Scott Walker Gets Another Legal Smackdown Plus ALEC News

Again.

A portion of a law giving Gov. Scott Walker veto powers over rules written by the state schools superintendent was struck down Tuesday by a Dane County judge, the latest in a series of legal skirmishes between the GOP governor and public employee unions.

In the case, parents of students and members of the Wisconsin Education Association Council and Madison Teachers Inc. challenged the law approved last year giving Walker the power to veto administrative rules written by any state agency.

In the decision issued Tuesday, Circuit Judge Amy Smith ruled that the law violated the state constitution by giving Walker that power over the state Department of Public Instruction, which is headed by state schools Superintendent Tony Evers.

The constitution says that "the supervision of public instruction shall be vested in a state superintendent and such other officers as the Legislature shall direct." In a 1996 decision referred to by Smith and the unions, the state Supreme Court held that lawmakers and the governor cannot give "equal or superior authority" over public education to any other official.

That 1996 Supreme Court decision was the result of a case brought against then Governor Tommy Thompson (yeah, him) when he tried to dissolve the Department of Public Instruction and move its function into a new Department of Education which he would control.  Fail!

The measure, which Walker signed in May 2011, allows the governor to reject proposed administrative rules used to implement state laws.

Previously, the administrative rules were written by state agencies and reviewed by the Legislature before they could take effect. Under the new law - put forward as part of a special legislative session on jobs that Walker called in January 2011 - the governor signs off on rules before sending them to the lawmakers.

So, you might ask, why is this a big deal and why would groups of parents and teachers bring a lawsuit?  While most of the state government is in the Governors control through his power to appoint their directors and management, there are a few, like the Government Accountability Board (which controls elections and handles state ethics), the Department of Justice, and the Department of Public Instruction that aren't.  The heads of the DOJ and DPI are elected independently from the Governor.

Of course, Walkers spokesperson has stated that he is "confident" he would win an appeal.