The Wisconsin State Journal reported last Wednesday state Attorney General Brad Schimel’s office, at the request of Governor Scott Walker, is representing state Superintendent of Public Instruction Tony Evers in a lawsuit over the limits of the autonomy of Evers and the Department of Public Instruction (DPI).
“Attorney General Brad Schimel and other Department of Justice attorneys notified the Wisconsin Supreme Court on Tuesday that they were replacing the state Department of Public Instruction’s attorney in the case,” the newspaper reported.
Evers quickly capitalized on the decision by claiming that it was related to the race for governor and then sending out five fundraising emails asking for money for his campaign even though he is being sued in his official capacity, not as a candidate.
“I think it’s connected with the campaign for governor,” Evers told the State Journal. “I can’t imagine going into the Supreme Court and the person representing me doesn’t agree with me — I have a hunch I’d lose.”
Evers is one of a slew of second-tier Democrats running for governor in 2018. Walker and Schimel are both Republicans.
Calling the decision by Schimel to represent DPI, “bizarre,” DPI Spokesman Tom McCarthy told the State Journal, “We are very optimistic the court will see this for what it is — it’s a political ploy.”
But, as the newspaper also reported, Evers once criticized Schimel for not representing DPI and the state superintendent in another case where Schimel disagreed with Evers. Despite this contradiction, Evers is fighting the decision by Schimel to represent Evers and DPI by asking the Supreme Court to allow DPI to retain the counsel they’ve chosen.
The lawsuit, brought by the Wisconsin Institute for Law & Liberty (WILL), is an effort to force DPI to comply with the REINS Act, passed earlier this year.
The REINS Act requires all government agencies to submit “statements of scope” for new government regulations to the Department of Administration (under the control of the governor) and the legislature’s Joint Committee for Review of Administrative Rules (JCRAR) for evaluation. If the proposed regulation has a $10 million economic impact or more, then the agency needs to seek legislative approval first. But if it’s less than that, the JCRAR can still review and place an indefinite hold on the proposed rule until the legislature acts to allow it.
Evers and the Department of Public Instruction (DPI) have not submitted any rules for review under the process since the law was enacted.
The lawsuit by WILL is taking the unusual step of asking the Supreme Court to hear the case right away rather than going through the usual process of being heard at the circuit court level first.
“This is a case that needs to be heard by the Supreme Court,” Rick Esenberg, President of WILL, said in a statement on Monday. “It requires clarification of a recent Supreme Court decision, Coyne v. Walker, that had multiple opinions, none of which had support from a majority of justices. Moreover time is of the essence; rules promulgated by DPI impact hundreds of school districts, tens of thousands of teachers and administrators, and hundreds of thousands of parents and students throughout the state.”
In the Coyne v. Walker case, a divided Supreme Court decided that a 2011 law which allowed the governor to veto state agency scope statements was an unconstitutional violation of the State Superintendent of Public Instruction’s constitutional right to supervise public instruction under Article X, sec. 1.
DPI spokesman Thomas McCarthy said in a statement to RightWisconsin on Monday that the lawsuit by WILL has no merit.
“Justice Gableman’s decision in Coyne is clear and the legislature understood the case’s impact on the REINS Act after discussions with our department,” said McCarthy. “The case has no merit, period. The only people that don’t understand this is WILL.”
However, three state senators strongly objected to McCarthy’s claim in a statement released last Tuesday. Senators Duey Stroebel (R-Saukville), David Craig (R-Town of Vernon), and Steve Nass (R-Whitewater) said:
Regardless of Superintendent Evers’s crystal ball about what legislators may or may not have ‘understood’, we have a process to resolve disputes like these. The intent of the Legislature is the text of the laws we enact. Public officials are bound to those words and should enforce them. Whether Superintendent Evers likes it or not, his decision to ignore the REINs Act is subject to judicial review based upon the text of the constitution and statutes. We trust our judicial system to appropriately weigh the competing claims in due course.
Evers has been using the lawsuit by WILL for fundraising purposes for his gubernatorial campaign in emails to supporters. “(US Education Secretary) Betsy DeVos and Scott Walker’s right-wing allies just filed a lawsuit against Tony,” the email falsely claims. “Here’s why: They are upset that Tony isn’t letting them impose their failed right-wing agenda on our students.”
A follow-up fundraising email from Evers’ campaign claimed that they raised over $5,000 from the first email. “Yesterday we announced that Tony was being sued for standing up for Wisconsin schools, and you stood with Tony in a big way,” the email said.
However, DeVos is not involved in the lawsuit, and Evers is being sued over his unchecked power to issue regulations, not “standing up for Wisconsin schools.”
Subsequent emails, asking between $3 and $100 for the Evers campaign, accuse Walker of trying to create “a kangaroo court,” a “full-out assault on the rule of law,” and “trying to be the judge and the jury.”
Evers also falsely claimed that the money would be used for his defense even though the money raised would go to his campaign, not DPI. “Walker has made me his top target, so your support will go directly toward defending me from these attacks,” Evers claimed in the most recent fundraising appeal on Monday.
Walker’s decision to ask the state attorney general to defend Evers in the lawsuit is far from unprecedented, as a statement from the state Department of Justice made clear: