700.


                                               3
                                                                            No.   2013AP416.ssa


       ¶90     Justice Prosser's concurrence explains that "the very

nature of the office of superintendent required the ability to

make rules, irrespective of a specific grant of authority from

the legislature,"9 and that the superintendent "must possess some

inherent authority to proceed to fulfill its responsibilities."10

       ¶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"11);       the    constitutional          debates;          the       earliest

legislative           enactment           interpreting           the         constitutional

provision;12 and judicial interpretation of the constitutional

provision.13              These    tools    of     constitutional            interpretation

confirm       that    the    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."14




       9
            Justice Prosser's concurrence, ¶150.
       10
            Justice Prosser's concurrence, ¶152.
       11
            Lead op., ¶43 (quotation omitted); see also lead op.,
¶64.
       12
       Lead op. ¶15.     The importance of non-partisan, non-
sectarian education was recognized in the Northwest Ordinance of
1787.
       13
            Lead op. ¶42.
       14
            Thompson, 199 Wis. 2d at 690.

                                                                                  (continued)
                                              4
                                                                    No.    2013AP416.ssa


     ¶92     For     the   reasons    set       forth,   I     concur      and        write

separately.

                                           I

     ¶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:

     The supervision of public instruction shall be vested
     in a state superintendent and such other officers as
     the    legislature     shall   direct;    and    their
     qualifications, powers, duties and compensation shall
     be prescribed by law. The state superintendent shall
     be chosen by the qualified electors of the state at
     the same time and in the same manner as members of the
     supreme court, and shall hold office for 4 years from
     the succeeding first Monday in July.      The term of
     office, time and manner of electing or appointing all
     other officers of supervision of public instruction
     shall be fixed by law.
     ¶95     In Thompson, the court addressed the constitutionality
of 1995 Wis. Act 27.15            Among other things, 1995 Wis. Act 27

     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, 54 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).
     15
           Thompson, 199 Wis. 2d at 678.

                                           5
                                                                               No.   2013AP416.ssa


created       a     new     state     Department              of    Education,         Education

Commission,         and     Secretary       of         Education         appointed         by   the

governor.         Under 1995 Wis. Act 27, the Secretary of Education

and the Education Commission (chaired by the superintendent of

public       instruction      but    made     up       of   members       appointed        by   the

governor and legislative leaders) were to be responsible for

"many       functions      related    to    education          in   Wisconsin,         including

some of the former duties of the [superintendent] . . . ."16

       ¶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.17

       ¶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."18


       16
            Thompson, 199 Wis. 2d at 679.
       17
       Thompson, 199 Wis. 2d at 698-99; see also Thompson, 199
Wis. 2d at 700 (Wilcox, J., concurring).
       18
       Thompson, 199 Wis. 2d at 678-80 (citing Polk Cnty. v.
State Pub. Defender, 188 Wis. 2d 665, 674, 524 N.W.2d 389
(1994)).


                                              6
                                                                  No.   2013AP416.ssa


    ¶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:

    (1)   "The     debates     at     the    1846      and    1847-48     Wisconsin

          constitutional conventions show that the drafters of

          the Wisconsin Constitution intended the public schools

          to be under the supervision of the [superintendent],

          and that the [superintendent] was to be an elected,

          not     appointed,        public     official."         Thompson,        199

          Wis. 2d at 685.

    (2)   The Thompson court noted "two consistent themes from

          these    statements       of   the      delegates:   first,     that     the

          system of education required uniformity; second, that

          the SPI [superintendent of public instruction] was to

          provide     this     uniformity         in   an    active     manner     by

          implementing the system of education."                    Thompson, 199

          Wis. 2d at 688-89.
    (3)   The framers of the Wisconsin Constitution considered

          and     explicitly        rejected      a    proposal    to    select     a

          superintendent       by     gubernatorial          appointment     and    a

          proposal that would have allowed the legislature to

          vest "the supervision of public instruction . . . in

          such officers as shall hereafter be created by law."

          Thompson,    199     Wis. 2d       at    685-86.     Simply     put,     the

          framers viewed the superintendent as "indispensible,"
          "the foundation, the life of progressive education"

                                         7
                                                                                     No.    2013AP416.ssa


                 who        "alone     c[ould]          give       uniformity,             energy,    and

                 efficiency to the system."                        Journal of the Convention,

                 reprinted in The Convention of 1846, at 568, 570-71

                 (Milo M. Quaife ed. 1919).

      ¶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.19

      ¶100 I           agree    with           the    court        of   appeals'           reliance    on

Thompson          in         concluding              that     2011         Wis.       Act       21     is

unconstitutional.               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.20              Thus, 2011 Wis. Act 21 is unconstitutional; it
gives      "equal       or     superior         authority          [over      the    supervision       of

public instruction] to . . . '[an]other officer.'"21

      ¶101 The lead opinion declares that Thompson's examination

of   Article       X,        Section       1    is    instructive            but    not     dispositive



      19
           Coyne, 316 Wis. 2d 225, ¶¶35-36.
      20
           Thompson, 199 Wis. 2d at 699-700.
      21
           Thompson, 199 Wis. 2d at 699.


                                                       8
                                                                                  No.   2013AP416.ssa


because       Thompson        and        the        instant          case     pose        different

constitutional questions.22

       ¶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.23      The lead opinion describes the question presented

in    the    instant     case       as    whether             the    supervision         of   public

instruction      may     be    vested          in       any    officers       the       legislature

chooses, including constitutional officers like the governor,

whose offices were not created to supervise public instruction.24

       ¶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.



       22
            Lead op., ¶39.
       23
            Lead op., ¶39.
       24
            Lead op., ¶40.


                                                    9
                                                                         No.   2013AP416.ssa


       ¶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.

                                              II

       ¶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 . . . ."25                      Thus our opinions should
be read as "reserv[ing] judgment on that issue."26

       ¶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

       25
            Thompson, 199 Wis. 2d at 699-700.
       26
        Thompson, 199 Wis. 2d at 700; see also State v. Castillo,
213 Wis. 2d 488, ¶12, 570 N.W.2d 44 (1997) ("An appellate court
should decide cases on the narrowest possible grounds.") (citing
State v. Bialock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App.
1989)).


                                              10
                                                                     No.   2013AP416.ssa


[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 . . . ."27

     ¶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."28                   "The very nature of

the office of superintendent required the ability to make rules,

irrespective      of    a     specific      grant     of    authority           from    the

legislature."29




     27
       Lead op., ¶70; see also Justice Ziegler's dissent, ¶237;
Chief Justice Roggensack's dissent, ¶¶184-185.
     28
       Justice Prosser's concurrence, ¶152. We have recognized
a similar point in other contexts.    For example, in discussing
the powers of sheriffs, who are constitutional officers, in
Kocken v. Wis. Council 40, AFSCME, AFL-CIO, 2007 WI 72, 301
Wis. 2d 266, 732 N.W.2d 828, the court defined the sheriffs'
constitutional powers in reference to the nature of the office
of sheriff as it existed when the constitution was adopted,
namely the "immemorial principal and important duties that
characterized and distinguished the office."        Kocken, 301
Wis. 2d 266, ¶¶31-43 (citation omitted).
     29
          Justice Prosser's concurrence, ¶150.


                                            11
                                                                   No.   2013AP416.ssa


    ¶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:

    The supervision of public instruction shall be vested
    in a state superintendent and such other officers as
    the    legislature     shall   direct;    and    their
    qualifications, powers, duties and compensation shall
    be prescribed by law. The state superintendent shall
    be chosen by the qualified electors of the state at
    the same time and in the same manner as members of the
    supreme court, and shall hold office for 4 years from
    the succeeding first Monday in July.      The term of
    office, time and manner of electing or appointing all
    other officers of supervision of public instruction
    shall be fixed by law.
    ¶112 The original version of Article X, Section 1 included

in the 1848 Wisconsin Constitution provided as follows:

    The supervision of public instruction shall be vested
    in a state superintendent, and such other officers as
    the   legislature    shall   direct.       The  state
    superintendent shall be chosen by the qualified
    electors of the state, in such manner as the
    legislature shall provide; his powers, duties, and
    compensation shall be prescribed by law. . . .


                                        12
                                                                               No.    2013AP416.ssa


       ¶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)      recounts             much    of        the    relevant

constitutional         history.30            I     restate         and    supplement            these

discussions of the relevant constitutional debates as follows.

       ¶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."31

       ¶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."32

       ¶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,

       30
            Justice Prosser's concurrence, ¶149.
       31
            Thompson, 199 Wis. 2d at 685-86.
       32
       Thompson, 199 Wis. 2d at 687-89 (quoting Journal of the
Convention, reprinted in The Convention of 1846, at 568, 570-71,
573-74 (Milo M. Quaife ed. 1919)) (emphasis added).


                                                 13
                                                                No.   2013AP416.ssa


appointing       local         superintendents,         and   visiting         every

county . . . ,"33        (2)     providing     an   annual     report    to     the

legislature regarding the state of schools throughout the state

and   keeping    "a   constant       and     vigilant     watch . . . over       our

schools,"34 and (3) "know[ing] what has been done in other states

and countries——what has worked well and what ill——and who has

practical good sense enough to select and put in operation what

has been found by experience to be the best . . . ."35

      ¶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."36

      ¶119 In light of this history and the text of the Wisconsin

constitution, I agree with Justice Prosser's concurrence (¶150)



      33
       Thompson, 199 Wis. 2d at 688 (quoting The Convention of
1846, at 570-71) (emphasis added)
      34
       Thompson, 199 Wis. 2d at 688 (quoting The Convention of
1846, at 570-71).
      35
       Thompson, 199 Wis. 2d at 689 (quoting Journal of the
Convention, reprinted in The Attainment of Statehood, 560-61
(Milo M. Quaife ed. 1928)).

     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.
      36
           Thompson, 199 Wis. 2d at 690 (emphasis added).


                                        14
                                                                 No.   2013AP416.ssa


that   the   role     of   the   superintendent,        as   envisioned      by   the

framers, requires the authority to set standards:

       [T]he 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.
       It   is  self-evident   that   standards  for   schools
       throughout Wisconsin could not be set without the
       power to make rules. "Uniformity" could not be sought
       or enforced without rules.       "Putting a system in
       operation" could not be achieved without rules.
       Consequently, the very nature of the office of
       superintendent required the ability to make rules,
       irrespective of a specific grant of authority from the
       legislature.     It is hard to believe that the
       superintendent would have been powerless to begin to
       develop standards without prior legislative sanction.
       ¶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.




                                          15
                                                                          No.    2013AP416.dtp



      ¶122 DAVID T. PROSSER, J.                     (concurring).        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.

                                        I.     ACT 21

                                       A.    Section 4

      ¶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

                                                1
                                                            No.   2013AP416.dtp



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:

         An agency that has prepared a statement of the
    scope of the proposed rule shall present the statement
    to the governor and to the individual or body with
    policy-making powers over the subject matter of the
    proposed rule for approval.    The agency may not send
    the statement to the legislative reference bureau for
    publication . . . until the governor issues a written
    notice of approval of the statement.     The individual
    or body with policy-making powers may not approve the
    statement until at least 10 days after publication of
    the statement under sub. (3).     No state employee or
    official may perform any activity in connection with
    the drafting of a proposed rule except for an activity
    necessary to prepare the statement of the scope of the
    proposed rule until the governor and the individual or
    body with policy-making powers over the subject matter
    of the proposed rule approve the statement.
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


                                     2
                                                                        No.   2013AP416.dtp



to   draft   the   proposed      rule    until   the    governor          approves        the

statement of scope in writing.

                                 B.     Section 21

      ¶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:

           If an economic impact analysis regarding a
      proposed rule indicates that a total of $20,000,000 or
      more in implementation and compliance costs are
      reasonably expected to be incurred by or passed along
      to   businesses,   local   governmental   units,   and
      individuals as a result of the proposed rule, the
      department of administration shall review the proposed
      rule and issue a report. The agency may not submit a
      proposed rule to the legislature for review under s.
      227.19(2) until the agency receives a copy of the
      department's report and the approval of the secretary
      of administration.
(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
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                                                              No.   2013AP416.dtp



block a proposed rule from being submitted to the legislature

for review.

                               C.   Section 32

    ¶132 Section 32 is entirely new and reads as follows:

         Approval by governor.    After a proposed rule is
    in final draft form, the agency shall submit the
    proposed rule to the governor for approval.        The
    governor, in his or her discretion, may approve or
    reject the proposed rule. If the governor approves a
    proposed rule, the governor shall provide the agency
    with a written notice of that approval.    No proposed
    rule may be submitted to the legislature for review
    under s. 227.19(2) unless the governor has approved
    the proposed rule in writing.
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
                                      4
                                                                      No.    2013AP416.dtp



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:

       "Rule" means 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.     "Rule"
       includes a modification of a rule under s. 227.265.
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.


                                            5
                                                               No.    2013AP416.dtp



      ¶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.

     II.   APPLICATION OF ACT 21 TO THE SUPERINTENDENT OF PUBLIC

                                    INSTRUCTION

      ¶139 The office of superintendent of public instruction was

created    by    the    Wisconsin    Constitution     in   1848.      Article   X,

Section 1 provided:

           The supervision of public instruction shall be
      vested    in  a    state   superintendent    of    public
      instruction,   and   such    other   officers   as    the
      legislature shall direct.      The state superintendent
      shall be chosen by the qualified electors of the
      state, in such manner as the legislature shall
      provide; his powers, duties, and compensation shall be
      prescribed by law.     Provided, that his compensation
      shall not exceed the sum of twelve hundred dollars
      annually.
                                         6
                                                                   No.    2013AP416.dtp



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:

           ●    Article IV, Section 1: "The legislative
      power shall be vested in a senate and assembly."
      (Emphasis added.)

           ●    Article V, Section 1: "The executive power
      shall be vested in a governor, who shall hold his
      office for two years; a lieutenant governor shall be
      elected at the same time, and for the same term."
      (Emphasis added.)

           ●    Article VII, Section 2: "The judicial power
      of this state, both as to matters of law and equity,
      shall be vested in a supreme court, circuit courts,
      courts of probate, and in justices of the peace. The
      legislature may also vest such jurisdiction as shall
      be deemed necessary in municipal courts, and shall
      have power to establish inferior courts in the several
      counties,    with    limited    civil   and    criminal
      jurisdiction.   Provided, that the jurisdiction which
      may be vested in municipal courts shall not exceed, in
      their respective municipalities, that of circuit
      courts, as prescribed in this constitution; and that
      the legislature shall provide as well for the election
      of judges of the municipal courts as of the judges of
      inferior courts, by the qualified electors of the
      respective jurisdictions.    The term of office of the
      judges of said municipal and inferior courts shall not
      be longer than that of the judges of the circuit
      courts. (Emphasis added.)
      ¶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

                                            7
                                                                    No.    2013AP416.dtp



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    "vests"      the      supervision         of       public

instruction in "such other officers as the legislature shall

direct."

       ¶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:

            The supervision of public instruction shall be
       vested in a state superintendent and such other
       officers as the legislature shall direct; and their
       qualifications, powers, duties, and compensation shall
       be prescribed by law. The state superintendent shall
       be chosen by the qualified electors of the state at

                                       8
                                                                        No.     2013AP416.dtp


       the same time and in the same manner as members of the
       supreme court, and shall hold his office for four
       years from the succeeding first Monday in July.    The
       state superintendent chosen at the general election in
       November, 1902, shall hold and continue in his office
       until the first Monday in July, 1905, and his
       successor shall be chosen at the time of the judicial
       election in April, 1905. The term of office, time and
       manner of electing or appointing all other officers of
       supervision of public instruction shall be fixed by
       law.
Wis. Const. art. X, § 1 (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
                                                9
                                                              No.       2013AP416.dtp



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:

            1.   Courts should give priority to the plain
       meaning of the words of a constitutional provision in
       the context used. Buse v. Smith, 74 Wis. 2d 550, 568,
       247 N.W.2d 141 (1976). The plain meaning of the words
       is best discerned by understanding their obvious and
       ordinary meaning at the time the provision was
       adopted,   taking   into account   other  (especially
       contemporary) provisions of the constitution.     See
       State ex rel. Bare v. Schinz, 194 Wis. 397, 403-04,
       216 N.W. 509 (1927).

            2.   Courts may view the "historical analysis of
       the constitutional debates and of what practices were
       in existence in 1848 which the court may reasonably
       presume were also known to the framers of the 1848
       constitution."  Id.   This principle permits courts to
       consider the debates surrounding amendments to the
       constitution and the circumstances at the time these
       amendments were adopted. We have said that courts may
       examine "the history of the times," meaning not only
       the legislative history of a provision (including word
       changes in the drafts of amendments) but also "the
       state of society at the time," with special emphasis
       on the "practices and usages" then in existence, so as
       to identify the concerns the provision sought to
       address. . . .

            3.   Courts    may     scrutinize  the   earliest
       interpretations of the provision by the legislature as
       manifested in the first laws passed following adoption
       of the provision.       Legislation that implements a
       constitutional provision is thought to be a fair gauge


                                      10
                                                         No.   2013AP416.dtp


      of contemporary      interpretation   and   is   entitled    to
      great deference.
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.           Three
quotes from the 1846 and 1848 debates are especially pertinent:

           ●     Delegate Wallace Wilson Graham (1846) said
      that he "considered that officer [the superintendent]
      indispensable.      There could be no uniform system
      without him.     There must be an annual report of the
      state of schools throughout the state. There could be
      none, said he, so satisfactory as from a man whose
      entire business it is to visit and know of all the
      schools.    He considered it a matter of the greatest
      importance    that   the  legislature  have  all  this
      information." Id. at 687-88 (emphasis added).

            ●   Delegate Lorenzo Bevans (1846) said: "All
      admit that the children of the state are to be
      instructed in political economy and in the various
      branches of science.   How is it to be accomplished?
      Is it by striking the word 'superintendent' from the
      first section of the article, by dispensing with this
      state officer, who alone can give uniformity, energy,
      and efficiency to the system."   Id. at 688 (emphasis
      added).

           ●    Delegate Louis P. Harvey (1848) said he
      wanted a superintendent who "knows what has been done
      in other states and countries——what has worked well
      and what ill and who has practical good sense enough
      to select and put in operation what has been found by
      experience to be the best. . . . An acquaintance with
      the particular subject of public instruction, with the
      peculiar qualities requisite for putting a system in
      operation with life and energy, was what was wanted."
      Id. at 689 (ellipsis in original).
                                    11
                                                                           No.   2013AP416.dtp



       ¶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.1

It     is       self-evident       that       standards       for   schools      throughout

Wisconsin could not be set without the power to make rules.

"Uniformity"            could   not     be    sought     or   enforced     without      rules.

"Putting a system in operation" could not be achieved without

rules.           Consequently,          the     very     nature     of     the   office    of

superintendent required the ability to make rules, irrespective

of a specific grant of authority from the legislature.                                  It is

hard       to    believe        that    the     superintendent           would   have     been

powerless          to     begin        to     develop     standards        without       prior

legislative sanction.

       ¶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:

            The   superintendent   shall   have   a   general
       supervision over public instruction in this state, and
       it shall be his duty to devote his whole time to the
       advancement of the cause of education, and for that
       purpose to visit as far and as often as practicable,

       1
       Article X, Section 3 of the 1848 constitution mirrored the
uniformity theme: "The legislature shall provide by law for the
establishment of district schools, which shall be as nearly
uniform as practicable, and such schools shall be free and
without charge for tuition to all children between the ages of
four and twenty years, and no sectarian instruction shall be
allowed therein." (Emphasis added.)


                                                12
                                                  No.   2013AP416.dtp


     every town and school in the state for the purpose of
     inspecting the schools and diffusing as widely as
     possible   by   public    addresses . . . and   personal
     communication  with    school   officers  teachers   and
     parents, a knowledge of existing defects and desirable
     improvements in the administration of the system, and
     the government and instruction of the schools: To
     recommend the introduction and use of the most
     approved text books, and to secure as far as
     practicable uniformity in education throughout the
     state: . . . To recommend the establishment of school
     libraries and to advise in the selection of books for
     the same: To collect such information as may be deemed
     important in reference to common schools in each
     county, town precinct and school district: . . . to
     ascertain the condition of all the school funds in
     this state with the amount of the school funds due to
     each township from lands or other sources: to propose
     suitable forms and regulations for making all reports
     and conducting all necessary proceedings under this
     act: to adjust and decide all controversies and
     disputes arising under the school lands without costs
     to the parties: . . . to perform such other duties as
     the legislature or governor of this state may
     direct . . . .
Laws of 1848 at 128-29, quoted in Thompson, 199 Wis. 2d at 694

(emphasis added; ellipsis in original).2

     2
       The reference to "school funds" in the statute is grounded
in three specific provisions in Article X of the 1848
constitution, namely, Sections 2, 4, and 5. Section 2 describes
the sources of revenue for a "school fund."     Sections 4 and 5
read as follows:

          4.   Each town and city shall be required to
     raise, by tax, annually for the support of common
     schools therein a sum not less than one-half the
     amount received by such town or city respectively for
     school purposes, from the income of the school fund.

          5.   Provision shall be made by law for the
     distribution of the income of the school fund among
     the several towns and cities of the state, for the
     support of common schools therein in some just
     proportion to the number of children and youth
     resident therein, between the ages of four and twenty
                                                    (continued)
                               13
                                                                         No.    2013AP416.dtp



       ¶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 possess some inherent authority to

proceed to fulfill its responsibilities.                        For example, it must

have     some     authority         to     develop      rules     for     its     "internal

management."            See     Wis.       Stat.     § 227.01(13)(a).                For     the

superintendent of public instruction, the constitution provides

the initial authority to develop rules because the constitution

states    the        superintendent's        mission.           The   constitution,           of

course, also gives the legislature the ultimate authority to

determine       what     the    superintendent           may     or     may    not     do     by

prescribing the superintendent's powers and duties.

       ¶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




       years and no appropriation shall be made from the
       school fund to any city or town for the year in which
       said city or town shall fail to raise such tax, nor to
       any school district for the year in which a school
       shall not be maintained at least three months.

Wis. Const. art. X, §§ 4-5 (1848).


                                              14
                                                                                  No.    2013AP416.dtp



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.

                              III.     THOMPSON V. CRANEY

       ¶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:

                                                  15
                                                                       No.   2013AP416.dtp


           Our review of these sources demonstrates beyond a
      reasonable   doubt    that   the   office    of   state
      Superintendent of Public Instruction was intended by
      the framers of the constitution to be a supervisory
      position, and that the "other officers" mentioned in
      the provision were intended to be subordinate to the
      state Superintendent of Public Instruction. . . .

            . . . .

           . . . Under our holding in the present case, the
      legislature may not give equal or superior authority
      to any "other officer."
Thompson, 199 Wis. 2d at 698-99.

      ¶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:

           The supervision of public instruction shall be
      vested    in  a    state   superintendent    of   public
      instruction,   and    such   other   officers   as   the
      legislature shall direct.      The state superintendent
      shall be chosen by the qualified electors of the
      state, in such manner as the legislature shall
      provide; his powers, duties, and compensation shall be
      prescribed by law.     Provided, that his compensation
      shall not exceed the sum of twelve hundred dollars
      annually.
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."


                                        16
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       ¶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.

                                             17
                                                                          No.    2013AP416.dtp



      ¶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 683.3                   It was


      3
       Article IV, Section 28 of the 1848 Wisconsin Constitution
provided:

      Members   of  the   legislature,  and   all  officers,
      executive and judicial, except such inferior officers
      as may be by law exempted, shall before they enter
      upon the duties of their respective offices, take and
      subscribe an oath or affirmation to support the
      constitution of the United States and the constitution
      of the state of Wisconsin, and faithfully to discharge
                                                      (continued)
                                 18
                                                            No.    2013AP416.dtp



not too many years after the 1902 amendment was approved that

the legislature created a State Board of Education consisting of

the superintendent, the governor, and the secretary of state, as

well as one person approved by the board of regents of the

University of Wisconsin and one person approved by the board of

regents of the normal schools.        Laws of 1915, ch. 497, § 1.

      ¶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.        The opinion continues:

      We cannot conclude that the plain meaning of Article
      X, § 1 requires the SPI, and the SPI alone, to be the
      ultimate supervisor of public education in Wisconsin.
      The section is ambiguous, in that it can be read
      either as granting the power of supervision solely to
      the SPI, or as granting power to both the SPI and the
      "other officers" referred to in the section.
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.     But this rigidity is

contrary   not   only   to   the   text   but   also   to   the     statements

      the duties of their respective offices to the best of
      their ability.


                                     19
                                                                   No.    2013AP416.dtp



authored by the drafter of the 1902 amendment, Superintendent of

Public Instruction Lorenzo Dow Harvey, who wrote:

      The last sentence [of the amendment], the one
      complained of, gives the legislature power at any time
      in the future, to entirely remodel the superintendency
      system if it sees fit to do so. . . . [T]his sentence
      of the amendment would give the legislature full power
      to make whatever provision might at the time be
      necessary.
Id.   at   692   (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."

                                  IV.    CONCLUSION

      ¶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.




                                          20
                                                        No.    2013AP416.dtp



    ¶171 All   these    options   require    the   cooperation     of    the

legislature.    If     the   governor   is   unable   to      obtain    that

cooperation, he arguably should not succeed.

    ¶172 For the foregoing reasons, I respectfully concur.




                                  21
                                                                       No.      2013AP416.pdr


       ¶173 PATIENCE        DRAKE      ROGGENSACK,         C.J.    (dissenting).          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),1       not     constitutional         authority

delegated by Article X, Section 1 of the Wisconsin Constitution.

Second, the lead opinion fails to recognize the legislature's

constitutional authority to control its legislative delegation

exercised as rulemaking by state administrative departments such

as     DPI.2       Third,        Act   21    has     not     been    applied        to    the

Superintendent in an unconstitutional manner.

       ¶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,




       1
       All further references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
       2
           Lead op., ¶¶4, 57, 63.


                                              1
                                                                              No.   2013AP416.pdr


I would reverse the decision of the court of appeals, and I

respectfully dissent from the lead opinion.

                                      I.    BACKGROUND

       ¶175 Before        us,   two    sections          of      Act   21    are    challenged:

Wis.       Stat.   § 227.135(2)            and       Wis.     Stat.      § 227.185.3           The

plaintiffs and the Superintendent4 herein claim these provisions

are unconstitutional as applied to the Superintendent because

they permit the Governor to reject a proposed rule or scope

statement created by DPI.

       ¶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

       3
       The complaint also objected to the enactment of Wis. Stat.
§ 227.137(6), which together with § 227.137(2) and the repeal of
Wis. Stat. § 227.137(1), imposes an obligation on DPI to provide
an economic impact statement for programs that are expected to
exceed $20,000,000. Before us, it has not been argued that this
requirement    is    unconstitutional   as    applied   to    the
Superintendent.
       4
       For convenience, hereinafter, I refer to plaintiffs and
the    Superintendent   of    Public   Instruction   as   "the
Superintendent."


                                                 2
                                                                            No.    2013AP416.pdr


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    power       and    duties         of    the

Superintendent are to be established by the legislature.

    ¶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.

                                        II.    DISCUSSION

                                  A.    Standard of Review

    ¶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



                                                 3
                                                                               No.     2013AP416.pdr


independently.           State v. Hanson, 2012 WI 4, ¶14, 338 Wis. 2d

243, 808 N.W.2d 390.

                         B.    Constitutional Delegations

       ¶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).



                                               4
                                                                         No.   2013AP416.pdr


    ¶182 The        constitutional       delegations          of    authority      to     the

Superintendent and the legislature, as first enacted, provided

in relevant part:

         The supervision of public instruction shall be
    vested in a state superintendent, and such other
    officers as the legislature shall direct.  The state
    superintendent shall be chosen by the qualified
    electors of the state, in such manner as the
    legislature shall provide; his powers, duties and
    compensation shall be prescribed by law:   Provided,
    That his compensation shall not exceed the sum of
    twelve hundred dollars annually.
Wis. Const. art. X, § 1 (1848) (emphases added).

    ¶183 In 1902, Article X, Section 1 was amended to provide

in relevant part:

         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 (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


                                           5
                                                                                No.   2013AP416.pdr


"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

                                                6
                                                                    No.   2013AP416.pdr


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:

     To have or exercise the charge or oversight of; to
     oversee with the power of direction; to take care of
     with authority; as an officer superintends the
     building of a ship or construction of a fort.
Thompson, 199 Wis. 2d at 683.               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.

     ¶190 In      Raymer v. Cunningham, 82 Wis. 39, 51 N.W. 1133

(1892),     we    reviewed     a    challenge        to    Superintendent        Wells'

directive to Thomas J. Cunningham, the Secretary of State, for

payments of his salary, a clerk's salary and claimed travel
expenses.        Id. at 39-41.          In 1891, the Constitution provided

that the Superintendent be paid an annual salary of not more
                              7
                                                                  No.    2013AP416.pdr


than    $1,200      per    year.      Raymer,      a    citizen    and     taxpayer,

complained that Wells had directed Cunningham to make payments

in excess of $1,200, with which direction Cunningham complied.

Id. at 39, 42.           It was alleged that although Wells charged the

state $1,000 for "clerk hire," he incurred no such expense and

that Wells was paid $1,500 for traveling expenses, when he did

not incur more than $800.          Id. at 41-42.

       ¶191 During our discussion of the question presented, we

construed     the     relationship     of    the       Superintendent       and   the

legislature.      We said:

            While the section of the constitution cited
       prohibited   the  legislature   from  increasing   the
       compensation of that officer beyond the amount named,
       yet it expressly authorized them to increase his
       duties and enlarge his powers and responsibilities ad
       libitum.   This authority of the legislature has been
       from time to time freely exercised by especially
       enjoining new duties and imposing new and more onerous
       responsibilities.
Id.    at   47.     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.

       ¶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 693-94.

The law assigned the Superintendent:

       [G]eneral supervision over public instruction in this
       state, and it shall be his duty to devote his whole
       time to the advancement of the cause of education
                                 8
                                                                          No.   2013AP416.pdr

    . . . . To recommend the introduction and use of the
    most approved text books, and to secure as far as
    practicable uniformity in education throughout the
    state . . . .   To collect such information as may be
    deemed important in reference to common schools in
    each county, town precinct and school district . . .
    to perform such other duties as the legislature or
    governor of this state may direct . . . .
Id. at 694 (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.             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, the legislature directed the

Superintendent to:            ascertain conditions of Wisconsin's public

schools;       advise   in    selection       of    books;      investigate       different

systems    of     common      schools;       move    public       sentiment       to      favor

industrial and commercial education; formulate study for listed
schools;       prescribe      rules    for    management         of    school    libraries;

examine and determine appeals referred to the Superintendent;
                                              9
                                                                          No.   2013AP416.pdr


collect and purchase maps, charts, books, etc. for use in common

schools; apportion and distribute the school fund; make copies

of papers deposited in his office; prepare in even numbered

years    reports      on   all       common       schools;         supervise         teachers'

institutes; hold one convention annually to confer with county

superintendents; and "perform all other duties imposed upon him

by law."    §§ 1 & 2, ch. 37, Laws of 1903.

      ¶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, 32 P. 422, 422 (Colo. 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.     In so stating, we rejected a challenge based on Article X,

                                             10
                                                                           No.    2013AP416.pdr


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.

      ¶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.

      ¶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.          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.

      ¶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 was enacted, the

                                           11
                                                               No.   2013AP416.pdr


Superintendent acted by issuing executive orders, some of which

were held unlawful because they exceeded both the legislature's

grant      of      authority         to   the    Superintendent       and      the

Superintendent's constitutional authority, as we held in Raymer,

supra.

       ¶200 DPI was created by the legislature in 1967.5                 In 1967,

the legislature also created the "educational approval board"

that was "attached to the department of public instruction under

s.    15.03."       Wis.     Stat.    § 15.375   (1967).      The    educational

approval board consisted of "representatives of state agencies

and other persons with a demonstrated interest in educational

programs appointed to serve at the pleasure of the governor."

Id.

       ¶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




       5
       "There is created a department of public instruction under
the direction and supervision of the state superintendent."
Wis. Stat. § 15.37 (1967).


                                          12
                                                                                   No.   2013AP416.pdr


from the Superintendent, on issues involving public instruction,

including rule-making.6

      ¶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.

      ¶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.



      6
       The educational approval board is no longer involved with
DPI, as it was in 1967.


                                                13
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    ¶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 also conclude that

Article   X,   Section        1       granted       the    legislature          authority          to

legislate    which    activities             (powers)       the       Superintendent            could

pursue and which obligations (duties) he was required to meet.

                        C.    Statutory Interpretation

    ¶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.

                              1. General principles

    ¶208 DPI     has     no       power       to     create       a    law,     nor       has     the
Superintendent.          Article         IV,        Section       1     of    the     Wisconsin

                                               14
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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.

       ¶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.

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.             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.       We also explained that "rule-making powers can be

repealed     by   the   legislature."        Id.   at    698.        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.

       ¶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

                                        15
                                                                 No.   2013AP416.pdr


§ 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).

        2.    Wis. Stat. § 227.135(2) and Wis. Stat. § 227.185

       ¶213 As usual when statutory interpretation is at issue, we

begin with the words chosen by the legislature.                        Wis. Indus.
Energy Grp., Inc. v. Pub. Serv. Comm'n, 2012 WI 89, ¶15, 342

Wis. 2d 576, 819 N.W.2d 240.             If their meaning is plain, we

apply that meaning and go no further.               State ex rel. Kalal v.

Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,

681 N.W.2d 110.

       ¶214 Wisconsin Stat. § 227.135(2) is at the forefront of

plaintiffs' challenge.        It provides:

            An agency that has prepared a statement of the
       scope of the proposed rule shall present the statement
       to the governor and to the individual or body with
       policy-making powers over the subject matter of the
                                 16
                                                                No.    2013AP416.pdr

    proposed rule for approval.   The agency may not send
    the statement to the legislative reference bureau for
    publication under sub. (3) until the governor issues a
    written notice of approval of the statement.       The
    individual or body with policy-making powers may not
    approve the statement until at least 10 days after
    publication of the statement under sub. (3). No state
    employee or official may perform any activity in
    connection with the drafting of a proposed rule except
    for an activity necessary to prepare the statement of
    the scope of the proposed rule until the governor and
    the individual or body with policy-making powers over
    the subject matter of the proposed rule approve the
    statement.
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.7      Therefore,        unless   they    have      been   proved

unconstitutional      beyond     a    reasonable     doubt,     they      must   be

enforced according to the plain meaning of their terms.

    ¶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,

    7
        Wisconsin Stat. § 227.185 provides:

         After a proposed rule is in final draft form, the
    agency shall submit the proposed rule to the governor
    for approval. The governor, in his or her discretion,
    may approve or reject the proposed rule.        If the
    governor approves a proposed rule, the governor shall
    provide the agency with a written notice of that
    approval.   No proposed rule may be submitted to the
    legislature for review under s. 227.19(2) unless the
    governor has approved the proposed rule in writing.


                                          17
                                                                              No.    2013AP416.pdr


rulemaking is accomplished only through legislative delegation

to    an    administrative          agency      or    department.              Martinez,           165

Wis. 2d at 698-99.               The legislature controls the delegation of

legislative authority that it accords to administrative agencies

and departments to employ in rulemaking.                      Id. at 701.

       ¶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    rule       under
§ 227.135(2) and proposed rules under § 227.185, the legislature

has     given          the     Governor       the    power        to    supervise             public

instruction.8

       ¶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


       8
           Lead op., ¶¶59-62.


                                                18
                                                                           No.    2013AP416.pdr


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

                                                19
                                                                         No.    2013AP416.pdr


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 (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.

       ¶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



                                            20
                                                                          No.    2013AP416.pdr


the    Superintendent       in        DPI        rulemaking         are         within    the

legislature's constitutional authority.

      ¶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.        The

matter before us does not concern the "other officers" mentioned

in Article X, Section 1.



                                            21
                                                                          No.    2013AP416.pdr


    ¶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.9                        Thompson was not

concerned with rulemaking; therefore, we did not consider the

constitutional   power        of        the    legislature         when     it     delegates

rulemaking authority, as I have done here.

    ¶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.
                    D.    Constitutional Violation

    ¶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,


    9
       In Thompson, we left open "the extent to which the
[Superintendent's] powers may be reduced by the legislature, and
we reserve[ed] judgment on that issue." Thompson v. Craney, 199
Wis. 2d 674, 700, 546 N.W.2d 123 (1996).


                                              22
                                                                           No.    2013AP416.pdr


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.

§ 227.235(2) or Wis. Stat. § 227.185 has been unconstitutionally

enforced against the Superintendent.                       First, in order for either

statute     to    be    unconstitutional              as    applied,       enforcement       of

§ 227.235(2) or § 227.185 must adversely affect a constitutional

power of the Superintendent.                However, Act 21's administrative

rulemaking        safeguards         impose           conditions           on     only      the

Superintendent's        statutory       powers,        not    on     his    constitutional

authority.       There has been no proof that either § 227.235(2) or

§ 227.185        interferes      with       the        Superintendent's             executive

authority to supervise existing rules and laws affecting public
instruction.

      ¶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.10           This    concession          belies      the     Superintendent's

assertion        that     rulemaking             is        constitutionally             granted

supervision of public instruction.                     Furthermore, when rulemaking


      10
           Coyne Brief at 15, 23.


                                            23
                                                                    No.      2013AP416.pdr


was introduced to DPI in 1967, the "educational approval board"

exercised       "powers,     duties    and     functions     prescribed         by   law,

including rule-making," which actions were set out independently

from    the    executive     functions    reserved     to    the    Superintendent.

Wis.    Stat.     § 15.03     (1967)    (emphasis      added).          In     addition,

members of the "educational approval board" were appointed by

the Governor.11       Accordingly, I conclude that the Superintendent

has    failed    to   meet   his   burden      of   proof;   and    therefore,        his

constitutional challenge before us fails.

                                III.     CONCLUSION

       ¶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.



       11
       The involvement of the Governor in education in the 1967
statute is consistent with the first legislation passed after
Wisconsin's Constitution was ratified in 1848, where some of the
duties of the Superintendent were described specifically and
some generally as, "such other duties as the legislature or
governor of this state may direct."   § 3, Laws of 1848, at 129
(emphasis added).


                                          24
                                                      No.   2013AP416.pdr


    ¶234 I   am   authorized   to    state   that   Justices    ANNETTE

KINGSLAND ZIEGLER and REBECCA G. BRADLEY join this dissent.




                                25
                                                                                No.   2013AP416.akz


      ¶235 ANNETTE KINGSLAND ZIEGLER, J.                            (dissenting).             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 public instruction" such that "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."            Lead       op.,    ¶70;       see   dissent,         ¶189.      The    lead

opinion and the dissent also agree that the SPI's ability to
participate in the rulemaking process derives from statute, not

the Wisconsin Constitution.                    Lead op., ¶¶35-37; dissent, ¶¶203-

04.

      ¶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



                                                   1
                                                                        No.   2013AP416.akz


prescribed by law."             Wis. Const. Art. X, § 1 (emphases added).

Our case law confirms this notion:

       Article X, sec. 1, explicitly provides that the powers
       and duties of the school superintendent and other
       officers charged by the legislature with governing
       school systems "shall be prescribed by law." Because
       the constitution explicitly authorized the legislature
       to set the powers and duties of public instruction
       officers, Article X, sec. 1 confers no more authority
       upon those officers than that delineated by statute.
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

                                               2
                                                                             No.      2013AP416.akz


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.

       ¶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

legislature       may    not . . . give             the       SPI    a    supervisory          power

relating     to   education           and    then    fail       to       maintain      the     SPI's

supremacy     with      respect        to    that     power,"         and    applies         it    to

individuals——the Governor and the Secretary of Administration——
who   are   not    Article        X   officers.           Put       differently,         the      lead

                                               3
                                                                     No.   2013AP416.akz


opinion decides today that if the legislature grants the SPI a

power, the SPI must have "supremacy with respect to that power"

both with regard to Article X officers and with regard to non-

Article X officers.

      ¶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

                                         4
                                                                      No.    2013AP416.akz


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.              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

                                          5
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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, powers.                                        Under

the    lead        opinion's         reasoning,       the       legislature's          ability     to

"prescribe[]"            the    SPI's       "powers"       is     so     limited.         The    lead

opinion's logic suggests that if any power is to be prescribed

to the SPI, it must be prescribed without any limitation.                                        This

logic is fundamentally flawed because this requirement is not

found in the Wisconsin Constitution.

         ¶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.                           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




                                                  6
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enacted."     Fortney, 108 Wis. 2d at 182.          "Supervision of public

instruction" connotes no special grant of common law powers.1

     ¶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

     1
       This case, which involves the SPI's authority under
Article X, section 1 of the Wisconsin Constitution, should
therefore be distinguished from cases involving a provision
"which incorporates an ancient common law office, possessing
defined powers and duties, into the constitution."     Fortney v.
School Dist. of West Salem, 108 Wis. 2d 167, 182, 321 N.W.2d 225
(1982).   For instance, "[p]rior decisions of this court held
that the sheriff, under common law, had certain powers and
duties in his relationship to the courts which were incorporated
into the constitution. The sheriff cannot be divested of those
powers and duties by statute."     Id.   The lead opinion today
would not affect existing law on these types of offices.


                                        7
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long-standing    common     law       history    at    the    time       the     Wisconsin

Constitution was enacted."             Fortney, 108 Wis. 2d at 182.                    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,

decides to increase security at Wisconsin's public schools.                              The

legislature    might     wish     to    provide       the    SPI    with        rulemaking

authority over the implementation of this plan.                         But, given the
nature of the issue, the legislature might also conclude that

the   Governor's       input      on    any      proposed       rules          should     be

dispositive.     Under the lead opinion today, it seems that the

legislature could: (1) give the SPI the authority to pass rules

on school security without conditioning the submission of these

rules to the legislature on the Governor's approval; or (2) give

the   Governor's       office     a     measure       of     authority          over     the

implementation of the plan, without involving the SPI at all.
What it could not do, at least apparently, is give the SPI the

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authority    to    pass     rules   on    school      security,   subject    to    the

approval of the Governor; the lead opinion's reasoning suggests

that while the legislature need not give any authority at all to

the SPI on a matter such as public school security, if it in

fact chooses to give any such authority, that authority must be

unfettered.        I   fail    to   see   why   Article     X,    Section   1     would

require such an outcome, given that that provision provides that

the powers of the SPI are prescribed by the legislature.                          Wis.

Const. Art. X, § 1.           The legislature may reasonably wish to give

the SPI qualified authority over the implementation of the law

at issue, yet the lead opinion forces the legislature to choose

between two imperfect solutions.

    ¶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 language2 of Article X does not leave
    2
        The lead opinion states:

         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.
                                                    (continued)
                               9
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the SPI with some set of "core" powers is not a problem for this

court to resolve.   See Lead op., ¶79.


Lead op., ¶52 (citation omitted).

     "Our methodology in interpreting a constitutional provision
is not identical to our methodology in interpreting a statute."
Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶114, 295
Wis. 2d 1, 719 N.W.2d 408 (Prosser, J., concurring in part,
dissenting   in  part).     Although   justifications  for   this
divergence have, in the past, been provided, see, e.g., id.,
¶116, I am not convinced that the current methodology this court
uses to interpret constitutional language is sound. See, e.g.,
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶52, 271 Wis. 2d 633, 681 N.W.2d 110 ("Ours is 'a government of
laws not men,' and 'it is simply incompatible with democratic
government, or indeed, even with fair government, to have the
meaning of a law determined by what the lawgiver meant, rather
than by what the lawgiver promulgated.' . . . 'It is the law
that governs, not the intent of the lawgiver.      . . . Men may
intend what they will; but it is only the laws that they enact
which bind us" (citations omitted).); Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 375
(2012) ("The English judges have frequently observed, in answer
to the remark that the legislature meant so and so, that they in
that case have not so expressed themselves, and therefore the
maxim applied, quod voluit non dixit [What it wanted it did not
say]." (quoting 1 James Kent, Commentaries on American Law 467
(1826));   Daniel    R.   Suhr,   Interpreting    the   Wisconsin
Constitution, 97 Marq. L. Rev. 93, 120 (2012)               ("The
considerations that drove the [Wisconsin Supreme Court's]
majority in Kalal should lead it to reject the current method it
uses to interpret the state constitution.          The [current]
methodology relies on flawed sources in a futile attempt to
discover a mythical common intent.").

     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.


                                10
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      ¶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.       § 227.235(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

                                              11
                                                                                No.    2013AP416.akz


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    (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    (2003)     (citation

omitted); see also Blanchette v. Conn. General Ins. Corps., 419

U.S.   102,      138        (1974)      ("[T]o       the       extent    that     questions        of
ripeness      involve         the       exercise         of      judicial      restraint         from

                                                   12
                                                               No.    2013AP416.akz


unnecessary decision of constitutional issues, the [c]ourt must

determine whether to exercise that restraint and cannot be bound

by the wishes of the parties.").

       ¶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

                                       13
                                                                No.   2013AP416.akz


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.               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:

            Facial challenges are disfavored for several
       reasons. Claims of facial invalidity often rest on
       speculation. As a consequence, they raise the risk of
       "premature interpretation of statutes on the basis of
       factually barebones records."   Facial challenges also
       run contrary to the fundamental principle of judicial
       restraint that courts should neither "anticipate a
       question of constitutional law in advance of the
       necessity of deciding it" nor "formulate a rule of
       constitutional law broader than is required by the
       precise facts to which it is to be applied." Finally,
       facial challenges threaten to short circuit the
       democratic process by preventing laws embodying the
       will of the people from being implemented in a manner
       consistent with the Constitution.     We must keep in
       mind   that   "[a]   ruling   of    unconstitutionality
       frustrates the intent of the elected representatives
       of the people."
Wash. State Grange v. Wash. State Republican Party, 552 U.S.

442, 450-51 (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
                                       14
                                                           No.    2013AP416.akz


it views as sufficient control over the SPI's exercise of its

powers, it could simply exercise its own authority to remove

those powers, even though a grant of qualified authority to the

SPI might well have benefitted public instruction in Wisconsin

more than a complete absence of any such authority.                Rulemaking

stems in part from the fact that "[t]he legislature recognizes

the need for efficient administration of public policy.                  . . .

The delegation of rule-making authority is intended to eliminate

the   necessity   of   establishing    every    administrative     aspect   of

general    public      policy   by         legislation."         Wis.     Stat.

§ 227.19(1)(b)      (2013-14)   (emphasis       added).    Given        today's

decision, the legislature may feel compelled to pass legislation

regarding these administrative aspects of public instruction,

even though it might otherwise have delegated this authority to

the SPI, subject to gubernatorial review.             In my view, Article

X, Section 1 does not require such an inefficient result.

      ¶257 In sum, I join the dissent authored by Chief Justice

Roggensack because I agree that, based on the arguments raised
in this case,3 the respondents have failed to establish that the

      3
       The  legislation   in  this   case  raises   a  host   of
constitutional questions that, appropriately, are not answered
by the lead opinion.    For instance, the lead opinion does not
examine whether Act 21's grant of authority to the Governor and
Secretary of Administration to reject proposed rules contains or
need contain an ascertainable legislative purpose and procedural
safeguards to ensure that the Governor and Secretary of
Administration act within that purpose in exercising their
authority.   Cf. J.F. Ahern Co. v. Wisconsin State Bldg. Com'n,
114 Wis. 2d 69, 90, 336 N.W.2d 679 (Ct. App. 1983) (citing
Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526, 536, 182
N.W.2d 257 (1971)).


                                      15
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provisions of Act 21 at issue are unconstitutional beyond a

reasonable doubt as applied to the SPI.

    ¶258 For the foregoing reasons, I respectfully dissent.

    ¶259 I   am   authorized   to   state   that   Justice   REBECCA   G.

BRADLEY joins this dissent.




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