Wisconsin Legislature: oag4-20

¶ 39.

The effect of that language on Wis. Stat. § 227.11(2)(a)3. is clear. That section limits an agency’s ability to rely on a statutory standard “to promulgate, enforce, or administer a rule that contains a standard . . . that is more restrictive than the standard . . . contained in the statutory provision.” Wis. Stat.
§ 227.11(2)(a)3. The initial-applicability provision is explicit that Wis. Stat.
§ 227.11(2)(a)3.’s limits on “promulgat[ing], enforc[ing], or administer[ing]” rules “first apply” to rules proposed on or after June 8, 2011. See Act 21 § 9355. Stated plainly, Wis. Stat. § 227.11(2)(a)3. has no bearing on the promulgation, enforcement, or administration of a rule promulgated before June 8, 2011. The creation of Wis. Stat. § 227.11(2)(a)3. thus did not alter the enforceability of pre-Act 21 rules.

¶ 40.

Analyzing Wis. Stat. § 227.10(2m) leads to the same result.[4] That provision states, “No agency may implement or enforce any standard, requirement, or threshold . . . unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with [Wis. Stat. ch. 227, subch. II].” Wis. Stat. § 227.10(2m). As relevant here, Wis. Stat. § 227.10(2m)’s limitation on “implement[ing] or enforc[ing]” a standard in an existing rule turns on whether the rule at issue “has been promulgated in accordance with” Wis. Stat. ch. 227’s rulemaking procedures. Wis. Stat. § 227.10(2m) (emphasis added). Restated, if a standard is required or permitted by a rule “promulgated in accordance with” ch. 227’s rulemaking procedures, the agency may enforce that standard. See Wis. Stat. § 227.10(2m). Reasonably read, this provision and Act 21’s initial-applicability provision mean that rules promulgated after Act 21’s effective date must be promulgated in compliance with the Act’s updated rulemaking procedures, including Wis. Stat. § 227.11(2)(a)1.–3. See Act 21, §§ 1r–61, 9355(1).

¶ 41.

But for rules promulgated before Act 21, Wis. Stat. § 227.10(2m) requires only that the rule was promulgated in accordance with the rulemaking procedures in place at the time. This reading rests on the text of Wis. Stat. § 227.10(2m), which makes no reference to any specific version of Wis. Stat. ch. 227’s rulemaking procedures. For example, there is nothing in the statute to suggest that the version of Wis. Stat. ch. 227 in place immediately after Act 21 would be the operative version by which to evaluate all rules. This makes sense because rules necessarily are promulgated based on the statutes in force at the time of promulgation. Further, the contrary reading—requiring that the enforceability of pre-Act 21 rules be analyzed under post-Act 21 rulemaking procedures—could cast doubt on the validity of nearly every page of the Wisconsin Administrative Code. See, e.g., OAG–04–17, ¶ 13 (asserting “far-reaching” consequences of opinion’s interpretation of Act 21). Such a result would be absurd, a classic “elephant[ ] in [a] mousehole[ ].” Whitman, 531 U.S. at 468; see also Black, 188 Wis. 2d at 645 (disfavoring statutory construction that results in implied repeal of another law).

¶ 42.

Reading Wis. Stat. § 227.10(2m) as requiring compliance with contemporaneous rulemaking procedures also comports with the statutory presumption of validity for published administrative rules. Wisconsin Stat. § 227.20 provides, “Filing a certified copy of a rule with the legislative reference bureau creates a presumption . . . [t]hat the rule was duly promulgated by the agency,” and that “all of the rule–making procedures required by this chapter were complied with.” Wis. Stat. § 227.20(3)(a), (c). Notably, this includes a presumption that the rule was promulgated in compliance with the legislative review provisions under Wis. Stat. § 227.19, and that the Legislature was satisfied with the rule.[5] See Wis. Stat. § 227.19(2)–(3), (4)–(6). All of this naturally contemplates an evaluation of the rule in light of the contemporaneous statutes.

¶ 43.

In sum, these provisions make clear that the Act did not alter the enforceability of properly promulgated rules. After Act 21, agencies may “implement or enforce” pre-Act 21 rules that contain standards, provided that the rule was promulgated in accordance with the rulemaking procedures in place when the rule was adopted. See Wis. Stat. § 227.10(2m).

OAG–04–17 incorrectly interpreted Act 21 to limit the enforceability of existing, properly promulgated rules.

¶ 44.

OAG–04–17 incorrectly interpreted Act 21’s initial-applicability provision, section 9355(1); Wis. Stat. § 227.11(2)(a)3.; and Wis. Stat. § 227.10(2m). Contrary to the explanation above, that opinion concluded that Act 21 potentially invalidated existing, properly promulgated rules. See OAG–04–17, ¶¶ 13, 24, 31–33.

¶ 45.

In reaching that conclusion, OAG–04–17 first pointed to Wis. Stat. § 227.11(2)(a)3. and its limits on “promulgating, enforcing, or administering” certain standards. The opinion acknowledged that Act 21’s initial-applicability provision prevented retroactive application of section 227.11(2)(a)3.’s limits on “promulgation,” but asserted that “‘enforce[ment]’ or ‘adminis[tration]’ of existing rules” should be treated differently. OAG–04–17, ¶¶ 31–32 (alterations in original). It concluded that if a rule “could not be lawfully ‘promulgate[d]’ now,” it “may not be prospectively enforced or administered in light of Act 21.” OAG–04–17, ¶¶ 31, 33 (alteration in original).

¶ 46.

That view cannot be reconciled with the relevant provisions of Act 21. To begin, there is no textual support in the initial-applicability provision for
OAG–04–17’s different treatment of limits on the “promulgation” of rules and limits on “enforcement or administration.” Instead, as noted above, that provision states that “the creation of” all of Wis. Stat. § 227.11(2)(a)1.–3. first applies starting on the Act’s effective date. Act 21, § 9355(1). The initial-applicability provision therefore treats all of Wis. Stat. § 227.11(2)(a)3.’s terms—promulgation, enforcement, or administration—the same. All of them “first apply” to a rule proposed on or after June 8, 2011. Act 21, § 9355(1).

¶ 47.

Further, OAG–04–17’s premise—that if a rule “could not be lawfully ‘promulgated’ now” it cannot be enforced—also finds no support in Wis. Stat. § 227.10(2m). OAG–04–17, ¶ 31. As discussed above, application of Wis. Stat. § 227.10(2m) to previously promulgated rules turns on whether the rule was “promulgated in accordance with” the rulemaking procedures in force when the rule was promulgated. Evaluating the enforceability of a pre-Act 21 rule based on the rule’s compliance with rulemaking procedures enacted after the rule was promulgated contravenes the text of Wis. Stat. § 227.10(2m), defies common sense, and turns the initial-applicability provision on its head. OAG–04–17 therefore is withdrawn for this additional reason.

CONCLUSION

¶ 48.

In summary, neither Wis. Stat. § 227.11(2)(a)2. nor 3. alters any explicit legislative grant of agency rulemaking authority. If a statute explicitly authorizes rulemaking, that statutory language continues to control. Likewise, nothing in Act 21 altered an agency’s ability to enforce existing, properly promulgated rules.

Sincerely,

Joshua L. Kaul

Attorney General

JLK:GJK:jrs

As shorthand, this opinion will use the term “standards” to refer to the statutory phrase “standard, requirement, or threshold” used in Wis. Stat. §§ 227.10(2m) and .11(2)(a)3.

At the time, the Sprinkler Rule was codified at Wis. Admin. Code SPS § 362.0903(5) (Feb. 2017). Following OAG–04–17 (Dec. 8, 2017), the Sprinkler Rule was repealed.

As shorthand, this discussion occasionally uses “enforcement” or “enforceability” to refer collectively to implementation, enforcement, and administration of rules.

Although certain applications of Wis. Stat. § 227.10(2m) may be addressed in two cases currently pending before the Wisconsin Supreme Court, see Clean Wisconsin, Inc. v. DNR, No. 2016AP1688; and Clean Wisconsin, Inc. v. DNR, No. 2018AP0059, this opinion’s limited discussion of Wis. Stat. § 227.10(2m) does not implicate “an issue that is the subject of current or reasonably imminent litigation,” which this office has previously instructed may be a basis to decline a request for an opinion. See 77 Op. Att’y Gen. Preface (1988). This opinion addresses agencies’ rulemaking authority under various provisions in Wis. Stat. § 227.11(2)(a), and the discussion of Wis. Stat. § 227.10(2m) concerns only whether that statute nullified previously promulgated rules. The two Clean Wisconsin cases do not involve that issue.

The Wisconsin Supreme Court has confirmed that while these presumptions of validity are rebuttable, they are “similar in operation to the generally recognized rebuttable presumption of the constitutionality of a statute,” and a challenger to the rule will bear the burden to overcome the presumption. See Wis. Realtors Ass’n v. PSC, 2015 WI 63, ¶ 66, 363 Wis. 2d 430, 867 N.W.2d 364. The court emphasized that in evaluating challenges to rules, the statutes “require[ ] courts to respect the legislature’s role in reviewing and approving agency rules by presuming the validity of rules that have survived the legislature’s scrutiny.” Id.