Whatever Happened to Intervention?

In December 2018, the Wisconsin Legislature passed 2017 Wis. Act 369 which, among other things, allowed the Wisconsin legislature to intervene in ongoing litigation challenging a statute or a constitutional question.

“When a party to an action 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, the assembly, the senate, and the legislature may intervene …”

Wis. Stat. § 803.09(2m)

In a court case, to intervene means a party joins an ongoing litigation and becomes a party to the lawsuit, usually without the permission of the original litigants.

In March 2019, the Service Employees International Union (SEIU) filed a lawsuit challenging the the constitutionality of Act 369, arguing it violated separation of powers. The Wisconsin Supreme Court took the case the following April and granted temporary relief to the stay issued by a circuit court.

In April, the Wisconsin Legislature moved to join several cases before the Wisconsin Supreme Court as intervenors, including Clean Wisconsin v. DNR (where GLLF represents eight Wisconsin business associations as intervenors) and Kinnard Farms (where GLLF represents six business associations as amici.) The court put both cases on hold until it ruled on SEIU v. Vos.

Briefing and oral arguments for SEIU v. Vos ensued through October 2019. The case–and the legislature’s ability to intervene in the Clean Wisconsin cases–still waits a decision.

At GLLF, we will continue to monitor SEIU v. Vos and cases like it to keep you informed on changes in Wisconsin administrative and constitutional law.

Click here for a recap of the legislative intervention briefing that occurred a year ago.