State Superintendent Tony Evers says he refuses to be represented by DOJ in lawsuit

MADISON, Wis. — State Superintendent Tony Evers, a Democratic candidate for governor, said Tuesday he refuses to be represented by the Republican-led Wisconsin Department of Justice in a lawsuit challenging his independence.

Evers said he was firing Attorney General Brad Schimel over what he characterized as a conflict of interest, but Schimel's spokesman said he would not step aside. That sets up what could be a protracted separate legal fight over who should represent Evers in the case.

At the heart of the underlying lawsuit is the latest battle in a decades-long fight over the constitutional powers of the state superintendent of public instruction, a position Evers has held for nearly nine years. But the drama that played out Tuesday oozes with political intrigue given that Evers is a Democratic candidate looking to challenge Republican Gov. Scott Walker next year.

A newly enacted state law, passed by the Republican-controlled Legislature and signed by Walker, requires all state agency rules to be approved by the governor. Rules are the legal language that enacts laws and policies and giving the governor veto authority over what an agency does increases his oversight and power over their actions.

The Wisconsin Institute for Law and Liberty last week filed a lawsuit directly with the state Supreme Court. It alleges that the Department of Public Instruction, which Evers runs as state superintendent, has been writing administrative rules without permission of Walker's administration in violation of the new law.

Walker last week ordered the Justice Department to represent Evers in the case, even though the department agrees with the position taken in the lawsuit by the conservative law firm that brought it.

Evers argued Tuesday that is a conflict of interest that could put Schimel in violation of rules of professional conduct that require attorneys to advocate for their clients. Evers said in his letter to Schimel that the Justice Department was "neither willing nor ethically able to provide representation in this matter."

Evers was joined at a news conference by two prominent Democratic attorneys — Lester Pines and Susan Crawford — who successfully defended the superintendent's rule-making authority in a case decided by the Wisconsin Supreme Court earlier this year.

"There's no reason to re-litigate this now unless it has something to do with the election," Evers said.

Pines accused Schimel and his "minions" of "concocting a fantasy" that the Supreme Court ruling giving DPI independence to enact rules without the governor's approval means nothing.

"Deliberately ignoring a Supreme Court decision is unprecedented and dangerous," Pines said.

Rick Esenberg, attorney for WILL that brought the lawsuit, said confusion over the ruling remains and passage of the law this year by the Legislature forces the Supreme Court to revisit the issue.

Justice Department spokesman Johnny Koremenos said Evers' personal opinions "will have no bearing on the attorney general's power or ethical duty to represent the state." Koremenos said Schimel will not step aside as Evers requested.

Pines and Crawford said the fight to get Schimel to step aside could result in a separate lawsuit or an ethics complaint with the Office of Lawyer Regulation.

Last week, Koremenos denied there was a conflict of interest for the Justice Department to represent Evers, saying "it is not unusual for a client agency to disagree with the position of DOJ and this case is no different."