In perhaps the most outrageous Republican attempt to consolidate all political power in the hands of Gov. Scott Walker, Attorney General Brad Schimel, echoing French king Louis XIV, has effectively declared that he is the state (l’état, c’est moi). Schimel’s expression of absolute authority arose in the latest effort by Walker to gain control of the only other executive officer created by the Wisconsin Constitution who has vested executive power, the superintendent of public instruction.
Schimel’s announcement of his royal power came when the Wisconsin Institute for Law and Liberty (WILL), the de facto legal arm of the Bradley Foundation, asked the Wisconsin Supreme Court to hear an original action for a declaratory judgment that the superintendent had to submit a “scope statement” (the first step in creating administrative rules) to the secretary of the department of administration (DOA) for review, who then sends them on to the governor for his approval or disapproval. The petition claimed that this is required by the 2017 Regulations from the Executive in Need of Scrutiny (REINS) Act. The proposed defendant in the lawsuit is Tony Evers—in his official capacity as superintendent of public instruction.
To get the petition accepted, WILL has to overcome the decision in the 2016 case of Coyne v. Walker. The defendants in Coyne were the governor, DOA secretary and superintendent of public instruction. Attorney General Schimel represented the governor and DOA secretary. The superintendent was represented by his own staff lawyers. Schimel argued that making the superintendent subordinate to the governor was constitutional. The superintendent’s lawyers (and the lawyers for Coyne) argued that the superintendent’s authority to draft and submit administrative rules to the legislature could not be made subordinate to the governor. In a 4-to-3 decision, the superintendent won.
The REINS Act keeps the superintendent’s rulemaking power subordinate to the governor. WILL claims that Coyne is not a “controlling opinion” because there were two concurring opinions to the main decision, so the REINS Act must be enforced against the superintendent. That claim is wrong. Any fair reading of Coyne shows that four justices agreed that the governor cannot have veto authority over the superintendent’s rulemaking.
WILL’s motive is to get the Wisconsin Supreme Court to re-hear the issue decided in Coyne because Justice David Prosser retired and was replaced by Justice Daniel Kelly. WILL and the Wisconsin Manufacturers and Commerce (WMC)—which, in an amicus brief, supported WILL’s request—believe that Kelly is in their back pocket and that in a “do over” will vote in favor of the governor.
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But here’s where the story gets interesting. WILL’s petition names only Superintendent of Public Instruction Evers as a defendant. Schimel, declaring that he alone represents the “State,” told Evers that the attorney general’s office would represent him. Schimel also told Evers that his representation would amount to this: As attorney general, he will concede that WILL is correct. In other words, after having participated in the Coyne v. Walker lawsuit, in which the attorney general’s office argued a position opposite of the superintendent and lost, Schimel now intends to argue the losing position on behalf of Evers. If ever there was a conflict of interest, this is it.
Apparently, Schimel does not believe that the Rules of Professional Responsibility for Lawyers apply to him. That is what allows him to define the interests of the state to align with those of the Bradley Foundation, WMC and the other puppet masters who control him and Gov. Walker. Otherwise, he would do what he’s supposed to do: defend the Wisconsin Constitution.
Lester A. Pines is a Senior Partner with the Madison law firm, Pines Bach LLP. He and his colleagues have represented (and continue to represent) the plaintiffs in Coyne v. Walker.
