An election-year legal battle between Gov. Scott Walker and one of his top Democratic opponents arrived at the state’s highest court Tuesday.
The Wisconsin Supreme Court heard arguments over whether state Superintendent Tony Evers should be able to hire his own attorney in a lawsuit challenging Evers’ authority over Wisconsin schools.
Evers is being sued by the conservative Wisconsin Institute for Law and Liberty, which alleges Evers is violating a new state law that requires state agency officials to ask Walker for permission to craft regulations.
The question of who should represent Evers comes before the court because Walker has appointed Department of Justice attorneys to defend Evers — over Evers’ objection and despite those attorneys agreeing with WILL’s interpretation of the law.
The lawsuit is the latest move in a seven-year struggle between Evers, the only Democrat leading a major state agency and a top challenger to Walker as the governor seeks a third term this fall, and Republicans seeking to diminish his influence.
The court, which is controlled by conservatives 5-2, ruled two years ago in Coyne v. Walker that Evers can write rules and regulations related to education policy on his own — without permission from Walker and the Legislature. In that case, Department of Public Instruction attorneys represented Evers.
The court ruled 4-3 then in favor of Evers, but Justice David Prosser, who was in the majority, has since retired and has been replaced by Justice Daniel Kelly, a Walker appointee.
In 2017, Walker signed a new law that requires state agency officials to get permission from Walker before writing rules and regulations, prompting WILL to sue Evers for allegedly violating that requirement and Walker is now barring Evers from using DPI attorneys.
“Politics are at the core of this decision,” Evers said. “We had our own in-house counsel argue for us in (Coyne v. Walker). The fact that this turnaround happened because I’m running for governor would lead me to believe that it’s clear that it’s a political decision at this point, and we’ll take him on.”
Walker spokeswoman Amy Hasenberg said Evers is being sued as a state official, which means Attorney General Brad Schimel and DOJ attorneys have the authority to represent him and determine which arguments are in the best interest of the state.
“We believe DPI should be held to the same high level of transparency and accountability taxpayers expect of any other state agency,” Hasenberg said. “Superintendent Evers should welcome greater accountability at DPI, not dodge it. It’s not politics. It’s the law.”
DOJ solicitor general Misha Tseytlin agreed Evers’ opinions in the matter are irrelevant, and argued the state Constitution grants Evers powers to supervise public instruction, which does not include hiring independent counsel.
But Department of Public Instruction attorney Ben Jones argued Schimel, who oversees the DOJ, is violating ethics rules that govern attorney-client relationships.
To that point, Chief Justice Patience Roggensack asked Tseytlin how attorneys who are at odds with their clients could operate under the Supreme Court’s professional ethics rules.
“How is it then that you’re going to proceed to represent someone who a) doesn’t want you and b) thinks your position is incorrect?” Roggensack asked.
Tseytlin said the Supreme Court ruled previously the usual attorney-client obligations don’t necessarily apply in government attorneys representing state officials because the Attorney General decides representation according to the interests of the state rather than of the official.
Justice Michael Gableman pointed out DOJ attorneys don’t believe Evers’ position that he does not have to seek permission to write rules and regulations is grounded in law.
But Justice Annette Ziegler reminded the court that the Coyne decision, in which she dissented, said Evers’ authority cannot be taken away by the Legislature because his powers are delivered to him by the state Constitution.
DPI’s chief legal counsel said after the hearing that all attorneys must abide by rules that require that attorneys be advocates for their clients.
“An attorney has to zealously advocate for their client — they refuse to do so,” Ryan Nilsestuen said. He added DOJ attorneys also refuse to confer with Evers, and ignored Evers when he fired them.
The court will hear arguments on the lawsuit at a later date, which has yet to be scheduled. If WILL is successful in its suit, Evers will be required to submit rules and regulations for education policy and schools to Walker for approval.
Evers said currently DPI is writing rules related to the state’s private voucher school programs. He said if the lawsuit is successful, “you can be confident that essentially (Walker) would be writing those rules, I would not.”