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Legal Framework of Establishing Rulemaking Invalidity on the Basis of Want of Authorization : Minnesota Statutes § 14.05 requires specific authorization
State agencies (the executive branch) carry out the law that the Legislature creates and the judiciary regulates such use of powers, including balance of powers. Basic stuff, right?
Unfortunately, Minnesota government, partly due to so many decades of domination by a single political party, which fosters a "don't-rock-the-boat" attitude and laxness about necessary proprieties, as manifest in this case, is operating at an imbalance of the powers, which calls for the judiciary taking a firm hand to reset the balance. This is evident in a general sense and several specific aspects.
Generally, the Legislature should be making all fixed, substantive policy. It should decide if there should be a CRT overhaul and articulate the substances of that policy, which it certainly did not do. What is left to rulemaking, by the administration (the executive branch), is its and its agencies' plans of how they specifically will implement and operate the policy handed to them, as the administrators of the policy from the legislature.
Here, we have PELSB, by its own leave, saying the policy is old, so, on that basis, it will usurp the power to change policy as it wills, in spite of overwhelming indications of the a rapidly growing majority of principled public disagreements, clearly a tip of the iceberg of ready to be discovered latent public discontent or disapproval.
First of all, pedagogy does not expire. Pedagogies include some of the oldest text and history civilization has, including much with currently needed skills-development to create the life-long-learners, what the Minnesota Constitution charges the Minnesota Legislature to specifically facilitate.
That being said, the most concrete reason PELSB provides for these actions, which they seek to exert, is that the pedagogy standards were mostly written a dreadful twenty years ago. The last time these standards were changed was when physcially-available classroom technology changed; there is no reason to suppose that in the act of the Legislature's creating PELSB, the Legislature envisioned PELSB coming back to it for just such changes, when or if the need arose.
It is irrefutable that the paragraph where PELSB lied (represented false text as a direct quotation) about the statutes, as supposedly being its authority, is precisely declining to say PELSB should update the standards. The Legislature literally says carry on with implementation of your new organization but keep the basis of the pedagogy standards the same--naming a specific model--the one used 20 years ago--not either newer model. Yet, OAH (ALJ Mortenson and the Chief ALJ Starr) take the word of PELSB telling OAH that updating to the new model is a primary reason for their changes.
When we (Education Standards of America) confronted PELSB about the clear lack of the necessary act from the Legislature, focusing very specifically on the clear technical procedural faults controlled by the actual education and Chapter 14 text, as opposed to inviting them represent our remarks as only about bigger picture issues, which are not so obviously deadly, PELSB lied to ALJ Mortenson about what the text of the statutes said. In a sitation where one party lies to the decision-maker about material facts and the decision-maker expresses having taken action in consideration that such false material was true, such is called fraud (until the party that lied proves such was not deliberate).
Indeed, when we noticed the risk of ALJ Mortenson being defrauded, we communicated that risk, following the protocol of notifying the opposing party and demonstrating such in notice to the decision-maker.
Instead of ensuring that ALJ Mortenson not be beguiled by a false purported direct quotation of the statutes, to which PELSB had added words to strengthen its argument, the Chief ALJ has allowed ALJ Mortenson to clearly demonstrate a degree of reliance upon the bogus added words.
The worse factor is that with the spoliative quotation PELSB issued as a rebuttal to us, PELSB falsely represented that one quotation settled the whole issue of the lack of authorization, but beyond the plain textual deficient, lies a broad and consistent field of statutory indications that PELSB cannot act to change these rules, at all, without obtaining an act from the Legislature (which should articulate the substance of the policy that PELSB is to then to promulgate rules as to how PELSB is merely implementing the legislatively decided policy).
