State Superintendent Tony Evers, a Democratic candidate for governor, is entitled to his own attorney in a lawsuit challenging his constitutional powers, the Wisconsin Supreme Court ruled Wednesday.
The case hangs heavy with political implications as Republican Gov. Scott Walker wanted the GOP-led Wisconsin Department of Justice to represent Evers in the case. Republican Attorney General Brad Schimel, who runs the agency, sided with a conservative firm that filed the lawsuit challenging Evers’ authority.
Evers, one of eight Democrats running for a chance to take on Walker, argued that was unfair and he should be able to use his own attorney. If DOJ were to represent him, Evers would essentially have no one arguing his position.
The divided Supreme Court, in a 4-3 unsigned opinion Wednesday, agreed that Evers was entitled to use his own attorneys at the Department of Public Instruction which he runs.
“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’s attorneys.”
Justices Rebecca Bradley, Michael Gableman and Dan Kelly dissented, arguing that the law requires DOJ to represent Evers.
“The majority permits Evers to exercise unbridled, independent litigation authority in his own interests rather than the interests of the people of Wisconsin,” the dissenting justices said.
Spokesmen for both Evers and Schimel did not immediately return messages seeking comment.
The Wisconsin Institute for Law and Liberty filed a lawsuit with the Supreme Court last year arguing Evers has been writing school regulations without approval from Walker or his administration in violation of state law.
Republicans have been trying to strip the superintendent of his rule-making authority for decades. The GOP-controlled Legislature last year passed a law that requires state agencies to obtain permission from the Department of Administration and the governor before crafting regulations. The law essentially gave Walker oversight of every major move a state agency makes.
Evers has argued that law doesn’t apply to him, pointing to a 4-3 Supreme Court ruling in 2016 that found the superintendent can act independently. Department of Public Instruction attorneys represented Evers in that case.