State Supreme Court Off the Deep End?

In 1846, the Wisconsin Constitution established various statewide offices in addition to the governor. One of these is the Superintendent of Public Instruction. Around the nation, states have come up with a variety of schemes to manage the state education system. However, only Wisconsin and North Dakota choose their chief state school officer in a nonpartisan election, with no state school board.

In the mid-1990s, amidst growing Republican frustration with Superintendent John Benson, Governor Tommy Thompson convinced the Legislature to pass a law to reorganize Wisconsin’s education structure. The new law created a new state Department of Education, a new nine-member Education Commission, and a new office, the Secretary of Education. The non-partisan elected state Superintendent of Public Instruction (SPI) was made the chair and a member of the new Education Commission. But the commission did not have the ability to hire and fire the Secretary of Education.

In its 1996 decision in Thompson v. Craney, the Wisconsin Supreme Court ruled against the new law. The court concluded that the law “unconstitutionally gives the former powers of the elected state Superintendent of Public Instruction to appointed ‘other officers’ at the state level who are not subordinate to the superintendent.”

In 2011, shortly after Scott Walker became governor, the Legislature passed Act 21, part of which required that the scope of any proposed rule by the Department of Public Instruction must be approved in writing by the both Governor and the Superintendent of Public Instruction before a scope statement may be published in the Wisconsin administrative register and before a rule may be drafted.

In Coyne v. Walker, 2016, a majority of the state Supreme Court ruled that this attempt to give the governor a veto over rules from the Superintendent of Public Instruction was unconstitutional.

This decision did not stop the Legislature from trying again. In 2017 it passed the REINS Act (Regulations from the Executive in Need of Scrutiny Act) which duplicated Act 21’s requirement that an agency (1) submit a statement of scope to the governor for approval prior to drafting a proposed rule, and (2) submit a final draft of a rule to the governor for approval before submitting it to the Legislature.

The difference was not that the law’s language was new, it was that two conservative justices who had ruled against the requirement had left the court, replaced by Rebecca Bradley and Daniel Kelly. In Koschkee, v. Taylor, these justices joined Justices Pat Roggensack and Annette Ziegler to uphold the requirement.

The majority opinion was written by Roggensack. Her argument is based on distinguishing between supervision and promulgating rules: The constitution, she says, “vests supervision of public instruction, an executive function, in the SPI. In contrast, when the SPI, through the DPI, promulgates rules, it is exercising legislative power that comes not from the constitution but from the legislature.” Thus, in delegating its powers to the SPI, the legislature is free to add whatever requirements it wants, in her view. If one accepts the proposition that rule-making is a strictly legislative function, it is unclear why handing a veto power to another executive—the governor—solves the supposed problem caused by mixing executive and legislative functions.

She acknowledges the need for such delegation in her paragraph 17: “We have long recognized that the delegation of the power to make rules and effectively administer a given policy is a necessary ingredient of an efficiently functioning government … Our government could not efficiently operate without the administrator and administrative agency.”

Two members of her faction, however, don’t share this view. Kelly says, “I join the majority opinion except with respect to ¶17.”

In her concurrence, Rebecca Bradley launches into a 12-page diatribe against the so-called administrative state. She starts out, “I join the opinion except for those portions espousing the ostensible importance and necessity of the legislature’s delegation of power to the administrative state. … The concentration of power within an administrative leviathan clashes with the constitutional allocation of power among the elected and accountable branches of government at the expense of individual liberty.”

She goes on to claim that “underlying the movement toward a burgeoning administrative state was the governing class’s sneering contempt for the people who elect its members, along with impatience at any resistance of the people to the views of the enlightened. She then quotes from a who’s-who of administrative state critics, especially Phillip Hamburger, who wrote a book entitled Is Administrative Law Unlawful?

A review by William Funk seems on target: “the appeal of Hamburger’s thesis ultimately is not analytical, but emotional. Those who cite it most loudly are unlikely to have plowed through its 600 pages of dense history and hysterical rants. They will cite it because they want to believe that the administrative state is somehow un-American. Trying to rebut that belief is like trying to convince climate-change deniers.”

Rebecca Bradley concludes her concurrence by asserting that “noticeably absent from the Wisconsin Constitution is any apportionment of power to unelected and unaccountable administrators.” But it is the Constitution itself that put the responsibility for education on the Superintendent of Public Instruction, making Bradley’s objections irrelevant to this case.

Even Roggensack seems a bit taken back by Bradley’s concurrence. She argues that “the case before us does not present issues that should give rise to a dogmatic exposition on the merits, or lack thereof, of administrative agencies.”

In her dissent, Ann Walsh Bradley notes that the decision “throws the doctrine of stare decisis out the window” — the expectation that court must follow past precedents. Nothing changed between the Coyne decision and this one, except for the makeup of the court. Roggensack’s response is that “stare decisis does not require us to retain constitutional interpretations that were objectively wrong when made.” Bradley’s response: “Apparently, ‘objectively wrong’ is defined by the majority as what it subjectively thinks is wrong. The majority provides no explanation for the assertion that Coyne was “objectively wrong” other than that it disagrees with it.”

There are several ironies to this case. One is reflected in its name. Originally it was known as Koschkee, v. Evers, reflecting the legislature’s goal of giving Scott Walker a veto over Tony Evers’ proposed rules. The name changed to Koschkee, v. Taylor when Evers was elected governor and appointed Carolyn Stanford Taylor to fill out his term. The DPI website quotes Evers as saying, “Carolyn is a dedicated, thoughtful leader, who puts the best interests of kids before all else.” Thus it seems unlikely that Evers expects to veto Taylor’s proposed rules.

However, suppose that a conservative is elected Superintendent of Public Instruction in the 2021 election promising to change Wisconsin education policies. For the next year and a half after that, any such changes will be subject to Evers’ veto thanks to the REINS Act and the conservative justices.

A second irony is that the conservative justices all claim strong fealty to the U.S. and Wisconsin constitutions. Yet the REINS Act and its predecessors are all meant as workarounds to the state constitution’s mandate that education be supervised by the elected state superintendent. They amend the constitution in fact while avoiding the hassle of amending it formally.