WILL Challenges DPI’s Rule-Making Authority

A conservative law firm is again challenging the state Department of Public Instruction’s powers.

The Wisconsin Institute for Law and Liberty asked the state Supreme Court on Monday to take its lawsuit challenging DPI’s authority directly without moving through lower courts.

WILL alleges a Republican law passed this summer nicknamed the REINS Act requires the Department of Administration and the governor’s office to sign off before state agencies can write administrative rules. The firm claims DPI has been drawing up rules without permission.

In 2016, the state Supreme Court ruled 4-3 in Coyne v. Walker that the state schools superintendent has the authority to write rules independently. WILL’s lawsuit asks the court to re-examine that ruling with the new REINS Act in mind. WILL President Rick Esenberg said last year’s split decision didn’t set a strong enough precedent on the matter.

“In order to clarify the law for the Legislature and the public and to ensure that the Legislature remains the master of rulemaking and has the ability to reign in administrative agencies as it sees fit, the Supreme Court should take the matter up again,” Esenberg said.

DPI has argued that because State Schools Superintendent Tony Evers is an elected official his agency’s rulemaking authority is protected by the state Constitution. In a statement, DPI Spokesman Tom McCarthy said lawmakers knew the REINs Act wouldn’t apply to DPI.

“Justice Gableman’s decision in Coyne (v. Walker) is clear and the Legislature understood the case’s impact on the REINs Act after discussions with our department. The case has no merit, period. The only people that don’t understand this is WILL.”

Editor’s Note: This story was updated at 5:22 p.m. Monday, Nov. 20, 2017, with original reporting by WPR.