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Legislative Intervention as a Matter of Right Under Act 369

Update: In Clean Wisconsin v. DNR the Wisconsin Supreme Court granted the Wisconsin Legislatures motion to intervene. 

The Wisconsin Supreme Court officially upheld the Wisconsin Legislature’s right to intervene on behalf of the state in Democratic National Committee v. Bostelmann, released October 6, 2020. The Supreme Court’s decision tracked GLLF’s intervention briefing and will have important implicants for the legislative intervention in our case, Clean Wisconsin v. DNR.

Bostelmann was a big win for GLLF and sets up our cases.

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, there is nothing additional the legislature needs to show with respect to their interest if they prove up Act 369’s clear requirements. In Clean Wis (Aug. 11, 2020), we said:

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]. We worked with counsel for the legislature on our brief allowing us to avoid arguing a unique legislative interest in our case above and beyond Act 369 provisions. They did not initially see the import of not going down that path, which reflects the value of our presence in related cases such as Bostelmann.

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 “[1] challenges in state or federal court the constitutionality of a statute, facially or as applied, [2] challenges a statute as violating or preempted by federal law, or [3] 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.

* * *

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. (Emphasis added)

Writing in dissent, Justice Dallet (joined by Justices A. Bradley and Karofsky) stated:

¶22 Finally, I address the majority’s shocking assertion that “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.” (Emphasis Dallet)

—

This decision will have implications for the Wisconsin Legislature’s April 25, 2019, motion to intervene under Act 369 in both the Clean Wisconsin and Kinnard Farms cases. The motion to intervene impacts three separate court orders:

  1. On May 2, 2019, the Respondent-Appellant, Wisconsin Department of Natural Resources (DNR), filed a “Motion to Modify Briefing Schedule.” On May 30, 2019, the court granted DNR’s request to flip sides and brief with Clean Wisconsin. The motion remains relevant to legislative intervention.
  2. In its May 30, 2019, order, the court directed parties and the Wisconsin Legislature to file legal memoranda “that address the correct legal standard for the Wisconsin Legislature’s motion to intervene and whether the Wisconsin Legislature meets that standard.” Specifically, the memoranda were to address the interplay of the following statutes as argued by the parties:
    1. The Wisconsin Legislature cites Wis. Stat. § 803.09(2m), as well as Wis. Stat. §§ 803.09(1) and (2). DNR responds that in the context of a review of an agency determination, intervention is guided by the provisions in Chapter 227, namely, Wis. Stat. § 227.53(l)(d).
  3. On July 28, 2020, the court ordered the parties to file simultaneous letters/briefs no later than August 11 that discusses the status of the certified appeal in the impact of the decision in SEIU v. Vos, if any, on the appeal and pending motion to intervene filed on April 25, 2019.

Key Documents

DOJ/DNR Motion to Oppose Permits and Brief with Clean Wisconsin

  1. DOJ-DNR Motion to Modify Briefing Schedule (May 2, 2019)
  2. Clean Wis Response to Modifying Briefing (May 9, 2019)
  3. GLLF Response to Petition to Modify (May 13, 2019)
  4. Legislature Response to Petition to Modify (May 13, 2019)
  5. Clean Wis Motion to Strike Legislature Response (May 20, 2019)

Legislature Motion to Intervene

  1. Legislature Motion to Intervene (April 25, 19)
  2. DOJ/DNR Opposition Leg Intervention (May 6, 2019)
  3. Clean Wis Opposition to Legislative Intervention (May 9, 2019)

Act 369 Intervention Legal Standard. May 30, 2019. Given DOJ/DNR and Clean Wisconsin’s initial opposition, the Supreme Court orders parties, and the legislature, to brief on the correct legal standard for the legislature’s motion to intervene and whether the legislature meets that standard.

  1. GLLF Memo ISO Leg Intervention, w/ Exhibit A (June 19, 2019)
  2. GLLF Memo ISO Leg Intervention Exh B (June 19, 2019)
  3. Leg Supp Memo ISO Leg Intervention (June 19, 2019)
  4. DOJ-DNR Memo IOT Leg Intervention (June 19, 2019)
  5. Clean Wis Memo IOT Leg Intervention (June 19, 2019)
  6. GLLF Resp Memo ISO Leg Intervention (July 9, 2019)
  7. Leg Resp Memo ISO Leg Intervention (July 9, 2019)
  8. DOJ-DNR Resp Memo IOT Leg Intervention (July 9, 2019)
  9. Clean Wis Resp Memo IOT Leg Intervention (July 9, 2019)

Case Status and Effect of SEIU Decision

  1. GLLF Response to 7-28-20 CTO (August 11, 2020).
  2. Leg Memo Response to 7-28-20 CTO (August 11, 2020).
  3. Clean Wis Response to 7-28-20 CTO (August 11, 2020).
  4. DOJ-DNR Response to 7-28-20 CTO (August 11, 2020).