A convoluted lawsuit involving state schools superintendent and Democratic candidate for governor Tony Evers took new twists Tuesday, as Evers said he was “firing” the lawyers picked to represent him by one of the state’s top Republicans.
Evers’ statement was almost immediately rebuffed by a spokesman for Republican Attorney General Brad Schimel, who said Schimel’s office would still represent the state in this case and accused Evers of “living in a fantasy land.”
The fiery back-and-forth stood in stark contrast to the content of the lawsuit itself, which accuses Evers of breaking state law by sidestepping Gov. Scott Walker’s administration in the administrative rulemaking process.
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“Don’t be fooled by this, this is not just an issue about administrative rules,” Evers told reporters at a Madison news conference. “This is an unconstitutional abuse of power by the governor of the state of Wisconsin.”
Administrative rules are the fine details of laws crafted by experts at state agencies. Under a law Walker signed this year, agencies now have to present scope statements for rules to the Department of Administration.
Evers’ Department of Public Instruction has been skipping that step, arguing that because Evers is a constitutional officer elected by the public, he’s not required to follow the same procedures as other agencies.
The Wisconsin Supreme Court largely upheld that position in a 4-3 decision issued last year.
The conservative Wisconsin Institute for Law and Liberty wants justices to revisit that ruling. It filed a new lawsuit last week alleging that the legal landscape had changed with the latest overhaul of the rulemaking process by Walker and his Republican allies in the Legislature.
Schimel’s office agrees with the premise of the lawsuit but is defending Evers in court anyway. Schimel spokesman Johnny Koremenos disputed the idea that Evers could “fire” the Wisconsin Department of Justice.
“It doesn’t matter,” Koremenos said. “We will be the ones filing briefs in this case, arguing this case, and representing the state. The DPI superintendent is living in a fantasy land.”
Walker, who could face Evers in the 2018 governor’s race, declined to name a special attorney to represent Evers, arguing that Schimel’s office could handle the case.
“You’re entitled to a lawyer who represents everyone,” Walker told reporters in Milwaukee Tuesday. “The fact of the matter is the Justice Department represents all state agencies. They’re not conflicted out.”
But Evers argued he was entitled to an attorney who would advocate for his point of view, and that anything less violated one of the basic tenets of law, not to mention the Wisconsin Supreme Court’s Rules of Professional Conduct.
“I can’t believe there’s many if any citizens in the state of Wisconsin that would feel comfortable going to court knowing that the attorney that’s representing them actually represents the other side,” Evers said. “Scott Walker thinks he should be judge, jury and executioner.”
In the earlier Supreme Court case that upheld Evers’ rulemaking authority, the Wisconsin Department of Justice argued against Evers while an attorney from the Wisconsin Department of Public Instruction argued for him.
Attorney Susan Crawford, who represented a group of teachers who supported Evers in the earlier case, said that if Schimel’s office would not step aside in this case, it could spawn a new lawsuit of its own.
“The dispute might need to be taken to the Supreme Court,” Crawford said.
Wisconsin Institute for Law and Liberty’s Rick Esenberg said he was confident his group would prevail in this case but did not take a position on who should represent Evers.
“That’s a fight that’s not for me to comment on,” Esenberg said.
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