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Evers Seeks to Use DPI Attorney in Lawsuit

By John Forester | November 29, 2017

From WisPolitics.com …

State Superintendent Tony Evers today sought to dump the Wisconsin Department of Justice as his attorney in a lawsuit seeking to force him to comply with a new law that gives the Legislature and guv overview of the administrative rules his agency writes.

Evers declared at a news conference AG Brad Schimel was “fired.”

But DOJ said it will continue to represent the Department of Public Instruction despite the disagreements between the two agencies over the core questions in a lawsuit filed by the conservative Wisconsin Institute for Law & Liberty seeking to require Evers to comply with the “REINS” Act.

Evers’ backers raised the prospect today the state Supreme Court may have to first decide who will represent DPI before moving forward with the petition to take up the lawsuit directly.

“Whether Superintendent Evers likes it or not, the State of Wisconsin is the actual defendant in this lawsuit, and his personal opinions as to the what the law is or should be will have no bearing on the Attorney General’s power or ethical duty to represent the State,” said state DOJ spokesman Johnny Koremenos.

It is the latest twist in an burgeoning battle over who should represent DPI in the lawsuit after the agency sought its own representation, but was rebuffed by DOJ and Gov. Scott Walker.

WILL has asked the state Supreme Court to rule whether the 2017 REINS Act covers DPI, which has declined to abide by the requirements. The agency has cited a 2016 state Supreme Court decision on a different law governing the administrative rules process that DPI could not be required to submit proposals to the guv because the superintendent is a separate, constitutionally elected office.

WILL has indicated it plans to ask the court to reconsider that earlier ruling, contending it was a fractured majority.

Evers today accused DOJ of having a conflict of interest in the case, citing rules that attorneys advocate for their clients and abide by their decisions regarding the objectives of representation. He said DOJ argued in last year’s case the superintendent should be covered by the earlier administrative rules process. The agency can’t now ethically represent DPI as it takes the opposing view.

Evers said he hopes to have his agency’s counsel Ryan Nilsestuen represent him in the case. Schimel and Walker last week denied that request, though Nilsestuen has filed a notice of appearance before the state Supreme Court.

“I will never stop fighting for our kids and the state superintendent’s position, and I refuse to be intimidated by Scott Walker’s efforts to silence me,” Evers said.

The 2016 Supreme Court decision stemmed from a 2011 lawsuit filed by Madison Teachers Inc., the Wisconsin Education Association Council and others against Walker, Evers and the DOA secretary. Evers was represented by Nilsestuen in that case and asked the court to block the law. DOJ represented the Walker administration and argued unsuccessfully the law should apply to DPI.

Susan Crawford, who was part of the legal team that sued over the 2011 law, argued it is unethical for DOJ to try representing DPI after it previously opposed Evers’ position.

“If he is not willing to advocate for the superintendent’s position in this case, he needs to step aside and allow a lawyer to represent the superintendent in that case who is willing to vigorously advocate for the superintendent’s position,” she said.

Koremonos said it is not unusual for a client agency to disagree with DOJ’s position and that is not a conflict of interest. Instead, the AG has the power to represent any state official or department upon the guv’s request.

Listen to Evers news conference here.

See the letter DPI sent DOJ today here.

See Wisconsin Public Radio coverage here.

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