Suit targets state superintendent
By Scott Bellile
New London resident and school board member Chris Martinson is a plaintiff in a lawsuit against Wisconsin State Superintendent Tony Evers.
The Milwaukee-based Wisconsin Institute for Law & Liberty sued Evers on behalf of several taxpayers, including Martinson, who serve on school boards or teach in public schools, WILL announced in a news release on Nov. 20.
WILL’s lawsuit claims that Evers and the Wisconsin Department of Public Instruction are not following the Regulations from the Executive in Need of Scrutiny Act, or REINS Act. The act was signed into law by Republican Gov. Scott Walker in August.
“I think the more we can confine the DPI’s authority to what the legislature’s lawfully given them then the more local control we’ll have as school boards to make decisions locally rather than in Madison,” Martinson said.
Martinson pointed to one local example of what he viewed as state overreach into local matters: the DPI denying the School District of New London an exception to a state law that public schools cannot begin a school year before Sept. 1.
The school district applied for the exception last winter in hopes of beginning the 2017-18 academic year on Aug. 30, due to Sept. 1 falling on a Friday and the following Monday being Labor Day.
Joining Martinson as plaintiffs in the lawsuit are Mary Carney of Marshfield, Kristi Koschkee of Pleasant Prairie and Amy Rosno of Burlington. Carney serves on the Marshfield School Board while Koschkee and Rosno are educators.
All four are participating as taxpaying citizens and are not representing their school districts, Martinson said.
Purpose of REINS Act
The REINS Act gives the Wisconsin State Legislature more oversight over state agencies when they make rules. According to the bill’s text, the act makes four changes to the rule-making process:
• Requires a state agency to submit its scope statements for a proposed rule to the Wisconsin Department of Administration, which will determine if that state agency has the authority to write the new rule before it is drafted.
• Allows the legislature’s Joint Committee for the Review of Administrative Rules to request independent economic impact analyses for proposed rules.
• Requires state agencies to hold public hearings and comment periods on proposed rules if the aforementioned Joint Committee sees the need.
• Requires that any new regulation whose implementation and compliance is expected to cost at least $10 million over a two-year period be approved in the form of a bill passed by the state legislature.
The REINS Act was passed on party lines in the state Senate and Assembly. Most Republicans voted for it and all Democrats opposed it.
WILL: Evers ‘blatantly violating’ law
According to Politifact, WILL is a public interest law firm that initiates legal actions on a range of public issues. WILL takes conservative and libertarian views in its actions.
WILL claims that Evers and the DPI have violated the REINS Act since its passage by not sending scope statements to the Department of Administration.
“State Superintendent Evers is blatantly violating newly enacted state law,” Rick Esenberg, WILL president and general counsel, said in a statement. “The legislature passed the REINS Act to make all agencies, including the Department of Public Instruction, more accountable to the elected-state legislature and open to the people of Wisconsin. No one, including Superintendent Evers, is above the rule of law in Wisconsin.
“This is a case that needs to be heard by the Supreme Court,” Esenberg continued. “It requires clarification of a recent Supreme Court decision [Coyne v. Walker] that had multiple opinions, none of which had support from a majority of justices. Moreover time is of the essence; rules promulgated by DPI impact hundreds of school districts, tens of thousands of teachers and administrators, and hundreds of thousands of parents and students throughout the state.”
Last year in Coyne v. Walker, justices ruled 4-3 that the 2011 Wisconsin Act 21 gave the governor unconstitutional freedom to veto the state superintendent’s scope statements for proposed DPI rules.
WILL predicted the DPI will argue that Coyne v. Walker protects the state superintendent from components of the REINS Act.
Evers fights back
Evers is one of numerous Democrats running against Walker in the 2018 gubernatorial election. His campaign has been vocal in its criticism of the lawsuit.
On Nov. 28, Evers announced he refuses to be represented by Republican Attorney General Brad Schimel in the lawsuit, citing a conflict of interest. Evers wants to hire his own attorney.
“I just have one thing to say to Scott Walker’s hand-picked lawyers – you’re fired,” Evers said in a statement. “You’re fired for abusing your power in order to force your right-wing agenda on our public schools. You’re fired because, in a democracy, the Governor doesn’t get to choose his opponents on the ballot or his opponent’s lawyers in court.”
However, Schimel has declined to step aside because he is the state’s legal representation.
“We know that Scott Walker and his allies will go to the mat to try to stop Tony from choosing his own attorney,” Evers’s campaign stated on Nov. 28. “Scott Walker wants his attorneys to represent both sides of this case, guaranteeing a win for the governor.”