Outcome limits Department of Public Instruction’s rulemaking authority
By Scott Bellile
A Wisconsin State Supreme Court Case ended in a New London plaintiff’s favor.
The Supreme Court on June 25 issued a 4-2 decision in Koschkee v. Taylor that sided with the Milwaukee-based conservative law firm Wisconsin Institute for Law and Liberty.
Two years ago, New London resident Chris Martinson, two Wisconsin teachers and a school board member joined WILL in suing the state Department of Public Instruction over its alleged violation of 2017 Wisconsin Act 57, also known as the Regulations from the Executive in Need of Scrutiny Act.
The state Legislature in 2017 passed the REINS Act, which requires state agencies such as the DPI to submit to the Department of Administration scope statements laying out their visions for new administrative rules before proposing or drafting those rules. The DOA then assesses if the state agency has the authority to make that rule.
The DOA makes a non-binding recommendation to the governor, who may then decide whether to grant the agency written approval to make the rule.
In 2017, WILL sued then-State Superintendent Tony Evers. WILL alleged the Democrat and his DPI did not follow these procedures with then-Republican Gov. Scott Walker.
The state superintendent – first Evers, until he was elected governor in 2018, then his successor, Carolyn Stanford Taylor – and the DPI argued the governor’s approval on scopes is unnecessary because no state officer can act as the state superintendent’s superior with regard to the supervision of public instruction.
In last week’s majority opinion, the Supreme Court wrote rulemaking is a legislative power that is delegated to the state superintendent, so the Legislature may limit or take that power away from the superintendent as it chooses.
“We conclude that the gubernatorial approval requirement for rulemaking is constitutional as applied to the (state superintendent) and DPI,” the majority opinion states.
Siding with WILL were the court’s conservative justices: Chief Justice Patience Roggensack, Annette Ziegler, Rebecca Bradley and Daniel Kelly.
Dissenting were two liberal justices, Rebecca Dallet and Ann Bradley. The court’s third liberal justice, Shirley Abrahamson, withdrew from participation.
Martinson calls outcome a ‘victory’
In a statement, Martinson called the Supreme Court’s decision “a victory for self-governance, the rule of law, and for constitutional checks and balances.”
“Tony Evers and his successor thought they could make the laws without oversight from the legislature and the executive branch,” Martinson stated. “I applaud the Wisconsin Supreme Court for restoring accountability to the Department of Public Instruction. This outcome begs the question: how can citizens trust the DPI to set standards for k-12 education, when its leaders have forgotten basic civics?”
Joining Martinson as petitioners in WILL’s lawsuit were Kristi Koschkee, Pleasant Prairie teacher; Amy Rosno, virtual educator and former Burlington teacher; and Mary Carney, former Marshfield School Board member.
School board not part of suit
When Martinson became a petitioner in 2017, he was serving on the New London School Board.
Some board members were displeased at the time because the petition identified him as a New London School Board member. Board members worried people learning about his involvement in the news would conclude Martinson was suing Evers and the DPI on behalf of the New London School Board.
“His decision to take sides in a politically charged topic as stated in the petition as a member of the New London School Board has the potential of causing unrest with our staff, community and board, as well as causing harm to our working relationship with colleagues and state representatives,” then-School Board President Kim Schroeder told the board in December 2017.
This resulted in the school board issuing a statement clarifying Martinson was participating in the lawsuit as an individual, not an elected official.
“It is important to know that the School District of New London, inclusive of its staff, teachers, administrators and board of education, has not authorized this lawsuit and is not a party to it, nor will it spend taxpayer dollars or resources on such litigations,” the school board wrote in a letter to the Press Star.
Martinson stressed last week that he “sued as an individual citizen, not on behalf of the school board.” (New London area residents voted Martinson off the school board in April.)
Reactions around the state
Gov. Evers expressed disappointment in a statement regarding the Supreme Court’s ruling.
He issued a statement saying the Supreme Court in 2016 decided the state superintendent had the authority to propose rules without the governor’s oversight in Coyne v. Walker, a case regarding 2011 Wisconsin Act 21.
“Both conservative and liberal justices agreed then that the constitution prevented the governor from vetoing rules overseeing public schools,” Evers stated. “The facts didn’t change in the last three years and neither did the meaning of the constitution. Only the composition of the court did.”
State Superintendent Stanford Taylor also issued a statement disagreeing with the Supreme Court.
“The Wisconsin Supreme Court’s decision does not affect the constitutional independence of the Office of the State Superintendent. It is limited to rulemaking,” Stanford Taylor stated. “While I am disappointed, we remain committed to Wisconsin schools and students and will continue our work to ensure each student is college and career ready.”
Meanwhile, WILL said in a press release the Legislature has increasingly delegated rulemaking authority to state agencies, so the Supreme Court’s 4-2 decision demonstrates it is “important to limit agency discretion so as not to create a runaway administrative state.”
“Given that the DPI has generally been a captive of the educational establishment and hostile to school choice, this decision is a huge victory for Wisconsin’s kids,” WILL President and General Counsel Rick Esenberg said in a statement. “It is also a huge win for democratic government, the separation of powers, and public accountability.”