DPI ignoring new law on rule-making, lawsuit says
It continues battle over agency’s power
MADISON – A conservative law firm sued state schools Superintendent Tony Evers Monday, seeking to rein in his rulemaking authority at a time when the Democratic official is running for governor.
The Wisconsin Institute for Law and Liberty filed the lawsuit directly to the state Supreme Court, opening the latest skirmish in a more than two-decade long battle in which Republicans have sought to limit the power of the Department of Public Instruction.
Only last year, a divided Supreme Court ruled in Evers’ favor in a similar case, but Monday’s lawsuit essentially asks Wisconsin’s highest court to revisit the issues in that earlier ruling.
“I’m not going to deny the fact that we’re asking the court to take another look at (the 2016 case),” said Rick Esenberg, president of the Wisconsin Institute.
Evers, who won re-election to his current post in April, is one of a crowded field of Democrats vying for the right to challenge GOP Gov. Scott Walker in the November 2018 general election.
A spokesman for Evers said the earlier Supreme Court decision was clear and that this lawsuit shouldn’t succeed.
“The case has no merit, period. The only people that don’t understand this is WILL,” Tom McCarthy said.
Esenberg’s group argues that the Department of Public Instruction is ignoring a new law that its backers say is meant to keep state agency rules in check.
The law, which took effect in September, says a state agency that wants to issue a rule must first run the proposed scope of the rule by Walker’s Department of Administration.
Rules issued this fall by Evers’ department have bypassed the Department of Administration, the lawsuit says. That includes proposals involving aid for school mental health programs, open enrollment and an early college credit program.
The administrative rules are written to carry out state laws and typically include more specifics than the laws themselves.
This isn’t a new fight — Evers and a predecessor in his job have won legal fights going back to the 1990s to preserve their authority to oversee education against attempts by lawmakers to pare back their powers.
Walker and GOP lawmakers passed a law in 2011 that sought to give legislators, the governor and his administration more of a say over the rules.
The 2011 change required the governor’s sign off on all administrative rules early in the process, even for agencies like the Department of Public Instruction that are supposed to be independent.
Last year, the Supreme Court ruled 4-3 that the 2011 law went too far in infringing on Evers’ constitutional powers.
Conservatives control the court, but in that case two of the five conservatives — Michael Gableman and David Prosser — sided with the court’s two liberals to form a majority that blocked part of the 2011 law.
But since then, Prosser has been replaced by Justice Daniel Kelly, giving Esenberg’s group a chance to revisit the issue and possibly win.
Esenberg said the 2016 case came from a divided court, included two concurring opinions and failed to set clear standards for how rule making should work.
“The case has no merit, period. The only people that don’t understand this is (Wisconsin Institute for Law and Liberty).” Tom McCarthy Spokesman for Superintendent Tony Evers