Kristi Koschkee v. Tony Evers

2018 WI 82
SUPREME COURT OF WISCONSIN
NOTICE
This order is subject to further
editing and modification. The
final version will appear in the
bound volume of the official
reports.
No. 2017AP2278-OA
Kristi Koschkee, Amy Rosno, Christopher
Martinson and Mary Carney,
Petitioners, FILED
v.
JUN 27, 2018
Tony Evers; in his official capacity as Sheila T. Reiff
Wisconsin Superintendent of Public Instruction Clerk of Supreme Court
and Wisconsin Department of Public Instruction, Madison, WI
Respondents.
The Court entered the following order on this date:
JUNE 27, 2018
¶1 This original action is before the court for the
determination of preliminary motions related to two issues: (1)
whether the respondents in this action, Superintendent of Public
Instruction Tony Evers and the Department of Public Instruction,
are entitled to counsel of their choice or whether they must be
represented by the Department of Justice; and (2) whether
Governor Scott Walker is a necessary party to this action.
¶2 We conclude that Evers and the Department of Public
Instruction are entitled to counsel of their choice and are not
No. 2017AP2278-OA
required to be represented by the Department of Justice.
Further, we conclude that the governor is not a necessary party
to this action. Accordingly, we grant Evers' and the Department
of Public Instruction's motion to deny substitution of counsel
and to disqualify the attorney general from appearing on behalf
of respondents and deny the Department of Justice's cross-motion
to strike the appearance by attorneys Ryan Nilsestuen and
Benjamin R. Jones. We further decline to order that the
governor be joined as a necessary party.
I
¶3 In this original action, petitioners seek a
declaratory judgment that Superintendent of Public Instruction
Tony Evers (Evers) and the Department of Public Instruction
(DPI) must comply with the REINS Act, 2017 Wis. Act 57.
Generally, the REINS Act requires an agency proposing an
administrative rule to submit the proposed rule to the
"department of administration, which shall make a determination
as to whether the agency has the explicit authority to
promulgate the rule as proposed in the statement of scope and
shall report the statement of scope and its determination to the
governor who, in his or her discretion, may approve or reject
the statement of scope." 2017 Wis. Act 57, § 3; Wis. Stat.
§ 227.135(2).
¶4 The record reflects that, upon the filing of the
original action petition, a dispute arose between DPI and the
Department of Justice (DOJ) regarding which entity would provide
representation for Evers and DPI in this case. On the same day
2
No. 2017AP2278-OA
the original action petition was filed, DPI's in-house counsel
initiated correspondence with DOJ regarding representation. DOJ
indicated that it was of the position that the REINS Act applies
to Evers and DPI. This position is contrary to that taken by
Evers and DPI.
¶5 DPI in-house attorneys filed a notice of appearance
with the court, and notified DOJ that they would not be
referring this matter to DOJ for representation. DOJ responded
by filing its own notice of appearance and substitution of
counsel. Further, DOJ informed DPI attorneys that the governor
had requested that DOJ take over representation of Evers and
DPI. By letter, Evers notified the attorney general that he was
terminating DOJ's representation.
¶6 Evers and DPI filed a motion to deny substitution of
counsel and to disqualify the attorney general from appearing on
their behalf. In response, DOJ filed a cross-motion to strike
the appearance by DPI's in-house counsel, Ryan Nilsestuen and
Benjamin R. Jones. We address both of these motions in this
order. Additionally, the court sua sponte raised the issue of
whether the governor is a necessary party to this action and we
also address that issue.
II
¶7 We address first who will represent Evers and DPI in
this action. Specifically, we examine whether Evers and DPI
should be represented by counsel of their choice or by DOJ.
Evers and DPI assert that they are entitled to be represented by
their own counsel. Conversely, DOJ argues that it is to take
3
No. 2017AP2278-OA
over the representation of Evers and DPI and to determine Evers
and DPI's litigation position.
¶8 This court is vested with authority by the Wisconsin
Constitution.1 Specifically, this court has "superintending and
1
The dissent fails to acknowledge the focus of our
discussion. This order does not address the constitutional
authority of the superintendent of public instruction. Rather,
it addresses the authority of the Wisconsin Supreme Court.
Unlike the dissent, we save for another day the substantive
issues addressing the constitutional authority of the
superintendent of public instruction.
This court possesses inherent power, which includes the
court's superintending authority. Our inherent power includes
"all judicial powers essential to carry out the judicial
functions delegated to [us]." In re Kading, 70 Wis. 2d 508,
517, 235 N.W.2d 409 (1975). The dissent's disclaimer of our
exercise of superintending authority here is inconsistent with
the court's inherent power to appoint an attorney in a civil
case. This power, although most often exercised to preserve the
constitutional rights of indigent criminal defendants, is not
limited to constitutional or statutory grace, to criminal cases,
or to litigants who are indigent.
A court's inherent power to appoint counsel is not
derived from an individual litigant's constitutional
right to counsel, but rather is inherent to serve the
interests of the circuit court. . . . In rare cases a
court may find a compelling judicial need for
appointment of an attorney for a party even though
that party may have neither a constitutional nor a
statutory right to counsel. A court may use its
inherent discretionary authority to appoint counsel in
furtherance of the court's need for the orderly and
fair presentation of a case.
(continued)
4
No. 2017AP2278-OA
administrative authority over all courts." Wis. Const. art.
VII, § 3. Our superintending power is "as broad and as flexible
as necessary to insure the due administration of justice in the
courts of this state." In re Kading, 70 Wis. 2d 508, 520, 235
N.W.2d 409 (1975). "If this power were strictly limited to the
situations in which it was previously applied, it would cease to
be superintending, since this word definitely contemplates
ongoing, continuing supervision in response to changing needs
and circumstances." Id.
¶9 "[T]he primary duty of the courts as the judicial
branch of our government is the proper and efficient
administration of justice." In re Integration of the Bar, 5
Wis. 2d 618, 622, 93 N.W.2d 601 (1958). Essential to such a
duty is the inherent supervisory power over the practice of law.
Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis. 2d 179,
184, 214 N.W.2d 401 (1974). "The practice of law in the broad
sense, both in and out of the courts, is [] a necessary part of
Joni B. v. State, 202 Wis. 2d 1, 10-11, 549 N.W.2d 411 (1996)
(internal citations omitted). Furthermore, "the legislature may
not place an unreasonable burden on or substantially interfere
with the judiciary's exercise of that power," id. at 10, and
this authority is not limited, as the dissent suggests, to the
appointment of amicus counsel. This is indeed an exceptional
case, and one in which the superintendent and DPI's request for
independent counsel furthers the court's need for the orderly
and fair presentation of the case. Moreover, where, as here, we
sit as the trial court in an original action, exercising our
authority to appoint counsel is entirely logical; that is, we
are not, as the dissent suggests, merely "supervis[ing
ourselves]." See dissent, ¶42.
5
No. 2017AP2278-OA
and is [] inexorably connected with the exercise of the judicial
power . . . ." In re Integration of the Bar, 5 Wis. 2d at 622.
¶10 "[T]he regulation of the practice of the law is a
judicial power and is vested exclusively in the supreme court"
by way of Article VII of the Wisconsin Constitution. State ex
rel. Reynolds v. Dinger, 14 Wis. 2d 193, 206, 109 N.W.2d 685
(1961); see State ex rel. Fiedler v. Wisconsin Senate, 155
Wis. 2d 94, 105-06, 454 N.W.2d 770 (1990). Once an attorney has
been "admitted to practice law, he or she is subject to the
judiciary's inherent and exclusive authority to regulate the
practice of law." Fiedler, 155 Wis. 2d at 103.
¶11 This case presents a dispute regarding the
representation of a client. Representation of a client before
this court is most certainly the "practice of law." See SCR
23.01(3) (defining the practice of law to include
"[r]epresentation of another entity or person(s) in a court").
It is thus within the purview of our superintending authority to
decide a question of representation.
¶12 Our supervisory authority is not to be invoked
lightly. State v. Jennings, 2002 WI 44, ¶15, 252 Wis. 2d 228,
647 N.W.2d 142. Whether we choose to exercise our supervisory
authority in a given situation is a matter of judicial policy
rather than one relating to the power of this court. In re
Phelan, 225 Wis. 314, 320, 274 N.W. 411 (1937). However, the
"necessities of justice" require us to exercise our
superintending authority here. See Arneson v. Jezwinski, 206
Wis. 2d 217, 225, 556 N.W.2d 721 (1996). We determine that our
6
No. 2017AP2278-OA
superintending authority over the courts and over the practice
of law gives this court the power to resolve disputes regarding
representation. Accordingly, on the facts of this case, we
exercise our superintending authority to determine that Evers
and DPI are entitled to counsel of their choice and are not
required to be represented by DOJ.
¶13 We reach this conclusion because we are concerned
about the implications of DOJ's argument. First, 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. This could have ethical implications for DOJ
attorneys.2 Second, accepting DOJ's argument would give the
attorney general breathtaking power. It would potentially make
the attorney general a gatekeeper for legal positions taken by
constitutional officers, such as the governor or justices of
this court sued in their official capacity.3 DOJ's position
would not allow a constitutional officer to take a litigation
position contrary to the position of the attorney general. We
decline to adopt this view.
2
See SCR 20:1.16(a)(3) ("a lawyer shall not represent a
client or, where representation has commenced, shall withdraw
from the representation of a client if . . . the lawyer is
discharged.").
3
Such a result appears to be at odds with this court's
practice of appointing counsel for a "court, for judges sued in
their official capacity . . . and for boards, commissions and
committees appointed by the supreme court." See SCR 81.02(1).
7
No. 2017AP2278-OA
¶14 This case serves as a good example as to why DOJ's
position cannot be accepted. On its merits, this suit is about
the constitutional scope of the superintendent's power. The
superintendent cannot protect such power without a lawyer to
argue his position. DOJ has indicated that it will not argue
the superintendent's position, but its own. Accepting DOJ's
position would leave no way to determine the scope of the powers
vested in a constitutional officer and would essentially leave
the attorney general, and not this court, to decide the scope of
the superintendent's constitutional authority.
¶15 Thus, we grant Evers and DPI's motion to deny
substitution of counsel and to disqualify the attorney general
from appearing on behalf of respondents and deny DOJ's cross-
motion to strike the appearance by attorneys Ryan Nilsestuen and
Benjamin R. Jones.
III
¶16 We address next whether the governor must be joined as
a necessary party to this action. The parties direct us to two
possible statutory bases for our consideration. We examine each
in turn.
A
¶17 DOJ directs us to Wis. Stat. § 803.03(1), which
provides that a party shall be joined if any of three criteria
apply: (1) in the person's absence complete relief cannot be
accorded among those already parties; (2) the person claims an
interest relating to the subject of the action and is so
situated that the disposition of the action in the person's
8
No. 2017AP2278-OA
absence may as a practical matter impair or impede the person's
ability to protect that interest; or (3) the disposition of the
action would leave any of the persons already parties subject to
a substantial risk of incurring double, multiple or otherwise
inconsistent obligations by reason of his or her claimed
interest.
¶18 None of the criteria set forth in Wis. Stat.
§ 808.03(1) is fulfilled. First, complete relief can be
afforded even in the governor's absence. See § 803.03(1)(a).
In examining this prong of the statute, we look to the requested
relief for guidance. This is a declaratory judgment action
seeking a declaration that Evers and DPI must comply with the
REINS Act. Although the governor does have a role to play in
the promulgation of rules pursuant to the REINS Act, a
declaration would have the same effect on him whether he
participates as a party or not.
¶19 The REINS Act, Wis. Stat. § 227.135(2), sets forth a
task for both the Department of Administration and the governor.
Pursuant to § 227.135(2), an agency seeking to promulgate a rule
"shall present the statement [of scope] to the department of
administration, which shall make a determination as to whether
the agency has the explicit authority to promulgate the rule as
proposed in the statement of scope and shall report the
statement of scope and its determination to the governor who, in
his or her discretion, may approve or reject the statement of
scope." Similarly, § 227.185 provides a responsibility for the
governor: "After a proposed rule is in final draft form, the
9
No. 2017AP2278-OA
agency shall submit the proposed rule to the governor for
approval. The governor, in his or her discretion, may approve
or reject the proposed rule."
¶20 This case raises the question of whether DPI must
submit a scope statement to the governor in the first instance.
It does not raise the question of what the governor does with a
scope statement if submitted. A declaration in this case will
not affect the governor's responsibilities under the REINS Act.
The governor will still review a scope statement if he receives
one whatever the outcome of this case.
¶21 Second, not participating as a named party in this
case will not as a practical matter impair or impede the
governor's ability to protect his interest. See Wis. Stat.
§ 803.03(1)(b)1. Although case law does not state a clear test
for when one has an "interest" in the context of
§ 803.03(1)(b)1., we take guidance from Dairyland Greyhound
Park, Inc. v. McCallum, 2002 WI App 259, ¶15, 258 Wis. 2d 210,
655 N.W.2d 474. "The relevant inquiry in Wisconsin is thus not
whether a prospective party has a legal or legally protected
interest in the subject of an action, but whether the person or
entity has an interest of such direct and immediate character
that the [prospective party] will either gain or lose by the
direct operation of the judgment." Id. (internal quotations and
citation omitted).
¶22 As stated above, the governor will neither gain nor
lose by direct operation of the judgment here. His obligation
remains the same no matter the outcome—to review a scope
10
No. 2017AP2278-OA
statement if presented. The governor therefore has no legally
protectable "interest" that would require necessary party status
pursuant to Wis. Stat. § 803.03(1)(b)1.4 Finally, the governor's
absence will not leave any person who is already a party subject
to a substantial risk of incurring double, multiple or otherwise
inconsistent obligations. See Wis. Stat. § 803.03(1)(b)2.
¶23 In sum, none of the criteria set forth in Wis. Stat.
§ 803.03(1) is fulfilled. Accordingly, § 803.03(1) cannot serve
as authority for joining the governor as a necessary party.
B
¶24 We address next DPI's argument that the governor is a
necessary party pursuant to the Declaratory Judgment Act.
Wisconsin Stat. § 806.04(11) states in part: "When declaratory
relief is sought, all persons shall be made parties who have or
claim any interest which would be affected by the declaration,
and no declaration may prejudice the right of persons not
parties to the proceeding."
¶25 "[T]he Declaratory Judgment Act does not require 'the
joinder as parties, in a declaratory action to determine the
validity of a statute or ordinance, of any persons other than
the public officers charged with the enforcement of the
4
This is not to say that the governor cannot participate as
amicus curiae in this case. Further, pursuant to Wis. Stat. §
806.04(11), "[i]f a statute, ordinance or franchise is alleged
to be unconstitutional, the attorney general shall also be
served with a copy of the proceeding and be entitled to be
heard." It appears that the attorney general and the governor
are in accord as to their position in this case.
11
No. 2017AP2278-OA
challenged statute or ordinance.'" Helgeland v. Wisconsin
Municipalities, 2008 WI 9, ¶140, 307 Wis. 2d 1, 745 N.W.2d 1
(citing White House Milk Co. v. Thomson, 275 Wis. 243, 249, 81
N.W.2d 725 (1957)). The court has not
construed Wis. Stat. § 806.04(11) to require "that where a
declaratory judgment as to the validity of a statute or
ordinance is sought, every person whose interests are affected
by the statute or ordinance must be made a party to the
action." Id. (citing Town of Blooming Grove v. City of Madison,
275 Wis. 328, 334, 81 N.W.2d 713 (1957)). If the statute "were
so construed, the valuable remedy of declaratory judgment would
be rendered impractical and indeed often worthless for
determining the validity of legislative enactments, either state
or local, since such enactments commonly affect the interests of
large numbers of people." Id. As with Wis. Stat. § 803.03(1),
we determine that the governor is not a necessary party pursuant
to § 806.04(11). Although the governor has a role to play
pursuant to the REINS Act, "every person whose interests are
affected" need not be made a party. Helgeland, 307 Wis. 2d 1,
¶140 (emphasis added).
¶26 In sum, we conclude that Evers and DPI are entitled to
their own counsel and are not required to be represented by DOJ.
We further conclude that the governor is not a necessary party
to this action. Accordingly, we grant Evers and DPI's motion to
deny substitution of counsel and to disqualify the attorney
general from appearing on behalf of respondents and deny the
Department of Justice's cross-motion to strike the appearance by
12
No. 2017AP2278-OA
attorneys Ryan Nilsestuen and Benjamin R. Jones. We further
decline to order that the governor be added as a necessary
party.
IT IS ORDERED that the Respondents' motion to deny
substitution of counsel and to disqualify the attorney general
from appearing on behalf of Respondents is GRANTED.
IT IS FURTHER ORDERED that the Department of Justice's
cross-motion to strike the appearance by Attorneys Ryan
Nilsestuen and Benjamin R. Jones is DENIED.
IT IS FURTHER ORDERED that the governor is not a necessary
party to this action.
13
No. 2017AP2278.rgb
¶27 REBECCA GRASSL BRADLEY, J. (concurring in part;
dissenting in part). "The courts must declare the sense of the
law; and if they should be disposed to exercise WILL instead of
JUDGMENT, the consequence would equally be the substitution of
their pleasure to that of the legislative body." The Federalist
No. 78, at 469 (Alexander Hamilton) (Clinton Rossiter ed.,
1961). On one issue before us, the court correctly applies
statutory law and concludes that the Governor is not a necessary
party; I therefore concur in that part of the court's order. On
the second issue, the majority ignores governing statutory law
and instead invokes its ever-evolving "superintending authority"
to substitute the majority's preference for that of the
legislature. The majority's conclusion that the Superintendent
of Public Instruction, Tony Evers, may select his own lawyer to
represent him in an action in which he has been sued in his
official capacity is grounded not in the rule of law but in a
judicial policy predilection. The Wisconsin Constitution and
the applicable statutes unmistakably require the Department of
Justice to represent Evers. The majority's decision on
representation flatly disregards the text of our constitution
and statutes and threatens the separation of powers. I dissent.
I
¶28 Petitioners Kristi Koschkee, Amy Rosno, Christopher
Martinson, and Mary Carney (collectively, "Koschkee") filed a
petition in this court on November 20, 2017, seeking leave to
commence an original action. The petitioners ask this court to
declare 2017 Wis. Act 57 constitutional; require respondents,
14
No. 2017AP2278.rgb
Tony Evers, in his official capacity as Superintendent of Public
Instruction ("Evers" or the "Superintendent"), and the Wisconsin
Department of Public Instruction ("DPI") to comply with Act 57;
and enjoin Evers and DPI from proposing or promulgating any
rules without complying with Act 57.1
¶29 That same day, Attorney Ryan Nilsestuen, Chief Legal
Counsel for DPI, sent a copy of the petition and petitioner's
memorandum in support of it to the Department of Justice
("DOJ"). Subsequent communications between DPI's attorneys and
DOJ revealed a deep rift between them on the underlying issue.
Evers and DPI contended the petition was frivolous and Act 57
was unconstitutional based on this court's recent decision in
Coyne v. Walker, 2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520, in
which the lead opinion held a similar statute to be
unconstitutional. The DOJ and the Attorney General, on the
other hand, maintained that they would advocate for the
"State's" position in support of Act 57's constitutionality.
Further communications showcased that because of this
fundamental difference of opinion as to Act 57's
constitutionality, DPI and DOJ were at odds as to who actually
represented the DPI and Evers in his official capacity as
Superintendent.
1
At this stage, we do not decide the merits of the
petition, which are scheduled for oral argument during the
court's 2018-19 term. The background facts are provided solely
to facilitate understanding of the underlying dispute.
15
No. 2017AP2278.rgb
¶30 On November 22, Attorney Nilsestuen hand-delivered a
letter to this court, informing it that he and Attorney Benjamin
R. Jones would represent Evers in the matter.2 He then sent an
email to the DOJ notifying it that DPI would not be requesting
DOJ's representation, as provided in Wis. Stat. § 165.25(6).
The DOJ replied to that email, attaching a copy of a notice of
appearance and substitution of counsel, which stated that the
Attorney General, by Solicitor General Misha Tseytlin and Chief
Deputy Solicitor General Ryan Walsh, was replacing Attorney
Nilsestuen as counsel for Evers in his official capacity as
superintendent and the Attorney General, by Assistant Attorney
General Maura F.J. Whelan, was also replacing him as counsel for
DPI. Assistant Attorney General Daniel Lennington also sent an
email to Attorney Nilsestuen stating the DOJ had received a
request from the Governor for the DOJ to represent both DPI and
the superintendent.
¶31 Attorney Nilsestuen asked for a copy of the request,
which was not immediately provided. However, a confirmation
email was sent to Assistant Attorney General Walsh on December
5, 2017, in which Katie Ignatowski, Chief Legal Counsel to the
Governor, confirmed that she, on behalf of the Governor, had
requested "that the Department of Justice appear for and
represent the Department of Public Instruction and
2
This letter did not state that Attorneys Nilsestuen and
Jones also sought to represent DPI, although that seemed to be
their intention based upon communications with this court and
those between DPI and DOJ.
16
No. 2017AP2278.rgb
Superintendent Tony Evers in his official capacity . . . in
accordance with Wis. Stat. § 165.25(1m)."
¶32 On November 28, 2017, Evers wrote to inform Attorney
General Brad Schimel that he was "terminating any representation
provided by the Wisconsin Department of Justice in this matter
pursuant to SCR 20:1.16(a)-(c)." On November 29, 2017, Evers and
DPI filed a motion to deny substitution of counsel and to
disqualify the Attorney General from appearing on their behalf.
¶33 On December 11, 2017, DOJ filed a cross-motion to
strike the appearances by Attorneys Nilsestuen and Jones. Along
with it, the Attorney General filed a joint response to Evers and
DPI's motion to deny substitution of counsel and a memorandum in
support of its cross-motion to strike the appearance of Attorneys
Nilsestuen and Jones. On December 18, 2017, Evers and DPI filed a
motion for leave to file a response to DOJ's cross-motion to
strike.
¶34 This court, in an order dated February 14, 2018, ordered
responses from both Evers and DPI and DOJ on a number of issues,
including whether Wis. Stat. § 165.25(1m) prohibits the
Superintendent and DPI from selecting their own litigation
counsel.3 Following receipt of these responses, on April 13,
2018, we granted Koschkee's petition to commence an original
action and scheduled oral argument for May 15, 2018, on the
3
Pursuant to the February 14th order, Evers and DPI's
lawyers filed a response brief on March 5, 2018 and DOJ filed a
reply brief on March 12, 2018.
17
No. 2017AP2278.rgb
issues of representation as well as whether the Governor is a
necessary party in these proceedings.
II
¶35 The Wisconsin Constitution in Article X, Section 1
provides: "The supervision of public instruction shall be
vested in a state superintendent and such other officers as the
legislature shall direct; and their qualifications, powers,
duties and compensation shall be prescribed by law."
"Article X, section 1 confers no more authority upon those
officers than that delineated by statute." Fortney v. Sch.
Dist. of W. Salem, 108 Wis. 2d 167, 182, 321 N.W.2d 225 (1982).
Even in the fractured Coyne opinion, a majority of this court
concluded that the Superintendent possesses no powers or duties
beyond those specifically provided by the legislature. See
Coyne, 368 Wis. 2d 444, ¶70 (lead opinion) ("As a result, the
Legislature may give, may not give, and may take away the powers
and duties of the [Superintendent] and the other officers of
supervision of public instruction."); id., ¶¶36-37 ("There were
no common law duties and powers that the [Superintendent] or any
other officers of supervision of public instruction had
traditionally possessed prior to the adoption of the Wisconsin
Constitution because neither the office of the [Superintendent]
nor a uniform system of public instruction existed prior the
adoption of our constitution in 1848 . . . . Consequently, any
rulemaking power the [Superintendent] and DPI has is clearly a
delegation of power from the Legislature, not from the
constitution."); id., ¶189 (Roggensack, C.J., dissenting)
18
No. 2017AP2278.rgb
(joined by Justices Annette K. Ziegler and Rebecca Grassl
Bradley) ("Article X, Section 1 plainly granted the legislature
control over both the power that the Superintendent could
exercise and the duties that the Superintendent must
undertake.").
¶36 The constitution creates the role of a state
Superintendent and gives the Superintendent authority to
supervise public instruction. That is all the constitution
confers upon the Superintendent. The constitution is silent on
whether the Superintendent may hire his own lawyer if he is sued
in his official capacity. Rather, the constitution says the
Superintendent's powers and duties shall be what the legislature
prescribes. Accordingly, the constitution obligates us to
examine the statutes to ascertain the Superintendent's powers
and duties.4
4
The majority misunderstands my analysis of the
constitution, stating that "[t]he dissent fails to acknowledge
the focus of our discussion. This order does not address the
constitutional authority of superintendent of public
instruction." Unfortunately, the majority's order ignores not
only the constitution, but also the statutes requiring DOJ to
represent the Superintendent and DPI in this matter, instead
subordinating Wisconsin law to its whim. The point of examining
the constitution is to determine whether it confers independent
litigation authority on the Superintendent. It does not. The
constitution provides that the legislature prescribes the
Superintendent's powers. The legislature has not included
appointment of counsel among the Superintendent's powers. What
the legislature has done, which the majority defies, is enact a
law mandating that DOJ represent the Superintendent and DPI in
this suit. While I consult the law in determining whether the
Superintendent and DPI may choose their own lawyer, the majority
aggressively extends its superintending authority to override
controlling law and approve counsel to advance the interests of
(continued)
19
No. 2017AP2278.rgb
¶37 No Wisconsin Statute gives the Superintendent the
power to hire his own lawyer in this case——or to fire DOJ.
Wisconsin Stat. ch. 115, subch. II——entitled "State
Superintendent of Public Instruction"——describes the
"qualifications, powers, duties and compensation" of the
Superintendent. Wholly absent from that chapter is any mention
of litigation authority.
¶38 The statutes, however, affirmatively and definitively
place the duty of representation on DOJ.5 Wisconsin Stat.
§ 165.25 (2015-16)6 provides as material:
Duties of department of justice. The department of
justice shall:
(1) Represent state in appeals and on remand. Except
as provided in ss. 5.05 (2m) (a), 19.49 (2) (a), and
978.05 (5), appear for the state and prosecute or
defend all actions and proceedings, civil or criminal,
in the court of appeals and the supreme court, in
which the state is interested or a party, and attend
to and prosecute or defend all civil cases sent or
remanded to any circuit court in which the state is a
party. Nothing in this subsection deprives or
the Superintendent instead of the interests of the people of
Wisconsin.
5
The Attorney General is also a constitutional officer,
recognized in Article VI, Section 3 of the Wisconsin
Constitution: "The powers, duties and compensation of
the . . . attorney general shall be prescribed by law." Under
the constitution, "the attorney general's powers are prescribed
only by statutory law." State v. City of Oak Creek, 2000 WI 9,
¶24, 232 Wis. 2d 612, 605 N.W.2d 526.
6
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
20
No. 2017AP2278.rgb
relieves the attorney general or the department of
justice of any authority or duty under this chapter.
(1m) Represent state in other matters. If requested
by the governor or either house of the legislature,
appear for and represent the state, any state
department, agency, official, employee or agent,
whether required to appear as a party or witness in
any civil or criminal matter, and prosecute or defend
in any court or before any officer, any cause or
matter, civil or criminal, in which the state or the
people of this state may be interested. The public
service commission may request under s. 196.497 (7)
that the attorney general intervene in federal
proceedings. All expenses of the proceedings shall be
paid from the appropriation under s. 20.455 (1) (d).
(6)(a) Attorney for the state. At the request of the
head of any department of state government, the
attorney general may appear for and defend any state
department, or any state officer, employee, or agent
of the department in any civil action or other matter
brought before a court or an administrative agency
which is brought against the state department, or
officer, employee, or agent for or on account of any
act growing out of or committed in the lawful course
of an officer's, employee's, or agent's duties.
Witness fees or other expenses determined by the
attorney general to be reasonable and necessary to the
defense in the action or proceeding shall be paid as
provided for in s. 885.07. The attorney general may
compromise and settle the action as the attorney
general determines to be in the best interest of the
state. Members, officers, and employees of the
Wisconsin state agencies building corporation and the
Wisconsin state public building corporation are
covered by this section. Members of the board of
governors created under s. 619.04 (3), members of a
committee or subcommittee of that board of governors,
members of the injured patients and families
compensation fund peer review council created under s.
655.275 (2), and persons consulting with that council
under s. 655.275 (5) (b) are covered by this section
with respect to actions, claims, or other matters
arising before, on, or after April 25, 1990. The
attorney general may compromise and settle claims
21
No. 2017AP2278.rgb
asserted before such actions or matters formally are
brought or may delegate such authority to the
department of administration. This paragraph may not
be construed as a consent to sue the state or any
department thereof or as a waiver of state sovereign
immunity.
(Emphasis added.) Nothing in the constitution or the statutes
grants litigation authority to Evers or DPI, but there is a very
specific statute placing that power upon DOJ. "Absent [a]
special statute with respect to individual departments . . . or
absent appointment of special counsel in appropriate matters,"
DOJ lawyers "are the only attorneys authorized to appear in the
courts of the state in state matters." 52 Wis. Op. Att'y Gen.
394, 402 (OAG 1963).
III
¶39 It is undisputed that the Governor requested DOJ to
represent DPI and Evers in this suit. It is also undisputed
that the petitioners sued Evers in his official capacity as the
head of DPI. "[A] suit against a state official in his or her
official capacity is not a suit against the official but rather
a suit against the official's office. As such, it is no
different from a suit against the State itself." Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989) (citation
omitted). This action, then, is a suit against the State——Evers
is simply a nominal party, named solely because he is currently
the individual occupying the office of the Superintendent.
¶40 Because the Governor requested DOJ representation,
this action falls squarely under Wis. Stat. § 165.25(1m), which
explicitly says DOJ "shall" represent the State. In § 165.25,
22
No. 2017AP2278.rgb
the legislature placed the responsibility of legal
representation with DOJ. The legislature did not give any
authority to the Superintendent to deviate from § 165.25 and
hire an attorney of his own choosing. And, because the
legislature circumscribes the qualifications, powers, and duties
of the Superintendent, the disposition of the legal
representation issue should have been as simple as reading and
applying the text of § 165.25.7 The power to "protect and guard
the interests and rights of the people" by controlling state-
party litigation resides in DOJ by virtue of this statutory
authority. See Orton v. State, 12 Wis. 567, 569 (1860).
¶41 The majority neglects to even mention this statute and
instead exercises the court's supervisory authority over the
court system to proclaim that Evers may hire the lawyer of his
choosing when he is sued in his official capacity as
Superintendent, even though the people of Wisconsin said
otherwise——through their legislative representatives who enacted
Wis. Stat. § 165.25. While the constitution gives the court
"superintending and administrative authority over all courts,"
Wis. Const. art. VII, § 3, this authority should not be
exercised lightly. State v. Jennings, 2002 WI 44, ¶15, 252
7
Evers suggests Wis. Stat. § 20.930 grants litigation
authority for his in-house lawyers to represent him instead of
DOJ. Section 20.930, however, is simply a fiscal statute
authorizing payment of the in-house lawyers. It does not
authorize Evers to hire his own lawyer when he is sued in his
official capacity.
23
No. 2017AP2278.rgb
Wis. 2d 228, 647 N.W.2d 142. It certainly should not be
exercised contrary to controlling law. And it never should be
exercised in a manner that elevates the interests of public
officials over the interests of the people who elect them. This
court is not above the law and unless the statute is
unconstitutional, we are bound to apply it. See Rhinelander
Paper Co. v. Indus. Comm'n, 216 Wis. 623, 258 N.W. 384 (1935)
(court cannot order lower court to do something it has no power
to do because it would violate applicable statute); Baker v.
State, 84 Wis. 584, 54 N.W. 1003 (1893) (court has no power to
suspend rules having the force of a statute until abrogated by
competent authority).
¶42 Historically, the court's superintending authority was
exercised exclusively over lower courts. "The power of
superintending control is the power to 'control the course of
ordinary litigation in inferior courts,' as exercised at common
law by the court of king's bench, and by the use of writs
specifically mentioned in the constitution and other writs there
referred to or authorized." Seiler v. State, 112 Wis. 293, 299,
87 N.W. 1072 (1901). See also State v. Jerrell C.J., 2005 WI
105, ¶¶137-153, 283 Wis. 2d 145, 699 N.W.2d 110 (Prosser, J.,
dissenting), which exhaustively analyzes the original meaning of
the court's superintending authority and contrasts it with the
"incredibly elastic power the court now employs." Id., ¶146.
The court's supervisory authority is ordinarily exercised when a
party asserts error by the circuit court causing "great and
irreparable" "hardship." Application of Sherper's, Inc., 253
24
No. 2017AP2278.rgb
Wis. 224, 226, 33 N.W.2d 178 (1948); State ex rel. Wis. State
Dep't of Agric. v. Aarons, 248 Wis. 419, 423, 22 N.W.2d 160
(1946). Superintending authority, as the majority acknowledges,
means supervisory power. The text of the constitution limits
this court's superintending authority to "the courts."
Superintending authority has no place in this original action,
in which the court illogically exercises its authority to
ostensibly supervise itself.
¶43 The majority creates a dangerous precedent. It
brandishes its superintending authority like a veto over laws it
does not wish to apply. In doing so, it thwarts the will of the
people. "To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in
every particular case that comes before them." The Federalist
No. 78, supra ¶1, at 469 (Alexander Hamilton). Wisconsin Stat.
§ 165.25 could not be clearer in mandating DOJ representation of
DPI and Evers in this case, yet the court does not apply it.
The majority's decision promotes the interests of an elected
public official and the department he heads over those of the
people of Wisconsin, whose interests are supposed to be
represented in this litigation by the attorneys charged with
advancing them——the Attorney General and DOJ. Long ago, the
people of Wisconsin gave the Attorney General the duty——and the
exclusive authority——to appear for the people in order to
"protect and guard the interests and rights of the people" in
litigation involving state actors. Orton, 12 Wis. at 569. The
25
No. 2017AP2278.rgb
majority casts aside the statutorily-expressed will of the
people but "[t]he people of Wisconsin have never bestowed this
kind of power on the Wisconsin Supreme Court." Jerrell C.J.,
283 Wis. 2d 145, ¶155 (Prosser, J., dissenting).
¶44 Ironically, as it wields a boundless power to
disregard the law, the majority decries the "breathtaking power"
accorded to the Attorney General if DOJ represents the
superintendent and DPI. The majority claims that if DOJ
represents these parties, the court would have "no way to
determine the scope of the powers vested in a constitutional
officer" and somehow, the court fears, "the attorney general,
and not this court" would "decide the scope of the
superintendent's constitutional authority." Nonsense. The
Attorney General's power is of course restricted to advocacy; it
is this court's duty to say what the law is, and the court alone
possesses the power to decide. "No aspect of the judicial power
is more fundamental than the judiciary's exclusive
responsibility to exercise judgment in cases and controversies
arising under the law." Gabler v. Crime Victims Rights Bd.,
2017 WI 67, ¶37, 376 Wis. 2d 147, 897 N.W.2d 384. This is true
regardless of who represents a party. If the majority's concern
is ensuring a full adversarial presentation of the issues, it
should exercise a power it actually does possess and appoint
counsel selected by Evers and DPI as amicus to advance arguments
that Act 57 is unconstitutional while DOJ defends the law.
¶45 Rather than take this lawful course, the majority
inexplicably invokes its inherent power to appoint counsel for a
26
No. 2017AP2278.rgb
party that lacks one. But this power is utterly misplaced in
this case. The Superintendent and DPI do not lack counsel——
their hand-picked attorneys made an appearance and continue as
counsel of record——and the majority does not actually appoint
counsel at all. Instead, the majority strikes the appearance of
the Attorney General on behalf of these state parties, which the
law requires be represented by DOJ, and then disqualifies the
Attorney General from representing the Superintendent or DPI.
The majority characterizes this as an "exceptional case."
Indeed, it is exceptional for the majority's shocking exercise
of raw power to arrogate unto itself the authority to decide who
shall represent a party when the legislature has already spoken.
The people of Wisconsin decided that the Attorney General shall
represent their interests in litigation involving state parties
but the majority instead foists upon the people lawyers they do
not want——lawyers who will not represent their interests.
¶46 The majority identifies perceived ethical conflicts if
the Attorney General represents Evers, but its concerns are
unwarranted. No ethical conflicts exist. As the nominal party
without any constitutional or statutory litigation authority,
Evers lacks power to advocate independently for what he wants
the law to be. His sole interest with respect to Act 57 or any
other law is a determination of what the law says so that he can
fulfill his responsibility to follow it. The people of
Wisconsin did not assign the Superintendent the task of deciding
what the law is. The constitution ascribes that duty to the
judicial branch. See Tetra Tech EC, Inc. v. DOR, 2018 WI 75,
27
No. 2017AP2278.rgb
___ Wis. 2d ___, ___ N.W.2d __ ("Only the judiciary may
authoritatively interpret and apply the law in cases before our
courts."); Gabler, 376 Wis. 2d 147, ¶37 ("By vesting the
judicial power in a unified court system, the Wisconsin
Constitution entrusts the judiciary with the duty of
interpreting and applying laws made and enforced by coordinate
branches of state government."); see also Operton v. LIRC, 2017
WI 46, ¶73, 375 Wis. 2d 1, 894 N.W.2d 426 (R. Grassl Bradley,
J., concurring) ("the court's duty to say what the law is"
constitutes a "core judicial function"); In re Appointment of
Revisor, 141 Wis. 592, 598, 124 N.W. 670 (1910) ("[I]t is the
exclusive function of the courts to expound the laws . . . .").
¶47 Evers complains that DOJ disagrees with his position
on what the law should be and that the Rules of Professional
Conduct prohibit representation by a lawyer who insists on
advocating a position contrary to what the "client" wants. That
is true when the "client" is a private party. The problem with
Evers' complaint is that the legislature has already decided
that Evers' individual standpoint when sued in his official
capacity is irrelevant. Evers has not been sued personally; he
was named only in his official capacity as the head of DPI. The
Attorney General is "the law officer of the government" and was
"elected for the purpose of prosecuting and defending all suits
for or against the State." Orton, 12 Wis. at 569. When the
Governor (or the legislature) asks DOJ to represent a party
under Wis. Stat. § 165.25(1m), DOJ does not represent the
individual person who currently occupies the office——it
28
No. 2017AP2278.rgb
represents the officer and agency as state parties. If the
agency or officer acting in his official capacity was not a
state party, the Governor could not obtain DOJ representation
under § 165.25(1m).
¶48 Evers argues that because the legislature did not
include in Wis. Stat. § 165.25(1m) language explicitly granting
litigation-decisional control to the Attorney General, the
Attorney General must advance the state officer's personal
position in the case even if it conflicts with the Attorney
General's interpretation of the law. Evers makes this argument
based on the litigation-decisional control language in Wis.
Stat. § 165.25(6)(a), which is the statutory section applicable
when the department head (rather than the Governor) requests DOJ
representation.8
¶49 Evers' argument defies logic. Why would a department
head who does not ask for DOJ representation be able to control
the Attorney General's litigation position but a department head
who does seek DOJ representation cannot? A consistent reading
of these statutes suggests the express grant of settlement
authority is unnecessary in sub. (1m) because the legislature or
Governor requested the representation on behalf of the official
or department. In contrast, under sub. (6)(a), the department
8
The specific sentence, emphasized earlier in the body of
this opinion setting forth Wis. Stat. § 165.25(6)(a), provides:
"The attorney general may compromise and settle the action as
the attorney general determines to be in the best interest of
the state."
29
No. 2017AP2278.rgb
head requests DOJ representation; therefore, it is important to
emphasize that despite the department head's initiation of the
representation, the Attorney General must nevertheless act in
"the best interest of the state" rather than take litigation
instructions from the department head.
¶50 When an agency and an official acting in his official
capacity are sued, and the Governor asks DOJ to provide
representation, DOJ is in charge of litigation strategy because
the State is the real party in interest, not the nominal
figurehead. The Attorney General represents the interests of
the State——which, it bears emphasizing, means the interests of
the people. The Attorney General is not Evers' private,
personal lawyer as in a typical lawyer-client relationship.
Wisconsin's Rules of Professional Conduct recognize the
difference: "[T]he responsibilities of government lawyers may
include authority concerning legal matters that ordinarily
reposes in the client in private client-lawyer relationships."
SCR 20 Preamble: A Lawyer's Responsibilities, n.18.9 Rather, the
representation relationship here is based on a provision of
statutory law, namely Wis. Stat. § 165.25(1m).
9
Note 18 specifically references the Attorney General in
this regard: "For example, a lawyer for a government agency may
have authority on behalf of the government to decide upon
settlement or whether to appeal from an adverse judgment. Such
authority in various respects is generally vested in the
attorney general and the state's attorney in state government,
and their federal counterparts . . . ."
30
No. 2017AP2278.rgb
¶51 The legislature also enacted Wis. Stat. § 14.11(2)(a)2
to allow for "special counsel" in certain circumstances, i.e.,
when the Attorney General has an interest truly adverse to the
State, which is not the case here. Id. (allowing the Governor
to appoint "special counsel" "[t]o act instead of the attorney
general in any action or proceeding, if the attorney general is
in any way interested adversely to the state"). In this case,
Evers did not make a request for "special counsel" under Wis.
Stat. § 14.11(2)(a)2 despite emails between DPI and DOJ lawyers
discussing that option.
¶52 If Evers does not like the statutes prescribing this
representation scheme, he should take it up with the legislature
to amend them. Until then, he is bound by the statutes as
currently written. The law requires the Attorney General to
represent Evers and DPI. The majority permits Evers to exercise
unbridled, independent litigation authority in his own interests
rather than the interests of the people of Wisconsin. The
majority's extraordinary exercise of its superintending
authority elevates the Superintendent and his department to a
specter fourth branch of Wisconsin government. The constitution
does not authorize this representation. The statutes prohibit
it. The majority errs in disregarding both.
¶53 I concur in part and dissent in part.10
10
I would follow the United States Supreme Court practice
when DOJ's position on representation is a confession-of-error.
In this case, I would appoint DPI lawyers as amicus and have
them submit briefs and argue the adversarial position asserting
the unconstitutionality of Act 57.
31
No. 2017AP2278.rgb
¶54 I am authorized to state that Justices MICHAEL J.
GABLEMAN and DANIEL KELLY join this concurrence/dissent.
32
No. 2017AP2278.rgb
1