Legal Updates


DÉJÀ VU: ANOTHER ATTEMPT TO LIMIT THE POWER OF THE SUPERINTENDENT AND DEPARTMENT OF PUBLIC INSTRUCTION

December 5, 2017

On November 20, 2017, the Wisconsin Institute for Law and Liberty (WILL) filed an original action in the Wisconsin Supreme Court against Tony Evers (Superintendent) and the Wisconsin Department of Public Instruction (DPI) seeking a declaratory judgment (declaring that DPI must comply with all portions of state law) and an injunction (requiring DPI to cease the illegal expenditure of taxpayer funds proposing new rules). At issue is whether DPI is adhering to the provisions of state law. This is the latest challenge in a more than two-decade long battle to limit the power of the Superintendent and DPI.

1995 Wisconsin Act 27 (Act 27) created a state Education Commission, a state Department of Education and the position of Secretary of Education. A group of taxpayers and school teachers filed a petition with the Wisconsin Supreme Court asserting that Act 27 strips the Superintendent of his power under Article X of the Wisconsin Constitution, to supervise education in Wisconsin. The Wisconsin Supreme Court determined that Act 27 unconstitutionally gave former powers of the elected Superintendent to appointed “other officers” at the state level, who are not subordinate to the Superintendent and, therefore, held such provisions in Act 27 to be void. Thompson v. Craney, 199 Wis. 2d 674 (1996).

Effective June 8, 2011, 2011 Wisconsin Act 21 (Act 21) changed the law relating to state agency rulemaking in various ways to limit the power of state agencies, including the DPI. Among other things, Act 21 amended portions of Chapter 227 of the Wisconsin Statutes (the Wisconsin Administrative Procedures Act), which governs the procedures state agencies must follow in order to promulgate administrative rules, to allow the Governor (and in some instances the Secretary of Administration) to permanently halt the rulemaking process. A group of taxpayers and school teachers sought a declaratory judgment that Act 21 was unconstitutional as applied to the Superintendent and DPI. Ultimately, the Wisconsin Supreme Court concluded (in a 4-3 decision) that Act 21 was unconstitutional and void as applied to the Superintendent and DPI. Coyne v. Walker, 368 Wis. 2d 444 (2016). In so doing, the Supreme Court determined that Act 21 unconstitutionally vested the Governor and Secretary of Administration with the supervision of public instruction in violation of Article I of the Wisconsin Constitution because it did not allow the Superintendent and DPI to proceed with their duties of supervision without the Governor’s, and in some circumstances, the Secretary of Administration’s, approval.

It would appear that WILL is now seeking another kick at the cat (if you will) in an effort to strip the Superintendent and DPI of power. WILL is challenging the Supreme Court’s conclusion that the Superintendent and DPI are exempt from the provisions of Act 21. This time, however, WILL’s objection is premised on an alleged violation of recently enacted 2017 Wisconsin Act 57 (effective September 1, 2017), known as the Regulations from the Executive in Need of Scrutiny Act (REINS Act).

The REINS Act amends certain parts of Chapter 227 of the Wisconsin Statutes again relating to the procedures state agencies must follow in order to promulgate administrative rules. Specifically, Wis. Stat. § 227.135(2) was amended to require that any agency that proposes to promulgate a rule must first submit a statement of scope for the proposed rule to the Department of Administration, which shall make a determination as to whether the agency has the explicit authority to promulgate the rule as proposed in the statement of scope. Wis. Stat. § 227.135(2) was further amended to provide that after the Department of Administration makes a determination of the agency’s authority to promulgate the proposed rule, it then reports on that determination to the Governor who may then approve or reject the approved rule. Only if approved by the Governor may the agency submit the statement of scope to the Legislative Reference Bureau.

WILL contends that only after the Department of Administration has made a determination as to an agency’s authority to promulgate the rule and the Governor has issued a notice of approval may the agency take the next necessary step and submit the statement of scope to the legislative reference bureau. WILL cites to multiple examples in September and October of 2017 where the Superintendent and DPI forwarded statements of scope for proposed rules to the Legislative Reference Bureau, but did not first submit the statements of scope to the Department of Administration, as required by the REINS Act. Nor have such statements of scope been approved by the Governor. Accordingly, WILL contends that the Superintendent and DPI are illegally spending taxpayer money by proposing new rules in violation of the REINS Act.

The issue here will be whether the Supreme Court’s decision in Coyne v. Walker exempts the Superintendent and DPI from having to adhere to the REINS Act. On its face, the Supreme Court’s decision in Coyne v. Walker is arguably not controlling (having been rendered prior to the effective date of implementation of the REINS Act and not specifically addressing the REINS Act). That being said, a similar result using the same analysis is likely. The Wisconsin Supreme Court has not yet decided whether it will take the case.

Of course, the parties will make their legal arguments moving forward, but this effort appears to have more to do with the change in the make-up of the Wisconsin Supreme Court since it decided Coyne v. Walker, than the merits of the case and the possibility that shakeup may result in a different outcome this time around. Conservatives still control the Supreme Court, but in Coyne v. Walker, two of the five conservative justices (Michael Gableman and David Prosser) sided with the Supreme Court’s two liberals to form a majority that exempted the Superintendent and DPI from Act 21. Since then, Justice Prosser has been replaced by Justice Daniel Kelly, giving WILL a chance to revisit the case and possibility prevail.

On November 30, 2017, a group of teachers and parents filed an action in Dane County Circuit Court seeking to expand an injunction issued in 2012 that blocked Act 21 from application as to the Superintendent and DPI because it interfered with the Superintendent’s powers as an independently elected official.

Further complicating the matter is a battle over the Superintendent’s legal representation. Governor Walker and Attorney General Brad Schimel want Schimel to represent the Superintendent. The Superintendent has asked the Supreme Court to use the chief counsel of the DPI.

Stay tuned!

For questions regarding this article, please contact the author, Attorney Tony J. Renning (email: trenning@strangpatteson.com; telephone (844.833.0823 toll free) or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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