By Bethany Blankley for Watchdog.org
In its ongoing legal battle against the Department of Public Instruction (DPI), the Wisconsin Institute for Law and Liberty (WILL) presented oral arguments at the state Supreme Court last week, asking it to clarify the constitutional powers of the department’s superintendent in relation to the legislature and the governor.
WILL asked the State Supreme Court to follow the text of the Constitution and clarify whether its 2016 decision in Coyne v. Walker limits the ability of the Legislature to determine how agency rules are implemented.
WILL president and general counsel Rick Esenberg argued that the DPI and its superintendent cannot ignore the stipulations of the REINS Act.
“The Coyne decision produced an outcome but not a majority opinion setting forth the reason that the legislature cannot control rulemaking as it sees fit,” Esenberg said in a statement. “When the legislature chooses to allow agencies to make rules, it has the right – and the duty – to properly control that rulemaking. Because the power to make law is given to the legislature, it has broad authority to decide how rules are to be made and to structure public education as it sees fit.”
At issue is the 2016 Coyne v. Walker ruling in which the state Supreme Court held that a law requiring the DPI to obtain gubernatorial approval for regulations was an unconstitutional violation of the state superintendent’s constitutional right to supervise public instruction. In 2017, then DPI Superintendent Tony Evers ignored REINS Act requirements.
The REINS Act, which became law in 2017, gave the Legislature greater oversight over regulations imposed by agencies. In response to the superintendent and DPI ignoring REINS, a group of taxpayers objected and filed a lawsuit against DPI.
WILL asked the state Supreme Court to hear the case directly, bypassing the lower courts, requesting that it clarify its 2016 ruling, which stated the DPI superintendent is tasked with the “supervision of public instruction.”
According to the state Constitution, WILL notes, this task is already defined: “The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties and compensation shall be prescribed by law.”
Kristi Koschkee, a plaintiff and public school teacher, said, “I strongly object to the Department of Public Instruction violating the rule of law and am very thankful that the State Supreme Court will hear our case. There needs to be greater oversight on State Superintendent Taylor and her DPI so it is very frustrating that the REINS Act has not been followed.”
The justices listened to 90 minutes of oral arguments, and according to the Associated Press, “The court’s two liberal-leaning justices sounded skeptical.”
Jeffrey Mandell, an attorney representing the plaintiffs in Coyne, was allowed five minutes to speak. He told the judges that the matter was already decided in Coyne, “and that’s the end of it.”
Justice Ann Walsh Bradley asked Esenberg if he filed the lawsuit because two of the justices who voted in favor of the superintendent are no longer on the court. The superintendent’s position is “being kicked around like a political football,” she said.
Esenberg replied that the Legislature is the final arbiter on which agency head can and can’t implement policy.
“We filed the suit because there was no majority opinion in the Coyne case, just a collection of differing views of the individual justices,” he added in an email to Watchdog.org. “If we are to depart from the clear text of the Constitution and limit the ability of the legislature to say how rules are to be made, it would be best if a majority of the Court could agree on the reason. If it cannot, then perhaps Coyne was wrongly decided and should be reversed.”
The court is expected to announce its decision at the end of its term in July.
Bethany Blankley is a contributor to Watchdog.org.