Case Name: Coyne v. Walker

Type of Case: Education Reform

Court: Dane County Circuit Court; District IV Court of Appeals; Wisconsin Supreme Court

Case Number: 2011-CV-4573 (Dane County Circuit Court); 2013-AP-416 (Court of Appeals & Wisconsin Supreme Court)

Filed On: October 13, 2011

Current Status: Governor’s rulemaking veto power struck down as to Superintendent

2011 Wisconsin Act 21 changed the law relating to state agency rulemaking in various ways that limit the power of state agencies to regulate Wisconsin citizens, including the Superintendent of Public Instruction.  Relevant to this lawsuit, it allows the governor to veto proposed rules from government agencies.

Last October, the Dane County Circuit Court held that Act 21, as applied to the Superintendent of Public Instruction, violated the Wisconsin Constitution, Article X, Section 1, which grants the Superintendent the duty of supervision of public instruction.   In its holding, the Dane County Circuit Court made the unfounded claim that the Superintendent has a constitutional right to make public policy.  But that’s not the case. The Superintendent can make rules only because the legislature delegated that authority to him.  What the legislature gives it can curtail, or even take away completely.

On behalf of former Speaker of the Assembly Scott Jensen and State Representative Jason Fields, WILL filed an amicus curiae brief in support of 2011 Act 21 in the Court of Appeals.  The Court of Appeals upheld the lower court’s ruling, and the state appealed again.

The Wisconsin Supreme Court held oral argument on November 17, 2015.  At our request, the court expanded the time for oral argument and permitted us to be heard on our amicus brief, which called for the outright reversal of precedent mistakenly limiting the ability of the Legislature to define the role of the Superintendent.  Unfortunately, a majority of the court, splintered across three separate opinions, concluded that Act 21 was unconstitutional as applied to the Superintendent’s rule making authority. We remain hopeful, however, as 5 of the 7 justices concluded that the legislature retained authority to curb the Superintendent’s authority, even if they had gone too far in this particular instance.

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