Conservative firm challenges DPI's authority again

MADISON — A conservative law firm asked the state Supreme Court again Monday to strip state schools Superintendent Tony Evers of his policy-writing powers, a move that could weaken him as he enters the 2018 campaign season against Gov. Scott Walker.

The Wisconsin Institute for Law and Liberty (WILL) filed a lawsuit directly with the Supreme Court. The lawsuit argues the Department of Public Instruction has been writing administrative rules without permission from the Department of Administration and the governor as required by the REINS Act.

Republicans passed the act this summer. It requires state agencies to submit rule proposals to DOA and the governor before drafting anything. Rules are the legal language that enacts statutes and agency policy. Requiring permission from DOA and the governor before agencies can start writing them essentially gives the governor oversight of every major move the agency makes.

Republicans have been trying for decades to strip the schools superintendent of his rule-making authority. The Supreme Court ruled 4-3 last year that the superintendent has the constitutional authority to act independently. WILL wrote a brief in that case arguing the superintendent is subject to the Legislature and governor's oversight but fell short.

The lawsuit asks the high court to re-examine that ruling in light of the REINS Act. The justices aren't obligated to take the case, but things look favorable for WILL if they do.

The firm wouldn't have to spend time and money litigating the case in the lower courts. Conservatives control the high court and one of the justices who ruled for the superintendent last year, David Prosser, has retired. Walker appointed Dan Kelly, who has served on WILL's litigation advisory board, to take Prosser's place.

Asked during a conference call whether Kelly's presence on the court factored into the decision to file the lawsuit, WILL President and General Counsel Rick Esenberg said he's given up on predicting justices' rulings. He said the court's decision last year was so fractured that it has bred confusion. Even if the ruling had been clear it didn't address the new requirement for agencies to obtain DOA permission, he said.

"We would still bring this case even if the justices were the same," Esenberg said. "(The decision) produced a result but it didn't really produce a rule of law. What we're asking is the court try again and see if they can reach a majority opinion."

The new lawsuit comes as Evers is launching a campaign for governor against Walker. The superintendent's position is technically nonpartisan but Evers is running as a Democrat. If WILL prevails, he wouldn't be able to launch any education initiatives without DOA and Walker's say-so, making him appear weak on the campaign trail.

DPI spokesman Tom McCarthy didn't immediately reply to an email seeking comment.