MADISON, Wisc. (CN) – Teachers and parents refiled a constitutional challenge to the state’s Act 21, which gives Gov. Scott Walker veto power over regulations – including school rules – and allows him to write and promulgate his own regulations.
2011 Wisconsin Act 21, enacted on May 23, effectively repeals the balance of power between the state’s legislative and executive branches. It gives the governor authority to write administrative and emergency rules, and final authority to decide which are enacted, and which are not.
Lead plaintiff Peggy Coyne, a middle school teacher in Madison and president of the Madison Teachers union, claims that Act 21 “usurps the authority granted to the state superintendent of public instruction.”
Coyne and six co-plaintiffs say the bill “unconstitutionally delegates to the governor and the Secretary of Administration authority over the supervision of public instruction … that is equal or superior to the authority vested in the Superintendent of Public Instruction by the Wisconsin Constitution.”
By requiring “all state agencies, including the Department of Public Instruction, to submit proposed administrative rules to the governor for approval,” Act 21 gives Walker free rein to issue any regulations he likes, and to kill those he doesn’t, according to the complaint in Dane County Court.
Before Act 21, the governor’s power to make rules was overseen by the Legislature, which could suggest changes and send the rules back to the governor for revision. Before Act 21, the Superintendent of Public Instruction was the “‘individual or body with policy-making powers over public instruction to whom the [Department of Public Instruction] was required to submit scope statements on proposed administrative rules'” under the Wisconsin Constitution.
But as of June 8, when Act 21 took effect, the Department of Public Instruction must submit scoping statements for proposed administrative rules to both the governor and the superintendent of public instruction, and both must approve the statements. The department must provide a “detailed analysis and quantification of the economic impact” and submit it to the Secretary of the Department of Administration.
The secretary, who serves “at the pleasure of the governor,” may approve the rule and send it to the governor, or return it for revision.
Once the governor receives the proposed rule “in final form,” he may approve or reject it. He must approve it in writing before it can be sent the Legislature for review or be filed with the Legislative Reference Bureau for publication.
Under Act 21, disputes over the validity of administrative rules must be brought “in the circuit court for the county where the party asserting the invalidity of the rule resides or has its principal place of business, or, if that party is a non-resident or does not have its principal place of business in this state, in the circuit court for the county where the dispute arose.”
Previously, such actions were required brought in Dane County, home of the state capital, Madison.
The plaintiffs include presidents of two teachers unions, and a parent of two children with disabilities who attend Madison public schools.
They say they will be harmed by Act 21’s effect on teacher licensing and terms of employment, and its effects on public education and other services public schools must provide under administrative rules.
They want Act 21 enjoined as unconstitutional.
Their lead counsel is Lester Pines, with Cullen Weston Pines & Bach, with co-counsel from the Wisconsin Education Association Council.
The same plaintiffs filed a virtually identical lawsuit on June 30. According to court records, a Settlement/Stipulation to Dismiss was entered on October 12 and the case was closed the next day.
Court staff on Monday said the stipulation gave “no useful information” on why the first lawsuit was dismissed.