The Wisconsin Supreme Court ruled Tuesday that the Department of Public Instruction (DPI) must comply with the REINS Act and the agency’s rules are subject to review by the legislature and the governor.

Wisconsin Institute for Law & Liberty (WILL) sued DPI last year when Governor Tony Evers was still the state Superintendent of Public Instruction. As superintendent, Evers said DPI did not have to comply with the REINS Act because the Superintendent of Public Instruction (SPI) is a constitutional office.

However, the Wisconsin Supreme Court ruled 4-2 that the powers of DPI are from the legislature and therefore subject to the legislature’s limits.

“…when the SPI, through the DPI, promulgates rules, it is exercising legislative power that comes not from the constitution but from the legislature,” the majority opinion stated. “Stated otherwise, the legislature delegates part of its constitutional power to legislate to the SPI, DPI, and many other agencies in the form of rulemaking power.”

Chief Justice Patience (Pat) Roggensack, Justice Dan Kelly, Justice Rebecca Bradley and Justice Annette Ziegler decided in favor of WILL and the plaintiffs. Justices Ann Walsh Bradley and Rebecca Dallet dissented.

WILL President and General Counsel Rick Esenberg said Tuesday:

“Today, the Wisconsin Supreme Court held that the State Superintendent of Public Instruction does not have the constitutional right to make laws. While the legislature can delegate the limited authority to make rules, today’s decision makes clear that it can also limit and control this rulemaking. It may ask the governor to exercise accountability by approving proposed rules.

“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. It is also a huge win for democratic government, the separation of powers, and public accountability.”

Esenberg also commented on Facebook:

“It’s always nice to begin the day with a win. This morning the Wisconsin Supreme Court issued its decision in Koschkee v. Taylor. It reversed its 2016 decision in Coyne v. Walker. It held that rule-making by agencies is a legislative power that is delegated by the legislature and can be controlled by it. Because the legislature is the master of how rules can be made, it was not constitutional to require that they be approved by the Governor. This is an important brake on a trend in the law that threatened to put too much power in the hands of the DPI and an welcome recognition that the administrative state can be properly controlled. I commend Justice Rebecca Bradley’s concurrence in which she elaborates on some of the constitutional problems of the administrative state. I suspect that our state supreme court – and the Supreme Court of the United States – will be addressing these issues in the years to come. Thanks to Kristi Koschkee, Amy Rosno, Christopher Martinson and Mary Carney for standing up as petitioners. Thanks to my great colleagues at WILL for their outstanding work on this case.”

WILL’s client Kristi Koschkee:

“As a public school teacher and taxpayer, I am thrilled that the Wisconsin Supreme Court has recognized that the Superintendent of Public Instruction must follow the law and allowed for greater oversight on the Department of Public Instruction, an agency that is notoriously hostile to K-12 education reform.”

Rep. Adam Neylon (R-Pewaukee), author of the REINS Act:

“This is a landmark ruling for the separation of powers in Wisconsin government. Before yesterday’s court ruling, the legislature and governor did not have oversight of administrative rules coming from the Department of Public Instruction, which is different than all other state agencies. Simply put, this decision gives elected officials a say in the administrative rules being proposed by DPI bureaucrats.

“As the author of the REINS Act, I am proud to help bring more accountability and oversight to state government. I applaud the good work of Wisconsin Institute of Law & Liberty on this case and commend our Wisconsin Supreme Court for siding with the Wisconsin Constitution.”

Wisconsin Manufacturers and Commerce (WMC) Senior Vice President of Government Relations Scott Manley:

“WMC submitted a brief calling on the Supreme Court to take this case because no agency should have the ability to expand its authority without consent and oversight of the legislature and governor. The REINS Act ensures agencies are operating within their authority and that there are proper checks and balances between our branches of government. WMC applauds the Supreme Court for supporting the rule of law and reining in defiant state agencies.”

Governor Tony Evers:

“This issue was already decided three years ago in Coyne v. Walker. Both conservative and liberal justices agreed then that the constitution prevented the governor from vetoing rules overseeing public schools.

“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.”

Superintendent of Public Instruction Carolyn Stanford Taylor:

“The Wisconsin Supreme Court’s decision does not affect the constitutional independence of the Office of the State Superintendent. It is limited to rulemaking. 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.”

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