In a split opinion, the Wisconsin Supreme Court upheld lower court decisions 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).

Act 21 amended various provisions in the statutes that set forth procedures agencies must follow when promulgating administrative rules. The provisions the court found problematic related to the governor’s ability to withhold approval of SPI and DPI rules.

The May 18 decision was written by Justice Michael J. Gableman and rests on the constitutional provision that gives supervisory powers to the Superintendent of Public Instruction and other officers of public instruction. According to the opinion, “Act 21 does not allow SPI and DPI to proceed with their duties of supervision without the Governor’s, and in some circumstances the Secretary of the Administration’s approval [which] unconstitutionally vests the Governor. and the Secretary of Administration with the supervision of public instruction in violation of the [Constitution].”

Chief Justice Pat Roggensack wrote the dissent, joined by justices Annette Ziegler and Rebecca Bradley. The dissenting justices found that Act 21 provided constitutional procedural safeguards to be employed in rulemaking by DPI and other administrative agencies. Ziegler wrote a separate dissenting opinion. Justices David Prosser and Shirley Abrahamson wrote separate concurring opinions.

Given the numerous separate opinions, some believe the decision has little precedential value. Regardless, the opinion only affects Act 21 as it relates to SPI and DPI. Act 21 provisions relating to gubernatorial approval and the requirement that agency regulatory authorities be “explicitly” set forth in the statutes are not affected as they relate to all other agencies. (See article on AG’s opinion on Act 21 and DNR)