Ziegler, Grassl Bradley and Hagedorn
MADISON, Wis. - A liberal majority on the Wisconsin Supreme Court invalidated a decades-old law giving a legislative committee the power to suspend bureaucratic rules, saying it violated the state constitution.
The ruling strips the Republican-controlled legislature of a power it has held since 1966 and hands more authority to Democratic Gov. Tony Evers, further inflaming tensions in a state divided between urban and rural voters.
Those tensions are frequently on display on the state Supreme Court, controlled by a 4-3 liberal majority produced by a pair of record-setting judicial elections that has conservative justices often voicing their frustrations in dissenting opinions, like the three filed in a recently decided abortion case.
The law in question created a 10-member Joint Committee for Review of Administrative Rules (JCRAR), which had the power to review and suspend rules created by state agencies under the control of the executive branch.
Such agencies are a central feature of the modern administrative state, but courts have long wrestled with the question of whether rules created by those agencies – which have the same legal effect as laws -- are legislative or executive acts.
The majority opinion by Chief Judge Jill Kaforsky sidesteps that question, instead declaring the JCRAR structure unconstitutional because its actions don’t follow the normal legislative process in which a bill is passed by both houses and signed by the governor.
The JCRAR system gave the committee the power to review and suspend rules, in some cases permanently, with the legislature having the power to overrule those suspensions by passing a new law.
“The challenged statutes empower JCRAR to take action that alters the legal rights and duties of the executive branch and the people of Wisconsin,” the majority said. “Yet these statutes do not require bicameralism and presentment.”
In this case, Gov. Evers challenged JCRAR after the committee unsuccessfully tried to block an administrative rule that made it an unprofessional act for therapists to engage in “conversion therapy” to convert homosexuals to heterosexual.
That rule is in effect after the legislature failed to ratify JCRAR’s action with a new bill. The governor also challenged the indefinite suspension of new building codes.
The decision drew impassioned dissents from the court’s conservatives. The majority stripped the legislature of the power to alter rules made by the agencies it created, without placing any equivalent controls on the governor, said Justice Annette Ziegler.
“Today continues this court’s misguided quest to restructure and unbalance our state government, culminating in even more power and control being allocated to the executive branch,” Justice Ziegler wrote.
Justice Rebecca Grassl Bradley said the majority failed to address the constitutional implications of handing power to executive agencies.
“Nowhere in the constitution did the people of Wisconsin consent to be governed by rules imposed by the administrative state rather than laws passed by their elected representatives,” she wrote.
Justice Brian Hagedorn dissented in part, also saying the majority had ignored the important question of whether administrative rulemaking is a legislative or executive process. He would have avoided taking this case entirely, saying the “conversion therapy” rule challenge is moot and the building code case could be disposed of in another way.
“The effect of the majority’s decision is to greenlight executive alteration of legal rights and duties outside the lawmaking process while prohibiting legislative alteration of legal rights and duties outside the lawmaking process,” he wrote. “It isn’t clear why the executive would be allowed to legislate in any way under our constitution.”
