JAMES E. DOYLE
Burneatta L. Bridge
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
September 23, 1999
The Honorable Chuck Chvala
211 South, State Capitol
Madison, WI 53702
Dear Senator Chvala:
You have asked me to review legislation introduced as 1999 Senate Bill 129, which would establish an interstate compact for nurse licensure in Wisconsin. You raise a concern that the reciprocal licensure provisions contained in 1999 S.B. 129 may constitute an impermissible delegation of legislative power. In my opinion, that concern has a substantial basis, although I cannot conclude with certainty that our courts would find 1999 S.B. 129 to violate the Wisconsin Constitution's prohibition against the delegation of legislative authority.
Section 17 of 1999 S.B. 129 would amend Wis. Stat. ch. 441 to create subchapter II of Wis. Stat. ch. 441, the Nurse Licensure Compact ("Compact"), to be codified as Wis. Stat. § 441.50. The portions of section 17 most pertinent to the constitutional concern you raise are as follows.
The Compact defines "home state" as "the party state that is the nurse's primary state of residence." Compact, Article II(e). "‘Multistate licensure privilege'" means "current, official authority from a remote state permitting the practice of nursing as either a registered nurse or a licensed practical/vocational nurse in such party state. All party states have the authority, in accordance with existing state due process law, to take actions against the nurse's privilege, such as revocation, suspension, probation or any other action that affects a nurse's authorization to practice." Compact, Article II(h). "‘Nurse'" is defined as "a registered nurse or licensed practical/vocational nurse, as those terms are defined by each party's state practice laws." Compact, Article II(i). "‘Party state'" is defined as "any state that has adopted this compact." Compact, Article II(j). "‘Remote state'" means "a party state, other than the home state, where the patient is located at the time nursing care is provided, or, in the case of the practice of nursing not involving a patient, in such party state where the recipient of nursing practice is located." Compact, Article II(k). "‘State practice laws'" means "those individual party's state laws and regulations that govern the practice of nursing, define the scope of nursing practice, and create the methods and grounds for imposing discipline. ‘State practice laws' does not include the initial qualifications for licensure or requirements necessary to obtain and retain a license, except for qualifications or requirements of the home state." Compact, Article II(n).
Article III(a) of the Compact provides:
A license to practice registered nursing issued by a home state to a resident in that state will be recognized by each party state as authorizing a multistate licensure privilege to practice as a registered nurse in such party state. A license to practice licensed practical/vocational nursing issued by a home state to a resident in that state will be recognized by each party state as authorizing a multistate licensure privilege to practice as a licensed/vocational nurse in such party state. In order to obtain or retain a license, an applicant must meet the home state's qualifications for licensure and license renewal as well as all other applicable state laws.
Wisconsin Constitution article IV, § 1, provides that "[t]he legislative power shall be vested in a senate and assembly." Not one of the three branches of government can effectively delegate any of the powers which peculiarly and intrinsically belong to that branch. State v. Wakeen, 263 Wis. 401, 407, 57 N.W.2d 364 (1953); Rules of Court Case, 204 Wis. 501, 503, 236 N.W. 717 (1931).
In State ex rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 472, 505, 220 N.W. 929 (1928), our supreme court discussed the limits of the Legislature's authority to delegate its powers:
The power to declare whether or not there shall be law; to determine the general purpose or policy to be achieved by the law; to fix the limits within which the law shall operate,—is a power which is vested by our constitutions in the legislature and may not be delegated. When . . . the legislature has laid down these fundamentals of a law, it may delegate to administrative agencies the authority to exercise such legislative power as is necessary, to carry into effect the general legislative purpose . . . .
The courts have distinguished between the power to make law, which cannot be delegated, and the power to find facts, which may be delegated. For example, in Wagner v. Milwaukee, 177 Wis. 410, 417, 188 N.W. 487 (1922), the court stated that "any attempted vesting of the determination of . . . a legislative question in an outside body is an abdication, and not an exercise, of the legislative discretion that exclusively belongs to the [legislative body] itself."1 Distinguishing the powers which may be delegated from those which may not, the court in Wakeen stated, 263 Wis. at 407-08 (internal citation omitted):
[T]he legislature may delegate any power which it may itself rightfully exercise which is not legislative. . . . This court has recognized also the rule that the legislature may enact a statute, the operation of which is dependent on the happening of a contingency fixed therein, and that such contingency may consist of the determination of some fact, even if said fact is determined by private individuals.
Although these principles are clear, their application in particular cases is not always so clear. For example, in Wagner, the court majority invalidated a city of Milwaukee prevailing wage ordinance, holding that the ordinance unlawfully delegated the city council's legislative power. In the same case, three justices dissented from the holding, on the ground that the ordinance merely delegated to the labor unions the determination of a fact – the wage to be paid to covered workers. 177 Wis. at 420-23. As a contrasting example, the court in Wakeen appeared to approve the delegation of qualification for professional licensure to the institutions which train the professionals. 2 In discussing the rule that the Legislature may delegate the determination of facts upon which the application of legislation depends, the court stated, 263 Wis. at 409-11:
Another illustration of the use of this rule appears in statutes providing for the licensing of members of various professions, such as doctors, dentists, and lawyers. As Mr. Justice DODGE, speaking for the court in State ex rel. Kellogg v. Currens, 111 Wis. 431, 440, 87 N.W. 561, pointed out: "As early as 1818 Massachusetts recognized the diploma of Harvard Medical School, or the approval of the State Medical Society, as a proper ground of classification for practice of medicine, and was upheld in so doing by the supreme court of that state, . . . Hewitt v. Charier, 16 Pick. 353. See also Wright v. Lanckton, 19 Pick. 288." Mr. Justice DODGE said further: "Maine recognized approval of the Maine Medical Association as a ground of classification, and the law has been sustained by the courts, though without debate on the question now in hand. Bibber v. Simpson, 59 Me. 181. Alabama admits on the faith of a certificate from the Medical Association of the State of Alabama, also on diploma of any medical college in the United States, and the constitutionality of the law has been declared. Brooks v. State, 88 Ala. 122. Indiana distinguishes applicants approved by the State Dental Association. Wilkins v. State, 113 Ind. 514. Several states make the fact of practicing therein at the date of the law a sufficient reason for exemption from examination. State v. Creditor, 44 Kan. 565. Maryland finds a legitimate distinction between graduates of a ‘university or college authorized to grant diplomas in dental surgery' and those of ‘a regular college of dentistry.' State v. Knowles, 90 Md. 646, 656."
In Ex Parte Gerino, 143 Cal. 412, 418, 77 Pac. 166, the court said:
"It being proper for the legislature to demand some standard of efficiency, as we have seen, we think it is equally within its powers to declare that it shall be the same as that prescribed from time to time by an association composed of colleges devoted to the work of preparing persons for the profession. Evidently the standard of proficiency in scholarship as a preparation, and the particular studies necessary to secure a fair preparation, must change as the discoveries in natural science open new fields of investigation and suggest or reveal new curative agencies. The legislature cannot successfully prescribe in advance a standard to meet these new and changing conditions. The method adopted appears to be sufficiently definite to enable all colleges to reach the required standard when in good faith they desire to do so. The law is as fixed, definite, and certain in this respect as the nature of the subject and the object to be attained will permit, and we do not think it should be held void because it adopts the standard fixed from time to time by those who, it will be presumed, are the most eminent in the profession which it attempts to regulate, and who should be the most interested in maintaining the highest degree of professional proficiency, skill, and training." See also State v. Hynds, 61 Ariz. 281, 148 Pac. (2d) 1000; Jones v. Board of Medical Examination, 111 Kan. 813, 208 Pac. 639.
The legislation proposed as 1999 S.B. 129 allows the legislatures of other states to determine the qualifications of persons permitted to practice registered nursing or licensed practical/vocational nursing in Wisconsin, by permitting nurses licensed in their respective home states the privilege of engaging in multistate nursing in Wisconsin. See Compact, Article III(a). Under the proposed legislation, Wisconsin would have no control over the qualifications an applicant in another state must possess to obtain a license in that state, would have no control over the qualifications a home state might impose on applicants in the future and would have no power to prevent a person with a license from a party state from practicing nursing in Wisconsin under the multistate practice privilege, no matter how different the licensure criteria of the party state might be from the licensure criteria for Wisconsin residents.
If the Wisconsin courts were to review the legislation through the prism of the Wakeen case, they might well decide that the legislation reflects a legislative purpose to allow all persons who meet the following two factual qualifications to practice registered or licensed practical/vocational nursing in Wisconsin: (1) Does the person possess a nursing license from another state?, and (2) Was the person's license issued by a party state? Just as Wakeen upheld the delegation of the definition of what was a "drug" to the publishers of certain books, and allowed the incorporation of undefined future amendments to the list, based in part on the logic of prior cases that allowed legislative bodies to professionally license those persons who satisfied the qualifications established by other organizations, so Wisconsin courts might consider the proposed legislation to be a constitutional delegation to the Wisconsin Board of Nursing of the factual questions whether the applicant possesses a license from another state, and if so, whether that state is a party to the compact.
On the other hand, if the Wisconsin courts were to review the proposed legislation through the prism of the Wagner case, they might well decide that the legislation is an attempt to vest the determination of a legislative question – who should be permitted to practice registered or licensed practical/vocational nursing in Wisconsin – in an outside body, and is therefore in violation of Wisconsin Constitution article IV, § 1, as "an abdication, and not an exercise, of the legislative discretion that exclusively belongs to the [legislature] itself." 177 Wis. at 417.
The Attorneys General of Kansas and Nebraska have concluded that the Compact would be invalid under the provisions of their respective state constitutions vesting legislative power solely with the state legislatures, adopting analyses similar to that in the Wagner case. See Op. Att'y Gen. 99-3 (Kansas Attorney General, February 9, 1999); Op. Att'y Gen. #99014 (Nebraska Attorney General, April 8, 1999), copies enclosed. The Kansas Attorney General stated, Op. Att'y Gen. 99-3 at 2-3:
Enactment of the compact would essentially delegate to the legislatures of other states authority to set the minimum licensure requirements for licensees of those states who practice in Kansas. If one state's legislature decided that a correspondence course in aroma therapy, for example, is all that is necessary to be licensed as [a] nurse in that state, as long as a person retained that state as their primary residence, that person could practice in Kansas as a nurse. While this may be unlikely, if it or a similarly undesirable practice arose, Kansas would be powerless to object. . . . .
Because the compact would, through absolute reciprocity, allow other states' legislatures the unqualified right to determine the qualifications for the practice of nursing in this state by nonresidents, we believe the compact would be an unconstitutional delegation of legislative authority.
I agree with the Kansas Attorney General's description of how the proposed legislation would operate. If Wisconsin were to adopt the compact, Wisconsin would be required to give "absolute reciprocity" to other states' licensing criteria, and Wisconsin would be required to allow persons licensed in party states to engage in multistate practice in Wisconsin. However, because of the conflicting methods of analysis represented in the Wagner and Wakeen cases, I cannot predict with the certainty that the Kansas and Nebraska Attorneys General predicted for their states that the Wisconsin courts would determine such undiscriminating reciprocity to be an unconstitutional delegation of the legislative power under Wisconsin Constitution article IV, § 1.
James E. Doyle
1. At issue in Wagner was a city of Milwaukee ordinance that adopted a prevailing wage scale for any work done for the city or a city contractor, and set the prevailing wage as "‘the wage paid to members of any regular and recognized organization of such skilled laborers for such skilled labor.'" 177 Wis. at 411.
2. At issue in Wakeen was whether the Legislature could constitutionally define "drug" to be "‘[a]rticles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any [future] supplement to any of them,'" 263 Wis. at 404, in a statute that prohibited the sale of "drugs" by persons other than registered pharmacists. The court allowed the Legislature to define "drug" by reference to future standards promulgated by these national organizations. Compare 59 Op. Att'y Gen. 31, 34-35 (1970) (Legislature may not constitutionally incorporate by reference prospective standards or amendments).