In one of the more important cases of the 2018-19 term, the Wisconsin Supreme Court ruled on June 25 in Koschkee v. Taylor that the Department of Public Instruction and Superintendent of Public Instruction must comply with rulemaking requirements in the 2017 Regulations from the Executive In Need of Scrutiny Act (REINS Act) and 2011 Act 21.  The decision overturned the 2016 case Coyne v. Walker. Background on the case.

In the Koschkee v. Taylor decision, a 4-2 Wisconsin Supreme Court held that Act 21 and the REINS Act, specifically, provisions requiring Department of Administration and gubernatorial review of administrative rules, apply to rulemaking by the Department of Public Instruction and Superintendent of Public Instruction.  Wis. Const. Art. X § 1 provides the Superintendent constitutional authority to supervise public instruction. However, when the Superintendent promulgates rules via the Department, it is exercising legislative power delegated to it by the legislature, not its constitutional supervisory power. Therefore, giving the governor and Department of Administration the authority to review the Superintendent and Department of Public Instruction’s rulemaking does not interfere with the Superintendent’s constitutional supervisory authority.

The Koschkee decision overturns Coyne, which challenged Act 21 as unconstitutional as applied to the Department of Public Instruction and the Superintendent. While a majority agreed Act 21 was unconstitutional, there was no majority opinion written by the Wisconsin Supreme Court in Coyne.

In a concurring opinion in Koschkee, Justice R. Bradley criticizes the portion of the decision stating that administrative rulemaking is necessary to address the complexity of government. Justice Bradley expresses separation of powers concerns with state and federal courts allowing legislatures to defer their authority to a nonelected “fourth branch” of government. The concurring opinion suggests the court take a closer look at delegation of legislative power to agencies if an appropriate case arises.

Justice Kelly’s concurring opinion disagrees with the same paragraph of the court’s decision (paragraph 17) related to the administrative state but does not elaborate on his reasoning.

In a dissent, Justice Walsh Bradley (joined by Justice Dallet) argue the court should have applied stare decisis and kept the Coyne decision intact. As Justice Abrahamson argued in Coyne, Act 21 unconstitutionally gives the governor superiority over the Superintendent’s constitutional supervisory powers.