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Supreme Court sides with Evers in fight over attorney (UPDATE)

Citing ethical concerns for some government attorneys, the Wisconsin Supreme Court decided on Wednesday that state Superintendent Tony Evers can hire his own lawyer in a lawsuit challenging his authority.

The decision arose from a lawsuit filed last year by the Wisconsin Institute for Law and Liberty alleging that Evers, who runs the state Department of Instruction, has been violating state law by writing school regulations without approval from Gov. Scott Walker or his administration.

Republicans have been trying to strip the superintendent of his rule-making authority for decades. The GOP-controlled Legislature last year passed a law requiring state agencies to obtain permission from the Department of Administration and the governor before drawing up new regulations. The law essentially gave Walker oversight of every big change a state agency makes.

Republican Attorney General Brad Schimel, who runs the DOJ, had sided with WILL in a previous lawsuit it filed challenging Evers’ authority. Department of Public Instruction attorneys represented Evers in that case.

In the most recent case, DPI attorneys were going to represent Evers but the state DOJ tried to appear for Evers and the DPI, saying that Walker had asked the DOJ to take over. Evers later wrote to Schimel that he was terminating the DOJ’s representation.

Evers and the DPI filed a motion asking the court to prevent the DOJ from appearing in court on their behalf, and the DOJ filed a cross-motion to prevent DPI’s in-house lawyers from appearing.

The justices on Wednesday granted Evers’ motion and, in an unsigned order, denied the DOJ’s motion.

The justices had asked the parties to brief them on whether Walker was a necessary party to the case, and on Wednesday unanimously agreed that he was not.

As to whether DOJ’s attorneys must represent Evers, the court was split. Justice Rebecca Bradley concurred in part and dissented in part. She was joined by Justices Dan Kelly and Michael Gableman.

The majority of the court decided to use its superintending authority to find that Evers and the DPI need not be represented by the DOJ. The court wrote that it chose to do this because of ethical considerations that would arise if it had sided with the DOJ.

“First, accepting DOJ’s argument would foist upon Evers and DPI an attorney they do not want (and have discharged), taking a position with which they do not agree,” the court wrote. “This could have ethical implications for DOJ attorneys.”

State attorney-ethics rules prevent lawyers from representing clients who fire them and require them to withdraw from cases when they are discharged.

The court was also concerned that siding with the DOJ could give the state attorney general “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.

Although agreeing with the part of the order finding that Walker was not a necessary party to the lawsuit, Bradley disagreed that Evers need not be represented by the DOJ.

She wrote that the order ignores the Wisconsin Constitution and state statutes, and “threatens” the separation of powers. She started her separate writing with a quote from The Federalist Papers by Alexander Hamilton.

Evers is running for governor and is one of eight Democrats hoping to challenge Walker in the race. Evers has pointed to the lawsuit as an example of how he is standing up to the Republican incumbent.

The Associated Press contributed to this report.

About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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