Scott Walker vs. Tony Evers: The governor and a Democratic challenger go before the Supreme Court

Patrick Marley | Milwaukee Journal Sentinel

MADISON - The Wisconsin Supreme Court waded into a politically charged case Tuesday that pits GOP Gov. Scott Walker against a Democrat hoping to challenge him.

At issue is whether state schools Superintendent Tony Evers can choose his own attorney to fight a lawsuit over his powers — or whether Walker gets to assign Evers government lawyers who are aligned with those suing the schools chief.

Evers is part of a large Democratic field seeking to challenge Walker in the November election. The primary is Aug. 14.

The high court — controlled 5-2 by conservatives — heard arguments Tuesday on the issue of who will represent Evers. It will hold arguments later on the heart of the case, which focuses on how much power the schools superintendent has when it comes to writing state rules.

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Evers sought to use his own attorney in the case, but Walker assigned GOP Attorney General Brad Schimel to Evers. Schimel has said he sides with Walker on the case and would largely capitulate to those bringing the lawsuit.

Evers contends he deserves an attorney who represents his views and wants to use lawyers in his Department of Public Instruction.

"If you're involved in litigation, you need to have an attorney who is representing your position," Evers said after attending Tuesday's court arguments. "If I don't have an attorney there that represents me, I will be shut out, absolutely."

Attorneys for Evers contended Schimel and his aides were violating ethics rules for lawyers because they were not pursuing the case in the way Evers wanted, were not conferring with him and did not honor his decision to fire them.

Past court rulings have determined the schools superintendent has broad authority and that includes the ability to direct litigation strategy, Evers attorney Ben Jones contended.

But Solicitor General Misha Tseytlin argued decisions about litigation belong to the attorney general, not Evers.

"With respect, independent litigation is not the supervision of education," he said.

Both sides heard comments from the justices they liked.

"There's nothing specific in Article 10 (of the state constitution) that says you have the power to litigate," conservative Justice Daniel Kelly told Evers' attorney.

But Justice Annette Ziegler, also a conservative, noted a recent high court ruling concluded Evers has vast powers. Ziegler dissented in that case, but acknowledged what her colleagues had ruled.

"Coyne set forth fairly strongly that Mr. Evers ... is a constitutional officer and certain things cannot be taken away from him by the Legislature or elsewhere because it's given to him by the constitution," Zeigler said

She was referring to Coyne v. Walker, the 2016 state Supreme Court decision that handed a victory to Evers' allies after a yearslong legal fight. That legal battle is being revived with the latest lawsuit.

In 2011, Walker approved a law that required state officials to get his sign-off before advancing administrative rules, which include more details than state law and have the force of state law.

A group of teachers and parents sued, arguing the law didn’t apply to Evers because of the powers granted to him by the state constitution. A Dane County judge agreed with them in 2012 and the state Supreme Court upheld that ruling in 2016 in a 4-3 ruling.

In 2017, Walker signed a new, similar law. Evers did not follow that law in the way that he wrote new rules, saying he didn't need to because of the past court rulings.

Soon afterward, a group of teachers and local school board members represented by the conservative Wisconsin Institute for Law & Liberty asked the Supreme Court to take up anew whether Evers had to follow the law on writing state rules.

Last month, the court agreed to take the case. The lawsuit is being heard directly by the Supreme Court without having to go through lower courts as most cases do.

RELATED: Wisconsin Supreme Court to take up politically charged case that pits Scott Walker against Tony Evers

The 2016 decision was unusual in that two liberals — Shirley Abrahamson and Ann Walsh Bradley — joined with conservatives Michael Gableman and David Prosser to rule on the side of Evers' allies.

Since then, Prosser has left the court. Walker appointed Kelly in his place and those bringing the lawsuit are hoping he will rule in their favor.

The court could change again before a final decision is reached. Rebecca Dallet, a liberal, won a spot on the court last month and will be seated in August to replace Gableman, who did not seek re-election.

Evers on Tuesday claimed Walker was trying to block him from using his own attorneys to handicap him in the lawsuit — and politically.

"It's clear that this is a political decision on his part — and we'll take him on," Evers said.

Walker spokeswoman Amy Hasenberg said Evers and his Department of Public Instruction should be held to the same standards as other state agencies.

"It’s not politics, it’s the law," she said in a statement.