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  • WisBar News
    August 14, 2015

    Supreme Court Accepts Case on Governor’s School Regulation Authority, Four Others

    Joe Forward

    Aug. 14, 2015 – The Wisconsin Supreme Court will hear a case to examine whether the governor can nix rules promulgated by the state school superintendent, whether a Wisconsin Department of Justice employee was fired in violation of a state whistleblower law, and what grandparents must show to get grandchild visitation rights.

    The supreme court recently voted to review these three cases, and two others, during the court’s 2015-16 term, which begins with oral arguments in September.

    Authority on School Regulations

    In a lawsuit by school teachers and parents, a state appeals court previously ruled that portions of 2011 Act 21, which gives Gov. Scott Walker power to reject rules promulgated by the Superintendent of Public Instruction (SPI), is unconstitutional.

    Prior to Act 21, state agencies could draft rules once the agency head approved and published a “scope statement,” which describes the proposed rule’s objective, the policies that would change under the rule, the resources necessary to develop the rule, and the entities affected, among other things.

    Under Act 21, a state agency cannot promulgate rules unless the Governor, or in some cases the Secretary of the Department of Administration, approves the scope statement. If the Governor approves the scope statement and a proposed rule is drafted after public input, the Governor must approve the proposed final rule also.

    Parents and numerous public school teachers filed a declaratory action against Gov. Walker and then-Secretary of Administration Michael Huebsch. The teachers argued that Act 21 is unconstitutional as applied to the administrative rulemaking power of Wisconsin’s SPI, currently Tony Evers, who was elected in 2009 and reelected in 2013.

    A three-judge appeals court panel in Coyne v. Walker, 2013AP416, concluded that Act 21 is unconstitutional because the Wisconsin Constitution gives the SPI supervisory rulemaking power.

    Wis. Const. Art. X, section 1, says the “supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties and compensation shall be prescribed by law.”

    The panel noted that the supreme court’s 1996 decision in Thompson v. Craney confirmed that the SPI’s powers are supervisory and cannot be subordinate to other powers legislatively delegated for the purpose of supervising public education.

    “The legislature has the authority to give, to not give, or to take away the SPI’s supervisory powers, including rulemaking power,” wrote Judge Gary Sherman for the panel. “What the legislature may not do is give the SPI a supervisory power relating to education and then fail to maintain the SPI’s supremacy with respect to that power.”

    DOJ Whistleblower Suit

    The supreme court agreed to decide whether the Wisconsin’s Department of Justice (DOJ) violated a state whistleblower law by demoting an employee who voiced her concern that DOJ agents would be used, at a cost to taxpayers, to protect Attorney General J.B. Van Hollen while he attended the Republican National Convention in 2008.

    Wis. Stat. section 230.83 prohibits retaliation against employees for lawfully disclosing “information,” so long as the employee is not being paid to provide it. “Information” means “information gained by the employee which the employee reasonably believes demonstrates” law violations, mismanagement or abuse of authority, or waste of funds.

    A state appeals court, in Wis. Department of Justice v. Wis. Department of Workforce Development, 2013AP1488, concluded DOJ did not violate the law when it demoted Joell Schigur after she sent emails that raised concern about Van Hollen’s security detail while he participated in an off-duty political activity.

    The panel analyzed prior cases to hold that “opinions” do not qualify as “information” under section 230.83, and Schigur’s emails expressed the opinion that using DOJ agents to protect Van Hollen while he attended the convention could violate the law.

    The panel also noted that “disclosures” make secret information known, and the security detail plan was not a secret.

    Grandparent Visitation Rights

    The supreme court also accepted review of a case, S.A.M. v. Meister, 2014AP1283, to decide the relationship grandparents must show to obtain grandparent visitation rights.

    After Jay and Nancy Meister divorced, Jay’s mother filed a motion to establish grandparent visitation rights of their minor children under Wis. Stat. section 767.43(1), which says the court may grant reasonable visitation rights to a grandparent “who has maintained a relationship similar to a parent-child relationship with the child.”

    A circuit court concluded that the grandmother’s relationship with the children was “admirable and beneficial,” but was not similar to a “parent-child” relationship.

    Visits were too short in duration and frequency, the court noted, and the children never resided with the grandmother for an extended period of time. An appeals court affirmed.

    The supreme court is expected to decide whether grandparent’s must show they resided with grandchildren for an extended period of time to receive visitation rights.

    Other Cases Accepted for Review

    · State v. Smith (2013AP1228). This case examines whether the Court of Appeals engaged in independent fact-finding and, if so, whether the appeals court exceeded its constitutional authority by finding facts the lower court rejected.

    · State v. Parisi (2014AP1267-CR). This case examines the “good faith exception” to the exclusionary rule, which otherwise excludes or suppresses evidence obtained in violation of an accused person’s Fourth Amendment rights.

    Summaries derived from full summaries available at

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