7.
An unexpired identification card receipt under s.
343.50;
8. An identification card issued by a federally recognized Indian tribe in this state;
9.
An unexpired identification card issued by a university or college in this state that is accredited as defined in s.
39.30 (1) (d).
On November 9, 2011, the G.A.B. made a determination that a Wisconsin Technical College System institution is accredited under Wis. Stats. s.
39.30 (1) (d). Based on that determination, the Board directed staff to include WTCS student ID cards as an acceptable form of identification for voting in its training and educational materials as part of the agency's responsibility to administer the voter identification law pursuant to Wis. Stats. s.
5.05 (1).
The Board's analysis applied judicially accepted rules of statutory interpretation. It looked first to the plain language of the statute. The Board determined that WTCS institutions are accredited under Wis. Stats. s.
39.30 (1) (d). In the absence of an applicable statutory definition of college or university, the Board relied on commonly used dictionary definitions of college which included institutions similar to the WTCS.
In applying the plain language of the statute as required by law, the Board chose not to rely on a staff analysis which traced the legislative history of the student identification card provision in Act 23. The Board noted in its consideration that a comparison of the new identification requirement with statutory provisions related to the use of student identification cards for voter registration was not applicable because the separate reference to technical colleges was a result of a Revisor's correction in the 1990's to harmonize the terms technical college and technical institution.
The Board did not give weight to a failed legislative amendment explicitly authorizing the use of WTCS student ID cards for voting because it relied on the plain language of the statute defining the types of higher education institutions whose student identification cards were acceptable for use for voting. In addition, the Board recognized a failed legislative amendment could be viewed as failing because it was not necessary, not just because the Legislature was explicitly denying the policy. In view of the plain language of the statute linking the use of identification cards to those higher education institutions accredited under Wis. Stats. s.
39.30 (1) (d), the Board determined that it and a reviewing court would not attempt to decipher legislative intent under standard rules of statutory construction.
The Board did not determine whether permitting the use of WTCS student ID cards for voting was good public policy. It determined that the law as written included WTCS institutions. As a result, 400,000 WTCS students have as an alternative the same use of a student identification card for voting purposes that is available to students at other universities and colleges in Wisconsin. The Board viewed its determination as equivalent to acknowledging that students at University of Wisconsin System institutions could use a student ID card for voting purposes, a conclusion which would seem to not require separate rule-making to implement.
The alternative to promulgating this rule is to significantly restrict the number of electors who may use a student identification card in order to receive a ballot. The Board addressed this issue because agency staff raised a question about legislative intent as it was developing its implementation approach to training local election officials and educating the public on the voter identification requirement which goes into effect for the February 2012 Spring Primary Election.
Statutory Authority
The Board issued its determination pursuant to its responsibility and authority to issue advisory opinions under section
5.05 (6a), Stats., and to conduct voter education under section 5.05 (12). However, given the directive of JCRAR, section
5.05 (1) (f) Stats., provides explicit authority for the G.A.B. to promulgate rules to ensure the proper administration of elections. Section
227.11 (2) (a), Stats., provides clear authority for the G.A.B. to promulgate rules to ensure the proper administration of statutes under its jurisdiction, which includes laws related to the administration of elections.
Comparison with Federal Regulations
The 2002 federal Help America Vote Act (HAVA),
42 USC 15301 et seq., contains a provision requiring states to receive identification from individuals who register to vote for the first time, by mail. HAVA Section 303 (b)(2)(A)(i)(I). That requirement is a voter registration requirement and is much more general than the state identification requirement for receiving a ballot. The federal requirement simply refers to a “current and valid photo identification." The federal requirement does not delineate specific types of photo identification as does the Wisconsin statute.
Entities Affected by the Rules
WTCS institutions desiring to issue student identification cards acceptable for voting purposes will be affected by this rule. All students at a WTCS institution also will be affected by this rule as well as Wisconsin's 1,851 municipal clerks responsible for administering elections and approximately 25,000 poll workers who staff voting locations on Election Day. The impact of the rule will be on town, village and city government. The rule does not impact businesses, private economic sectors or public utility ratepayers.
Economic Impact
The rule will have minimal or no impact on the governmental entities impacted by the rule. Municipal clerks and poll workers will be provided with informational and training materials on the acceptable forms of identification for voting. This rule merely adds some additional types of identification to the materials. In fact the rule will eliminate possible confusion if a voter offers a technical college student identification card when appearing at the polling place to vote.
Estimate of Time Needed to Develop the Rules
10 hours.
Agency Contact
Shane Falk, Staff Counsel
Wisconsin Government Accountability Board
212 E. Washington Avenue, Third Floor
P.O. Box 7984
Madison, WI 53707-7984
Office: (608) 266-8005
Direct: (608) 266-2094
Justice
This statement of scope was approved by the governor on December 19, 2011.
Rule No.
Relating to
Licenses authorizing persons to carry concealed weapons; the certification of firearm safety and training instructors; the recognition by Wisconsin of concealed carry licenses issued by other states; and concealed carry certification cards for qualified former federal law enforcement officers.
Description of the Objectives of the Rules
The State of Wisconsin Department of Justice (“DOJ") proposes to promulgate permanent administrative rules relating to the implementation of DOJ's statutory responsibilities under
2011 Wis. Act 35 regarding licenses authorizing persons to carry concealed weapons, the certification of firearm safety and training instructors, the recognition by Wisconsin of concealed carry licenses issued by other states, and concealed carry certification cards for qualified former federal law enforcement officers.
The proposed permanent rules will correspond to and have the same scope as the emergency rules covering the same subjects, the scope and substance of which were approved by the Governor on August 5 and October 14, 2011, and which were adopted by DOJ on October 25, 2011, with an effective date of November 1, 2011.
See Orders Adopting Emergency Rules DOJ-2011-01 and DOJ-2011-02. The emergency rules are effective for 150 days, until March 30, 2012. At the present time, there have been no requests to extend the life of the emergency rules under Wis. Stat. s.
227.24 (2).
On November 7, 2011, the Joint Committee for the Review of Administrative Rules, acting pursuant to Wis. Stat. s.
227.26 (2) (d), suspended the following portions of the above-referenced emergency rules:
•
Portion of Jus 17.03 (8) requiring that a “firearms safety or training course" be reasonably calculated to “test" a student's comprehension and application of firearm safety rules and safe firearm handling;
•
Portion of Jus 17.03 (8) requiring that a “firearms safety or training course" include “at least four hours" of training;
•
Portion of Jus 17.03 (13) requiring that a “national or state organization that certifies firearms instructors" must “require[] firearms instructors to successfully complete instructor training of at least eight hours in length;"
•
Jus 17.05 (2) (c), requiring that documentation of a license applicant's firearms training must include the “length in hours of the firearms safety or training course;"
•
Jus 17.05 (2) (e), requiring that documentation of a license applicant's firearms training must include “the city and state in which the applicant completed the firearms safety or training course;"
•
Jus 17.05 (2) (f), requiring that documentation of a license applicant's firearms training must include “the name, address and telephone number of the person or entity responsible for the firearms safety or training course;" and
•
Jus 17.05 (2) (h), requiring that documentation of a license applicant's firearms training must include a “signed statement by the instructor who taught the firearms safety or training course to the applicant affirming that the course satisfied the definition of a firearms safety or training course in Jus 17.03 (8) and that the applicant successfully completed the course."
In accordance with Wis. Stat. s.
227.26 (2) (L), the permanent rules proposed in the present scope statement will not include the substance of any of the suspended provisions enumerated above. The scope of the permanent rules, as described in this statement, is consistent with this requirement.
The proposed rules will cover five subject areas:
First, there will be rules governing the issuance of concealed carry licenses to qualified applicants by DOJ pursuant to s.
175.60, Stats. These rules will govern all aspects of the licensing process and will describe the procedures and standards under which DOJ will process applications, set and collect fees, and verify that each license applicant meets all of the license eligibility requirements under s.
175.60 (3), Stats., including procedures and standards for certifying that an applicant has satisfied the applicable statutory training requirements and procedures for conducting the statutorily required background check of each applicant to determine whether the applicant is prohibited from possessing a firearm under state or federal law.
Second, the rules will govern the administration of concealed carry licenses that have been issued by DOJ. These rules will cover: the maintenance and treatment of licensing records by DOJ; the receipt and processing by DOJ of information from courts regarding individuals subject to a court imposed disqualification from possessing a dangerous weapon; procedures for renewing a license and replacing a license that is lost, stolen, or destroyed; procedures for processing address changes or name changes by licensees; procedures and standards for revoking or suspending a license; procedures for the administrative review by DOJ of any denial, suspension, or revocation of a license; and procedures governing DOJ's cooperation with courts and law enforcement agencies in relation to emergency licenses issued by a court. The administrative review process will include procedures for conducting fingerprint checks to verify the identity of any applicant who seeks review of an ineligibility determination based on the initial background check.
Third, the rules will govern the procedures and standards for the qualification and certification of firearms instructors by DOJ under s.
175.60 (4) (b), Stats., and will provide a definition identifying those firearm instructors who are certified by a national or state organization, as provided in s.
175.60 (4) (a), Stats.
Fourth, pursuant to s.
165.25 (12m), Stats., the rules will designate those states other than Wisconsin that issue a permit, license, approval, or other authorization to carry a concealed weapon that is entitled to recognition in Wisconsin under s.
175.60 (1) (f), Stats., because the permit, license, approval, or other authorization requires, or designates that the holder chose to submit to, a background search that is comparable to the type of background check that DOJ is required to conduct for Wisconsin licensees under s.
175.60 (9g), Stats.
Fifth, the rules will govern the procedures and standards under which DOJ will issue concealed carry certification cards to qualified former federal law enforcement officers pursuant to s.
175.49, Stats. These rules will govern all aspects of the certification process for former federal officers who reside in Wisconsin and will describe the procedures and standards under which DOJ will process applications, set and collect fees, and verify that each applicant meets all of the certification eligibility requirements under s.
175.49 (3) (b), Stats., including procedures and standards for certifying that an applicant has satisfied the firearm qualification requirement under s.
175.49 (3) (b) 5., Stats., and procedures for conducting the statutorily required background check of each applicant to determine whether the applicant is prohibited from possessing a firearm under federal law. The rules will also cover: the maintenance and treatment of certification records by DOJ; procedures for renewing a certification card and replacing a card that is lost, stolen, or destroyed; procedures for processing address changes or name changes by a certified former federal officer; procedures and standards for revoking or suspending a certification; and procedures for the administrative review by DOJ of any denial, suspension, or revocation of a certification. The administrative review process will include procedures for conducting fingerprint checks to verify the identity of any applicant who seeks review of an ineligibility determination based on the initial background check.
Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
In
2011 Wisconsin Act 35, the state of Wisconsin established a new system under which DOJ is required to issue licenses authorizing eligible Wisconsin residents to carry concealed weapons in Wisconsin and to certify firearms safety and training instructors. The legislation also authorizes DOJ to issue concealed carry certification cards to qualified former federal law enforcement officers who reside in Wisconsin. Because the concealed carry licensing and certification programs established by Act 35 are new, there are no existing DOJ practices or policies that cover the subject areas of the administrative rules here proposed other than the emergency rules that went into effect on November 1, 2011.
Most of the proposed rules simply carry into effect the legislative directives set forth in Act 35. In a few areas, the proposed rules articulate policies which give substance to undefined statutory terms or are needed to ensure that licenses and certification cards are issued only to eligible individuals and that all applicants and licensees are properly identified at all times. Such rules are specifically intended to carry out the legislature's intent reflected in Act 35.
For example, the proposed rules provide definitions of such undefined statutory terms as “firearms safety or training course" and “national or state organization that certifies firearms instructors." Such definitions are necessary to give substantive content to these otherwise undefined statutory terms so as to carry out the legislative purposes of ensuring that all licensees have been trained in firearms and firearms safety and of ensuring that all certified firearms instructors have demonstrated the ability and knowledge required for providing training in firearms and firearms safety. The policy alternative of not defining such terms in DOJ's administrative rules would be contrary to those important legislative purposes.
Similarly, the proposed rules specify the types of information that must be included in a training certificate or affidavit in order for DOJ to find that certificate or affidavit to be sufficient to satisfy the training documentation requirements in s. 175.6(4(a), Stats. Such specification is necessary to give substantive content to the statutory documentation requirements so as to carry out the legislative purpose of ensuring that every successful applicant for a concealed carry license has adequately demonstrated completion of at least one of the forms of statutorily required training. The policy alternative of not specifying the required contents of an acceptable training certificate or affidavit in DOJ's administrative rules would be contrary to that important legislative purpose.
Likewise, the proposed rule designating those states other than Wisconsin that conduct a background check for concealed carry licensees comparable to Wisconsin's background check is necessary to comply with the statutory requirement of s.
165.25 (12m), Stats. That rule will enable law enforcement officers and others to determine whether a particular concealed carry license issued by another state is entitled to recognition as an “out-of-state license" as defined in s.
175.60 (1) (f), Stats. The alternative of not promulgating such a rule would violate the requirements of s.
165.25 (12m), Stats., and would be contrary to the purpose of facilitating recognition of out-of-state licenses.
The proposed rules also contain procedures for issuing a new concealed carry license or certification card to an individual who changes his or her name, and procedures under which DOJ will work cooperatively with courts and law enforcement agencies in relation to any emergency concealed carry license that may be issued by a court, pursuant to s.
175.60 (9r). These procedures are not specifically required by statute but are necessary to carry out the legislative purposes of ensuring that licenses and certification cards are issued only to eligible individuals and that all applicants and licensees are properly identified at all times. The policy alternative of not including such procedures in DOJ's administrative rules would be contrary to those important legislative purposes.
Statutory Authority for the Rule (Including the Statutory Citation and Language)
The portion of the proposed rules designating those states other than Wisconsin that conduct a background check for concealed carry licensees comparable to Wisconsin's background check is expressly authorized by s.
165.25 (12m), Stats., which requires DOJ to:
Promulgate by rule a list of states that issue a permit, license, approval, or other authorization to carry a concealed weapon if the permit, license, approval, or other authorization requires, or designates that the holder chose to submit to, a background search that is comparable to a background check as defined in s.
175.60 (1) (ac).
Those portions of the proposed rules that will establish the amount of the fee to be charged for a concealed carry license are expressly and specifically authorized and required by s.
175.60 (7), Stats., which provides:
SUBMISSION OF APPLICATION. An individual may apply for a license under this section with the department by submitting, by mail or other means made available by the department, to the department all of the following:
…
(c) A license fee in an amount, as determined by the department by rule, that is equal to the cost of issuing the license but does not exceed $37. The department shall determine the costs of issuing a license by using a 5-year planning period.
Those portions of the proposed rules that will establish procedures for the administrative review by DOJ of any denial, suspension, or revocation of a license are expressly and specifically authorized by s.
175.60 (14g), Stats., which provides:
DEPARTMENTAL REVIEW. The department shall promulgate rules providing for the review of any action by the department denying an application for, or suspending or revoking, a license under this section.
Those portions of the proposed rules that will establish the amount of the fee to be charged for the renewal of a concealed carry license are expressly and specifically authorized by s.
175.60 (15) (b), Stats., which provides:
The department shall renew the license if, no later than 90 days after the expiration date of the license, the licensee does all of the following:
…
4. Pays all of the following:
a. A renewal fee in an amount, as determined by the department by rule, that is equal to the cost of renewing the license but does not exceed $12. The department shall determine the costs of renewing a license by using a 5-year planning period.
(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.
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.
