"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story.
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The case: Disability Rights Wisconsin v Wisconsin Elections Commission
Case no.: 24AP1347
Filed in: District I Court of Appeals
Circuit court: Dane County
Circuit judge: Everett Mitchell
Filing attorney: Joshua Kaul
Title: Attorney general
Law firm / agency: Wisconsin Department of Justice
Filing Attorneys: Charlotte Gibson, Faye Hipsman, Karla Keckhaver, Jonathan Whitney
Title: Assistant attorney general
Law firm / agency: Wisconsin Department of Justice
Introduction
On July 5, the Wisconsin Supreme Court issued Evers v. Marklein, rejecting two statutes that gave a legislative committee the power to override decisions of the executive branch about how to administer and execute the law.
The court reaffirmed the separation of governmental powers enshrined in the Wisconsin Constitution. It held that statutes that “effectively create a legislative veto” violate the separation of powers because they allow a legislative committee to “interfere with and even override the executive branch’s core power of executing the law.”
Here, the Legislature seeks a similar power to veto decisions of the executive branch. It moved for intervention in an election case brought against the Wisconsin Elections Commission. The Legislature was not a named defendant, and no legislative power is implicated by the case. But under § 803.09(2m), a statute passed after the election of Governor Evers and Attorney General Kaul but before they took office, the Legislature has the statutory power to intervene even when it is not a named party, has no interest as the legislature, and the executive branch is defending the case.
As applied here, that statute is unconstitutional. Managing litigation is part and parcel of executing and administering the law. Just as in Marklein, the Legislature’s power to override the executive branch’s management — here, by becoming an intervenor defendant with the full power to make different litigation decisions — violates the separation of powers.
In seeking to intervene below, the Legislature invoked both § 803.09(2m) and the regular intervention as of right statute, § 803.09(1). The latter statute would also have done the Legislature no good because the Legislature would fail the second, third, and fourth prongs of the test under that statute: it has no protected interest as the Legislature, no interest that thus can be impaired, and is adequately represented by the attorney general and Commission. The Legislature sought permissive intervention, too, but that would not remedy the separation of powers violation here.
Issues presented
1. Is § 803.09(2m), which permits the Legislature to intervene in a case seeking accommodations under the federal ADA and Rehabilitation Act, unconstitutional as applied here because it violates the separation of powers?
The circuit court granted the Legislature’s motion to intervene but did not explain why. It did not address the Commission’s argument that the statute is unconstitutional as applied.
This Court should answer yes.
2. Does the Legislature fail to meet the standards for mandatory intervention under Wis. Stat. § 803.09(1) based on its interests as the Legislature?
The circuit court granted the Legislature’s motion to intervene but did not explain why.
This Court should answer yes.
3. Would granting permissive intervention to the Legislature here also be unconstitutional?
The circuit court did not answer this question.
This Court should answer yes.
Statement of the case
This case involves the constitutionality of the Legislature’s intervention in a civil action against the Wisconsin Elections Commission involving claims under the federal Americans with Disabilities Act (ADA) and Rehabilitation Act. The plaintiffs seek accommodations in how voters with print disabilities receive, vote, and return absentee ballots.
In December 2018, after the election of Governor Evers and Attorney General Kaul but before they took office, the Legislature passed 2017 Wis. Act 369.
Among other things, provisions of Act 369 allow a legislative committee, the Joint Committee on Legislative Organization, to authorize the Legislature, or one house thereof, to intervene as itself in certain circumstances.
And under § 13.365(3), the assembly, the senate, or the Legislature “may intervene . . . at any time in [an] action” when a statute is challenged.
The Joint Committee has an unlimited appropriation to pay for outside counsel for that purpose. Since the law’s passage, the Legislature has intervened in a multitude of cases, particularly election-related cases brought by pro-voting groups. From 2018 to 2021, the Legislature spent $8.5 million in taxpayer funds in matters related to executive orders and to defend statutes including election provisions. This included almost $2 million dollars in 2020 on involvement in election lawsuits against the Commission alone.
The Legislature moved to intervene in the Disability Rights case. The Elections Commission argued that § 803.09(2m) was unconstitutional and that the Legislature did not meet statutory criteria for intervention. Dane County Circuit Judge held oral argument and the next day, without any explanation, granted the Legislature's motion to intervene.
Argument
The Court of Appeals should reverse Mitchell's ruling, the brief argued.
The Legislature cannot constitutionally intervene to represent the state’s interests where the attorney general and executive branch are already defending this case. The Legislature has no constitutional role in the issues presented. In addition, the Legislature fails the statutory test for intervention as of right, and permissive intervention presents the same constitutional impediments as with Wis. Stat. § 803.09(2m).
I. The Legislature’s intervention in this matter violates the separation of powers.
In seeking to intervene, the Legislature asserted that it has an interest either as the state or the Legislature in ensuring that a Wisconsin law is upheld and is entitled to intervene even when the attorney general and Commission defendants are already defending the case. Wisconsin’s separation of powers doctrine prevents that outcome: defending litigation is an executive branch function, and intervention would allow the Legislature to execute the law.
***
In Marklein, the Wisconsin Supreme Court reaffirmed the separation of powers in Wisconsin and emphasized that the “executive branch’s role is to effectuate the policies passed by the legislature.” When “executing the law, the executive branch must make decisions about how to enforce and effectuate the laws”: to decide what the law requires and how to apply it. ...
Because the power to execute the law is vested in the executive branch, only the executive branch may exercise it. Neither the Legislature nor the executive branch may “possess directly or indirectly, an overruling influence over the other[ ] in the administration of their respective powers.”
***
The attorney general and Commission’s defense of the law at issue in this case constitutes core executive power. The Legislature has no constitutional power to defend the state’s interest in litigation here, and it has no legislative institutional power implicated by the matter.
Here, the attorney general and Commission are executing the law by litigating this case. They are exercising judgment and discretion in applying the generally applicable law, assessing the relevant facts on the ground, deciding how to present evidence, and taking into account how the plaintiffs’ claims will affect the administration of Wisconsin elections law. This job is constitutionally tasked to the executive branch.
***
In contrast to the executive branch’s constitutional role in defending the litigation at issue, the Legislature has no constitutional role or power to act as the “state’s litigator-in-chief or even the representative of the people at large.”
This case impacts no constitutional power of the Legislature. The Legislature can constitutionally be a litigant in cases challenging the Governor’s veto, for example, because that veto affects the Legislature’s constitutional job to pass bills. That role does not exist once a law is enacted: it is then up to the executive branch to carry out.
II. The Legislature does not meet the statutory standard for intervention as of right under Wis. Stat. § 803.09(1).
Without its new intervention statute, the Legislature must satisfy the traditional factors for intervention of right under Wis. Stat. § 803.09(1). It is no surprise that, under that well-established standard, the Legislature rarely intervened prior to 2019. The Legislature cannot meet the standards of Wis. Stat. § 803.09(1) here: it has no protected interest as the Legislature, no interest that could be impacted by the outcome of the litigation, and its asserted interests will be more than adequately represented by the existing parties.
To intervene as of right, a movant must meet four elements: (1) a timely intervention motion; (2) an interest sufficiently related to the subject of the action; (3) the disposition of the action may as a practical matter impair the movant’s ability to protect that interest; and (4) the movant’s interest is not adequately represented by existing parties.
The Legislature asserted that it has a protected interest as the Legislature in seeing laws it passed upheld, the “efficacy of its own powers,” or the “integrity of elections.” None of these are protected interests for purposes of intervention.
The interest element for purposes of intervention corresponds with the concept of standing: it requires a direct and immediate interest relating to the statutes at issue in the case. Because it has no protected interest under the second prong of intervention, the Legislature also has no interest that will be impeded by the outcome of the litigation for purposes of the third prong.
The Legislature has no protected interest in seeing the law it passed upheld or upheld against a constitutional claim.
The U.S. Supreme Court has held that legislative bodies lack a protected interest when they seek to intervene based on an asserted legislative interest in seeing a law upheld.
Finally, the Legislature asserted that it has a protected interest for intervention purposes on the theory it has a “powerful interest in election integrity.”
Federal courts have recognized that “election integrity” is not a direct, protected interest for standing purposes.
State courts are in accord. In Teigen v. WEC, only three justices would have held that voters had an injury for standing purposes based on a concept of “vote dilution,” which those justices viewed as an asserted injury to the integrity of the election process. The court of appeals has expressed doubt that “vote dilution” theory could ever “amount to an actual, concrete injury that gives [plaintiffs] a justiciable stake” in a case.
Even if the Legislature could establish a protected and unique interest in this litigation, it would not be entitled to intervene because the attorney general and Commission will adequately represent its interests — the fourth requirement of the mandatory intervention analysis.
First, adequate representation is presumed when a movant and an existing party have “the same ultimate objective” in the action.
Second, adequate representation is presumed when a party is “a governmental body or officer charged by law with representing the interests of the absentee.”
The Legislature seeks the same result as the Commission defendants. The Commission is expressly charged with administering Wisconsin election laws, and its legal representative, the Department of Justice, is responsible for defending the validity of state statutes. The Legislature provided no compelling showing to overcome those presumptions.
III. This Court should deny permissive intervention.
The Legislature has also sought permissive intervention, but that would fail for the reasons discussed above. The Legislature has no protected interest in being a party as the Legislature, and it seeks intervention to keep an eye on how the attorney general and Commission defend the case and to potentially make different litigation choices. As counsel for the Legislature said at oral argument, “[w]e just want to have a seat at the table to argue that the statute we enacted is constitutional,” and to appeal, even if the Commission decides that an appeal is not in the best interest of elections administration in Wisconsin. But becoming an intervenor-defendant for that reason presents the same separation of powers violation as if the Legislature had intervened under Wis. Stat. § 803.09(2m).
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