Wisc. Governor Can’t Block Education Rules

     MADISON, Wis. (CN) — Wisconsin Gov. Scott Walker cannot stick his nose in the education department’s rulemaking process, the state’s high court ruled in an oddly divided decision.
     Conservative Justice Michael J. Gableman wrote the majority opinion limiting the Republican governor’s power, on which liberal justices concurred and his fellow conservative, Chief Justice Patience Drake Roggensack, dissented.
     Gableman affirmed both the appeals and circuit court decisions in the challenge to 2011 Wisconsin Act 21, which in part allowed the governor and his secretary of administration to “halt the rulemaking process” of the Wisconsin Department of Public Instruction (DPI), according to Wednesday’s ruling.
     Prior case law supports the state constitution’s provision that the superintendent of public instruction, currently Tony Evers, and other DPI officers have control over the department’s “supervisory duties,” Gableman wrote.
     Act 21 vested that power in non-DPI officers, namely the governor The governor was given the power to not only review any proposed rule changes in the department, according to the ruling, but take action on them that overrode the department head’s plans.
     If the governor so desired, “the agency may not proceed with the rulemaking process unless the agency receives the governor’s written approval, which can be withheld for any reason or for no reason,” Gableman wrote.
     If he did not approve, Gableman noted, there was no alternative in Act 21 for the DPI to continue with rulemaking.
     The Wisconsin Supreme Court’s May 18 decision finalizes the lower courts’ prohibition on the governor and secretary enforcing Act 21 by voiding the law as applied to DPI.
     “This does not mean the governor and the secretary of administration cannot be involved in the rule-drafting process at all; it simply means that they cannot be given the authority to halt the process,” Gableman wrote.
     He also noted that the power DPI has is vested by the legislature, which can change that power provided it does not violate the constitution.
     The underlying lawsuit was filed in 2011 by a collection of teachers, union representatives and parents, who are also taxpayers, in Wisconsin public school districts.
     Gableman accused the dissenters, Roggensack and Justice Annette Kingsland Ziegler, of focusing on only one of two “equally important” constitutional provisions and thus missing a portion of relevant consideration.
     “Neither Chief Justice Roggensack’s dissent nor Justice Ziegler’s dissent attempt to address the question at the heart of the controversy in this case: in whom may the Legislature vest the supervision of public instruction?” Gableman wrote. “If neither Chief Justice Roggensack nor Justice Ziegler will recognize that the constitution places a limit on who the Legislature may vest the supervision of public instruction in, then we can never reach the same conclusion despite agreeing on many legal principles.”
     Further, Gableman said that Roggensack and Ziegler’s assertions that the case is unripe because thus far there have been no instances of the governor interfering in the rulemaking process are without merit.
     “Contrary to the dissents’ positions otherwise, Act 21 does not have to have been enforced for [lead plaintiff Peggy] Coyne to properly bring a claim via a declaratory judgment action,” Gableman wrote.
     Former Chief Justice Shirley Abrahamson, quick to claim that her frequent opponent Gableman’s opinion reflected only his views, agreed in result, but argued the majority gave “short shrift” to case law.
     Further, she said, the lead opinion gives too much authority to the legislature to modify the DPI superintendent’s powers.
     “[T]he superintendent could be reduced to a role the framers of our constitution expressly rejected — that of a mere advocate for public education, unable to set standards or bring uniformity to Wisconsin’s public education system,” Abrahamson wrote in her concurrence, which was joined by Justice Ann Walsh Bradley.
     Conservative Justice David T. Prosser also concurred and wrote separately.

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