Coyne v. Walker

Decision Date18 May 2016
Docket NumberNo. 2013AP416.,2013AP416.
Citation368 Wis.2d 444,879 N.W.2d 520
PartiesPeggy 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.
CourtWisconsin Supreme Court

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 Garczyski, Wisconsin Education Association, Madison and oral argument by Susan M. Crawford.

For the defendant-respondent, their 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.

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

MICHAEL J. GABLEMAN, J.

¶ 1 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. 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, 862 N.W.2d 606. Applying Thompson 's reasoning, the court of appeals concluded that although the Legislature has the authority to give, not give, or take away the SPI's supervisory powers, [w]hat the legislature may not do is give the SPI a supervisory power relating to education and then fail to maintain the SPI's supremacy with respect to that power.” Id., ¶ 25.

¶ 3 The issues presented for our consideration are threefold. The first is whether administrative rulemaking is a supervisory power of the SPI and DPI. The second is whether Article X, § 1 of the Wisconsin Constitution allows the Legislature to vest the supervision of public instruction in any “other officers” it chooses. The third is whether Act 21 vests the supervision of public instruction in the Governor and the Secretary of Administration by giving them the authority to prevent the SPI and DPI's promulgation of rules.

¶ 4 We hold that Act 21 is unconstitutional and therefore void as applied to the Superintendent of Public Instruction and his subordinates. Article X, § 1 requires the Legislature to vest the supervision of public instruction in officers of supervision of public instruction. The current statutory scheme requires the SPI to promulgate rules in order to supervise public instruction. Because Act 21 does not provide a way for the SPI and DPI to proceed with rulemaking if the Governor or Secretary of Administration withholds approval, Act 21 gives the Governor and the Secretary of Administration the power to “manage, direct, or oversee” the primary means by which the SPI and DPI are required to carry out their supervisory duties. Thus, Act 21 unconstitutionally vests the supervision of public instruction in officers who are not officers of supervision of public instruction in violation of Article X, § 1. Consequently, Act 21 is void as applied to the SPI and his subordinates.

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 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 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 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 “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, ¶¶...

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  • Bartlett v. Evers
    • United States
    • Wisconsin Supreme Court
    • July 10, 2020
    ...285 Wis. 2d 143, 699 N.W.2d 582 ; Koschkee v. Taylor, 2019 WI 76, ¶1, 387 Wis. 2d 552, 929 N.W.2d 600, overruling Coyne v. Walker, 2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520 ; Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, 274 Wis. 2d 162, 682 N.W.2d 857, abrogating......
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2 books & journal articles
  • THE DEMISE OF THE LAW-DEVELOPING FUNCTION: A CASE STUDY OF THE WISCONSIN SUPREME COURT.
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