Democratic National Committee v. Bostelmann
No. 2020AP1634-CQ
Supreme Court of Wisconsin
October 6, 2020
2020 WI 80
SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1634-CQ
COMPLETE TITLE: Democratic National Committee, Democratic Party of Wisconsin, Sylvia Gear, Chrystal Edwards and Jill Swenson, Plaintiffs-Appellees, v. Marge Bostelmann, Julie M. Glancey, Dean Knudson, Mark L. Thomsen and Robert Spindell, Jr., Defendants, Republican Party of Wisconsin, Republican National Committee and Wisconsin State Legislature, Intervening Defendants-Appellants.
CERTIFIED QUESTION FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
OPINION FILED: October 6, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES: HAGEDORN, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ZIEGLER, and REBECCA GRASSL BRADLEY, JJ., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS: For the plaintiffs-appellees, there were briefs filed by Charles G. Curtis, Jr., Michelle M. Umberger, Sopen B. Shah and Perkins Coie LLP, Madison; Marc E. Elias (pro hac vice), Bruce V. Spiva (pro hac vice), John Devaney (pro hac vice), Amanda R. Callais (pro hac vice), Zachary J. Newkirk (pro hac vice) and
Perkins Coie LLP, Washington D.C.; Jeffrey A. Mandell, Douglas M. Poland and Stafford Rosenbaum LLP, Madison; Joseph S. Goode, Mark M. Leitner and Laffey, Leitner & Goode LLC, Milwaukee; Jay A. Urban and Urban & Taylor, S.C., Milwaukee; Stacie H. Rosenzweig and Halling & Cayo, S.C., Milwaukee and Rebecca L. Salawdeh and Salawdeh Law Office, LLC, Wauwatosa.
For the intervening defendants-appellants Wisconsin State Legislature, there were briefs filed by Misha Tseytlin, Kevin M. LeRoy and Troutman Pepper Hamilton Sanders LLP, Chicago.
An amicus curiae brief was filed on behalf of Tony Evers, Governor of the State of Wisconsin and the Office of the Wisconsin Attorney General by Eric J. Wilson, deputy attorney general, Colin T. Roth, assistant attorney general and Thomas C. Bellavia, assistant attorney general, Madison.
An amicus curiae brief was filed on behalf of Service Employees International Union (SEIU) Local 1 and SEIU Healthcare Wisconsin by Kyle A. McCoy and Soldon McCoy, LLC, Middleton and Matthew Wessler (pro hac vice) and Gupta Wessler PLLC, Washington, D.C.
2020 WI 80
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
No. 2020AP1634-CQ
STATE OF WISCONSIN : IN SUPREME COURT
Democratic National Committee, Democratic Party of Wisconsin, Sylvia Gear, Chrystal Edwards and Jill Swenson, Plaintiffs-Appellees, v. Marge Bostelmann, Julie M. Glancey, Dean Knudson, Mark L. Thomsen and Robert Spindell, Jr., Defendants, Republican Party of Wisconsin, Republican National Committee and Wisconsin State Legislature, Intervening Defendants-Appellants.
FILED
OCT 6, 2020
Sheila T. Reiff
Clerk of Supreme Court
HAGEDORN, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ZIEGLER, and REBECCA GRASSL BRADLEY, JJ., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
CERTIFICATION of a question of law from the United States Court of Appeals for the Seventh Circuit. Certified question answered and cause remanded.
I. BACKGROUND
¶2 This question arises in the context of litigation over election-related laws challenged in federal court. In that litigation,
The Seventh Circuit previously held that the Legislature had standing, but ruled that our decision in Vos constituted intervening authority justifying a departure from the law of the case. Id. The Seventh Circuit stated that under our decision in Vos, “the legislature may represent its own interest,” but the Legislature may not “represent a general state interest in the validity of enacted legislation.” Id. The Legislature sought reconsideration and then en banc review of this decision.
¶3 The Seventh Circuit‘s decision makes clear that key to its determination on standing is a question of state law, an issue on which this court has the final word. Id. Accordingly, under
II. DISCUSSION
¶4 The question certified is not a wide-ranging constitutional inquiry.2 Rather, the Seventh Circuit has focused our attention on the language of
This court has weighed in on the constitutionality of this statute only once, in Vos. The Seventh Circuit read Vos as limiting the reach of this statute, and on that basis determined the Legislature no longer had standing. Bostelmann, Nos. 20-2835 & 20-2844, at *2. We therefore begin with Vos—discussing what this court held, and what it did not. Then we proceed to the statutory question squarely presented by the certified question.
¶5 The question before this court in Vos involved a facial challenge to
¶6 Our decision in Vos was limited. This court did not hold or imply that the institutional interests discussed were the
only circumstances in which these laws could be enforced consistent with the Wisconsin Constitution. Id., ¶¶50-73. Rather, we more narrowly concluded that certain institutional interests defeated the facial challenge. Id., ¶73. While the institutional interests discussed were sufficient for us to conclude the statute survived a
¶7 What remains, then, is the statutory question of whether
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 as set forth under [
Wis. Stat. § ] 13.365 at any time in the action as a matter of right by serving a motion upon the parties as provided in [Wis. Stat. § ] 801.14.
¶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.
Legislature an interest in defending the validity of state law when challenged in court.3
¶9 Moreover, under Wisconsin law, an intervenor is a full participant in the proceedings, having all the same rights as all other parties to the action. Zellner v. Herrick, 2009 WI 80, ¶22, 319 Wis. 2d 532, 770 N.W.2d 305; Kohler Co. v. Sogen Int‘l Fund, Inc., 2000 WI App 60, ¶¶10-12, 233 Wis. 2d 592, 608 N.W.2d 746. This includes the power to raise “any legal claims and defenses,” as well as the power to appeal an adverse decision just as any other party
¶10 The Plaintiffs-Appellees urge a different approach by making much of
Pursuant to [
Wis. Stat. § ] 803.09(2m), 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:(1) The committee on assembly organization may intervene at any time in the action on behalf of the assembly. The committee on assembly organization may obtain legal counsel other than from the department of justice . . . to represent the assembly in any action in which the assembly intervenes.
(2) The committee on senate organization may intervene at any time in the action on behalf of the senate. The committee on senate organization may obtain legal counsel other than from the department of justice . . . to represent the senate in any action in which the senate intervenes.
(3) The joint committee on legislative organization may intervene at any time in the action on behalf of the legislature. The joint committee on legislative organization may obtain legal counsel other than from the department of justice . . . to represent the legislature in any action in which the joint committee on legislative organization intervenes.
¶11 The statutory use of “on behalf of” has a simple and straightforward meaning: it identifies which legislative entity the particular legislative committee is acting for, and how that
entity effectuates intervention.4 Nothing in
interests are discussed in our cases, but not in the statute), and deletes the interests separately itemized.
¶12
¶13 Putting these principles together,
chooses to intervene, the power to represent the State of Wisconsin‘s interest in the validity of its laws.
III. CONCLUSION
¶14 As we have explained, in our only decision addressing the matter, this court has held that
By the Court.—Certified question answered and cause remanded.
Democratic National Committee v. Bostelmann
No. 2020AP1634-CQ.rfd
Supreme Court of Wisconsin
October 6, 2020
¶15 REBECCA FRANK DALLET, J. (dissenting). The certified question before us is whether, pursuant to
¶16 Under Wisconsin law, it is the attorney general, or special counsel appointed by the governor,1 who must represent the state‘s interests in appellate litigation. The attorney general, a constitutional officer and head of the Wisconsin Department of Justice, has the powers and duties as “prescribed by law.” Wis. Const. art. VI, § 3;
a legislatively prescribed mandate directing the attorney general to appear for the state and defend its interests:
The department of justice shall . . . appear for the state and prosecute or defend all actions and proceedings, civil or criminal, in the court of appeals and the supreme court, in which the state is interested or a party . . . .
¶17 Here, special counsel fulfilled its duty under
attorney general‘s—or, in this case, special counsel‘s—decision not to appeal.
¶18 The majority, however, contends that the legislature‘s intervention right pursuant to
¶19 First, when two different words appear in the same statute, particularly in the same subsection, we presume the choice was intentional and that the words have distinct meanings. See Augsburger v. Homestead Mut. Ins. Co., 2014 WI 133, ¶17, 359 Wis. 2d 385, 856 N.W.2d 874 (“When the legislature chooses to use two different words, we generally consider each separately and presume that different words have different meanings.” (quoted source omitted)). Under
for the state,” while in the same subsection, it described the legislature‘s authority as “interven[ing].”2 To avoid any overlap disfavored by our canons of construction, intervention cannot be the same as appearing for the state.
¶20 Second,
Pursuant to [§] 803.09(2m), . . . [t]he joint committee on legislative organization may intervene at any time in the action on behalf of the legislature.
(Emphasis added.) As this court has repeatedly stated, “[u]nder the doctrine of expressio unius est exclusio alterius, ‘the express mention of one matter excludes other similar matters [that are]
not mentioned.‘” E.g., FAS, LLC v. Town of Bass Lake, 2007 WI 73, ¶27, 301 Wis. 2d 321, 733 N.W.2d 287 (second alteration in original) (quoted source omitted). The legislature‘s inclusion of the phrase “on behalf of the legislature” precludes a reading of
¶21 Nothing this court said last term in Vos, 393 Wis. 2d 38, compromises the attorney general‘s exclusive authority to represent the state‘s interests in litigation. We noted only that there is “no constitutional violation” in the legislature‘s
intervening in at least some circumstances
¶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.” Majority op., ¶13 (emphasis added). The majority correctly points out that the legislature, when acting as an intervenor, has “all the same rights as all other parties to the action,” including the “power to raise ‘any legal claims and defenses.‘” Id., ¶9 (quoted source omitted). But it immediately goes awry by insisting that a party‘s right to raise a legal claim or defense also allows it to assume the interest of other parties and raise a claim or defense on their behalf. See Foley-Ciccantelli v. Bishop‘s Grove Condo. Ass‘n, 2011 WI 36, ¶62, 333 Wis. 2d 402, 797 N.W.2d 789 (explaining that a party is “prohibit[ed] . . . from raising another‘s legal rights” (quoted
source omitted)). An intervenor stands only on the interests upon which it entered the case. See Karcher v. May, 484 U.S. 72, 78 (1987) (holding that a party who intervened upon one interest cannot rely upon another party‘s interest to pursue an appeal).
¶23 This distinction matters because the question certified to this court is not about whether an intervenor has the same rights as a named defendant to pursue a claim in federal court. Those rights are established by federal law. See Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 797 (7th Cir. 2019) (“The right to intervene ‘is a purely procedural right and even in a diversity suit it is the Federal Rules of Civil Procedure rather than state law that dictate the procedures . . . to be followed.‘” (quoted source omitted)). The certified question is whether Wisconsin law allows the legislature to step into the role of the attorney general and represent the state‘s interests.
¶24 The answer is no.
are not equivalent to the state‘s general interest in the validity of state law.4 See Bethune-Hill, 139 S. Ct at
¶25 The majority appears troubled by the notion that the attorney general or appointed special counsel could discharge its duty to represent the state‘s interests by declining to pursue an
appeal. Setting aside the fact that questions about the executive‘s duty are not before the court, the majority‘s solution to that unpresented problem is not to interpret the law but to rewrite it. It asserts “intervene . . . on behalf of the legislature” means “appear for and defend the state.” This practice is just the latest in a growing number of instances whereby this court—ironically at the legislature‘s behest—legislates from the bench. For instance, in Palm, 391 Wis. 2d 497, this court excised the word “order” from a statute so that it could classify an executive‘s action as “rulemaking.” Today, it blatantly redefines “intervene” as “appear for” or “defend” because that is what the legislature now wishes it wrote. Such a misuse of this court‘s authority is becoming a disturbing habit of the court, and one I would urge my fellow Justices to break.
¶26 The plain language of
addition to the statutory issues discussed above, raises significant issues of constitutional separation of powers. Those issues are not before us today but when they are, the errors underlying the majority‘s decision will be even more transparent.
¶27 For the foregoing reasons, I respectfully dissent.
¶28 I am authorized to state that Justices ANN WALSH BRADLEY and JILL J. KAROFSKY join this dissent.