AG to represent schools superintendent in lawsuit despite conflict

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — Republican Gov. Scott Walker ordered state Justice Department attorneys on Wednesday to represent schools Superintendent Tony Evers in a lawsuit alleging Evers is writing education regulations without the governor’s permission, even though the department believes Evers is overstepping his authority.

The Milwaukee Journal Sentinel first reported that Walker ordered DOJ lawyers to replace Department of Public Instruction attorney Ryan Nilsestuen. Walker issued the order even though DOJ Legal Services Administrator David Meany told Nilsestuen in an email Tuesday that Republican Attorney General Brad Schimel believes Evers needs the governor’s approval to write administrative rules and there’s no basis to argue otherwise.

Evers is running against Walker as a Democrat in 2018. Walker’s order effectively strips Evers of a defense in the lawsuit, dramatically increasing the chances Evers will lose, the governor’s office will gain more control over public schools and Evers will enter the campaign weakened.

Republicans have been trying for decades to strip the schools superintendent of his rulemaking authority. They suffered a setback last year when the Wisconsin Supreme Court ruled 4-3 that the superintendent has the constitutional authority to act independently.

The Wisconsin Institute for Law and Liberty, or WILL, filed a lawsuit Monday asking the conservative-leaning high court to reconsider its ruling in light of the REINS Act.

GOP lawmakers passed the act this summer. It requires state agencies to get approval from the Department of Administration and the governor’s office before drafting any administrative rules, the legal language that enacts statutes or policies. The act essentially gives the governor oversight of every major move an agency makes.

WILL alleged in the lawsuit that Evers has been writing rules without authorization from Walker or DOA in violation of the act.

State law grants the governor the power to order the Justice Department to represent any state agency in litigation. DPI spokesman Tom McCarthy called Walker’s order “bizarre” and an example of blatant politics. He accused the governor of trying to silence Evers and rob him of a defense in the case.

Evers issued a statement through his campaign spokeswoman, Maggie Gau, accusing Walker and Schimel of doing WILL’s bidding.

“They will stop at nothing,” Evers said. “They are so scared that I will beat Scott Walker, they are willing to waste thousands of taxpayer dollars re-filing a frivolous lawsuit they’ve already lost.”

Walker spokesman Tom Evenson said in an email that Schimel asked the governor if Justice Department attorneys could represent Evers. Evenson said the attorney general has the best interest of the state in mind.

“Superintendent Evers should welcome greater accountability at DPI, not dodge it,” Evenson said. “It’s not politics, it’s the law.”

Justice Department spokesman Johnny Koremenos said in an email that Walker requested the agency represent Evers. He said DOJ attorneys see no legal basis “to avoid the legal conclusion that the REINS Act applies to Evers’ rulemaking.

“It is not unusual for a client agency to disagree with the position of DOJ and this case is no different, but that is not a conflict of interest,” Koremenos said. “Wisconsin law unequivocally gives the Attorney General the power to represent any state official or department upon request of the Governor. The Governor invoked this law and now it is the Attorney General’s prerogative to represent DPI and the Superintendent and control the litigation.”