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Supreme Court takes up Department of Public Instruction case again

Gov. Scott Walker and State Superintendent Tony Evers are at odds over who should represent Evers in a legal case.

The Wisconsin Supreme Court has agreed to take up a case that could give Gov. Scott Walker’s administration authority over rule-making at the Department of Public Instruction — an issue the court ruled on less than two years ago.

The case was brought by the conservative Wisconsin Institute for Law and Liberty against state Superintendent Tony Evers, who the group says violated a recent law, known as the REINS Act, that requires state department officials to ask the Department of Administration for permission to craft regulations.

Walker has denied Evers’ request for outside legal representation in the case. Evers, who is represented by Justice Department lawyers and is also a Democratic candidate seeking to challenge Walker in the fall election, asked the court to appoint an outside lawyer, but the court didn’t decide that issue in its ruling Friday. Instead it will hear oral arguments on the issue May 15.

WILL president Rick Esenberg said the Legislature passed the law in 2017 to increase oversight of all state agencies, including DPI.

“The regulations from DPI impact every school, teacher and student,” Esenberg said. “State Superintendent Tony Evers has blatantly violated state law and ought to be held accountable for his actions.”

In the decision Friday, the court’s conservative majority gave no explanation for why it is taking the case. The decision puts the case on a fast track, bypassing the court of appeals.

The court’s two liberal justices, Ann Walsh Bradley and Shirley Abrahamson, dissented, saying the issue had just been addressed in a 2016 ruling in the case Coyne v. Walker.

The Coyne decision held that the state constitution gives the state superintendent authority to set education policy for the state. Bradley, Abrahamson and conservative justices David Prosser and Michael Gableman agreed.

Gableman, who is retiring, will be replaced this summer by Rebecca Dallet, who was supported by liberals. Meanwhile Prosser has been replaced by Walker appointee Dan Kelly.

It’s unclear when the court will hear the full case.

In their dissent, Abrahamson and Bradley said some observers have suggested the conservative group is relitigating the Coyne decision “because the composition of the court has changed.”

“However, the law is clear: ‘No change in the law is justified by a change in the membership of the court,’” they wrote. “Indeed, we should adhere to our precedent to foster confidence in the reliability of court decisions, promote consistent development of legal principles, and contribute to the actual and perceived integrity of the Wisconsin judiciary.”

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Matthew DeFour covers state government and politics for the Wisconsin State Journal.