Kristi Koschkee v. Tony Evers
913 N.W.2d 878
Wis.2018Background
- Petitioners filed an original action asking the Wisconsin Supreme Court to declare 2017 Wis. Act 57 (the REINS Act) applicable to Superintendent Tony Evers and the Department of Public Instruction (DPI) and to enjoin them from proposing or promulgating rules without complying with the Act.
- Upon filing, DPI in‑house counsel notified DOJ it would not request DOJ representation; DOJ (at the Governor's request) filed a notice substituting in as counsel and took the position that the REINS Act applies to Evers and DPI.
- Evers discharged DOJ's representation and moved to deny substitution and to disqualify the Attorney General from representing respondents; DOJ cross‑moved to strike DPI attorneys' appearances.
- The Court exercised its superintending authority to resolve who may represent Evers and DPI in this original action and separately considered whether the Governor was a necessary party.
- The majority held Evers and DPI are entitled to counsel of their choice (disqualifying the Attorney General here) and that the Governor is not a necessary party; a concurrence/dissent argued the statutes require DOJ representation and the Court overstepped.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Evers/DPI must be represented by DOJ or may use counsel of their choice | Petitioners: (Koschkee) argued state representation by DOJ appropriate to defend Act 57 | Evers/DPI: entitled to select and be represented by their own counsel; DOJ shouldn't control their litigation position | Court: Evers/DPI entitled to counsel of their choice; DOJ disqualified from representing them in this matter |
| Whether the Attorney General may control litigation position of a constitutional officer sued in official capacity | DOJ/AG: statute and practice place representation in DOJ when Governor requests it; DOJ may represent the State's interest | Evers/DPI: DOJ would force a lawyer and positions upon them, raising ethical and separation‑of‑powers concerns | Court: declined to adopt DOJ's view; permitting DOJ would improperly prevent constitutional officers from advancing contrary positions |
| Whether the Governor is a necessary party under Wis. Stat. § 803.03(1) | DOJ: Governor has duties under REINS Act and should be joined | Evers/DPI: Governor not necessary to afford complete relief to parties | Court: Governor is not a necessary party — none of § 803.03(1) prongs satisfied |
| Whether the Governor must be joined under the Declaratory Judgment Act, Wis. Stat. § 806.04(11) | DOJ/DPI: Governor's role under the REINS Act means his interests would be affected and he should be joined | Petitioners: declaratory relief need only name public officers charged with enforcement; not every affected person must be joined | Court: § 806.04(11) does not require joining the Governor; declaratory remedy would be impractical if every affected person had to be joined |
Key Cases Cited
- In re Kading, 70 Wis. 2d 508 (1975) (describing breadth of the court's superintending authority)
- In re Integration of the Bar, 5 Wis. 2d 618 (1958) (discussing courts' duty and supervisory power over practice of law)
- Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis. 2d 179 (1974) (recognizing inherent supervisory authority over the practice of law)
- Joni B. v. State, 202 Wis. 2d 1 (1996) (noting practice of law is connected to judicial power and subject to court regulation)
- State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193 (1961) (holding regulation of practice of law vested in the supreme court)
- State ex rel. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94 (1990) (addressing judiciary's authority to regulate attorneys once admitted)
- State v. Jennings, 252 Wis. 2d 228 (2002) (noting supervisory authority should be exercised sparingly)
- In re Phelan, 225 Wis. 314 (1937) (discussing superintending authority as judicial policy)
- Arneson v. Jezwinski, 206 Wis. 2d 217 (1996) (examining necessities of justice in exercising supervisory power)
- Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) (suit against an official in official capacity is a suit against the office/state)
- Coyne v. Walker, 368 Wis. 2d 444 (2016) (recent Wisconsin decision bearing on scope of Superintendent authority)
- Fortney v. School Dist. of W. Salem, 108 Wis. 2d 167 (1982) (noting Article X confers powers prescribed by statute)