KOSCHKEE V. TAYLOR

Case Name: Kristi Koschkee, et al. v. Carolyn Taylor, et al.

Type of Case: Education; Agency rulemaking

Court: Wisconsin Supreme Court

Case Number: 2017-AP-2278

Filed On: November 20, 2017

Current Status: Supreme Court ruled that the Department of Public Instruction must follow REINS Act and other rulemaking requirements

In 2017, the state legislature passed the REINS Act, which gave the state legislature more oversight over regulations promulgated by agencies. Among other things, the REINS Act requires statements of scope for proposed rules to be submitted to the State Department of Administration for an analysis of whether the agency has authority to promulgate the proposed rule.  It also requires the governor to approve or reject statements of scope.

But records obtained by WILL indicate that the State Superintendent and the Department of Public Instruction are violating this provision of the law by refusing to send scope statements to the Department of Administration. DPI is also not sending scope statements to the Governor for approval.

DPI argues that the Superintendent is exempted from parts of the REINS Act based on Coyne v. Walker. In that case, a divided Court held that 2011 Act 21 – which allowed the Governor to veto scope statements – was an unconstitutional violation of the State Superintendent’s constitutional right to supervise public instruction under the Wisconsin Constitution.

But DPI’s interpretation of Coyne is wrong. The REINS Act has a number of provisions that were never discussed by the court in Coyne. There also was no majority opinion in Coyne, leaving confusion over its precedential value. Furthermore, several justices agreed that there is nothing in the Wisconsin Constitution that prevents the legislature from protecting the public from overreach by DPI, which is the basis of the REINS Act.

On behalf of several concerned citizens, WILL filed an original action in the Wisconsin Supreme Court asking the court to take the case immediately and skip the lower courts, in order to resolve the dispute over Coyne and bring certainty to the law.

The Court granted the petition, but the DOJ and DPI argued over which agency’s attorneys would represent DPI in court.  The Court ruled that DPI could use its own attorneys, and DOJ could file an amicus brief if it wished to participate.

The DPI moved to dismiss the case, arguing it was moot because they started obeying the portion of the REINS Act that requires them to submit scope statements to the Department of Administration.  The Court denied that motion without explanation.

The plaintiffs from the Coyne case moved to intervene, arguing that they needed to participate as parties in order to protect the result in Coyne.  The Court denied intervention, but allowed them to file an amicus brief, also accepting amicus briefs from the Wisconsin Association of School Boards and the Wisconsin School Administrators Alliance.

After the election of Tony Evers as Governor and Josh Kaul as Attorney General, the DOJ withdrew its amicus brief in support of the Plaintiffs and withdrew from oral argument.

The Wisconsin Supreme Court ruled that “supervision” was a purely executive function, so the legislative function of rulemaking was not included in the constitutional grant of authority to the Superintendent.  Therefore, the Legislature was within its rights to place conditions on the grant of rulemaking authority, including gubernatorial approval.  The court explicitly overruled Coyne.

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