Supreme Court gives win to Tony Evers over Gov. Scott Walker in case challenging authority

Molly Beck | Milwaukee Journal Sentinel

MADISON - The Wisconsin Supreme Court leveled an election-year blow against Gov. Scott Walker in a case involving Walker and his top Democratic candidate challenger.

In a 4-3 decision, the court ruled Wednesday state schools Superintendent Tony Evers may choose his own attorney to defend him in a lawsuit filed by a conservative law firm challenging Evers' authority to write his own education policies.

The Wisconsin Institute for Law & Liberty argues in the suit Evers should be subject to a new law that requires agency heads to seek permission from Walker before writing new rules and regulations. Evers says the new law does not apply to his office because he is a constitutional officer, unlike most agency leaders, and because a previous Supreme Court ruling on a similar question upheld his independent authority.

Walker had tried to block Evers from picking his own lawyer, and Republican Attorney General Brad Schimel had assigned Department of Justice lawyers who disagreed with Evers' stance in the case. But the conservative-controlled court said Evers could not be required to be represented by DOJ and that Walker is not a party to the case.

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Evers is leading the wide Democratic field of candidates seeking to unseat Walker in November. Evers told the court in May that being required to use attorneys who didn't agree with him was not proper representation.

But the DOJ argued Evers is being sued in his capacity as state superintendent and that Walker had the right to choose an attorney who would seek what's best for the state — not for Evers.

In the unsigned order, the court said accepting DOJ's argument "would foist upon Evers and (the Department of Public Instruction) an attorney they do not want (and have discharged), taking a position with which they do not agree," prompting ethical implications for DOJ attorneys and giving Schimel "breathtaking power."

"It would potentially make the attorney general a gatekeeper for legal positions taken by constitutional officers, such as the governor or justices of this court sued in their official capacity," the court wrote. "DOJ's position would not allow a constitutional officer to take a litigation position contrary to the position of the attorney general. We decline to adopt this view."

The court said because the lawsuit is challenging the scope of power given to him through the Wisconsin Constitution, Evers could not seek to protect his power without a lawyer to argue his position.

The decision was written by a majority that brought together two liberal-leaning justices and two conservative-leaning justices: Justices Shirley Abrahamson and Ann Walsh Bradley, and Chief Justice Patience Roggensack and Justice Annette Ziegler.

Justices Rebecca Bradley, Michael Gableman and Daniel Kelly, all conservatives, disagreed with the court's decision. In their dissent, Bradley said no Wisconsin law gives Evers the power to hire or fire a DOJ attorney.

"The constitution creates the role of a state superintendent and gives the superintendent authority to supervise public instruction. That is all the constitution confers upon the superintendent," Bradley wrote. "The majority creates a dangerous precedent. It brandishes its superintending authority like a veto over laws it does not wish to apply. In doing so, it thwarts the will of the people."

She said if Evers does not like state laws on how state agencies are represented, "he should take it up with the Legislature to amend them."

Evers is the only Democrat to oversee a major state agency and he and previous Democratic DPI chiefs have been at odds with Republican governors going back to the 1990s and prevailed in each challenge to their authority.

Evers called the court's decision a win for common sense and said he expects more challenges to the office's authority.

"Yipee!" Evers said. "The idea of having no say so in your defense in court makes no sense to anybody — it was good to have common sense prevail."

Johnny Koremenos, spokesman for DOJ, said though DOJ would not be representing a party in the case, the department would file briefs with the court to argue Evers should be subject to the new law.

Koremenos also said the ruling was narrow and did not give Evers the authority to choose his own lawyer in future cases.