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Remedy for the "DOJ Rules Blues"

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October 21st is the Governor’s deadline to approve the Emergency Rules written by the Department of Justice to implement Act 35, Wisconsin’s new weapons law. There is still time to get this right.

As a certified firearms instructor and certifier of instructors, I have an interest in seeing that the law is implemented by the Department of Justice, as the legislature intended and that the law requires.

After reading the Department of Justice’s proposed emergency rules, it is very difficult if not impossible to conclude the DOJ, even if it is well intended, has not exceeded their rule making authority. However, they do not think so. The following is taken as their justification for their decisions, from their proposed emergency rules. Emphasis has been added.

Those portions of the proposed rules that are not specifically authorized by ss. 175.60(7), (14g), and (15)(b), Stats., as described above, are authorized by s. 227.11(2)(a), Stats., which provides:

(2) Rule-making authority is expressly conferred as follows:

(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if 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:

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. (See ISSUANCE AND SCOPE OF LICENSE below)

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.

This statute expressly confers on DOJ the general power to determine whether administrative rules interpreting those statutory provisions in 2011 Wis. Act 35 that are to be enforced or administered by DOJ are necessary to effectuate the purpose of those statutory provisions and, if such necessity is found, to promulgate such administrative rules, as long as those rules do not exceed the bounds of correct interpretation of the governing statutes.

It appears the DOJ has either mis-interpreted fairly clear language, glossed over it, ignored parts of the statute which limits their authority or some combination of all three. This section of Wis. Stat. 227.11 was omitted by the DOJ:

(1)Except as expressly provided, this chapter does not confer rule-making authority upon or augment the rule-making authority of any agency.

(b) Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.

227.11(2)(c)(c) Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the policies as rules which the agency shall follow until they are amended or repealed. A rule promulgated in accordance with this paragraph is valid only to the extent that the agency has discretion to base an individual decision on the policy expressed in the rule.

227.11(2)(d)(d) An agency may promulgate rules implementing or interpreting a statute that it will enforce or administer after publication of the statute but prior to the statute's effective date. A rule promulgated under this paragraph may not take effect prior to the effective date of the statute that it implements or interprets.

227.11(2)(e)(e) An agency may not inform a member of the public in writing that a rule is or will be in effect unless the rule has been filed unders. 227.20 or unless the member of the public requests that information.

Turning our attention to the weapons license law, the section that the DOJ is trying to circumvent through Wis.Stat. 227.11, is found in Wis. Stat. 175.60 (2)(b) which clearly limits the DOJ’s rule making authority as follows:

(2) ISSUANCE AND SCOPE OF LICENSE.

(a) The department shall issue a license to carry a concealed weapon to any individual who is not disqualified under sub. (3) and who completes the application process specified in sub. (7). A license to carry a concealed weapon issued under this section shall meet the requirements specified in sub. (2m).

(b) The department may not impose conditions, limitations, or requirements that are not expressly provided for in this section on the issuance, scope, effect, or content of a license.

(c) Unless expressly provided in this section, this section does not limit an individual’s right to carry a firearm that is not concealed.

(d) For purposes of 18 USC 922 (q) (2) (B) (ii), an out−of−state licensee is licensed by this state.

So, in a nutshell the DOJ is clearly attempting to change the law passed by the legislature and overreach the legislatures rule making authority and limitations. I do not have an issue if the DOJ wants to change the law but like everyone else, they must go to the legislature with a bill containing their wants and get it passed. It is not within the DOJ’s authority to just change the law to their liking.

The proposed emergency rules first, are temporary. Before the rules become final, public hearings will be held and the legislature and the Governor must approve them.

Knowing that, the Governor has two clear choices available to him to resolve this matter without causing any delay.

  1. He can approve the proposed emergency rules as is, which would appease the Attorney General, but few other people. There really is no benefit to the Governor if he makes this choice and it presents potential legal challenges.
  2. He can consult with the key legislators and strike all proposed rules that exceed the authority granted to the DOJ by the legislature. This choice has three important benefits should the Governor select this option. It will avoid setting up a certain confrontation he can not win with the legislature now and during the process of finalizing the rules. Secondly, the Governor will not alienate hundreds of thousands of his most loyal supporters at a crucial time when he really needs each and every friend he has. Third, doing what he knows is the right thing now means not having to say he is sorry later.

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