Koschkee v. Evers

Case Name: Kristi Koschkee, et al. v. Tony Evers, et al.

Type of Case: Education; Agency rulemaking

Court: Wisconsin Supreme Court

Case Number: 2017-AP-2278

Filed On: November 20, 2017

Current Status: Original action granted; briefing completed, pending oral argument

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 State Superintendent Tony Evers 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.

Evers and DPI argue 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 Evers’ presumable 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 will represent Evers and the 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.

Evers and 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.  Oral argument will be scheduled no sooner than March, 2019.

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.  That motion is pending.

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