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Superintendent Tony Evers talks with reporters in Madison, Wisconsin, on March 15, 2017. (AP file photo)

Supreme Court sides with Evers in fight over attorney

MADISON, Wis. — State Superintendent of Public Instruction 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 race. 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.

“DOJ’s position would not allow a constitutional officer to take a litigation position contrary to the position of the attorney general,” the Supreme Court wrote in an unsigned opinion. “We decline to adopt that view.”

The court, in its 4-3 decision, said 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.”

It would also give the attorney general “breathtaking power” to potentially make the office “a gatekeeper for legal positions taken by constitutional officers, such as the governor or justices of this court,” the Supreme Court said.

Justices Rebecca Bradley, Michael Gableman and Dan Kelly dissented, arguing that the law requires DOJ to represent Evers and that the majority decision “threatens the separation of powers.”

“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.

Department of Justice spokesman Johnny Koremenos noted that the court only allowed Evers to appoint his attorney in this particular case, not in every lawsuit he may face. Koremenos said DOJ would continue to defend the constitutionality of the law in the underlying lawsuit, which the court did not rule on Wednesday.

Evers called it a “common sense decision.”

“It’s good for all Wisconsinites,” he said. “I don’t think there’s any danger in allowing an elected official to have his or her own attorney.”

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.

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