The conservative Wisconsin Institute for Law and Liberty (WILL) has filed a lawsuit against Tony Evers, the head of the state's education department and also a Democratic candidate for governor, claiming he failed to follow the state’s new REINS Act.
Short for Regulations from the Executive In Need of Scrutiny Act, the REINS Act implements a rule review system across all state departments that would allow the governor to kill proposed regulations that would cost $10 million or more to implement.
Proposed rules would first be sent to the Department of Administration to confirm that an agency has the authority to issue them. From there, the proposal goes to the governor for final approval or rejection.
Wisconsin State Superintendent Tony Evers
Gov. Scott Walker signed the Wisconsin REINS Act in August 2017 and it went into effect immediately.
In a statement, WILL said that “..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 … But records obtained by WILL indicate that Evers and the DPI 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.”
At issue are unresolved questions from Coyne v. Walker, a 2016 Wisconsin Supreme Court decision. In that case, the court split 4-3 in ruling that the Department of Public Instruction – the state’s education department – could not be affected by Act 21, a 2011 law that would have given the governor authority to kill DPI rules.
Despite the court’s ruling, four separate opinions were written by the majority, raising questions about the ruling’s authority and creating interpretive issues for the 2017 REINS Act.
The DPI does not dispute that it is not sending proposed rules to the Department of Administration or the Governor’s office for review.
In an emailed statement to Watchdog.org, DPI spokesman Tom McCarthy said that, “Justice Gableman’s decision in Coyne is clear and the legislature understood the case’s impact on the REINS Act after discussions with our department. The case has no merit, period. The only people that don’t understand this is WILL.”
Justice Michael Gableman, a conservative, ruled in Coyne that the Superintendent of Public Instruction must be allowed to have rule-making authority for people under his jurisdiction, “or by definition he is no longer the superintendent of public instruction.”
The Institute filed the lawsuit directly with the state Supreme Court. Oral arguments have not yet been scheduled.