Dane County Judge Rules Act 21 Unconstitutional Only as it Applies to the Department of Public Instruction

A Dane County Circuit Court judge has narrowly struck down a portion of 2011 Wisconsin Act 21, the regulatory reform bill passed during the 2011-12 Legislative Session and signed into law by Gov. Scott Walker.


Act 21 made sweeping changes to Wisconsin’s rulemaking process in an effort to ensure greater agency oversight and accountability.

For example, Act 21 provides that before a proposed agency rule can go into effect, the agency must submit the rule to the governor for approval. This was done to provide more oversight and accountability of state agency rulemaking. Plaintiffs and the State Superintendent Tony Evers argued that this provision of the law violates Article X, §1 of the Wisconsin Constitution.

Article X, §1 provides in relevant part that 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.”

Dane County Circuit Court Decision

On October 30, Judge Amy Smith issued an order and decision finding a portion of 2011 Wis. Act 21 unconstitutional only as it applies to the Department of Public Instruction, which is headed by the State Superintendent of Public Schools.

According to Judge Smith, by permitting the Governor to prevent the Superintendent from starting or pursuing a rule, Act 21 places the Governor “in a position superior to the Superintendent…”

In reaching her decision, Judge Smith rejected a number of arguments by the Department of Justice on behalf of the State. For example, Judge Smith disagreed with the State’s argument that the Constitution’s plain text places the duties of the Superintendent within the discretion of the Legislature, thereby allowing the Legislature to impose restrictions on the Superintendent’s rulemaking authority.

Judge Smith also disregarded the fact that the Legislature has previously reduced the power of the Superintendent by removing his authority over musical, physical, and vocational education.


The Dane County Circuit Court’s decision is a very limited in scope. The decision only applies to Act 21’s rulemaking provisions as it relates to the Department of Public Instruction. Act 21 continues to be applicable to all other state agencies.

The decision is expected be appealed, and the Wisconsin Supreme Court will most likely have the final say as to whether the lower court’s narrow ruling is upheld or overturned.

To learn more about Wisconsin’s rulemaking process and Act 21, see the Foundation’s Regulation Nation: The Wisconsin Perspective series. The first report, authored by GLLF’s Emily Kelchen, is titled “What is a Rule?”

This post origionally appeared on the Great Lakes Legal Foundation’s Regulatory Watch Blog.