¶ 25. My conclusion, based on the relevant statutory language analyzed above, is also in accord with both case law and legislative history.
¶ 26. In 2009, the Wisconsin Court of Appeals considered a predecessor to the Sprinkler Rule in Wisconsin Builders Ass’n v. Department of Commerce, 2009 WI App 20, 316 Wis. 2d 301, 762 N.W.2d 845. This case predated Act 21, and therefore, any discussion of agency authority must be viewed through the lens of Act 21. ¶ 27. In Wisconsin Builders Association, the plaintiff contended that
Wis. Stat. § 101.14(4m)(b) precludes the Department from imposing a more restrictive requirement. In ruling against the plaintiffs, the court of appeals relied upon the general agency powers in Wis. Stat. § 101.02, and that the statute was “silent on whether the Department may require sprinkler systems in multifamily dwellings with fewer dwelling units.” Wis. Builders Ass’n, 316 Wis. 2d 301, ¶¶ 10–11. The court concluded that there was “no basis in the language of § 101.14(4m)(b) for limiting the Department’s general authority to promulgate rules that require fire protection devices in multifamily dwellings that have fewer dwelling units.” Id. ¶ 11. ¶ 28. Act 21, passed after Wisconsin Builders Association, provides the exact “limit” on the agency’s “general authority” that the court of appeals found lacking. Under Wis. Stat. § 227.11(2)(a)1. and 2., an agency can no longer rely on its “general powers or duties” or a “statement or declaration of legislative intent, purpose, findings, or policy.” Furthermore, an agency may no longer impose a standard, requirement, or threshold “more restrictive than the standard, requirement, or threshold contained in the statutory provision.” Wis. Stat. § 227.11(2)(a)3. Because of Act 21, the reasoning in Wisconsin Builders has been abrogated. ¶ 29. Legislative history further confirms my conclusion that the Sprinkler Rule may not be enforced or administered. Although “legislative history need not be” consulted when the statute is clear on its face, legislative history may be used “to confirm or verify a plain-meaning interpretation.” State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 51, 271 Wis. 2d 633, 681 N.W.2d 110. The legislation that led to Act 21 resulted from a special session of the Wisconsin Legislature, called by Governor Scott Walker. See Exec. Order No. 1, supra. As explained above, in an informational white paper explaining the bill that would become Act 21, the Governor’s first example for the need for regulatory reform was the Sprinkler Rule. See Press Release, Governor Scott Walker, supra. The Governor specially called for legislation to make clear that “an agency may not create rules more restrictive than the regulatory standards or thresholds provided by the legislature[ ].” Id. QUESTION TWO
¶ 30. Your second question asks whether the Sprinkler Rule may be enforced because it was validly promulgated before Act 21. Your question contemplates only the Department’s current and future implementation and enforcement of the Sprinkler Rule, and not any particular past application.
¶ 31. Above, my answer to Question One demonstrates that because the Sprinkler Rule is more restrictive than the Wisconsin Statutes, the Department is not authorized to “enforce” or “administer” the rule pursuant to Wis. Stat.
§§ 227.10(2m) and .11(2)(a)3. Though the Sprinkler Rule may have been promulgated in accordance with the procedural requirements in chapter 227, it could not be lawfully “promulgate[d]” now, and certainly cannot be “enforce[d]” or “administer[ed]” now, regardless of its pre-Act 21 validity. ¶ 32. Act 21’s non–statutory provisions do not otherwise permit the Department to “enforce” or “administer” a rule more restrictive than the applicable law. Section 9355 of Act 21 states that certain provisions amending an agency’s authority to “promulgate rules,” Wis. Stat. § 227.11(2)(a)3, “first apply to a proposed administrative rule submitted to the legislative council staff under section 227.15 of the statutes on the effective date of this subsection.” 2011 Wis. Act 21, § 9355. This provision, however, on its face only applies to Act 21’s reforms relating to agency authority to promulgate of new rules (“a proposed administrative rule”), not the “enforce[ment]” or “administ[ration]” of existing rules, to which the text of the statute plainly applies. See Wis. Stat. § 227.11(2)(a)3. ¶ 33. In summary, Act 21’s prospective ban on future enforcement or administration of rules more strict than the Wisconsin Statutes does not implicate any retroactivity or other due process concerns. No case or principle of law would prohibit the application of Act 21 to future Department enforcement actions, applications, or implementations of the Sprinkler Rule consistent with this opinion. In short, it is my opinion that despite its procedurally lawful promulgation in the past, the Sprinkler Rule may not be prospectively enforced or administered in light of Act 21. See Wis. Stat. §§ 227.10(2m), .11(2)(a)3. Very truly yours,
BRAD D. SCHIMEL
Wisconsin Attorney General
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