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Clean Wisconsin v. DNR Parties Agree–Intervention Already Sufficiently Briefed

On July 28, 2020 the Wisconsin Supreme Court ordered the parties in Clean Wisconsin v. DNR to provide an update on the appeal and the impact of SEIU, Local 1 v. Vos, if any, on the Wisconsin Legislature’s pending motion to intervene.

GLLF filed a memo supporting legislative intervention and arguing intervention under Act 369 was sufficiently briefed earlier, a position all parties agreed on.

The Wisconsin Legislature provided a 33-page brief. The majority of it recounts the procedural history of the case so far, including all the arguments made by each party. It then argued: intervention was already adequately briefed, the legislature has an interest in preventing the executive branch from usurping the legislative lawmaking authority (by ignoring Act 21), and the legislature should be able to intervene in any case that does not implicate a core power of the executive. 

Clean Wisconsin, meanwhile, provided an 8-page brief which similarly argued that the issue was already adequately briefed. It then repeated its argument from the earlier briefing that the legislature failed to meet the requirements for intervention under Chapter 227 and has no interest in the case. Finally, the brief argued that intervention would violate separation of powers as an infringement on a core executive power (whether or not the agency executed a law) and judicial power (since intervention is a “mandatory right” and not discretionary for the court.)  

The Department of Justice provided a 2-page brief that also stated intervention was adequately briefed. It then added that as far as SEIU, Local 1 v. Vos had any bearing on the case, it was that none of the constitutional reasons listed for legislative intervention were at play. 

Meanwhile, in the Kinnard Farms case, where we did not file an update because we are only participating as amici, the Wisconsin Legislature filed a 30-page brief effectively stating the same thing as their Clean Wisconsin brief except with different procedural facts.  

Counsel for Kinnard Farms submitted a 2-page brief saying it agreed with the reasons for intervention named by the legislature.  

We expect a briefing schedule in the case once the court reaches a conclusion about legislative intervention.