Judge finds Act 21 unconstitutional

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A Dane County judge on Tuesday invalidated a state law requiring state agencies to obtain approval from the governor before issuing new administrative rules.

The law, Act 21, required state agencies to send the governor statements about the nature and scope of any proposed rules. Agencies could not draft rules until obtaining approval from the governor. Act 21 also required agencies to obtain review and approval by the state Secretary of Administration if the proposed rule would cost businesses, municipalities or individuals $20 million or more.

The case stems from a lawsuit challenging the governor’s authority under Act 21 to review administrative rules issued by the Wisconsin Department of Public Instruction.

Ruling on summary judgment motions, Dane County Circuit Court Judge Amy Smith found Act 21 violates the Wisconsin Constitution.

Under Article X, sec. 1 of the state constitution, “[t]he supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct.”

Smith wrote that Act 21 is unconstitutional because it “gives superior authority over public instruction to officers other than the Superintendent.

“Because Act 21 allows the Governor to bar the Superintendent from proposing rules, or from evening beginning the process of rulemaking by submitting a scope statement to the Legislature, Act 21 places the Governor in a position superior to the Superintendent in the supervision of public instruction,” Smith wrote.

State Superintendent Tony Evers praised the ruling in a statement.

“I have been consistent in my opposition to this legislation on constitutional grounds and had proposed remedies during the legislative debate on this law,” Evers said. “My concerns are validated by this ruling.”

Gov. Scott Walker signed the law into effect on May 23, 2011. According to reports, a Walker spokesman said the governor expects to prevail on appeal.