DNE
(See PDF for image) STATE OF WISCONSIN
DEPARTMENT OF JUSTICE
Josh Kaul
Attorney General
114 East, State Capitol
PO Box 7857
Madison WI 53707-7857
(608) 266-1221
TTY 1-800-947-3529
October 27, 2020
OAG–04–20
The Honorable Tony Evers
Governor
State of Wisconsin
115 East, State Capitol
Madison, WI 53702
Dear Governor Evers:
¶ 1.
You have requested an Attorney General opinion regarding certain provisions enacted by 2011 Wis. Act 21 (“Act 21” or “the Act”), and how those provisions apply to an agency’s ability to promulgate and enforce administrative rules. Specifically, you have asked (1) whether, in light of Wis. Stat. § 227.11(2)(a)2., state agencies may promulgate administrative rules pursuant to a statute providing explicit, broad rulemaking authority; and (2) whether, in light of Wis. Stat. § 227.11(2)(a)3., state agencies may rely on explicit, broad statutory grants of authority to promulgate standards, requirements, or thresholds in administrative rules. Your request also implicates an additional issue regarding the enforceability of existing rules after Act 21, particularly its enactment of Wis. Stat. § 227.10(2m) and Wis. Stat. § 227.11(2)(a)1.–3. Your request relates to this office’s previous opinion regarding Act 21, OAG–04–17 (Dec. 8, 2017), and raises the question whether that opinion incorrectly interpreted these statutory provisions.¶ 2.
As to your first question, I conclude that the plain language of
Wis. Stat. § 227.11(2)(a)2. does not alter explicit grants of rulemaking authority, regardless of whether the rulemaking provision in which the authority is granted could be characterized as broad or “general.”¶ 3.
As to your second question, I conclude that the plain language of
Wis. Stat. § 227.11(2)(a)3. does not alter explicit grants of rulemaking authority to prescribe standards. The fact that the Legislature mandates a specific standard in one statute does not, in itself, alter the agency’s ability to promulgate, enforce, or administer a different standard enacted pursuant to a second statutory source of rulemaking authority. This holds true even where the second standard could be characterized as “more restrictive” than the first. See Wis. Stat. § 227.11(2)(a)3.¶ 4.
Finally, regarding the enforceability of existing rules after Act 21, I conclude that nothing in the language of Act 21 alters existing, properly promulgated rules. Under Wis. Stat. § 227.10(2m), agencies may continue to implement and enforce existing rules, including standards therein, provided the rule was “promulgated in accordance with” the rulemaking procedures in place at the time the rule was adopted.¶ 5.
Because OAG–04–17 reached several conclusions contrary to the plain language of the governing statutes, as explained herein, that opinion is withdrawn.PROVISIONS AT ISSUE
¶ 6.
2011 Wis. Act 21 was enacted in a special legislative session in early 2011 and took effect on June 8, 2011. Relevant here, Act 21 made the following changes to Wis. Stat. §§ 227.10 and .11. First, the Act created Wis. Stat. § 227.10(2m), which reads:No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, 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 this
subchapter . . . . The governor, by executive order, may prescribe guidelines to ensure that rules are promulgated in compliance with this subchapter.
Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if it the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
Act 21, § 2. The Act then created three new subdivisions of Wis. Stat. § 227.11(2)(a), which read: 1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule–making authority on the agency or augment the agency’s rule-making authority beyond the rule–making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency’s general powers or duties does not confer rule–making authority on the agency or augment the agency’s rule–making authority beyond the rule–making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
DISCUSSION
¶ 7.
Your request presents questions of statutory interpretation, which begins with the language of the statute. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. “Statutory language [will be] given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” Id. The statutory language will be “interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id. ¶ 46. Additionally, insofar as a statute’s scope, context, and purpose are “ascertainable from the text and structure of the statute itself,” those factors may also be relevant to the interpretive inquiry. Id. ¶ 48. If this textual analysis “yields a plain, clear statutory meaning, then there is no ambiguity,” and the statute should be applied according to that plain meaning.
Id. ¶ 46 (quoting Bruno v. Milwaukee County, 2003 WI 28, ¶ 20, 260 Wis. 2d 633,
660 N.W.2d 656). When interpreting statutes, the Attorney General, just like a court, “is not at liberty to disregard the plain, clear words of the statute.” Id. (quoting State v. Pratt, 36 Wis. 2d 312, 317, 153 N.W.2d 18 (1967)).¶ 8.
Applying these principles, I conclude that neither Wis. Stat. § 227.11(2)(a)2. nor 3. alters any legislative grants of agency rulemaking authority outside of Wis. Stat. ch. 227. Thus, where a statute explicitly authorizes agency rulemaking, that ends the inquiry—that explicit authority must be given effect.I.
Wisconsin Stat. § 227.11(2)(a)2. does not alter explicit legislative grants of rulemaking authority.¶ 9.
Your first question asks whether, in light of Act 21, “state agencies may promulgate rules pursuant to a statute that provides for explicit, broad rulemaking authority.” As examples, you point to Wis. Stat. § 85.16(1), which authorizes the Secretary of Transportation to “make reasonable and uniform . . . rules deemed necessary to the discharge of the powers, duties and functions vested in the department”; Wis. Stat. § 16.004(1), which mandates that the Secretary of Administration “shall promulgate rules for administering the department and performing the duties assigned to it”; and Wis. Stat. § 150.03, which requires the Department of Health Services to “adopt rules and set standards to administer [certain statutory subchapters].”¶ 10.
As you also note, OAG–04–17 interpreted a provision of this sort,
Wis. Stat. § 101.02(1)(b), in the context of analyzing the so-called “Sprinkler Rule.” That statute mandates that the Department of Safety and Professional Standards (DSPS) “shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities.” Wis. Stat. § 101.02(1)(b). Notwithstanding the statute’s direct instruction to adopt rules, OAG–04–17 concluded that the statute “‘does not confer rule–making authority’ under Wis. Stat. § 227.11(2)(a)2.,” because section 102.02(1)(b) “is best read as ‘describing [DSPS’s] general powers or duties.’” OAG–04–17, ¶ 22. Your request therefore requires analysis of Wis. Stat. § 227.11(2)(a)2., as well as the reasoning of OAG–04–17. ¶ 11.
Agencies have historically exercised “those powers which are expressly conferred or which are necessarily implied by the statutes under which [the agency] operates.” Wis. Ass’n of State Prosecutors v. Wis. Emp’t Relations Comm’n (WASP), 2018 WI 17, ¶ 37, 380 Wis. 2d 1, 907 N.W.2d 425 (quoting Wis. Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶ 14, 270 Wis. 2d 318, 677 N.W.2d 612). Therefore, to understand the impact of Act 21 on the questions presented, it is useful to examine the text of Wis. Stat. § 227.11(2)(a), much of which predates
Act 21.¶ 12.
As noted above, in Wis. Stat. § 227.11(2), the Legislature has “expressly conferred” rulemaking authority on agencies to “promulgate rules interpreting the provisions of any statute enforced or administered by the agency,” so long as the agency “considers it necessary to effectuate the purpose of the statute.” Wis. Stat. § 227.11(2)(a). ¶ 13.
Wisconsin Stat. § 227.11(2)(a) then continues that an agency’s rule “is not valid if the rule exceeds the bounds of correct interpretation.” Wis. Stat. § 227.11(2)(a). This clause makes clear that even where an agency determines that a rule is “necessary,” that determination alone is not sufficient to allow the agency to promulgate any rule the agency might prefer. Rather, a rule must be “within
the boundaries of enabling statutes passed by the legislature.” Koschkee v. Taylor,
2019 WI 76, ¶ 15, 387 Wis. 2d 552, 929 N.W.2d 600. Wisconsin Stat. § 227.11(2)(a) thus confirms the “elemental” approach for agency rules, which provides that the elements of a rule must correspond to those in the enabling statute. WASP,
380 Wis. 2d 1, ¶¶ 38–39. While an agency must stay within the boundaries that the Legislature has provided, this does not require that “the exact words used in an administrative rule appear in the statute.” Id. ¶ 38 (quoting Wis. Hosp. Ass’n v. Nat. Res. Bd., 156 Wis. 2d 688, 706, 457 N.W.2d 879 (Ct. App. 1990)). ¶ 14.
The statutory language just discussed predates Act 21. The fact that the Legislature did not modify these principles provides useful context for interpreting the language the Legislature added as part of Act 21. See Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 22, 309 Wis. 2d 541, 749 N.W.2d 581.¶ 15.
The first provision that Act 21 added to Wis. Stat. § 227.11(2)(a)
(2009–10) is an additional sentence in the introduction, prefacing three provisos added by the Act: “All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency.” ¶ 16.
The first question raised here relates to one of those provisos,
Wis. Stat. § 227.11(2)(a)2., which reads, “A statutory provision describing the agency’s general powers or duties does not confer rule–making authority on the agency or augment the agency’s rule–making authority beyond the rule–making authority that is explicitly conferred on the agency by the legislature.” Wis. Stat. § 227.11(2)(a)2. (emphasis added). ¶ 17.
The first clause of Wis. Stat. § 227.11(2)(a)2. (un-italicized above) provides that “general powers or duties” provisions in the statutes do not confer or augment rulemaking authority. Read in isolation, this clause could be read to suggest that if a statute could be characterized as a “general powers or duties” provision, the provision would not confer rulemaking authority. ¶ 18.
But the second clause of Wis. Stat. § 227.11(2)(a)2. makes clear that this provision does not alter existing, explicit rulemaking authority. Specifically, the second clause clarifies that “general powers or duties” provisions do not confer additional rulemaking authority “beyond the rule–making authority that is explicitly conferred on the agency by the legislature.” Wis. Stat. § 227.11(2)(a)2. (emphasis added). This means that if the Legislature explicitly confers rulemaking authority in a statute—such as by stating that an agency “shall adopt reasonable and proper rules and regulations,” see Wis. Stat. § 101.02(1)(b)—section 227.11(2)(a)2. does not alter that authority.
