On October 6, the Wisconsin Supreme Court officially cleared the way for legislative intervention under Wis. Stat. § 803.09(2m) in Democratic National Committee v. Bostelmann. The case will have important implications for GLLF’s Act 21 cases: Clean Wisconsin Inc. v. DNR and Kinnard Farms, Inc. v. DNR . Both cases were held in abeyance by the Supreme Court pending their decision on the legislature’s motion to intervene; an issue that was resolved via Bostelmann.
The Bostelmann case arose after the federal 7th Circuit denied the Wisconsin Legislature’s legal interest to appeal a case challenging a court order extending the deadline for accepting absentee ballots in Wisconsin. The 7th Circuit cited SEIU, Local 1 v. Vos as grounds for its decision, claiming:
“Under Vos the legislature may represent its own interest…but that proviso does not allow the legislature to represent a general state interest in the validity of enacted legislation. That power belongs to Wisconsin’s executive branch under the holding of Vos.”
The legislature motioned for the question to go before the Wisconsin Supreme Court for a ruling on whether, under Wisconsin law, the Wisconsin legislature could appeal the case. The court held it could.
The majority opinion stated:
“While defending state law is normally within the province and power of the Attorney General, § 803.09(2m) grants this same power to defend the validity of state law to the Legislature in certain circumstances. Where the prerequisites in § 803.09(2m) are met, Wisconsin law gives the Legislature, if it chooses to intervene, the power to represent the State of Wisconsin’s interest in the validity of its laws.”
The decision also mirrored GLLF’s arguments in Clean Wisconsin about the role of Wis. Stat. § 803.09(2m).
We launched our efforts on Act 369 legislative intervention in June 2019 when briefing the SC in our Memo In Support of Legislative Intervention:
To meet the requirements of Wis. Stat. § 809.13(2m), the legislative intervention statute, three things must happen. First, a party must challenge “the constitutionality of a statute, facially or as applied, challenges a statute as violating or preempted by federal law, or otherwise challenges the construction or validity of a statute.” Second, the legislature must then choose to intervene as prescribed in Wis. Stat. §13.365. Third, these things met, the legislature can then intervene “at any time in the action as a matter of right by serving a motion upon the parties as provided in s. 801.14.” In the present case, the Legislature fulfilled all three steps.
That’s it. No need to prove up a legislative interest for each motion as suggested by the SC in SIEU. On how SIEU affects our Act 21 cases, we argued that despite the SC facial challenge punt–holding the law may be unconstitutional as applied–there is nothing additional the legislature needs to show with respect to their interest if they prove up Act 369’s clear requirements. In that regard, our Aug. 11, 2020 memorandum noted:
Having established [in Act 369] the institutional interests of the legislature—litigation challenging the constitutionality and validity of legislative enactments—the legislature can then intervene “at any time in the action as a matter of right by serving a motion upon the parties as provided in s. 801.14.” Wis. Stat. § 803.09(2m). Attaching any additional requirements would undermine the very concept of intervention as a matter of right and require courts to override legislative policy choices with their own.
The genesis of our Clean Wis. August 2020 memo was a SC order relating to parties “discussing the status of the certified appeal and the impact of the decision in SEIU, Local 1 v. Vos, if any, on the appeal and pending motion [for legislative intervention].”
Justice Hagedorn wrote the majority opinion in Bostelmann and held:
¶8 This statute gives the Legislature the power to intervene in certain types of cases. Intervention in Wisconsin is generally premised on protecting a party’s interests in litigation. Wis. Stat. § 803.09(1). This begs the question, what interests does the Legislature have? By enacting § 803.09(2m), Wisconsin has adopted a public policy that gives the Legislature a set of litigation interests, namely when a party “ challenges in state or federal court the constitutionality of a statute, facially or as applied,  challenges a statute as violating or preempted by federal law, or  otherwise challenges the construction or validity of a statute, as part of a claim or affirmative defense.” § 803.09(2m). The Legislature is therefore empowered to defend not just its interests as a legislative body, but these specific interests itemized by statute. Whatever constitutional interests the Legislature may have as a branch of government that could justify intervention apart from § 803.09(2m), the statutory text unmistakably grants the Legislature an interest in defending the validity of state law when challenged in court.
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Therefore, in answer to the question certified by the Seventh Circuit Court of Appeals, under § 803.09(2m), the Legislature does have the authority to represent the State of Wisconsin’s interest in the validity of state laws.
With this ruling clear, we foresee a quick decision in the legislature’s motion to intervene in Clean Wisconsin and Kinnard Farms.