SCOWIS weighs whether to allow governor to trump state schools superintendent's policies

MADISON — The state Supreme Court wrestled Wednesday, April 10 with whether to let the governor trump the state schools superintendent's policies, a move that would hand the governor de facto control of Wisconsin schools and undo a ruling the justices handed down two years ago establishing the superintendent's independence.

The Wisconsin Institute for Law and Liberty, a conservative law firm, filed a lawsuit in 2017 alleging that a new Republican-authored law requiring state agencies to obtain the governor's permission before writing rules, regulations and policies applies to the superintendent. The justices listened to 90 minutes of oral arguments in the case Wednesday, with institute attorneys arguing the Legislature can limit the superintendent's rule-making authority, and state Department of Public Instruction lawyers countering that the court can't make the governor the superintendent's boss.

"The Legislature is saying the governor has unfettered authority to stop anything the superintendent does, which makes the governor the supervisor," said DPI attorney Lester Pines.

Republicans have been trying for years to reduce the superintendent's powers. The position is officially nonpartisan but liberal-leaning superintendents have controlled the office for nearly two decades.

GOP legislators passed a law in 2011 that requires state agencies to get permission from the governor before writing any new rules, regulations or policies. The Supreme Court ruled in 2016 in Coyne v. Walker that the schools superintendent doesn't have to follow that mandate because the position is an independent constitutional officer elected by the people.

Republicans passed a new law in the summer of 2017 dubbed the REINS Act that all but duplicates the 2011 mandate. The only difference is agencies must get permission from both the governor and the Department of Administration, which the governor controls, before promulgating new regulations and policies. The institute filed its action just months later in hopes of forcing the superintendent to comply.

The court's two liberal-leaning justices sounded skeptical.

Justice Rebecca Dallet said nothing has changed since the REINS Act just duplicates the 2011 law, which the court has said doesn't apply to the superintendent.

Ann Walsh Bradley, who was among the four justices who found the 2011 law doesn't touch the superintendent, asked institute attorney Rick Esenberg if he brought the lawsuit simply because two of the justices who voted with her to protect the superintendent are no longer on the court.

"(The superintendent's position is) being kicked around like a political football," Bradley said.

Esenberg acknowledged that attorneys make strategic decisions, but he said the Legislature is the final arbiter on who can make policy and who can't. He went on to argue the 2016 decision was fractured and if the court wants to handcuff lawmakers' ability to delegate rule-making authority, the justices should be sure they're right.

Justice Dan Kelly, a member of the court's four-justice conservative majority, appeared more receptive to the institute's arguments. The superintendent would still have plenty to do enforcing the Legislature's laws even if the position loses its policy-making authority, he said.

"How can we say if the (superintendent) can't engage in rule-making it can't do its job?" Kelly asked.

Chief Justice Patience Roggensack, a conservative, sounded unconvinced that the court should overturn its own ruling. She noted the legislators can block any rules they don't like.

"I was not real excited about seeing the case again," she told Esenberg. "I couldn't quite see through how you were not saying, 'hey, redo Coyne.' I still have some problems about it."

Jeffrey Mandell, an attorney representing the plaintiffs in Coyne, got five minutes to speak. His message was simple:

"It was decided in Coyne," he said, "and that's the end of it."