71 Op. Att'y Gen. 127, 127 (1982)

Insurance;
The Wisconsin Auto Insurance Plan and Rejected Risk Plan do not constitute unconstitutional delegations of authority and are otherwise constitutional. The boards of these plans are private, independent, ongoing concerns, not state agencies, and members of these boards are not public officers. Questions regarding the plans and boards discussed. OAG 37-82

May 7, 1982.

71 Op. Att'y Gen. 127, 127 (1982)

SUSAN MITCHELL,
Commissioner

 
Office of The Commissioner of Insurance


71 Op. Att'y Gen. 127, 127 (1982)

  You request my opinion concerning several questions involving two insurance risk-sharing plans continued by sec. 619.01(6), Stats., the Wisconsin Auto Insurance Plan and the Wisconsin Rejected Risk Plan.

71 Op. Att'y Gen. 127, 127 (1982)

  The two plans which are the subject of this opinion are relevantly identical. Each plan provides insurance for those risks rejected by insurers in the marketplace; the Auto Insurance Plan provides auto insurance, and the Rejected Risk Plan provides workers' compensation insurance. Each plan is governed by a board which operates the plan and makes policy decisions relating thereto. And each plan requires all insurers and agents conducting the type of insurance encompassed by the plan to participate in the plan.

71 Op. Att'y Gen. 127, 127 (1982)

  Because these two plans are substantially identical, my answers to your questions will be the same as to each plan.

71 Op. Att'y Gen. 127, 127 (1982)

  Your first question is:

71 Op. Att'y Gen. 127, 127 (1982)

Are the plans an unconstitutional delegation of authority under Article 4 of the Wisconsin Constitution or otherwise in violation of any other article of the Constitution?

71 Op. Att'y Gen. 127, 127 (1982)

  My answer to both parts of this question is no.

71 Op. Att'y Gen. 127, 127-128 (1982)

  Wisconsin Constitution art. IV, 1, provides that: "The legislative power shall be vested in a senate and assembly." Legislative delegations of authority, under this constitutional command, are proper when "the purpose of the delegating statute is ascertainable and there are procedural safeguards to insure that the board or agency acts within that legislative purpose."
In Matter of Guardianship of Klisurich
, 98 Wis. 2d 274, 280, 296 N.W.2d 742 (1980).

71 Op. Att'y Gen. 127, 128 (1982)

  The purpose of the delegating statute, sec. 619.01, Stats., is readily ascertainable; the statute furthers the public interest by providing insurance protection for those unable to obtain it in the marketplace.
See
comment to ch. 144, sec. 22, Laws of 1969. Further, an examination of the statutes creating these plans (Auto Plan -- sec. 204.51, Stats. (1967); Rejected Risk Plan -- sec. 205.15, Stats. (1967)), reveals that procedural safeguards were established to assure the attainment of the legislative purpose. Accordingly, it is my opinion that these plans are constitutionally valid delegations of authority.¯
*


71 Op. Att'y Gen. 127, 128 (1982)

  In addition, it is my opinion that these plans do not violate the due process and equal protection clauses of U.S. Const. amend. XIV and Wis. Const. art. I, 1.

71 Op. Att'y Gen. 127, 128 (1982)

  The insurance industry is properly subject to regulation by the state under the police power, bound up as the industry is in the public interest.
Ministers Life & Casualty Union v. Haase
, 30 Wis. 2d 339, 349, 141 N.W.2d 287 (1966). A police power statute challenged on either due process or equal protection grounds will be sustained if there is any "reasonable basis" for its enactment.
State v. Amoco Oil Co.
, 97 Wis. 2d 226, 259, 293 N.W.2d 487 (1980);
State v. Jackman
, 60 Wis. 2d 700, 705-06, 211 N.W.2d 480 (1973). There can be no serious doubt that the assigned-risk pool is a reasonable method by which to provide for the public welfare concerning insurance. Therefore, there is a "reasonable basis" for these plans, and they are constitutional.

71 Op. Att'y Gen. 127, 128 (1982)

  Your second question is:

71 Op. Att'y Gen. 127, 128 (1982)

Must the Boards of the Plans comply with Chapter 19, Wis. Stats., regarding public records and open meetings?

71 Op. Att'y Gen. 127, 128 (1982)

  My answer to both parts of this question is no.

71 Op. Att'y Gen. 127, 129 (1982)

  Section 19.81(2), Stats., provides that the open meetings law applies to "all state and local governmental bodies...." The term "governmental body" is defined in sec. 19.82(1), Stats., to include, in relevant part, "a state or local agency, [or] board...."

71 Op. Att'y Gen. 127, 129 (1982)

  Note that each plan may assess member insurers to cover whatever operating costs and losses that may accrue to the plan. Neither plan receives money from the Legislature, and the ability of the plans to incur financial liability has in no way been limited by the Legislature. All moneys and property are acquired by the plans and are subject to the sole authority of the plan (not the state) as to the holding, use and disposal thereof. Liabilities incurred by the plans are their own liabilities and not liabilities of the state.