Recapping Recent Legislative Intervention

The Wisconsin Supreme Court accepted Clean Wisconsin v. DNR and Kinnard Farms (together, Act 21 cases) back in April. Six Supreme Court orders and 31 filings later, the scope of Act 21 still remains unaddressed. Rather, the focus has been on whether the legislature can intervene in the proceedings. With two Supreme Court orders and 22 party filings on legislative intervention alone, it can get a bit confusing.

So, let’s recap the last three months.

On April 25th, the Wisconsin Legislature petitioned to join both Act 21 cases as an intervenor. If accepted, intervenor status would allow the legislature to become a full party to the proceedings.

Under Wisconsin law, a party can become an intervenor several different ways. At the appellate level intervention occurs under Wis. Stat. § 809.13. The statute allows for intervention under three circumstances: intervention by right, intervention by permission, and, most recently created, intervention by the legislature. But intervention does not always happen at the appellate level. A party can join an appeal of an administrative decision at the circuit court under Wis. Stat. § 227.53(1)(d).

When the legislature petitioned to join the Act 21 cases, the Wisconsin Department of Natural Resources (DNR), represented by the Department of Justice (DOJ), argued that because the case rose from an administrative decision, a party could only join under Wis. Stat. § 227.53(1)(d). In other words, the legislative intervention statute did not apply and so the legislature did not meet the requirements for intervention.

From GLLF’s perspective, the implications of the argument go beyond whether or not the legislature can intervene. If the court accepts DNR/DOJ’s interpretation, it means any prospective intervenor will be unable to intervene at the appellate level if the case rose from an administrative decision. The argument does not just kick out one way to intervene. It kicks out all of them in a way incompatible with Wisconsin’s liberally construed access to courts.

On May 30, the Wisconsin Supreme Court requested the parties brief the issue of legislative intervention with a reply brief to follow. All parties did so. The petition currently remains before the Wisconsin Supreme Court awaiting decision. Once decided, the court will provide a briefing schedule and arguments will turn towards the substantive issues of Act 21 and the high capacity wells. To receive updates on the case, be sure to subscribe to GLLF’s mailing list.

To read more about the parties’ arguments on legislative intervention, see First Impressions: Legislative Intervention Under Wis. Act 369.