The Wisconsin Supreme Court has ruled the state schools superintendent must get the governor's approval before passing administrative rules, a reversal of the court's previous decision that upheld the office's authority to set its own policy.
Justices in their 4-2 decision Tuesday ruled a 2017 law that added new hurdles to the administrative rule process applies to the Department of Public Instruction because the authority was granted by the Legislature rather than the state Constitution.
"That the (state superintendent) also has the executive constitutional function to supervise public instruction does not transform the (office's) legislatively delegated rulemaking power into a constitutional supervisory function," wrote Chief Justice Pat Roggensack for the conservative majority.
"Therefore, it is of no constitutional concern that the governor is given equal or greater legislative authority than the (state superintendent) in rulemaking."
The suit, brought by the conservative Wisconsin Institute for Law & Liberty, alleged then-agency head Tony Evers refused to follow the law, called the REINS Act. DPI, though, had pointed to a previous court decision as its rationale for not adhering to the language.
In that instance, a divided state Supreme Court in 2016 sided with former state Superintendent Evers. That suit pertained to a 2011 law signed by former Gov. Scott Walker that sought to allow the governor to veto administrative rules developed by the state superintendent, who unlike other agency heads is elected in a statewide vote.
But then in 2017, the state passed a new law giving the governor and Department of Administration the ability to review rules. It also allows a legislative committee the authority to put the brakes on any language that has compliance and implementation costs of $10 million or more. The panel can also require an outside estimate on the rule's cost if it's under that level.
WILL President & General Counsel Rick Esenberg praised the ruling in a statement, calling it "a huge win for democratic government, the separation of powers and public accountability."
"Given that the DPI has generally been a captive of the educational establishment and hostile to reform, this decision is a huge victory for Wisconsin's kids," he said.
Justice Ann Walsh Bradley in her dissent slammed the decision as “an about-face,” writing that “nothing in our Constitution has changed” since the court’s previous decision, aside from the bench’s makeup.
“Because the majority disregards binding precedent and arrives at a result that unconstitutionally transfers the vested authority of the Superintendent of Public Instruction to the governor, I respectfully dissent,” she wrote.
Justice Shirley Abrahamson didn't participate in the case.