Kristi Koschkee, Amy Rosno, Christopher Martinson and Mary Carney, Petitioners,
Tony Evers; in his official capacity as Wisconsin Superintendent of Public Instruction and Wisconsin Department of Public Instruction, Respondents.
Court entered the following order on this date: June 27, 2018
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.
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
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).
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.
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.
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
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.
This court is vested with authority by the Wisconsin
Constitution. 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."
"[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
"[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.
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
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.
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. 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. 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 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
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
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
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.
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.
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."
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.
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).
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. 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. §
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
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, ...