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Koschkee v. Evers

Supreme Court of Wisconsin

June 27, 2018

Kristi Koschkee, Amy Rosno, Christopher Martinson and Mary Carney, Petitioners,
v.
Tony Evers; in his official capacity as Wisconsin Superintendent of Public Instruction and Wisconsin Department of Public Instruction, 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 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 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 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 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');">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, SC 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 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 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.

         ¶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. Ill

         ¶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 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 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)l. Although case law does not state a clear test for when one has an "interest" in the context of § 803.03(1) (b)l., 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 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)l.[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, ...


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