Wisconsin Supreme Court

In a reversal of a decision handed down three years ago, the Wisconsin Supreme Court on Tuesday ruled the state superintendent of public instruction must seek permission from the governor before writing rules implementing education-related laws.

By a 4-2 vote — with Justice Shirley Abrahamson not participating — the court overturned its 2016 decision and ruled the governor has control over the superintendent’s rule-making powers. The decision is a win for conservatives, who have challenged the authority of the technically nonpartisan superintendent’s office, which has been won by liberal-backed candidates for years.

The lawsuit, filed by conservative legal group Wisconsin Institute for Law and Liberty, or WILL, argued then-superintendent Tony Evers violated a new law, known as the REINS Act, in the fall of 2017 when he did not submit proposed rules to former Republican Gov. Scott Walker’s administration for review.

In a statement, WILL said the Department of Public Instruction has “historically been dominated by an education establishment hostile to school choice and K-12 education reform,” and the ruling prevents DPI from becoming a “runaway administrative state.”

In its decision, the court’s conservative majority said the ability to write rules is a legislative function delegated by the state Legislature, rather than a power derived from the state Constitution.

Evers, who defeated Walker to become governor last fall, said the issue was already decided three years ago when both conservative and liberal justices ruled in favor of the superintendent’s office.

“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,” the Democratic governor said in a statement.

Lawyers for DPI argued the issues raised in the case were identical to those that led to the 2016 decision that preserved the right of the superintendent to create rules governing schools and teachers.

State agencies craft administrative rules to implement or interpret laws enacted by the Legislature.

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WILL president Rick Esenberg said he agrees the arguments were the same, but the previous ruling “reached a result but not a rationale” for why the governor’s oversight would be unconstitutional.

“It’s never inappropriate to go back and review a constitutional precedent,” he said. “I am not one of these people who believes that once something is decided, it can never be re-examined.”

Current superintendent Carolyn Stanford Taylor said in a statement she was disappointed with the ruling, but the decision doesn’t affect the constitutional independence of the office because it is limited to rule-making.

Evers appointed Stanford Taylor to serve the remainder of his term, which is up in 2021.

Esenberg said a change in the court’s composition was not the reason WILL pursued the case. Rather, it was “about getting the Constitution right,” he said.

In a dissenting opinion, Justice Ann Walsh Bradley called the decision an “about-face.”

In the 2016 case, the court decided the superintendent has the constitutional authority to act independently without oversight of rule-making. The 4-3 ruling saw two conservative former justices, Michael Gableman and David Prosser, join two liberal justices to rule in favor of DPI.

WILL sued DPI on behalf of two teachers, a New London School Board member and the parent of a parochial school student.

Last year, the Supreme Court ruled Evers, who was seeking the Democratic nomination for governor at the time, was entitled to choose his own attorney in the case instead of being represented by an attorney from the Department of Justice, which was then headed by Republican Attorney General Brad Schimel.

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