Supreme Court ruling could be temporary

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Matt Pommer

The state Supreme Court has rebuffed Republican efforts to give Gov. Scott Walker veto power over education rules created by the Department of Public Instruction.

The 4-3 decision said a 2011 law giving the governor prior approval rights for administrative rules cannot be applied to the Department of Public Instruction. That agency is headed by a state superintendent selected in statewide votes.

But the defeat may be temporary. Justice David Prosser, who was one of the four votes to block the law, has resigned from the high court, effective at the end of July.

Gov. Walker gets to appoint Prosser’s replacement. By late May, the opening had attracted numerous applications, including several with clear ties to either the governor or Republican legislators.

Among the applicants are Appeals Court judge Mark Gundrum, a former Republican legislator; James Troupis, a prominent attorney who represented Republican legislators in high profile cases; Jefferson County Circuit Court Judge Randy Koschnick, father of the governor’s current legal counsel; and Brian Hagedorn, now an appeals court judge and a former legal counsel to Walker.

It could take an extended period of time, perhaps years, to get another challenge before the high court. The decision also restores a measure of respectability for the high court. The vote against more power for the governor may help ease criticism that the high court had become, with a 5-2 conservative majority, a lap dog for the governor.

That was spurred by its decision to end the John Doe investigation into events surrounding Walker’s election campaigns. In a far-reaching decision, it effectively cleared the way for unlimited coordination between private interest groups and candidates. The First Amendment and freedom of speech was cited in that decision.

Three district attorneys in the John Doe proceedings are seeking a review by the U.S. Supreme Court because it seems to go far beyond that court’s campaign-finance rulings.

The 2011 law requiring agencies to get prior gubernatorial approval for administrative rules before they go to the Legislature wasn’t the first GOP effort to limit the state superintendent’s power.

Former Gov. Tommy Thompson signed legislation that would have created additional education jobs that would be filled by persons appointed by the governor. That was struck down in 1996 by an unanimous State Supreme Court.

In this year’s lead opinion, Justice Michael Gableman said the law would reduce the power of the elected state superintendent. A constitutional amendment would be needed to do that, Gableman indicated.

In a dissent, Chief Justice Patience Roggensack said the Legislature has the power to direct all state agencies to make rules, including the Department of Public Instruction.

State Superintendent Tony Evers said the people want an elected state superintendent. If they don’t like the way he is doing the job, they can elect someone else, he said.

Evers said he hoped the decision would end efforts to change the position. That may be overly optimistic with a replacement coming for Prosser.

Matt Pommer, a retired reporter for the Capital Times, writes a column distributed by the Wisconsin Newspaper Association.