Evers And Walker Square Off Over DPI Lawsuit
Frederica Freyberg:
In other state news, the race for governor in Wisconsin is already seeing a skirmish between the incumbent and a Democrat in the running. In tonight’s capitol insight, we look at how Governor Scott Walker won’t let Democratic Superintendent of Public Instruction Tony Evers have his own lawyer to represent him in a lawsuit over how he runs his agency. The governor wants the State Attorney General’s office to represent Evers, even though the justice lawyer would argue against Evers. Hmm. We are joined by WPR Capitol Bureau Chief Shawn Johnson to sort this out. That is kind of a hmm.
Shawn Johnson:
It is. There’s a lot of those in this case.
Frederica Freyberg:
But it is usual practice, as I understand it, for the State Department of Justice lawyers to represent agencies in lawsuits. So what’s different this time?
Shawn Johnson:
What’s different this time is that while the Department of Justice is willing and is currently slated to represent Tony Evers in this case, they think that the people suing him essentially are right. That is, they disagree with Tony Evers in this case. And so they would be giving him representation, but not the kind of representation he wants.
Frederica Freyberg:
Let me back up a little bit and say that Evers was sued by a right-wing law group over not getting the Walker Administration’s signoff on implementation of rules within the Department of Public Instruction. That’s a new requirement under state law. But does it make a difference in this case in terms of this legal representation and this signoff of these administrative rules that Tony Evers is a Constitutional officer?
Shawn Johnson:
Tony Evers would argue that it does. That his powers are spelled out explicitly in the state Constitution. And it’s not just him making that argument either. The State Supreme Court issued a decision in 2016 in a very similar case involving a new law that gave the governor more power to veto rules from the Department of Public Instruction. And in that 4-3 decision, they said that, yes, the Superintendent of Public Instruction has these powers and that the governor can’t restrict them.
Frederica Freyberg:
This is basically just a quagmire, but what is really happening here is that the justice lawyers would not argue Evers’ side of this case.
Shawn Johnson:
Right. That’s what it boils down to at this point. And that’s why you heard Tony Evers say this past week — he held a press conference where he had a message to his political opponents, Governor Walker and I think Tony Evers called them his hand-picked attorneys. He said you’re fired. And here’s what Tony Evers said about why.
Tony Evers:
The governor doesn’t get to choose his opponents on the ballot and his opponents’ lawyers in court. 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.
Frederica Freyberg:
So who does Tony Evers want as his lawyer?
Shawn Johnson:
He wants his own lawyer, his lawyer within the Department of Public Instruction, to represent him. That’s actually what happened when this case — not this case, but the similar case went through, the one decided in 2016. Tony Evers had an attorney from the Department of Public Instruction represent him. He wants to do that again. The Department of Public Instruction was starting to initiate that process this time, when Governor Walker’s office stepped in and said, no, the Department of Justice, Brad Schimel's office, will represent you, Tony Evers.
Frederica Freyberg:
What else does the governor say on why he’s doing this?
Shawn Johnson:
The governor, when he was asked about the Tony Evers situation, he basically came back to this message of Tony Evers needs to follow the law. That was the message that you heard over and over again from Governor Walker. So he was asked specifically, shouldn’t Tony Evers have a lawyer representing him who represents his cause, who believes in his cause? Here’s what the governor had to say about that.
Scott Walker
You’re entitled to a lawyer that represents everyone then. The fact of the matter is that the Justice Department represents all state agencies. They’re not conflicted out. And so they’re ultimately going to represent the state in this case just like they would for any other state agency or any other office.
Frederica Freyberg:
Politically speaking, are both sides now, Tony Evers, who we’ve mentioned is a candidate, a Democratic candidate running for governor, of course incumbent Scott Walker who has announced that he’s running for reelection, are they both politicking on this now?
Shawn Johnson:
It would seem like it. We are less than a year from the next governor’s race. I think we should view everything that Tony Evers, a candidate for governor, and Scott Walker, a governor running for third term, we should view everything they do through a political light. So I think we’re on safe ground there. When this thing started out, you could argue that Wisconsin Institute for Law and Liberty, the group bringing this lawsuit, while it is consistent for them to want to restrict administrative rule-making power from agencies, they presented this as Tony Evers breaking the law, right? Knowing that he’s a candidate for governor. Tony Evers is hitting back now saying I'm standing up to Scott Walker. He’s fund-raising off of this pretty regularly saying that he’s in this fight with Scott Walker. So he’s using it to his advantage, too.
Frederica Freyberg:
Just super quickly, there’s a thing that just happened on this as well, another filing.
Shawn Johnson:
Yeah, essentially the lawyers who represented teachers who brought this case initially back in 2012 are asking that court to revisit it again and stop Scott Walker from enforcing this. So instead of dealing with it at the State Supreme Court, they want to take it back into the Circuit Court system.
Frederica Freyberg:
We’ll keep watching it. Shawn, thanks very much.
Shawn Johnson:
You're welcome.
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