MADISON, Wis. — Wisconsin Department of Public Instruction attorneys tried to persuade the state Supreme Court on Tuesday to let them represent Superintendent Tony Evers in a lawsuit challenging Evers' authority rather than the state Department of Justice, arguing the agency is refusing to accept its responsibility to defend Evers' position.
Evers is one of nine Democrats raising money to challenge Republican Gov. Scott Walker in November. The Wisconsin Institute for Law and Liberty, a conservative law firm, filed a lawsuit with the Supreme Court last year arguing Evers has been writing school regulations without approval from Walker or his administration in violation of state law.
Walker has ordered the Department of Justice to represent Evers. Republican Attorney General Brad Schimel, who runs that agency, Schimel has sided with the institute, in effect providing Evers no defense and setting him up to lose his rule-making authority. Department of Public Instruction attorney Ryan Nilsestuen told reporters Tuesday that Justice Department attorneys haven't even conferred with Evers.
Evers has refused to accept DOJ's representation and wants his own attorneys. The justices spent more than an hour Tuesday morning listening to oral arguments over whether that agency must represent Evers and, if so, fight for his position.
Department of Public Instruction attorney Ben Jones argued nothing prohibits Evers from using his own attorneys. He added that Evers doesn't lose his ability to direct the litigation just because the governor appointed the Justice Department to represent him.
Justice Department Solicitor General Misha Tseytlin countered that the attorney general has the power to decide what's in the state's best interest when the governor assigns him to a case. The client's stance is largely irrelevant, he said, pointing out that when the agency defended Wisconsin's contentious voter ID law it wasn't important what members of the state Elections Commission thought about the law.
If Jones' interpretation holds, Tseytlin continued, the Justice Department would have to let any state employee they represent in a lawsuit control the proceedings.
Justice Daniel Kelly demanded Jones show him which statutes say the superintendent can direct litigation. Jones replied that there's no express authority but the Justice Department has an ethical duty to represent their clients. Otherwise the agency would have broad authority to refuse to defend any state officials, Jones said.
Justice Rebecca Bradley suggested that Evers simply file friend-of-the-court briefs on his own behalf rather than rely on the agency to represent him. Jones called that idea "inappropriate," saying that approach wouldn't adequately represent the superintendent. As a constitutional officer in charge of the state's public schools, Evers has the authority to be heard on school matters, Jones said.
Republicans have been trying to strip the superintendent of his rule-making authority for decades. The GOP-controlled Legislature last year passed a law that requires state agencies to obtain permission from the Department of Administration and the governor before crafting regulations. The law essentially gave Walker oversight of every major move a state agency makes.
Evers has argued that law doesn't apply to him, pointing to a 4-3 Supreme Court ruling in 2016 that found the superintendent can act independently. Department of Public Instruction attorneys represented Evers in that case.
But David Prosser, one of the justices who ruled for the superintendent, has since retired. Walker appointed Kelly, who has served on the Wisconsin Institute for Law and Liberty litigation board, to replace him, potentially changing the playing field this time around.
Evers told reporters after oral arguments that he thinks the lawsuit was filed because he's challenging Walker.
"Politics are at the core of this," Evers said. "The facts of the case are same as two years ago. The only thing that's changed is different judges sitting up there. They're taking advantage of that to reduce the superintendent to a cheerleader."