Thursday, January 13, 2005

Legal Research Tip 5: Specific Primary Law Sources Part 2

These are the back issues of the e-newsletter Legal Research Tips from 2004. Since these tips are a little longer, each back issue will be published separately. Starting in 2005, all issues will be published here and no longer distributed via email.

Legal Research Tip 5: Specific Primary Law Sources Part 2
Last month we examined the sources of the legislative branch, acts and statutes, as well as the process of updating, creating, repealing, or renumbering laws. This month we will examine the Executive Branch and its resources and activities. Next month we will examine the Judicial Branch. Once again, we will concentrate on state and local resources, not federal. This tip is a little longer than usual so that I can accurately cover this material.

Executive Branch: Administrative Law
Once a law is created, there are certain agencies or departments that are designated to carry out that law through their rules and activities. For the state of WI, these are the administrative agencies or departments or appointed boards such as the Department of Corrections, Department of Workforce Development, or Technical College System Board. Each is charged with making rules or regulations that administer the law. The collected rules and procedures make up the WI Administrative Code. The Governor's office is also part of the Executive Branch, as is, on the local level, the mayor or county executive's office.

Rule Making
In a process quite similar to creating laws, agencies create administrative rules that may or may not become administrative codes. An initial rule is proposed and approved by the agency's head. The proposal is prepared and published in the Administrative Register, which lists the details of the proposal, as well as the hearing date and time if a public hearing is necessary for adoption of the rule. After conducting any necessary hearings or making any revisions, the proposed rule is submitted to the legislature for approval. Once promulgated, the rule is sent to the Revisor of Statutes Bureau to prepare for publication in the Register and, eventually, incorporated into the Administrative Code. The Code is currently an 18-volume set of looseleaf binders that receive updated changes in a filing each month. The Register is published twice a month. On the local level, these would be the rules or procedures by the Building Inspection Unit, for example, regarding how to administer the law regarding landlord-tenant issues, or the guidelines put out by the City Treasurer's Office for collecting property taxes.

Emergency Rules
There are rules that are passed without going through the process described above. These are "Emergency Rules" and the purpose of these rules, according to the statutes, is: "If preservation of the public peace, health, safety or welfare necessitates placing a rule into effect prior to the time it could be effective if the agency were to comply with the notice, hearing, legislative review and publication requirements of the statutes, the agency may adopt that rule as an emergency rule." Essentially, if there needs to be an immediate rule or procedure made, perhaps for a short time while the immediacy is still in effect, an emergency rule will do the trick. Some examples of these types of rules include DNR rules on chronic-wasting disease or the prairie dog sickness. On the local level, these would be issues such as issuing a "no wake" determination on area lakes or, more recently, closing the beaches because of toxic algae. For each case of an emergency, there needs to be a "finding of emergency" to necessitate the rule.

Attorney General Opinions
One of the agencies that administers the law is the Department of Justice, of which the Attorney General is the department head. Certain public officials may ask the Attorney General for an interpretation or explanation of a law or code as it pertains to a certain factor. For example, an attorney representing a county or city may ask for a clarification on the duties or authority of a certain public office as outlined in the statutes or administrative code, or a school board official may ask for a clarification regarding school vouchers. While not a deciding factor in most court cases, AG Opinions may carry a large amount of persuasive weight, especially if is the only source of interpretation on a topic or point of law.

Other Agency Decisions
Besides the Department of Justice, other agencies also are charged with the responsibility of rendering decisions regarding the interpretation of administrative rules or procedures. These agencies include the Division of Hearings and Appeals, Personnel Commission, Tax Appeals Commission, Labor and Industry Review Commission, or Regulation and Licensing, among others. Many of these agencies have an administrative law judge who renders the decision. His or her decision may be appealed to the Circuit Court.

Executive Orders
The Governor issues Executive Orders that may include proclamations or directives to certain agencies regarding specific issues. For example, an Order issued June 8, 2004, specifically directs the agencies under his authority "to develop and implement voluntary emission reduction protocols on air action days in both the nonattainment counties and all counties encouraged to participate in the Cleaner Air Faster campaign," with additonal directives to the departments of administration and natural resources.

This information just scratches the surface regarding resources and procedures for the Executive Branch. I would suggest also exploring the links contained under the Executive Branch section of the WI Law page on the WI State Law Library's web page: for much more information, including links to the resources presented above.