The Wisconsin Institute for Law & Liberty (WILL) is asking the state Supreme Court to decide whether State Superintendent of Public Instruction Tony Evers has to comply with a law requiring government agencies to submit regulations for review by the legislature.
“State Superintendent Evers is blatantly violating newly enacted state law,” said Rick Esenberg, President of WILL, in a statement released Monday. “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.”
The REINS Act, a state law passed earlier this year, requires all government agencies to submit “statements of scope” for new government regulations to the Department of Administration (under the control of the governor) and the legislature’s Joint Committee for Review of Administrative Rules (JCRAR) for evaluation. If the proposed regulation has a $10 million economic impact or more, then the agency needs to seek legislative approval first. But if it’s less than that, the JCRAR can still review and place an indefinite hold on the proposed rule until the legislature acts to allow it.
Evers and the Department of Public Instruction (DPI) have not submitted any rules for review under the process since the law was enacted.
The lawsuit by WILL is taking the unusual step of asking the Supreme Court to hear the case right away rather than going through the usual process of being heard at the circuit court level first.
“This is a case that needs to be heard by the Supreme Court,” Esenberg said in the statement on Monday. “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.”
In the Coyne v. Walker case, a divided Supreme Court decided that a 2011 law which allowed the governor to veto state agency scope statements was an unconstitutional violation of the State Superintendent of Public Instruction’s constitutional right to supervise public instruction under Article X, sec. 1.
DPI spokesman Thomas McCarthy said in a statement Monday that the lawsuit by WILL has no merit.
“Justice Gableman’s decision in Coyne is clear and the legislature understood the case’s impact on the REINs Act after discussions with our department,” said McCarthy. “The case has no merit, period. The only people that don’t understand this is WILL.”
In a conference call with reporters on Monday, Esenberg said the case would have been brought regardless of the changes to the makeup of the Supreme Court since the Coyne v. Walker decision.
“Coyne produced an outcome, it produced a result, but it didn’t really produce a rule of law,” Esenberg said on the conference call. “What we’re asking is that the court try again to see if it can reach a majority opinion that clearly defines the scope of the state superintendent’s power and the relationship of that power delegated to legislative authority.”
Esenberg said the Court has been willing to take cases directly before, including in the state’s John Doe investigation of conservative organizations and the financing of Miller Park.
According to Esenberg, the court could do one of three things: it could summarily reject the case entirely, it could order a response from DPI and then make a decision whether to take up the case, or it could take up the case (including briefs and oral arguments) in the current term. If the Court takes up the case in the current term, a decision could be expected in June or July.
UPDATE 12:27 PM Story updated with reaction from DPI Spokesman Thomas McCarthy.
