STATE OF WISCONSIN

IN SUPREME COURT

Appeal No. 2013AP416

PEGGY 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,

and

ANTHONY EVERS,

Defendant-Respondent.

____________________________________________________________

ON APPEAL FROM THE OCTOBER 30, 2012, DECISION BY THE

DANE COUNTY CIRCUIT COURT, CASE NO. 11-CV-4573,

THE HONORABLE AMY R. SMITH, PRESIDING __________________________________________________________________

AMICI CURIAE BRIEF ON BEHALF OF WISCONSIN

MANUFACTURERS & COMMERCE, METROPOLITAN

MILWAUKEE ASSOCIATION OF COMMERCE, SCHOOL

CHOICE WISCONSIN, THE HONORABLE JASON FIELDS, AND

THE HONORABLE SCOTT JENSEN IN SUPPORT OF THE

POSITION OF THE DEFENDANTS-APPELLANTS-PETITIONERS ________________________________________________________

Richard M. Esenberg, WI Bar No. 1005622

Charles J. Szafir, WI Bar No. 1088577

Brian W. McGrath, WI Bar No. 1016840

WISCONSIN INSTITUTE FOR LAW & LIBERTY

1139 E. Knapp Street

Milwaukee, WI 53202

414-727-9455

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Table of Contents

Table of Contents ...................................................................... i

Table of Authorities .................................................................. ii

Interest of Amicus ..................................................................... 1

Argument ................................................................................... 2

I. Thompson v. Craney Should Be Overruled. .................. 2

A. Thompson Is Inconsistent with the

Language of Art. X, Section 1 of the

Wisconsin Constitution. ...................................... 6

B. Thompson Is Inconsistent with the Long-

standing Historical Interpretation of

Article X, Section 1. ............................................ 9

C. Thompson Is Inconsistent with Fortney v.

School District of West Salem. ............................ 11

Conclusion ................................................................................. 15

ii

Table of Authorities

CASES

City of Edgerton v. General Casualty Co. of Wisconsin, 184 Wis. 2d

750, 517 N.W.2d 463 (1994) .........................................................................4

Dairyland Greyhound Park v. Doyle, 2006 WI 107, 295 Wis. 2d 1,

719 N.W.2d 408 ............................................................................................7

Fortney v. School District of West Salem, 108 Wis. 2d 167, 321

N.W.2d 225 (1982) .......................................................................................11, 12

Hahn v. United States, 524 U.S. 236, 251 (1998) ..........................................4

Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108,

264 Wis. 2d 60, 665 N.W.2d 257 ..................................................................4, 5

Martinez v. DILHR, 165 Wis. 2d 687, 697, 478 N.W.2d 582, 585

(1992) ...........................................................................................................13

State v. Luedtke, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592 .....................4

State v. Sartin, 200 Wis. 2d 47, 546 N.W.2d 449 (1996) ...............................7

State ex rel Kalal v. Circuit Court of Dane County, 2004 WI 58, 271

Wis. 2d 633, 681 N.W.2d 110 .......................................................................7

Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d 123 (1996) ...................passim

Zarder v. Humana, 2010 WI 35, ¶52, 324 Wis. 2d 325, 782 N.W.2d

682 ................................................................................................................7

WISCONSIN CONSTITUTION

Article X, §1 .................................................................................................passim

Article IV ......................................................................................................14

WISCONSIN LAWS

L. 1848, c.226 ...............................................................................................9

L. 1862, c.176 ...............................................................................................9

L. 1863, c.102 ...............................................................................................9

L. 1868, c.169 ...............................................................................................9

L. 1915, c. 497 ..............................................................................................9

L. 1939, c. 53................................................................................................9

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WISCONSIN ADMIN. CODE

Wis. Admin. Code § DWD 270.19 ................................................................10

Wis. Admin. Code § SPS 378 .......................................................................9

Wis. Admin. Code § Trans 300 .....................................................................10

OTHER

State Superintendent Tony Evers, Prepared Remarks to the Joint

Hearing of Select Committees on the Common Core State Standards,

Oct. 3, 2013, available at

http://www.npsd.k12.wi.us/TonyEversDPIOct2013.pdf ................................13

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Interest of Amicus

Wisconsin Manufacturers & Commerce (WMC) is the state chamber

of commerce and is dedicated to making Wisconsin the most competitive

state in the nation. To that end, WMC is a leading advocate for education

reform. Currently, WMC has nearly 3,800 members.

The Metropolitan Milwaukee Association of Commerce (MMAC)

represents approximately 1,800 member businesses employing nearly

300,000 employees in Milwaukee, Waukesha, Washington and Ozaukee

Counties. MMAC advocates for its member businesses at the local, state

and federal levels. Its work to strengthen the state’s economy and create

jobs includes efforts to strengthen local education through advocacy for

education reform.

School Choice Wisconsin is a non-profit group that supports

expanded educational options for parents through the use of school

vouchers, charter schools, and innovative new programs centered on

parental empowerment and choice of the best educational environment for

their child.

Jason Fields is a former Democratic member of the State Assembly.

He represented most of the north side of Milwaukee from 2005-2012.

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Today, he works in the private sector in Milwaukee and is a prominent and

engaged civic leader, deeply concerned about the quality of education in the

City of Milwaukee and throughout our state.

Scott Jensen is a former Republican member of the State Assembly

and served as Speaker of the Assembly from 1995-2002. Today, he

remains actively involved in state government and is a leader in the

education reform movement, both in Wisconsin and nationally.

The Amici have a vested interest in protecting the legislature’s

constitutional authority to reform the critical area of K-12 education. They

believe that the SPI has no constitutional right to make rules or policy. The

Amici submit this brief to urge this Court to make clear that the overly

broad statement of the SPI’s authority in Thompson v. Craney, 199 Wis. 2d

674, 546 N.W.2d 123 (1996), was dictum and does not properly interpret

Art. I, sec. 1 or, if that is not possible, to overrule Thompson.

ARGUMENT

I. Thompson v. Craney Should Be Overruled.

Concurring in Thompson v. Craney, Justices Wilcox and Steinmetz

expressed concern that the breadth of the majority’s reasoning would make

it the hard case that makes bad law. 199 Wis. 2d 674, 711, 546 N.W.2d

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123, 139-40 (1996) (Wilcox, J., concurring). It is one thing, they thought,

for the legislature to render the office of the Superintendent of Public

Instruction (“SPI”) superfluous by stripping it of all its authority and

making it wholly unable to supervise public education. It is quite another

to say that the legislature can allocate no authority regarding public

instruction to some other officer. They worried that the majority’s rationale

(as opposed to its result) would be read to establish the SPI’s sole authority

over public instruction and would “impair[] the ability of the legislature to

improve the institution of public instruction in this state.” Id. This, in their

view, would be inconsistent with the 1902 amendment to Art. X, § 1, which

was clearly designed to “increase legislative flexibility to administer future

change in the educational system.” Id. at 701-702.

This case – the first to consider Thompson’s scope – demonstrates

that Justice Wilcox and Steinmetz were prescient. Even if one regards rule-

making as a “supervisory” power,1 Thompson is now being used to limit the

way in which the legislature can define a single aspect of that power,

notwithstanding that the power to make rules could be withheld altogether.

Thompson is now being used to invalidate legislation that neither renders

1 Amici agree with the Defendants-Appellants-Petitioners that rule-making is a delegated

legislative power and not an executive “supervisory” authority.

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the SPI superfluous nor reduces any of his inherent authority. If Thompson

really hamstrings the legislature in this way, it should be overruled.

As this Court has explained, “stare decisis is not a mechanical

formula for adherence to the latest decision and the power of the court to

repudiate its prior rulings is unquestioned, though not often exercised.”

Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶96,

264 Wis. 2d 60, 665 N.W.2d 257. Stare decisis is not an “inexorable

command.” Id., ¶97, citing Hahn v. United States, 524 U.S. 236, 251

(1998).

In deciding whether to overrule one of its prior decisions, this Court

considers factors such as changes or developments in the law, whether the

precedent has become detrimental to coherence and consistency in the law,

and whether the prior decision is unsound in principle or unworkable in

practice. Id., ¶¶98-99; State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1,

863 N.W.2d 592.

Johnson Controls, overruling City of Edgerton v. General Casualty

Co. of Wisconsin, 184 Wis. 2d 750, 517 N.W.2d 463 (1994), is instructive.

In that case, this Court pointed out the many problems with the Edgerton

rationale and noted that it had led to anomalous results, requiring and not

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requiring coverage for environmental clean-up in circumstances that were

not really different. It concluded that “[t]he applicable rules of law

established by Edgerton are not settled, much less settled correctly.

Therefore, the errors of Edgerton . . . must be corrected by this court.”

Johnson Controls, 264 Wis. 2d at 135. The same is true here.

It is not, for example, settled law or practice that the SPI must be

superior to every other officer in the state on each and every matter related

to public education. As we shall see, there are – and always have been –

areas in which he has not and never can be. It is not settled law or practice

that, if the legislature chooses to delegate rule-making authority to the SPI,

then he must be able to assume and exercise that power without

gubernatorial check. In fact, the Governor can – and has always been able

to – block any legislative attempt to allow the SPI to make rules. The

Governor can – and has always been able to – sign or veto the SPI’s budget

and legislation affecting educational policy and structure.

The consequences of Thompson’s overly broad interpretation of the

Constitution are dire. It frustrates and will continue to frustrate the ability

of the legislature to, as L.D. Harvey, the author of the 1902 amendment to

Article X, section 1, put it “fit any exigencies that might arise at any time in

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the future history of the state” and to “meet any demand of the people at

any time in the future in the organization of the school system.” Thompson,

199 Wis. 2d at 702 (Wilcox, J. concurring).

A. Thompson Is Inconsistent with the Language in Article

X, Section 1 of the Wisconsin Constitution.

Art. X, § 1 of the Wisconsin Constitution provides that “[t]he

supervision of public instruction shall be vested in a state superintendent

and such other officers as the legislature shall direct ….” (Emphasis

added.) Further, it says that the powers and duties of the state

superintendent and these “other officers” “shall be prescribed by law,”

i.e., established by the legislature. (Emphasis added.) There is nothing

particularly ambiguous about this language. It vests something called

“supervision” in both the SPI and “such other officers as the legislature

may direct” without distinction. Both are direct objects of the verb “to

vest.” It is up to the legislature to decide what the SPI may and may not do.

Whatever “supervisory” and other duties that the legislature chooses to

confer upon him can be shared with – or even allocated to – others.

Although the Thompson Court acknowledged that this is a “plausible”

reading of Art. X, § 1, it is actually the only plausible reading.

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In contrast to its rule for statutory interpretation, this Court has not

required ambiguity before resorting to legislative history or subsequent

legislative enactments in interpreting constitutional language. Compare

State ex rel Kalal v. Circuit Court of Dane County, 2004 WI 58, 271 Wis.

2d 633, 681 N.W.2d 110 (statutory interpretation) with Dairyland

Greyhound Park v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408

(constitutional interpretation). Whatever the merits of that approach, the

requirement that unconstitutionality ought to be demonstrated “beyond a

reasonable doubt” ought to make cases that depart from the plain language

of the Constitution in order to invalidate an act of the legislature rare to

nonexistent.

It is not clear that the Thompson Court was required to abandon the

plain meaning of the text.2 The law at issue there arguably removed all

supervisory power from the SPI. In rejecting that legislative move, the

majority noted that the delegates to the Constitutional Convention

considered but rejected the alternative of having the SPI appointed rather

2 If so, the language which Amici urges this Court to disavow may have been dictum. See

Zarder v. Humana, 2010 WI 35, ¶52, 324 Wis. 2d 325, 782 N.W.2d 682, citing State v.

Sartin, 200 Wis. 2d 47, 546 N.W.2d 449 (1996) (noting a line of cases defining dictum as

“a statement or language expressed in a court’s opinion which extends beyond the facts in

the case and is broader than necessary and not essential to the determination of the issues

before it.”)

8

than elected. 199 Wis. 2d at 684. That history may have been relevant to a

statute which essentially replaced the SPI with an appointed board, but it

tells us nothing about whether some of whatever powers the elected SPI

given may be shared with others.

The Court noted that the delegates thought that the SPI would be a

“crucial position” and would be someone who might work to provide

“uniformity, energy and efficiency to the system.” Thompson, 199 Wis. 2d

at 688. Of course, this cannot mean that the SPI has inherent authority to

make educational policy – all agree that power rests with the legislature –

but it might mean that there is some diminution in the authority of the SPI

or some transfer of his authority to others such that no supervisory authority

is vested in him. But that the SPI must have a “crucial position” does not

mean that no one else can have greater authority in anything related to

public instruction or any ability to check the power that he is given.

Likewise, that the officers referred to in the Constitution were not

created in the first enactment after passage of Art. X, section 1 or its

amendment in 1902 does not mean that they could never be. That the

legislature declines to exercise a discretionary power does not imply the

absence of that power.

9

B. Thompson Is Inconsistent with the Longstanding

Historical Interpretation of Article X, Section 1.

The legislature has “prescribed” the duties of the SPI throughout the

state’s history. It has added to and subtracted from the SPI’s legal authority

as conditions and legislative judgment required. For example, in 1915 the

legislature created a State Board of Education, which managed and

allocated the finances of the state’s public educational activities. L. 1915,

c. 497. Today, the SPI has that power.

In 1848, the legislature gave town superintendents, not the SPI, the

exclusive power to license school teachers. L. 1848, 226. Between 1862

and 1868, county and town supervisors shared licensing certification. L.

1862, c. 176; L. 1863, c. 102; L. 1868, c. 169. Seventy-three years later, in

1939, the legislature gave this duty to the SPI. L. 1939, c. 53.

Today, the SPI is not the sole officer who can promulgate rules

relating to public instruction. For example:

o The Department of Safety and Professional Services writes the

rules relating to school building codes. Wis. Admin. Code § SPS

378.

o The Department of Workforce Development writes rules relating

to students working at their school during school hours. Wis.

Admin. Code § DWD 270.19.

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o The Department of Transportation writes rules relating to school

buses and the public transportation of students. Wis. Admin.

Code § Trans 300.

The legislature often reserves certain responsibilities to local

superintendents and school boards. The SPI cannot countermand what

these “other officers” do. Indeed, the SPI does not even act free from

interference within the executive branch. The Governor proposes – and

may veto – his budget. The Governor may sign into law legislation that the

SPI opposes and veto legislation that he has proposed or supports. Indeed,

as noted earlier, the Governor could veto any grant of rule-making authority

to the SPI. If he can do that without constitutional injury, it is hard to see

how Act 21, allowing him to veto rules (in effect) could be

unconstitutional.

Not only is the breadth of Thompson’s rationale inconsistent with

longstanding practice, it has now proven, as Justices Wilcox and Steinmetz

feared, to unreasonably limit the legislature’s ability to “improve the

institution of public instruction.” Accountability of schools is currently a

significant issue with many arguing that the SPI, elected in low turn-out

spring elections, is overly solicitous of the interests of the teachers’ unions

which dominate such elections. Whatever the merits of that criticism,

11

assume that the legislature decides to place the formulation of those

standards under the aegis of a board in which all stakeholders are

represented or permits local superintendents to adopt any measure approved

by the University of Wisconsin’s Value-Added Research Center. Such a

move would hardly remove the SPI from a crucial role in the supervision of

public instruction but might be prohibited under Thompson which brooks

no administrative check on the SPI’s power and decrees that not a jot or

tittle of his power may be shared with or moved to anyone else. That

result, however, flies in the face of the language in Art. X, Section 1 and

the long-standing historical interpretation of that language which has seen

the legislature make numerous additions to and subtractions from the

powers of the SPI.

C. Thompson Is Inconsistent with Fortney v. School

District of West Salem.

In Fortney v. School District of West Salem, 108 Wis. 2d 167, 321

N.W.2d 225 (1982), this Court emphasized the plenary authority of the

legislature to define the powers of the SPI and “other officers:”

Public instruction and its governance had no long-standing

common law history at the time the Wisconsin Constitution

was enacted. Furthermore, Article X, section 1, explicitly

provides that the powers and duties of the school

superintendent and other officers charged by the legislature

12

with governing school systems “shall be prescribed by law.”

Because the constitution explicitly authorized the legislature

to set the powers and duties of public instruction officers,

Article X, section 1 confers no more authority upon those

officers than that delineated by statute.

Id. at 182.

This, of course, is perfectly consistent with the language of Art. X, §

1, but inconsistent with the decision in Thompson. In Thompson the Court

tried to remain consistent with Fortney by saying that under Fortney the

legislature may take away power from the SPI but under Thompson it may

not give that power to anyone else. Thompson, 199 Wis. 2d at 699-700.

But that dichotomy has now been shown to be unsound in principle and

unworkable in practice.

Under this Thompson/Fortney dichotomy, the legislature could

completely take away the SPI’s power to make rules (as previously granted

by the legislature) but it cannot make that power subject to limited veto

power by the Governor (even though the Governor could have vetoed the

rule making power in the first instance and some rule-making regarding

public education has been given to others). The legislature could override

the SPI and adopt accountability standards that the SPI opposes, but could

not create a board to do so unless the SPI controlled it. The legislature

13

could take away the SPI’s power to accredit teachers but could not grant

that power to anyone else (as it has in the past). The legislature could

create a recovery school district for schools that are failing under the

current supervision of the SPI but only if it gives authority over that school

district to the SPI whose failure it seeks to correct. The SPI could even

claim – and apparently has – that he has the authority to unilaterally adopt

Common Core standards for the State without regard to the desires,

decisions and constitutional power of the legislature.3

The problem arguably extends beyond education. As more fully

developed in the Defendants-Appellants-Petitioners’ Brief, rule-making is a

“quasi-legislative” function in which the SPI (or other agency) is

empowered to engage in what comes very close to law-making. It is

policy-making, which is an exclusively legislative function. See Martinez

v. DILHR, 165 Wis. 2d 687, 697, 478 N.W.2d 582, 585 (1992) (stating that

rule-making authority is derived solely from delegation by the legislature).

The SPI has no inherent rule-making authority. The historical record is

clear that, except for a few isolated and very specific legislative grants of

authority, the SPI never had rule-making power until after the adoption of

3 State Superintendent Tony Evers, Prepared Remarks to the Joint Hearing of Select

Committees on the Common Core State Standards, Oct. 3, 2013, available at

http://www.npsd.k12.wi.us/TonyEversDPIOct2013.pdf.

14

the Administrative Procedure Act in 1943. Today, he does not have rule-

making authority other than when – and to the extent – the legislature gives

it to him.

If the fact that the SPI has some other constitutional authority means

that the legislature, in delegating rule-making authority to him, cannot

choose to have that delegated authority checked by any other officer – if he

need not accept the bitter with the sweet – Thompson calls into question the

legislature’s ability to limit the rule-making authority of other constitutional

officers, such as the Attorney General or Secretary of State – each of whom

presumably has some core constitutional authority. It is also directly

inconsistent with the ability of the Governor to veto the conferral of rule-

making authority on the SPI in the first place.

That is not a workable interpretation of Article X, Section 1 or a

workable interpretation of the legislature’s authority under Article IV. But

it is where Thompson’s overly expansive view of the powers of the SPI has

taken us. Thompson should be overruled.