The Wisconsin Supreme Court issued an order Friday that they will hear a lawsuit by the Wisconsin Institute for Law & Liberty (WILL) on whether state Superintendent of Public Instruction Tony Evers allowed the proper oversight of rules created by the Department of Public Instruction (DPI).

“We are thrilled that the State Supreme Court has agreed to hear our case,” said Rick Esenberg, President of WILL in a release Friday. “The legislature passed the REINS Act to increase oversight of all state agencies, including the DPI. Regulations from DPI impact every school, teacher, and student. State Superintendent Tony Evers has blatantly violated state law and ought to be held accountable for his actions.”

The lawsuit alleges that DPI under Evers did not comply with the 2017 REINS Act. The REINS Act requires all new state rules to be reviewed by the Department of Administration and the governor. According to WILL, who filed the case on behalf of several taxpayers, DPI is misapplying a previous case to avoid having their rules reviewed by the Department of Administration.

Oral arguments in the case, Koschkee v. Evers, will be heard on May 15 on whether Evers will be able to have his own attorney or be represented by the office of Attorney General Brad Schimel. The Court will also hear if Governor Scott Walker is to be named a party in the lawsuit.

Schimel, a Republican who has already stated that he believes DPI is wrong in this matter, has said that the Department of Justice will represent state agencies in court when requested by the governor as is required by state law, including DPI and Evers in this lawsuit.

“The Department of Justice currently represents you and the Department of Public Instruction in approximately 17 pending cases,” Schimel wrote on December 17 to Evers. “While we are happy to bear this burden at no cost to you or the Department of Public Instruction, and we always give due weight to your viewpoint, the Department of Justice ultimately controls the litigation and settlement positions (if any) in all of these cases because we represent the State.”

The letter from Schimel also questioned Evers’ position on the REINS Act:

It is my understanding, based on your press statements, that you believe this law— Wis. Stat. § 165.25(1m)—does not apply to you because you are a constitutional officer. You also believe that much of the Wisconsin Administrative Procedure Act, Wis. Stat. §§ 227.135 and 227.185, and perhaps other sections, likewise do not apply to you because you are a constitutional officer. You have not actually publically explained which laws apply to you and which laws do not, or what the public may expect from your future exercise of rulemaking powers impacting the citizens of this State.

I am a constitutional officer, and so is the Governor. The State’s position is that all laws passed by the Legislature and signed by the Governor apply to all constitutional officers. There is no exception in the law for you. And there is no exemption that would allow you to impose rules upon school districts, school teachers, or students without following the law on how to promulgate rules.

Evers, one of the many Democrats running for governor this year, is requesting to use the attorneys at DPI to represent him and the department in the lawsuit.

DPI Spokesman Thomas McCarthy said in an email Friday, “We are optimistic the court will see through the governor and DOJ’s overtly political attempts to block Tony’s ability to put forth an argument of his choosing.”

McCarthy also said that because the Superintendent of Public Instruction is a constitutional office, the precedent should stand recognizing DPI’s autonomy in making rules.

“In regards to the case as a whole, the office and agency was important enough to be given separate constitutional standing by our founders,” McCarthy said. “This very court understood and valued that importance when they ruled in Coyne v. Walker to protect the balance of power outlined in the Wisconsin Constitution. We hope the court refrains from taking an activist approach to the state’s traditions. As Justice Gableman aptly noted in Coyne ‘if it is to be changed, it must be ratified by the people of this State.'”

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