By: WISCONSIN LAW JOURNAL STAFF//February 19, 2015//
Wisconsin Court of Appeals
Civil
Constitutional Law – Education
Act 21 is unconstitutional insofar as it gives the governor authority over regulations enacted by the Superintendent of Public Instruction.
“In the course of its analysis, the Thompson court considered ‘the first law passed by the legislature [in 1848] setting forth the duties of the SPI.’ Id. at 693. The petitioner in Thompson, then Governor Thompson, argued that this 1848 law ‘shows that the SPI’s duties in 1848 were “exhortatory,” or directed towards encouraging education through, for example, public speaking or visits to schools, but not actual administration.’ Id. at 694. The Thompson court rejected this argument, pointing out that the 1848 law stated: ‘The superintendent shall have a general supervision over public instruction in this state.’ Id. The Thompson court went on to explain that many of the duties given to the SPI in the 1848 law were clearly supervisory or administrative: ‘[t]he SPI was required to apportion school funds between townships, to propose regulations for making reports and conducting proceedings under the act, and to adjudicate controversies arising under the school lands.’ Id. at 694-95 (emphasis added). Thus, one of the three listed examples of ‘clearly [] supervisory’ power highlighted by the Thompson court was rulemaking. Id.”
Affirmed.
Recommended for publication in the official reports.
2013AP416 Coyne v. Walker
Dist. IV, Dane County, Smith, J., Sherman, J.