The Supreme Court held that the Department of Public Instruction (DPI) and the state superintendent may retain separate counsel instead of representation by the Department of Justice (DOJ).

The cases rises from a dispute about whether DPI must comply with the Regulations from the Executive In Need of Scrutiny (REINS) Act (2017 Act 57). Stemming from the REINS Act dispute, another dispute arose between DPI and DOJ regarding whether DOJ attorneys should represent DPI. DOJ said DPI is subject to the REINS Act, a position contrary to DPI and DPI Superintendent Tony Evers. DOJ filed a motion that they should be DPI’s attorneys. DPI filed a motion to deny substitution of DOJ for their in-house counsel.

The court used its “superintending and administrative authority over all courts” (Wisconsin Constitution Art. 7 § 3) to allow DPI the counsel of their choice. The court argued that allowing DOJ to represent Evers and DPI would have given the attorney general too much power and would be unethical because of their disagreeing positions on the case.

The court also ruled that Gov. Scott Walker is not a necessary party to the action because he did not fulfill the statutory criteria necessary for a party to be joined in a case (Wis. Stat. § 808.03(1)). The court said the governor’s obligation to review scope statements under the REINS Act is not affected by the outcome of the DPI case.

 In a concurring opinion/dissent, Justice R. Bradley (joined by Justices Gableman and Kelly) agreed that Gov. Walker should not be a party to the action but would have allowed DOJ to represent DPI and Evers. The dissent argued that Wis. Stat. § 165.25(1m) says the governor can request DOJ represent any state department/agency in any matter in which the state has interest. The dissent says the court inappropriately exercised its superintending authority to override the statutes, which give no independent litigation authority to DPI or the state superintendent.