                                                                     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
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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
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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


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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
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(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
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     ¶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
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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
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      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
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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
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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
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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
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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
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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
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      ¶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.


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    ¶54   I   am   authorized   to   state   that   Justices    MICHAEL   J.

GABLEMAN and DANIEL KELLY join this concurrence/dissent.




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1
