By Joe Kelly
MADISON, Wis. (CN) – Overruling a three-year-old precedent, a sharply divided Wisconsin Supreme Court upheld a law Tuesday that requires the state superintendent of schools to get the governor’s nod before changing education policy.
Split in favor the high court’s conservatives, the ruling muzzles the Superintendent of Public Instruction Carolyn Stanford Taylor, who was appointed to her position by Democratic Governor Tony Evers.
Back in 2011 when then-Republican Governor Scott Walker began the fight over the influence of the traditionally liberal-leaning Department of Public Instruction, Evers headed the DPI as schools superintendent.
Two years ago, teacher Kristi Koschkee and three others initiated an original action to have the state Supreme Court rule that the SPI and DPI must obtain written approval from the governor before they enact any new administrative rule.
The agencies protested the requirement as unconstitutional, citing Wisconsin law that says no state official can be equal or superior to the SPI with regard to the “supervision of public instruction.”
But a three-member majority of rejected this objection Tuesday, saying that when the SPI promulgates policy through the DPI “it is exercising legislative power that comes not from the constitution but from the legislature.”
Put another way, the rulemaking function of the SPI is actually a power delegated to it by the Legislature, and that delegation does not add up to a constitutionally protected supervisory function, the court found.
Chief Justice Patience Roggensack wrote the majority opinion, which relies on Walker-era legislation known as Act 21 that changed the protocol by which the SPI submits its rules and objectives for approval. The SPI at that time was Evers, who is now governor.
Though the Wisconsin Supreme Court voided the gubernatorial requirements as applied to the SPI in the 2016 decision Coyne v. Walker, Roggensack notes that the field of play is different today following the passage last year of the REINS Act, short for Regulations from the Executive in Need of Scrutiny Act, which mandates approval from the state Department of Administration and the governor before any state education policy can go into effect.
Concurring separately Tuesday, Justice Rebecca Bradley emphatically encouraged the high court to remain mindful of the separation of powers between administrative agencies and the legislative branch.
Bradley slammed what she called “the concentration of power within an administrative leviathan,” an obstacle she said “clashes with the constitutional allocation of power among the elected and accountable branches of government at the expense of individual liberty.”
Railing against “a burgeoning administrative state,” Bradley also said the “rule of bureaucratic overlords” represents “the governing class’s sneering contempt for the people who elect its members, along with an impatience at any resistance of the people to the views of the enlightened.”
Justice Ann Walsh Bradley, of no relation to Justice Rebecca Bradley, was joined in the dissent by Justice Rebecca Dallet.
“Although nothing in our Constitution has changed since Coyne was decided, what has changed is the membership of the court,” Bradley wrote, adding that the about-face effected today by the court’s new majority “throws the doctrine of stare decisis out the window.”
Justice Shirley Abrahamson did not participate in the ruling. Abrahamson is serving on the high court in a limited capacity as she battles cancer before she will be replaced in August by newly elected appeals court Judge Brian Hagedorn, who will further tilt the bench to a 4-2 conservative majority.
Governor Evers voiced his disapproval of Tuesday’s ruling.
“This issue was already decided three years ago in Coyne v. Walker,” Evers said in a statement. “Both conservative and liberal justices agreed then that the constitution prevented the governor from vetoing rules overseeing public schools.
“The facts didn’t change in the last three years and neither did the meaning of the constitution,” Evers added. “Only the composition of the court did.”
Tuesday’s ruling is the latest in a series of victories the state GOP has enjoyed from the state’s highest court.
This past Friday the court upheld controversial conservative-engineered lame-duck laws enacted last December to reel in the powers of Governor Evers and Attorney General Josh Kaul, a fellow Democrat. Only provisions limiting early voting and dictating rules over governmental guidance documents for state businesses in the lame-duck legislation have been effectively struck down through six months of legal disputes over the laws.