*1 Jоdy Virginia Jessie Tanner, Wolf, Helgeland, Schumacher, Schermann, Carol Diane Michelle Megan Sapnar, Ingrid Eloise Collins, Ankerson, Jayne Janice Dunnam and McPike, Barnett, Plaintiffs-Respondents, Timm, Robin
v.
Municipalities,
Wisconsin
Appellant-Petitioner,
Senate
and Assembly,
Wisconsin
State
Co-Appellant,
Employee
Employee
Department
Funds,
Trust
Group
Eric Stanchfield and
Board,
Trust Funds
Defendants-Respondents.
Board,
Insurance
Supreme Court
argument
No. 2005AP2540. Oral
October
2007.
February
Decided
For the the cause was ar- by gued attorney gen- Lattis, Sloan assistant Jennifer eral, whom with on the brief was Hollen, J.B. Van attorney general. Eight
¶ 1. S. ABRAHAMSON, C.J. SHIRLEY Wis- municipalities, municipal consin boards, school and (collectively municipalities")1 school districts "the seek published appeals of review court of decision2 affirm parties referred to herein as "the municipalities" are Caledonia, of Grove, the Town the Cottage City Town of the Bay, City Watertown, Green the Village Hobart, Village Oostburg, Berlin, School Board of New Raymond School #14. District 2Helgeland Municipalities, v. Wis. App 2006 WI Wis. 2d 208. N.W.2d County, Dane ing Court for of the Circuit order an T, Judge. Flanagan, court denied III, The circuit David parties participation in the instant as relating by employees brought to state ben- state case appeals of the affirmed the order The court of efits.3 of the court the decision court. affirm circuit We appeals. begin by explaining is what this case
¶ 2. We not about. it is about what Eight procedure. mu- is court The case about 3. nicipalities into a lawsuit to insert themselves want challenging employees brought their several state question this court is whether before benefits. The state inject eight municipalities to these should allow the court state-employee-oriented lawsuit, in- into a themselves rights governing bringing their own lawsuit stead of municipal employees. of their own procedural is the court issue before 4. The "joinder." "intervention" in the law as known judicial important Our in the law. Procedure good proce- system procedure because we view values tending produce In outcomes. fair and sound dure deciding presented procedural in the instant issue complaining positions case, we must consider eight municipali- parties, defendants, and the named public's fair, *8 and court's interest as the ties, as well municipalities management. The case effective, efficient (the Assembly legisla State Senate and The Wisconsin ture) action. plaintiffs' in the moved to intervene also order motion in thе same legislature's the court denied circuit the challenge. court denied This municipalities now the decision appeals court of for review of the petition legislature's court's order. affirming the circuit monopoly procedural
do not have a interest on the issue they case, in the instant and the dissent the want reader to believe. Broadly speáking,
¶ 6. a court determines whether entity join existing an outside should intervene in or an by striking allowing lawsuit a balance between the original parties to a lawsuit to conduct and conclude allowing join their own lawsuit others to a lawsuit in speedy the interest of the controversy and economical resolution of a rendering fruitlessly without the lawsuit complex unending. or Whether order intervention or joinder judgment turns on calls and fact assessments. eight municipalities present
¶ 7. The in the case only generalized they make claims that have interests subject explain related to the As action. we at length below, and as Justice Butler's concurrence ex- plains, municipalities the have failed demonstrate circuit the court here how their interests relate to the subject of the action in a direct and immediate fashion. Indeed, concedes, must, dissent as it that the record municipalities does not detail effects on the of a favoring complainant.4 Importantly, decision Department Employee Attorney Trust Funds adequately represent General the State of Wisconsin eight defeating the interest of the municipalities' disagreement way lawsuit. The with the Attorney handling DETF and the General are action is not a basis for intervention.
¶ 8. Procedure is what instant case is about. ¶ 9. The instant is not case about the merits of 40.02(2) employees' the state assertion that Wis. Stat. 4 Dissent, 185-86, 193. ¶¶ *9 defining "dependent," (2003-04), vio- statute the state guarantees equal protection I, Article Sec- lates gay by denying Constitution tion of Wisconsin employees their same-sex and state and lesbian male partners employment that are avail- benefits domestic employees similarly state situated heterosexual able spouses. close to address- do not even come We and their ing this issue. acknowledging constitutional
¶ that the After 10. gay persons in and lesbian domestic of benefits for issue relationships case,5 the issue in the instant is not at immediately the cauldron of hot-hutton stirs dissent totally many unrelated to issues It touches on issues. question presently procedural this before the narrow tangentially related to the constitu- and not even court may ultimately question and be raised that tional it is remanded lawsuit when in the instant decided the circuit court. paragraphs, the dissent its first four 11. Within present elliptically "one of case involves that the
asserts political great of our time"6 controversies social employer "every public the case affects and that Employee operates Fund" and Trust the Public under every employer gоverned "potentially, Wisconsin's also iden- Family The dissent Leave Act."7 and Medical part Civil the American instant action as tifies the Rights Gay Lesbian National Union's Liberties any certainly Project.8 mindful The dissent passions. up partisan See stirs ACLU reference 5 Id., 154. 6Id.
7 Id., 8Id.
George presidential Bush's of H.W criticism candidate "card-carrying as Michael Dukakis of member the ACLU."9 Although musing "[i]t argued
¶ 12. that can be very purpose vindicating that courts exist for the 'rights' might disregarded by political that be otherwise majorities,"10 in the dissent undermines the effect le- gitimacy of court decisions that review constitution- ality legislative enactments.11 The dissent's thesis appears be, to in contrast to the Code of Judicial Conduct, that courts should determine as a matter politically of constitutional law controversial issues legitimately raised cases before them.12 present ¶ 13. The traditional, dissent does not well-accepted mainstream, view that courts in the settling disputes brought are, in United States them, to supposed rights protect guaranteed to to each of us Rights the United States Bill Constitution and the Rights, Wisconsin Constitution Declaration of even protection may unpopular. Marbury when such v. (1803), Madison, 137, 180 5 U.S. the best-known case in (and legal history jurisprudence American indeed in world), judicial across the announced the basic tenet of Debate; The Presidential Transcript the First TV Debate Dukakis, Between Bush and Times, 26, N.Y. Sept. http://query.nytimes.com/gst/fiillpage.html7res=940DEFD9113 EF935A1575AC0A96E948260&sec=&spon=&pagewanted=1 (last 2008). visited Jan.
10Dissent,
191.
¶
11 Id.,
155, 190.
¶¶
12 Id.,
155, 190-91.
¶¶
contrast,
In
Conduct,
Code of
Wisconsin
Judicial
SCR
60.04(l)(b),
explains
judge
"[a]
shall be
faithful
the law
professional
competence
maintain
judge may
in it. A
not be
swayed by partisan interests, public
clamor
fear of criticism."
duty
power
namely
have the
that courts
review,
repugnant
is void."
to the Constitution
"a law
hold that
Finally,
paragraph of the dissent
the fifth
14.
questioning
specter
abortion,
to raise
contrives
(1973),
legitimacy
Wade,
to rile immigration. tell, the issue of encourages Unfortunately, the dissent *11 legislative function, deter- which confuse
reader to open policy public all and not to in a forum mines judicial governed evidence, and the rules of court legal dispute named between function, resolves a which (including according rules of parties to the facts and law evidence) nonpartisan impartial, fair, neutral, and in a way. Supreme Court Chief Jus-
¶ As United States 17. job judge's like an stated, has a Roberts tice John pitch umpire's, not to and strikes and "to call balls 13Dissent, 155. ¶ of a sentiments the "homer" attempt to arouse In an employ state reader, complains about the the dissent Wisconsin counsel, inex out-of-state decision to retain perfectly lawful ees' employ the state question whether suggesting that the plicably somehow courts the Wisconsin may appear before ees' counsel municipalities have question whether bearing upon the has 803.09(1). Dissent, Stat. under Wis. right of intervention 212. ¶ government wedge issues: state other The dissent also raises levy and taxes, statutory revenue government, local
versus Dissent, government. ¶¶ of local limits, increased costs and 190, 205.
bat,"15 rules, make to the according calls accord- ing to the voices of a crowd. partisan 18. Without in the or law support facts on and joinder, intervention dissent unfortunately has political turned to considerations and appeals emo- tions. turn 19. We now to the issues procedural before
us and facts and law intervention governing joinder. Our painstaking thorough consider-
ation of the and the state municipalities' employees' arguments numerous has resulted in very long opin- reader, ion. To assist we set out the following to our discussion: roadmap
I. Background: Factual and Procedural 21-34 ¶¶ Municipalities II. The Do Right Not Have the 803.09(1): Intervene: Wis. Stat. 35-120 ¶¶ A. Motion to Intei'vene is Timely: 42¶ The Municipalities' Insufficiently B. Interests Are Subject Related of the Action: 43-74 ¶¶ (1) The Financial Interest of Three Municipalities *12 in DETF Health Is Plans Direct, Immediate, Not or Special: 47-53 ¶¶
(2) The Municipalities' Collective Bar- gaining Agreements Are Not at Stake: 54-58 ¶¶ "Myjob Roberts: is to call balls and strikes and not bat",
pitch or CNN.com, 12, Sept. http://www.cnn.com/ (last vis 2005/POLITICS/09/12/roberts.statement/index.html 2008). ited Jan. (3) Municipalities' Pension and The Plans Are Not at Compensation Deferred Stake: 59-66 ¶¶
(4) Home Rule Au- Municipalities' thority Is Not at Stake: 67-69 ¶¶
(5) Summary: 70-74 ¶¶ Impair the Disposition C. of the Action Does Not Ability to Protect Interests: Municipalities' Their 75-84 ¶¶ Adequately Repre- Municipalities
D. The Are Attorney DETF General in the sented Action: 85-114 ¶¶ Summary:
E. 115-118 ¶¶ Denying Did Err in Per- III. The Circuit Court Not 119-127 missive Intervention: ¶¶ Required: is Not 128-143 IV Joinder ¶¶ 803.03(l)(b)l.: § 129-137 A. Wis. Stat. ¶¶ 806.04(11): B. Wis. Stat. 138-143 ¶¶ Conclusion: 144^145 ¶¶ Background
I. and Procedural Factual background may- The facts and procedural 21. stated. simply other current Helgeland five Jody their same-sex along with employees, former state brought (collectively "Helgeland"), domestic partners Stanchfield, DETF Eric DETF, Secretary suit against Board, Funds and the Group Trust Employee "DETF"). chal- (collectively Helgeland Insurance Board 40.02(20) Stat. of Wis. lenges constitutionality *13 (2003-04),16 "dependent" purposes which defines employee eligibility, state health insurance and alterna- tively interpretation asserts DETF's and adminis- provision Helge- tration of this are unconstitutional.17 argues provision's applying land that in definition "dependent," equal protection guar- DETF violated I, antees of Article Section of the Wisconsin Consti- by denying gay employees tution18 and male lesbian and partners employment their same-sex domestic ben- carryover, insurance, efits of family sick health leave and similarly leave that are situated available employees spouses. and heterosexual their In the complaint, Helgeland requests, among amended other enjoin things, circuit court DETF from exclud- ing gay employees lesbian and male their same-sex partners employmеnt domestic from the same benefits provided similarly employees situated heterosexual spouses. and their Eight municipalities participate
¶ 23. seek to Helgoland's parties Judgment suit. law favor Helgeland impose possibly not could an award of dam- ages against any person entity other than the named defendants.
16All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. 17Helgeland challenges constitutionality also of Wis. 103.10, Stat. family which defines those members with a employee may serious health condition for an family whom take aspect Helgoland's leave. This action relevant municipalities' motion. I, Article Section 1 of the Wisconsin pro Constitution
vides in people equally full: "All are and independent, born free life, have rights; among liberty certain inherent these are pursuit and the of happiness; rights, govern to secure these instituted, deriving just ments are their powers from the governed." consent of the *14 municipality in 24. Each involved the instant employ- plans benefit its
suit offers health and dental pays premium ees and all or some costs on behalf of employees plans.19 in who enroll these The Town of City Village Cottage Grove, Watertown, of and the Oostburg pay premium each costs on behalf of plans employees in health or who enroll dental admin- by remaining municipalities appar- istered DETE The arrange ently employees' for their health or dental utilizing any plan. benefits without DETF Cottage Employees Grove, 25. of the Town of City Village Oostburg Watertown, and the who by plans or DETF enroll health dental administered given option obtaining "family" are either or "single"coverage. "family"option provides coverage The employees employees' spouses dependents. and to eight municipalities participate
¶ 26. All in the System, Wisconsin Retirement which is administered sponsor DETE A number of also Compensation DETF-administered Wisconsin Deferred plan. municipalities pay no contributions on behalf employees participating in the Wisconsin Deferred Compensation plan. represented by
¶ the Wisconsin De- DETF Lautenschlager partment Peggy as of Justice. served Attorney of the State of both General Wisconsin while appeals the circuit court and the court of considered the Subsequent ap- municipalities' motion. court of Lautenschlager completed peals' decision, her term as attorney general replaced by newly and was elected J.B. Van Hollen. Berlin affidavit The School District of New states its employees. offers vision insurance to its
that it also judgment against ¶ 28. DETF has moved for Hel- geland pleadings on the the circuit before court on the ground Phillips v. Wisconsin Personnel Commis- (Ct. 1992), App. sion, 167 Wis. 2d N.W.2d Helgeland's forecloses claim. Helgeland compel discovery.
¶ 29. has moved to ¶ 30. The circuit court has not ruled on either judgment pleadings DETF's motion for Helgeland's on the compel discovery, motion to but has ruled only municipalities' participate on the motion to parties. municipalities' The circuit court denied the *15 right by permis- intervene, motion to as a matter of or declaratory brought by intervention, sive in the action Helgeland. rejected
¶ 31. The circuit court also the munici- palities' request by sponte to be added the court sua necessary party. a The circuit court ruled that municipalities' hypothetical, interests are indirect, and speculative. somewhat municipalities 32. The circuit court invited the participate as amicus curiae.20 (friend court) Amicus curiae procedure refers to a whereby a "may by court persons parties informed not to a
legal action, who are particularly nonetheless informed or inter (or declared)." ested in the outcome at being least in the law Leif, Dictionary Arthur Allen Law: A Fragment, Leff (1985). Yale L. J. by Briefs amicus provide curiae can assistance by to a court presenting an argument or citing authority not found in parties' briefs or providing impor tant background technical or parties information which the have See supplied. Joseph Kearney al., D. The Influence of et Amicus Supreme Court, Curiae on the 148 U. Penn. L. Rev. Briefs (2000). 743, 745 briefs, For a discussion of amicus see Neal al., Friend the Court Nettesheim et What the Curiae Briefs: Amicus, Wants in an Lawyer, Wis. May at 11. (1) municipalities they ¶ 33. The contend 803.09(1) § right of intervention under Wis. Stat. have (2) erroneously law; as a matter of that the circuit court denying municipalities exercised its discretion permissive § 803.09(2); under intervention Wis. Stat. (3) join refusing that the circuit court erred in municipalities sponte sua under either Wis. Stat. 803.03(l)(b)l. 806.04(11). § §or agree
¶ 34. the circuit court and court of We with arguments unpersuasive. appeals: municipalities' are (1) municipalities We conclude that the have no (2) 803.09(1); § intervention under Wis. Stat. that the properly denying circuit court exercised its discretion municipalities permissive intervention under Wis. (3) 803.09(2); § Stat. that the circuit court did not refusing join sponte err in sua 803.03(l)(b)l. 806.04(11). § under either Wis. Stat. Accordingly, we affirm the decision of the court of affirming denying appeals the circuit court's order inter- joinder. vention or Municipalities
II. The Do Have Not 803.09(1) Right to Intervene: Wis. Stat. court 35. We first consider whether circuit denying municipalities' *16 erred in motion for inter- 803.09(1). § vention as of under Wis. Stat. 803.09(1), § governing ¶ in- 36. Wisconsin Stat. right, provides as tervention as of follows: timely anyone permitted Upon motion shall be to an intervene an action when movant claims relating property interest transaction which is to or subject of the action and the movant is so situated may practical action a disposition that impair impede ability protect or to matter the movant's interest, adequately unless the movant's interest is represented existing parties.
19 803.09(1) § 37. Wisconsin Stat. is based on Rule 24(a)(2) Procedure, of the Federal Rules of Civil and and interpretation the federal rule application provide 803.09(1).21 guidance and interpreting applying A38. movant must satisfy four to requirements intervene as a matter of right under Wis. Stat. 803.09(1). The movant must show:
(A) that the movant's motion to intervene timely; (B) that the movant claims an interest sufficiently related the subject action;22 of the
(C) that disposition of the action
may as practicad
matter
impair
impede
movant's
ability
protect
interest;
21
DHSS,
514,
v.
536,
Fox
2dWis.
22The word "sufficiently"
part
been
has
of our interest
test since at least 1983. State ex rel.
Township
(1983)
Bilder v.
Delavan,
("The
539, 547,
112 Wis. 2d
The word
part
"sufficient" is also
of the federal rule. See 7C
Wright
al.,
Charles Alan
et
Federal Practice and Procedure
(2007) (entitled
§ 1908.1 at 300
"Intervention ... What Consti-
Interest").
tutes a Sufficient
For a
phrasing
rule,
different
City
see
Madison v.
WERC,
n.9,
2000 WI
234 Wis. 2d
610 N.W.2d94
("The interest which entitles one to
in a suit
intervene
between
parties
other
must be an interest of such direct and immediate
*17
(D) that
the
not
existing parties do
adequately
the movant's interest.23
represent
39. A
must
movant
meet each of these four
criteria to claim a
of
right
intervention.24 At the same
time, the
criteria
not be analyzed
need
isolation from
another,25
one
and
strong
a movant's
showing with
to one
respect
requirement may contribute
character that the
gain
by
will either
or lose
intervenor
direct
operation
omitted).
judgment.") (quotation
the
marks and citation
23
(footnotes
Madison,
City
See
234
11
Wis. 2d
and
omitted)
quotation
Broad.,
(citing
marks
Armada
183 Wis. 2d
Heartwood,
Service, Inc.,
at
See also
Inc. v. U.S. Forest
316
(7th
2003).
F.3d
Cir.
Broad.,
See
("setting
Armada
movant's to other ability requirements sepa- of four shall each these We discuss the requirements; but is between rately, interplay there and balanced to must be blended requirements the right have determine whether intervene.27 deter- have formula for precise "Courts no the re- a intervenor meets
mining potential whether 803.09(1)... holis- is analysis §of ."28 quirements flexible, and A court must tic,29 highly fact-specific.30 "against of case look at the facts and circumstances each 26 ("[A] Moore, 24, 24.03[l][b], § 24-25 supra See 6 at note if required by court showing impairment may be lesser Likewise, right very strong. intervention applicant's interest may may granted applicant's if claimed interest be be action, uncertainty if by the even significantly impaired some (footnote interest.") omit regarding sufficiency exists of that ted). 27 24-25; 24, 24.03[l][b], Moore, supra § at See 6 note 7C 22, 1908, al., Wright supra § et note at 297. 28 738, 742, Jamestown, Town 229 Wis. 2d 601 v.Wolff 1999). (Ct. Moore, 24, App. supra 6 note
N.W.2d 301 See also ("The 24(a)(2) 24.03[l][b], inquiry § at 24-25 under Ride must procedural posture on the and of each particular focus facts (footnote al., omitted); Wright supra application.") 7C et note 22, 1908.1, 300; Serv., 964, Kleissler U.S. Forest 157 F.3d at v. (3d 1998) no fact . will (concluding "pattern.. 970 Cir. easily support defeat in all circumstances" and intervention variety resolution "the of factual situations their for the Appeals Circuit's] demonstrate Court Third [the ...."). elasticity contemplates that Rule adherence 29Daggett v. Comm'n on Governmental Ethics & Election (1st 1999). Practices, 172 F.3d 113-14 Cir. Madison, Citing quoting 2d City 234 Wis. n.ll, appeals the court of concluded that it should "allow only of
intervention a matter where the intervenor is policies background underlying interven- tion A court is mindful rule."31 that Wis. Stat. 803.03(1) strike balance two "attempts between conflicting On public policies."32 hand, "[t]he the one original parties lawsuit should allowed to ,"33 conduct and conclude their own lawsuit... On the hand, other "persons should to join be allowed a lawsuit in the interest of the speedy and economical resolution of controversies."34 *19 41. Whether to or to allow intervention as deny
¶ of right is a of question law that this court decides independently of circuit court court of appeals but benefiting from the analyses of each court.35 One federal court concluded: its "Despite nomenclature, right' usually intervention 'as of turns judgment on calls 'necessary to the adjudication Helgeland, of the action.'" 296 880, Wis. 2d 6. At we municipalities' urging, clarify ¶ that a rigid right City test intervention as of was not established in (citation Madison, omitted), 234 2d n.11 Wis. which court right stated that intervention aas matter of requires person that a be in "necessary some sense to adjudication City the action." Madison should not be interpreted departure to a from prag indicate our flexible and approach right, matic to intervention as nor to contradict 803.09(1), text of Stat. provides which that Wis. a dispo intеrvention can exist even where the shows movant that "may practical impair impede sition of the action as a matter or interest, ability" protect the movant's to opposed some to showing impairment impediment necessarily that will occur.
31Bilder, 112 2d at 549. Wis. 32 548. Id. at
33Id.
34Id. Broad., Bilder, (citing 2d at 470 Armada Wis.
Wis. 2d at unlikely is, reviewing court a that
and fact assessments except mistakes."36 for clear disturb Timely Intervene Is Motion to A. question of a motion of the timeliness 42. The of the circuit court.37 the discretion
intervene is left to disputes Helgeland the munici- DETF nor Neither palities agree timely with the intervene. moved to We. parties the first re- satisfied 803.09(1). quirement of Wis. Stat. Insufficiently Municipalities' Re- Interests Are
B.
Subject of the Action
lated to the
determining
precise
which
test exists "for
43. No
party
type
to intervene
is
to allow
of interest
sufficient
requirement
right."38
The "interest"
as a matter of
develop
able to
more
nebulous;
have not been
courts
precise
guidelines.39
general
test,
of a
Instead
than
pragmatic approach
employ
to inter-
"broader,
courts
viewing
right,"
"the interest sufficient
as of
vention
practically rather than techni-
allow the intervention
recognizes,
*20
cally."40
municipalities'
brief
theAs
36
F.3d at 113.
Daggett, 172
37
Madison,
550,
11 n.10.
Wis. 2d
City
234
of
38
Security
v.
Bilder,
See also
Ins. Co.
24 requirement generated spectrum ap- interest has a of proaches. approach requirement
¶ 44. We thus the second of 803.09(1) flexibility Wis. Stat. with the same that we bring measuring whole, the statute aas "the suffi- ciency by focusing of the interest on the facts and particular [us] circumstances case before as well as analyzing the stated interest in intervention" and "these against policies underlying factors the intervention namely allowing statute,"41 to strike a balance between original parties ato lawsuit to conduct and conclude persons join allowing their own lawsuit and a lawsuit speedy in the interest and economical resolution rendering of controversies without the lawsuit fruit- lessly complex unending. "the We treat interest test primarily practical guide disposing by as of lawsuits involving many apparently persons concerned isas compatible efficiency process."42 with and due
¶ 45. At the same
time,
claimed interest does
support
only remotely
not
intervention if
isit
related to
subject
of the action.43There must be
some sense
which the
"of
interest
such direct and immediate
gain
character that the intervenor will either
or lose
operation
judgment."44
may
the direct
A
movant
41Bilder,
omitted).
("[I]n-
Moore,
24, 24.03[2][b],
supra
See 6
note
at 24r-29
subject
terests
are remote from the
proceeding
matter
24(a).").
satisfy
do
plainly
requiremеnt
the interest
of Rule
44City Madison,
550,
234 Wis. 2d
(quoting
n.9
78,
Nickel,
Lodge
Int'l Ass'n
v.
Machinists
2dWis.
(1963)).
stitutionality which defines of Wis. Stat. employee "dependent" purposes health insur- for of state municipalities' employees Although eligibility. the ance subject defined, in the of action so not involved are municipalities put a number of interests and forth subject sufficiently related to the of that each assert argue right.46They as of intervention the action to allow they requirement meet interest follow- (1) (Cottage ing Grove, three reasons: Oostburg) pay Watertown, premiums have to increased would municipal employees on enrolled behalf plans Helgeland prevail; DETF or dental should health (2) eight bargaining agreements all the collective Helgeland pre- municipalities would be affected should employees' spouses are under vail, because covered partners agreements employees' but same-sex domestic (3) municipalities participate in not; are most of System qualified sponsor the Wisconsin Retirement plan Compensation and the Wisconsin Deferred Pro- DETF) (both gram by administered that would be (4) adversely Helgeland prevail; should affected authority municipalities' their home rule over local adversely government affairs and affected would Helgeland's argument action. We each turn. discuss 45 City Madison, 2d (quoting 234 11 n.8 Wis. Thomson, House Milk Co. v. White 243, 249, 275 Wis. 81 N.W.2d (1957)). 725 Jamestown, v. Town In 2d Wis. Wolff (Ct. 1999), appeals App. N.W.2d 301 the court concluded that judicially movant it has a need demonstrate enforceable challenge decision in the in order intervene action. *22 (1) The Financial Interest of Three in Municipalities Direct,
DETF Health Plans Is Not Immediate, or Special 47. We the first consider municipalities' argu-
ment that three of eight the municipalities' financial in interest DETF employees' their health benefit plans an interest the sufficiently subject related of Helgoland's action. Grove, Watertown, 48. Cottage and Oostburg
each pay premium costs on behalf of employees who enroll health or dental administered plans by DETF pursuant to collective bargaining agreements. The mu- nicipalities argue that same-sex including domestic partners could plan impose additional costs on municipal employers.47 The municipalities therefore assert a financial interest they claim is directly subject related to the of action.48 Helgoland's of 49. The court some appeals voiced agreement with this portion municipalities' argument. While not reaching matter, definitive conclusion on the of court appeals conceded that appears likely ”[i]t 47 According however, affidavits, employees all six Village already of Oostburg are enrolled in DETF plan offering family coverage, and Village appears to be by affected the instant action. Grove, Cottage Watertown,
The affidavits for Oostburg and each employees indicate that eligible plans to enroll in DETF only have coverage options: "family" "single." two and The price affidavits further indicate that the "family" coverage plans vary does not depending on the of persons number other employee than the by plan. who are covered The Helgeland assert prevail, that should required very DETF would plans to amend the in which Grove, employees Cottage Watertown, Oostburg are enrolled. may OostburgG Cottage Watertown, Grove,
that... declaratory sufficiently related to interests have being DETF in the health virtue of enrolled action "[a] appeals plans."49 deci- reasoned court affecting applicability ... of Wis. Stat. 40.02 sion employees partners could of state to same-sex domestic Municipalities directly in the administra- affect these plans pursuant statutes, these tion their health *23 likely judgment Helgeland's in favor would because Municipalities the amount of benefits these increase appeals required, pay."50 The to court would be municipali- remaining concluded, however, that the five they are ties parties only not sufficient interests because do have pension plans, Helgeland to DETF which directly challenge.51 did not Helgeland respond, arguing that ¶ and DETF 50. plans, municipal employees' including plans adminis- subject way Helgeland's in DETF, are no tered any Helgeland judgment that favor action and apply solely plans em- to DETF offered state would ployees.
Helgeland point DETF and to Wis. Stat. 40.51(7), may provides DETF which that establish eligibility employees standards nonstate different Helgeland, 296 Wis. 2d ¶ 50Id. 51Id., 19 n.13. municipalities disagree appeals' with the court of interpretation complaint; they assert that
limited (including Helgeland plans all DETF apply remedies seeks compensation plans eight pension and deferred which all enrolled) municipalities that all the municipalities are and in Helgeland's therefore have an interest action. municipalities' arguments regarding DETF- We address the plans pension compensation and deferred below. administered participating plans. According Helgeland in DETF judgment Helgeland DETF, and in favor of does not directly municipalities. affect the municipalities argu- 51. The make an additional They charge Helgeland deliberately ment. that has de- signed gain advantage" by her action to "a tactical excluding municipalities litigation through from the pleading" "cherry picking." "shrewd arguing 52. The seem to be challenging constitutionality when of state con- Helgeland obligated any duct, is to name as defendants municipal entity may conceivable engaging state challenged. require- in the conduct No such ment exists in the law. legal
¶ 53. We need not decide the
issue of the
judgment
present
effect of a
in the
case on the munici-
palities;
practical
apply
under the
standard we
in inter-
preting
applying
803.09(1),
Wis. Stat.
whether
municipal employees'
plans
plans
DETF
are the exact
dispositive.
considered in the action
A relation-
*24
ship may
plans
exist between the
that DETF offers to
employees
plans
state
and the DETF
offered to the
municipalities' employees.
relationship
The
between
municipalities'
subject
interest
and the
of
Helgoland's
specula-
is, however,
action
too remote and
support
right
tive to
of intervention.52
52
Zabel,
Contra
Zabel v.
210 Wis. 2d
29 (2) Bargaining Agree- Municipalities' The Collective
ments Are Not at Stake
municipalities'
claimed interest
The
second
54.
agreements
bargaining
will be
collective
is that their
They argue
by Helgeland's
this
affected
action.
require intervention. Wedo
alone is sufficient to
interest
municipalities'
agree
statement of the law.
not
with
municipalities
cite a number
cases
govern-
"overwhelming"
position
support for the
that a
entity
right
private
has a
of intervention when-
ment or
judgment may modify
agreement
an
to which the
ever a
entity
party.
support
provide
56. These cases do not
simply
the cases
do
seek. Four of
cited
question
In a fifth
not consider the
of intervention.53
permissive
granted
inter-
case, a federal district court
24(b)(2)
under Rule
of the Federal Rules of
vention
question
Procedure but did not
reach the
Civil
24(a)(2).54
In
as of
under Rule
of intervention
case, a federal district court denied a motion to
sixth
Jersey,
York v. New
U.S. Trust Co. New
431 U.S.
(1977)
(considering
statutory
repeal of
whether
a state's
its
I,
10, cl.l,
covenant with another
state
void under
the Art.
was
United
Constitution);
Contract
of the United States
Clause
Hialeah,
(11th
(affirm
City
1998)
v.
States
F.3d 968
Cir.
decree
ing
approve
the district court's refusal
to
a consent
over
objection
reviewing
an intervenor's
but not
court's
district
Linton v.
&
Comm'r Health
intervention);
permit
decision
Env't,
(6th
1994)
(considering
30 grounds intervene on that the movant could not meet 24(a)(2).55 requirement the interest Rule Only municipalities 57. one case that the cite any argument. lends aid to their In EEOC AT&T, v. 506 (3d 1974), Appeals 735, F.2d 741-42 Cir. the Court of for the Third Circuit ruled that a movant union had right party oppose to intervene as defendant to a consent modify provisions decree that could or invalidаte in the bargaining agreement union's collective with defendant AT&T. The not, EEOC court did however, establish a general person may always rule that a claim an interest supporting judgment intervention as of when in an may person rights action leave unable to enforce agreement party.56 under an to which it is Although judgment Helgeland no as a employee directly municipalities, state would bind the on practical analysis level—the level at which our must municipalities arguably may focus—the if be affected a judgment against Accordingly, is entered DETE municipalities are concerned about the effect of stare upon explain although decisis them. below, As we determining effect of stare decisis is a consideration in right, intervention as of it is not determinative. 55 Elizabethtown, Bottling Coca-Cola Co. Inc. v. Coca- (D. 1988). Co.,
Cola F. Supp. 96 Del. distinguishable EEOC is further from the instant case in that the consent decree at issue in directly EEOC threatened modify or parts invalidate bargaining agreement a collective negotiated party movant union had with a defendant that would be hound judgment AT&T, in the action. EEOC v. (3d 1974). case, 506 F.2d Cir. In this do rights against not claim contractual any DETF or other party to the action.
(3) Municipalities' and Com- Pension Deferred
pensation at Plans Are Not Stake Thirdly, municipalities allege ¶ 59. that their System in both the Wisconsin Retirement and interests (both Program Compensation the Wisconsin Deferred DETF) by are at stake in action. The administered appeals municipalities' court of refused to consider arguments regarding pension grounds benefits on Helgoland's complaint pension made no reference to plans.57 Applying practiced standard, our we examine municipalities' the relation of the interests in the re- compensation plans tirement and deferred present action. municipalities explain relationship
¶ 60. The between their interest in the retirement and deferred compensation plans Helgoland's action as follows: Although employees designate any pension are free to beneficiary they compensation wish, deferred Wisconsin provides employees' "spouses" specific law have rights qualified to those benefits under domestic rela- qualified A tions orders. domestic relations order divides participant's pension compensation and deferred participant at benefits divorce between the and the spouse.58 former municipalities argue
¶ 61. The that because Hel- geland classify that the court asks "same-sex domestic partners employees dependents purposes of state participation employee in all benefit contracts and plans Sys- . . ."59and because the Wisconsin Retirement Helgeland, 296 Wis. 2d support position, In of this cite Wis. 40.02(48m) 40.24(7)(a), §§ Stat. as well as Admin. Wis. (Jan. 2004). Code ETF 20.055 59Petr.'s Br. 42 (quoting Complaint Plaintiffs' Amended at 31). Compensation Program tem and Wisconsin Deferred any judgment DETF, are administered in favor of Helgeland necessarily DETF will entail that be com- pelled permit participant's former same-sex domes- partner qualified tic to seek a domestic relations order dividing participant's partici- benefits between the pant partner. and the former same-sex domestic *27 municipalities argue
¶ 62. The further that such a remedy jeopardize tax-exempt would or tax-deferred plans if status of these a former same-sex domestic partner spouse, permitted quali- were, like a obtain a dividing participant's fied domestic relations order participant benefits between the and the former same- partner. municipalities by sex domestic allocating The surmise that such a former same-sex domestic partners, way plans DETF would some render the Marriage Act, inconsistent with the federal Defense of provides determining meaning any which that in regulation, "marriage" federal or statute the word means only legal union between one man and one woman as "spouse" only husband and and the wife word refers to a person opposite sex who is a husband a wife. or municipalities private rulings The cite two IRS letter municipalities support reading that the claim their federal law.60 municipalities' arguments
¶ 63. The on federal extremely policies, law are weak. Life insurance de- compensation plans, plans, pen- ferred retirement plans already permit par- sion administered DETF (June 17, 2005), Priv. See I.R.S. Ltr. Rul. 200524016 http://www.irs.gov/pub/irs-wd/0524016.pdf; available at I.R.S. (June 17, 2005), at Priv. Ltr. Rul. 200524017 available http://www.irs.gov/pub/irs-wd/0524017.pdf.
ticipants to name beneficiaries of their choice.61Private rulings, letter as the themselves ac- knowledge, precedential Furthermore, have no value. private rulings necessarily support letter do municipalities' position. private rulings
¶ 64. The letter instead conclude plan eligible compen- that each "is an examined deferred plan,"62 noting registered sation also "a while partner spouse purposes domestic ... not a ... for of' spousal provisions the federal law and that if in the plans interpreted applied are "not in a manner Marriage opera- Act, with the Defense consistent [the plans]" comply tion would not with federal law.63 private rulings explain letter do not whether an interpretation application plan's spousal provi- of a sions would be inconsistent with the Defense of Mar- riage pursuant plan provided if,Act law, to state registered partners same benefits to domestic that it provides spouses. Lastly, municipalities' argument depends
¶ 65. *28 upon interpretation Marriage an Act, Defense of "spouse." only which Helgeland defines word The word at which "dependent" is, however, takes aim the word the state statute. The offer no reason to judgment Helgeland conclude that a in favor of inter- preting "dependent"might interpretation the word entail "spouse" of the word as well. municipalities' arguments
¶ 66. The about federal "likely speculation law arе based on scenarios" and about See, e.g., 40.02(8)(a). Wis. Stat. 200524016, 10; 62 1.R.S. Priv. Ltr. Rul. at I.R.S. Priv. Ltr. Rul. at 9. 2005240Í6, 10;
63 I.R.S. Priv. Ltr. Rui. at I.R.S. Priv. Ltr. Rul. at 9. Helgeland's
the effect of action on the tax status of the compensation plans appli- retirement and deferred and (DOMA), Marriage cation of the Defense of Act Employee Security Retirement Income Act of 1974 (ERISA), Comprehensive Budget and the Omnibus Rec- (COBRA). municipalities spin onciliation Act The an argument examples illustrating but cite no or case law consequences they predict. contrast, the dire In numer- governmental grant employees ous entities now domes- partner tic benefits and retain federal tax and benefits apparently do not run afoul of federal laws.
(4) Municipalities' Authority The Home Rule Is atNot
Stake finally municipalities' ¶ 67. turn We con- judgment Helgeland deprive tention that municipalities for would statutory
of constitutional and home powers.64 municipalities suggest Helge- rule that Constitution, The home rule amendment to the Wisconsin "[cjities XI, 3(1), provides Article part Section relevant villages organized pursuant may and to state law determine their government, subject only local affairs to this and constitution legislature and to such enactments of the of statewide concern as uniformity every city every village...."). with shall affect provides home rule statute
Wisconsin's further [e]xcept specifically provided, as elsewhere in the statutes [municipal] management council shall have the and control of the finances, waters, city property, highways, navigable public and the service, power government good and shall have to act for the and benefit, health, city, order its commercial for safety, may carry public, powers and welfare of the out its license, regulation, suppression, money, levy, borrowing of tax fine, imprisonment, confiscation, appropriation, and other neces- *29 sary or convenient means.... 62.11(5). § Stat. Wis. authority municipalities' hire threatens the
land personnel employment negotiate contracts, ne- and bargaining agreements, gotiate to establish collective plans municipal employees, and administer benefit for municipal policy. generally to determine Helgoland's position threaten to does not 68. any part deprive municipalities of of their home municipalities apparently powers. have The would rule they deprivation face of their home this court hold that accordingly may authority an claim interest rule —and every supporting time a court considers intervention — statutory provision prohib- or a constitutional whether engaging or from in some its the state particular form of conduct. We do not so hold. authority municipalities' rule is not related home subject Helgoland's action. might judgment Helgeland That a affect 69. statutory powers municipality of a
the constitutional or operating pension plans health care or does municipalities' deprivation home constitute powers. powers explicitly con- rule Home rule are state constitution and the statutes.65 strained (5) Summary summary, In examine of the munici- we all together
palities' arguments about their interests pragmatic apply approach broad, to intervention as Const, 3(1) XI, (granting powers home rule See Wis. art. only "subject to this constitution and to such enactments legislature uniformity shall affect statewide concern as with 62.11(5) every city every village"); (granting Wis. Stat. powers "[ejxcept specifi as elsewhere in the statutes home rule cally provided"). *30 803.09(1). by right required deter- Stat. We Wis. municipalities' are suffi- the interests
mine whether practically the rather than cient to allow intervention technically in relation and examine the interest factor to inter- to the other factors to decide whether allow original right. the of the vention as of We balance allowing parties conduct their own lawsuit with to join speedy in and to the the interest others lawsuit controversy. the resolution of economical Although municipalities they that claim subject Helgoland's interests related to the have they have in the circuit court or action, failed to show subject to their interests relate here how Furthermore, in a and action direct immediate fashion. present municipalities' in the case is not a interest special unique Butler's rather, but as Justice or interest municipali- that demonstrates, one other concurrence in claim ties or other entities or individuals could constitutionality any challenging action a almost any employer when an statute, or could claim state a court affects a similar contract action before obligated employers to increase costs that are threatens pay employees.66 the inter- to behalf of When on their substantially are similar to those of a ests of a movant party, claim, it is difficult for more adequately that it movant to demonstrate is (movant Broad., Armada 2d at had 183 Wis. Cf. persuading in the court a "unique" "personal" and interest information report containing speculative and uncorroborated Wolff, public); movant should remain closed about the (movant unique statutory responsibility to Wis. 2d at 746 town's prop provide plaintiff plaintiffs fire protection services plaintiffs develop rugged erty implicated action was use). tract of for residential difficult-to-reach land . represented by party.67 municipalities' The interests diverge municipalities' do from DETF's. interest employees plans, in the their covered own not in the employees brought state who have the action. Further- municipalities' more, the interest the outcome is *31 municipalities, more attenuated than the State's. The subject State, unlike the not be would to immediate damages potential taxpayers as as well costs to the ultimately Helgeland's the should court rule in favor. municipalities holding ¶ 72. The cite no case that a requirement the movant meets interest of either Wis. 803.09(1) 24(a)(2) Stat. or Rule of the Federal Rules of merely engages in, CivilProcedure it when and wishes to engaging in, continue conduct identical to another's challenged grounds gov- conduct on constitutional but by municipalities erned a different contract. The also precedent recognizing right no adduce a of intervention widely on based presented a shared financial such interest Many may in the instant case. entities be Helgeland's involving concerned action, with but them as right likely compatible intervenors as of is not be to with efficiency and would not contribute the resolution of controversy sufficiently the unless the had a movant controversy, adequately different stake the was not represented by party, unique could make a contri- proceedings. bution to the
¶ 73. The conclude their interest argument by asserting present when, that as in (Helgeland) brings public case, the claimant interest litigation may change constitutional doctrine and governmental practice, greater statewide consideration (consid See, Broad., e.g., Armada 2dWis. at 471-76 ering intensely "personal nature of the interests" demon by strated the movant establishing as one factor represented by movant's were interests not existing parties). by differing given parties of for intervention should development perspectives of the to allow fuller issues. theory, any significant legal question first this Under allowing impression inter- be resolved without cannot rights by every person in a future case vention whose might effect the stare decisis be affected type This of free-for-all intervention could decision. legislature. contemplated by The munici- have been reasoning palities' is therefore flawed. municipalities' generalized 74. The interest subject namely, action, instant constitu- of the plan
tionality applicable a may state of a statute edge employees, the far constitute at what right sufficiently purposes interest for related municipalities' statute. weakness intervene requirement respect showing with interest intervention the means that to demonstrate a municipalities showing strong in the should make a *32 right. requirements to intervene as of other Impair Disposition the of Action Does Not C. Ability Municipalities' Protect Their Interests to requirement to 75. now consider the third We right under Wis. Stat. as a matter of intervene 803.09(1), disposition Helgoland's namely, § that the may, practical impair impede matter, or action as a may ability municipalities' protect be to interests subject Helgeland's mu- to action.68 The related parties any actually nicipalities at to not contract are municipalities' litigation; present inter- in the issue coverage excluding partner domestic est in same-sex (deter al., 1908.2, at supra note Wright 7C et impede impair mining disposition whether of the action will or put in ability protect practical interest must he a movant's its terms). directly impaired by Helgeland's therefore cannot be action. municipalities argue effect of might impair impede ability
stare decisis their protect excluding their interest same-sex domestic partner coverage. The circuit court concluded that the directly "while in- interests may impaired lawsuit, this volved in in some future litigation, through a in this circumstance decision operation possible of stare decisis" and that "the problem arising future stare a from decisis" is not basis sufficient for intervention. considered, 77. Wisconsin courts have not for
purposes as matter intervention under Wis. 803.09(1), Stat. the effect stare decisis. We there- guidance. fore turn to the federal decisions for ¶ 78. The federal have courts reached no consen- question sus on under what circumstances may impairment effect of stare decisis constitute an 24(a)(2), purposes governing of Rule intervention as of right. Lumpkin, Plaza, In Bethune Inc. v. 863 F.2d (7th 1988), appeals Cir. the Seventh Circuit court of has declared that stare decisis effects should establish 24(a)(2) impairment "infrequently" "only Rule putative position depends when the intervenor's so on specific participation facts to the case at hand that inadequate convey argu- amicus curiae is essential ments to the tribunal." Other federal courts consider case-by-case the effect of stare decisis on a basis.69 *33 69See, e.g., (9th States Oregon, United v. 839 F.2d 638 ("[A] 1988) Cir. important stare decisis effect is an consideration determining to applicant's extent which an may interest impaired."). be
40 requirement approach the third of Wis. 79. We 803.09(1), namely, disposition of that Stat. may, practical impair Helgoland's matter, as a action protect impede municipalities' ability to interests Helgeland's may subject action, to the related generally. approach intervention as of We as we pragmatic approach and focus on the facts of take a policies underlying the intervention each case and the inability Although a mo- we examine the statute.70 protect separately, part it is to its interests vant parcel analyzing the interest involved determin- existing party adequately represents ing whether an movant's interest. might weigh- ¶ 80. factors be considered as Two against ing for or a movant's claim that the effect practical may impair as a protect matter stare decisis ability First, holding claimed interest. movant's extent to an adverse court considers the which apply particular movant's in the action would impair- ability meet The movant's circumstances. any requirement weakened to the ment is extent factually likely against action to be future movant is distinguishable from the action into which the movant seeks to intervene.71
70 ("The 24.03[3][a], Moore, at 24-42 supra note See flexible, application impairment depends and its practical test given analysis of circumstances of a pragmatic on a ...."). case 24.03[3][b], Moore, 24, § at 24-42.2 supra See 6 note ("Recurring actions of contract and common law such as breach negligence unlikely practical are to achieve the stare decisis satisfy 24(a)."); necessary Dep't v. impairment Rule Worlds (11th Servs., 591, 594 Cir. & F.2d Health Rehabilitative 1991) (concluding that there likelihood that stare was "little in a potential posi- intervenor] worse [the decisis would leave *34 a Second, court to considers extent action into which the which the movant seeks to holding in a intervene will result novel of law. effect significant of stare decisis is more when court decides question impression.72 of first Consideration of these may determining two factors aid a court in whether impact may stare decisis harm the as a movant practical matter. judgment
¶ 82. DETF if concedesthat is entered "by Helgeland, operation favor of decisis, stare other government employers, municipalities, such likely provide would either have to for same-sex domestic partner coverage forego providing ... or have would family coverage [sic] employees health insurance to its entirely... arguments, Helgeland's ."73In oral counsel municipalities' plans also conceded benefit indirectly ultimately would be if affected this court agree "dependent" pro- were to that the definition of 40.02(20) by § vided Stat. is Wis. unconstitutional argued Helgeland. the reasons agree judg- ¶ 83. We with the that a Helgeland might present holding in ment favor a novel Helgeland appear any of law. does not to contend that previously court Wisconsin has held that Wis. Stat. if [were] tion he allowed intervene" the potential because intervenor use of would have factual evidence in the future contemplated action he that was excluded from the action into intervene). sought which he Moore, supra 24.03[3[b], See 6 note 24^42.2 at ("Stare is not decisis a relevant concern if the case does not issues."); involve the legal resolution of new Paper Int'l Co. v. (1st 1989) Jay, Town 887 F.2d Cir. (recognizing that impact the adverse stare especially decisis is important deciding "where a questions impression"). court of first 73Def.-Respt.'s Br. 9. 40.02(20), any statute, the con- similar contravenes puts Helgeland forth.74 for the reasons stitution precise speculating about the rela- 84. Without hypo- Helgoland's tionship present action and a between *35 employees municipalities' the case one of thetical might that acknowledge bring against municipalities, we the might Helgeland expose judgment the of that in favor municipalities of stare decisis. to the adverse effect just municipalities only gener- claim a However, as the subject present matter of interest in the the alized judgment Helgeland of on action, an effect a in favor of any municipalities essentially is the same effect that the might employer an before the court claim when action employer obligated to increase costs that the is threatens employees, pay or that on behalf of its nearly any claim in or entities or individuals could other constitutionality challenging of a state stat- action the justification enough a for ute. If stare decisis were municipalities' of present intervention in the case without unusually strong showing respect re- to other an with
74 contrast, argues Helgeland’s presents action In DETF already Helgeland Phillips v. question against of law decided a Commission, 2d 482 N.W.2d Personnel 167 Wis. Wisconsin 1992). (Ct. Phillips brief as follows: App. quotes DETF's sex-marriages But same whether to allow disallow —or employee even whether to allow extension of state health companions of unmarried state insurance benefits gender employees of whatever or sexual orientation —is decision, legislative one for the courts.... "Creation" designed registration systems of to facili- verification and employee benefits to the tate extension state employees' companions an unmarried enforcement —and only stable and committed mechanism to ensure eligible couples pre- same-sex are for such benefits —is legislature, cisely type of action committed government. beyond policymaking It all branch Def.-Respt.'s any n.6. powers of other court. Br. 19 this or quirements right, for intervention as then constitu- litigation would, tional as Justice Butler's concurrence unwieldy parties intervening demonstrates, become with right. requirement, as a matter of As with interest municipalities' showing respect to this with third requirement is weak at best. Municipalities Adequately Represented by
D. The Are Attorney DETF and the General the Action finally requirement ¶ 85. turnWe to the fourth 809.03(9), namely, existing parties Stat. Wis. that the adequately represent do not the movants' interests. As recognizes, municipalities’ adequate repre brief requirement generated spectrum sentation has approaches. showing The court has declared that "the required proving inadequate representation 'should "75 requirement, be treated as minimal.' however, *36 "cannot as be treated so minimal write the requirement completely out the rule."76 requirement
¶ Indeed, 86. this is blended bal- requirements. anced with the other If a movant's inter- parties, party is est identical to that of one a or if charged by representing is law with the movant's inter- compelling showing required est, should be to demon- representation adequate.77 strate that the is not When potential substantially intervenor's interests are 75 Broad., Armada 183 Wis. at (quoting 2d 476 Trbovich v. (1972)). Workers, 528, United Mine 404 U.S. 538 n.10 76 (5th 1984). Viterna, 350, 355 Bush v. 740 F.2d Cir. See also (9th 2006) Bradbury, 949, v. Prete 438 F.3d ("Although 956 Cir. establishing the burden of inadequacy representation may be ...."). minimal, requirement is not without teeth 77 (in al., Wright supra 22, 1908, 7C et note at 394 — 95 contrast, if party's the movant's interest is similar to a a discrimi nating judgment required on particu the circumstances of the case). lar
44 existing an already represented by interests similar to against potential will similarity weigh such party, intervenor.78 an existing party In whether determining 87. interest, to see we look a movant's represents
adequately the represen- of collusion between showing if there is a if the fails representative the opposing party; tative and if the representative's his or duly; in the fulfillment of intervenor.79 proposed is adverse to that of interest collu- allege any do not municipalities 88. The demon- and DETF. do not They Helgeland sion between theirs; DETF's interest is adverse strate that the in the fulfillment DETF has failed that the do show duty. of its DETF adequately whether considering In two rebuttable presump- the municipalities,
represents against come into and work play tions case. in the instant
78 ("[I]f 22, 1909, al., at 394 supra note Wright See 7C et present to that of one of interest is identical the absentee's charged by representing with party if law there is a parties, showing interest, compelling should then a the absentee's is not ad why representation this to demonstrate required omitted). (footnote equate.") (citations Broad., omit 2d at 476 183 Wis. See Armada ted). DNR, Milwaukee v. Sewerage Comm'n See also 1981) (Ct. (citing 189, App. United 2d 311 N.W.2d Wis. (7th Comm'rs, Cir. 466 F.2d Board Sch. States v. 1972)) adequate deemed representation is ("Ordinarily party's if is no interest there proposed intervenor's protect *37 oppos and the representative the showing of collusion between interest represent not an representative if does ing party; the movant; does not representative if the of the adverse to that duty."). fulfillment of its fail the (movant's "need 2d interests Wolff, 229 Wis. at 748 See "differences" significant existing parties'; wholly adverse" to sufficient). existing party of position and that movant's between 45 [143 First, 90. is adequate representation ordinarily when a movant and an
presumed existing have party the in the This objective same ultimate action.80 pre- in the case instant because mu- sumption applies objective claim no that DETF does not also nicipalities Both share. DETF and the ask the court of uphold constitutionality DETF's and of plans 40.02(20). Wis. Stat. Second, "when the is putative representative body
a
or officer
governmental
charged by law with
absentee,
the interests of the
representing
a presump-
of
tion
adequate
representation
arises whether
is a
would-be intervenor
citizen
of the
subdivision
governmental entity."81 This
in the
presumption applies
80
(9th
See, e.g.,
Bradbury,
949,
v.
Prete
438 F.3d
Cir.
956
("When
2006)
applicant
existing
an
for intervention and an
party
objective,
have the same
presumption
adequacy
ultimate
a
of
of
arises.")
representation
(quoting
Cayetano,
Arakaki v.
324 F.3d
(9th
2003);
1078,
Goldschmidt,
182,
1086
Cir.
Wade v.
F.2d
673
(7th
1982) ("[Alpplicants
186 n.7
Cir.
have not overcome the
presumption
adequacy
representation
of
of
when
arises
proposed
party
(especially
intervenor and a
to the suit
if it is the
state)
(citation
have the
objective.")
omitted);
same ultimate
Daggett,
representation
172 F.3dat
("[Ajdequate
presumed
111
is
goals
where the
applicants
of the
the same
are
as those
defendant....")
(citations omitted).
plaintiff or
(5th
City Houston,
Edwards v.
78 F.3d
Cir.
omitted).
1996) (citation
Curry Regents
See also
v.
the Univ.
(8th
1999) (”[W]hen
Minn.,
govern
167 F.3d
Cir.
of
ment
entity
party
is a
and the case
matter
concerns a
sovereign interest,
government
presumed
adequately to
(citation
represent
public
omitted);
. ..."
interests
Wade,
("[Alpplicants
¶ 94. We little on these time relating Attorney Lautenschlager's to General out-of- allegations relating court statements. The to the Attor- ney go solely question General's statements Lautenschlager's personal beliefs, not to her official attorney general. generally agree conduct as We with analysis appeals' relating the court of to these state- ments.82 any showing
¶ 95. In the absence of to the con- trary, presume Lautenschlager we must that ful- has duty attorney general put filled her aside her personal political defending against beliefs in Helgeland's attacking constitutionality action of a attorney general's personal statute.83 An statements of Helgeland, See 296 Wis. 2d 26-29. ¶¶ Thomson, See White House Milk Co. v. 275 Wis. (1957) ("Public always presumed, officers are in the absence of any showing contrary, to -the ready willing to be perform duty...."). their object to the court of Milk, reliance on White House appeals' because at the time of White House Milk Wisconsin's of intervention statute more, do not constitute a beliefs, without political violate the will showing attorney general office. duties of the statutory has the Attorney 96. The General Wisconsin of state constitutionality to defend the
duty statute 806.04(11) Indeed, recognizes "Wis. Stat. statutes.84 on duty attorney general appear it is the statute why [a] of this state to show behalf of the people constitutional,"85 attorney on the making service in a action declaratory matter jurisdictional general of a statute.86 constitutionality attacking At- complaints against The municipalities' event, irrel- are, in Lautenschlager any torney General 803.09(1). However, like substantially from differed Wis. Stat. *40 House Milk in rely do not on White appeals, the court of we 803.09(1). public presumption § The that construing Stat. Wis. depend upon Wis. Stat. perform their duties does officers will 803.09(1) governing intervention as of any § former statute right. 84 n.14, Creek, 9, 2000 WI 23 232 City v. Oak ¶ State ("[0]nce 612, legislation is enacted it 526
Wis. 2d 605 N.W.2d duty Attorney to defend affirmative the General becomes the omitted). (citation constitutionality.") general For a discussion its General, Arlen C. Chris- Attorney see of the office of Wisconsin (1970). tenson, General, L. Rev.298 Attorney The 1970 Wis. State 85 (citation 612, omit Creek, 2d 35 City Oak 232 Wis. ted). 806.04(11) statute, "[i]f a (providing § that See Wis. Stat. unconstitutional, the alleged to be ordinance or franchise is copy proceeding of the attorney general shall... be served with a heard"). entitled to be be Network, Cmty. Health 2004 WI Seitzinger See v. had (holding that the court
n.3, 2d 676 N.W.2d426 270 Wis. constitutionality of a state statute jurisdiction to decide the no re- given notice as attorney general had not been when 806.04(11)). quired by Stat. Wis. attorney completed evant now that she has her term general. Department continuing The of Justice is present attorney general the new on the action under previously municipalities do not course undertaken. The present attorney general claim that the is biased or is any changing prevented in from the trial strat- mannеr egy Department present in of the of Justice case.87 allegations relating reasons, For these Attorney Lautenschlager provide support no General municipalities' argument. municipalities apparently
¶ 99. The their intend allegation concerning judg- fourth DETF's motion for pleadings Attorney ment on the as evidence that Gen- Lautenschlager handling eral was reckless present betrayed and in sense case some her official responsibilities. argument goes This nowhere. municipalities Lautenschlager
¶ 100. The accuse risking that the action will reach "this court for evidentiary on the decision merits without an record to support deferential review."88 municipalities apparently
¶ 101. The con- are present cerned that action will reach this court Whether the had a of intervention at point some past is not determinative. Wisconsin Stat. 803.06(1) provides "[pjarties may dropped or added any party order the court on motion of or on its own initiative any stage just. at on action and such terms as are ..." municipalities suggest Lautenschlager's conduct is *41 803.09(1) inquiry still relevant to our given Wis. Stat. that the appeals question court of did not address this of relevance despite receiving Lautenschlager notice that was defeated in a primary days appeals election 10 before the court of released its opinion. This court determines movant's to intervention independently appeals. of the court of Br. Petr.'s 59. evidentiary "without an record to sustain the legislature's" grant employee decision to state benefits spouses partners.89 To but not to same-sex domestic municipalities result, avoid this want DETF to discovery compel at the circuit court. This move to position puts municipalities squarely agreement Helgeland. people, Helgeland with, of all moved the compel discovery shortly circuit court after the municipalities moved to intervene. municipalities explain why they
¶ The do not 102. grant think that the circuit court will DETF's motion judgment why pleadings on circuit court discovery. grant Helgoland's not motion for will Curiously, municipalities object 103. do judgment pleadings to DETF's motion for on the on grounds that it is a weak motion destined to be denied. contrary, municipalities explicitly To the edge acknowl- granted.90 In concerns DETF's motion will municipalities predict, explana- brief, their without grant tion, that the court DETF's motion circuit will appeals and that the court of will then affirm the circuit granting judgment decision to DETF.91 court's municipalities' very The unusual claim is 104. Lautenschlager failed in her duties thus that somehow by setting attorney general DETF on a course Helgeland defeat before the circuit court and court of appeals. concede that should appeals prevail
DETF in the circuit court and court of judgment pleadings, court on its motion for on this development could remand for of an evi- nevertheless dentiary contrary determine, if record we to the circuit 89Petr.'s Br. 60.
90 Id.
91Id. *42 appeals, for that DETF's motion and court of
court pleadings judgment not have been on the should granted.92 possibility such a remand leaves Yet the municipalities outcome, dissatisfied —not with "extraordinary they claim, waste of rather, -withthe but the action were that result if time and resources" would proceed the circuit and then back to to this court it court whence came. municipalities' criticism is baseless. 106. The persuasively argue municipalities that
The cannot duty Attorney abdicating her or his to defend General is constitutionality by persuading two of statutes By moving for courts that a statute is constitutional. judgment pleadings, DETF has not waived its on the discovery for in the event that its motion to move ultimately judgment pleadings on the denied. municipalities' argu- 107. We now move to prevent DETF ment that institutional elements from opposing Helgeland's action sufficient with vehemence. merely municipalities argue DETF adminis- The Helgeland challenges, ters law that while con- funding municipalities provide trast the establish and employee policies. municipali- benefit for their own additionally allege subject that DETF is ties pressures constituency, portion
of a "diverse" some may Helgeland's position sympathize in the which with present action.93 arguments
¶ 108. These founder on much the ground municipalities' Attorney attack on same 92 Id. at 60-61. may possible it not too have Is constituencies, portion may sympathize
diverse some which Helgeland's position present with in the action? Lautenschlager. declaratory General In a action to *43 constitutionality statute, determine the of a it is the duty "public charged of the officers with the enforce- challenged [to] ment of the statute or ordinance ... act representative capacity persons in a in behalf of all having upholding validity an interest in statute or ordinance Moreover, under attack."94 DETF's Department charged by counsel, the Justice, is responsibility "appear statute with the for the state prosecute or defend all actions... in which the party... obligation state is interested or a ."95The Department public both the of Justice and officers charged with enforcement of state statutes is clear: they regardless must defend the statute of whether they have diverse constituencies with diverse views. Department composed DETF of Justice are professionals, showing contrary, and absent some presume they we that will fulfill their duties under the law.96 municipalities argue
¶ 109. The
next
DETF
adequately represent
municipalities
any
cannot
in
potential remedy phase of the action
DETF
because
is
incapable
advising
the court on issues such as "col-
bargaining agreements, duly adopted budgets,
lective
[and]
employee
limitations,
revenue
vested
rights...
assuming
."97 Even
that DETF
in
fact
incapable
grappling
these,
with issues such as
this
argument
municipalities
fails because the
not ex-
do
plain
may
how information about these issues
assist in
Milk,
Whitе House
deciding Helge- in the the constitutional issue involved crafting any remedy Helge- land action or in to which might land be entitled. municipalities merely 110. The state conclu-
sory municipalities fashion that issues which expertise claim question presented, are relevant to the state constitutional is, whether state constitu- requires provide tion DETF to the same benefits to employees' partners provided same-sex domestic employees' spouses. cannot call the adequacy representation question of DETF's into merely by vaguely positing they pos- that information Statutory sess will somehow be useful to the court. levy imposed upon municipalities revenue and limits do *44 necessarily evidentiary implicate a different record purposes for constitutional law than the record that the state makes on the constitutional issue. The munici- palities explain evidentiary do not what this "different" might why record look like and information munici- palities present may question wish to be relevant to the requires pro- whether the state constitution DETF to employees' vide the same benefits to state same-sex partners provided employees' domestic spouses. as those municipalities' argu- ¶ 111. We turn next to the regarding long ment DETF's failure to raise a list of municipalities. defenses favored This assertion amounts to little more than a difference over trial strategy. We cannot declare as a matter of law that against Helgeland's DETF's defense action is inad- equate simply municipalities disagree because the with presented DETF about which defenses should be before lawyers litigants the circuit court. Reasonable often disagree strategy. trial about agree appeals 112. We with the court of disagreements strategy mere over trial such as the one apparent here are not sufficient to demonstrate inad- equacy representation.98 municipali- Moreover, the any legal position ties do not show weakness in the DETF explained, already has taken in the case. As we have municipalities flatly predict that both appeals the circuit court and the court of will be persuaded by judgment DETF's motion for on the pleadings. municipalities may supplement 113. The simply by accepting
DETF's defenses the circuit court's invitation to file an amicus curiae brief. Finally, reject municipalities' argu- we
ment municipali- that because DETF asserts that the support ties' right, interests do not intervention as of representation municipalities' DETF's interests municipalities' put is, argu- as the counsel it at oral inadequate "per position ments, se." DETF's it adequately represents municipalities' interests is wholly position consistent with its additional that the municipalities' satisfy requirements interests do not See 7C supra Wright al, 22, (a 1909, et note at 431-33 mere difference opinion concerning litigation tactics or representative dislike of the party's lawyer does not constitute Co., Stadin v. Union Elec. inadequate representation); 309 F.2d (8th 1962), quoted Helgeland, Cir. 296 Wis. 2d *45 ("Mere 33 difference opinion among of attorneys is not of inadequate itself representation within meaning [Rule the of were, Federal Rules of Civil Procedure]. If it intervention right would Daggett, automatic."); become almost 172 F.3d at ("[T]he use of arguments different litigation as a matter of judgment inadequate is not representation se," per though "one imagine can cases where ... a present argu refusal obvious ments could be so justify finding extreme as to represen that by existing party tation the inadequate."). was 803.09(1). § DETF's construal of Wis. Stat. of Wis. Stat. 803.09(1) a denial that the munici- does not amount to might represent. palities have no interests that DETF Summary E. forth, that 115. For the reasons set we conclude denying municipali-
the circuit court did not err the right to intervene as a matter of under Wis. ties' motion 803.09(1). Although arguable it is Stat. may municipalities claim a financial interest related subject Helgoland's plans DETF are the Helgeland may, disposition action and that action practical decisis, as a matter under the effect of stare impair impede ability protect their their or stated municipalities showing interests, the make no that the direct, sufficient, immediate, financial interest or special inadequately represents DETF and that their showing interests, much less a that could overcome adequacy presumptions applicable in this case. weighs including factors, 116. The court all the municipalities' alleged interests, the nature of the against by adequacy representation existing (or parties. Municipalities persons) other entities or will always something have at stake when constitution- (or ality affecting municipalities of a statute other persons) always issue, entities or is at and there will potential disagree movants that at some level with agency decisions made state defendants or their special, counsel. have shown no personal, unique present interest case. Were municipalities granted upon to intervene grounds, virtually any declaratory such action for con- present stitutional review of a statute would a case in persons may at least some which or entities intervene right, as of as Justice Butler's concurrence demon- *46 803.09(1) strates. To construe Wis. Stat. and interven as of so tion would broadly unduly hamper of to a rights parties declaratory action such as the case to conduct and conclude present their own laws uit.99 municipalities' generalized The interest
the constitutionality a distinguishing spouse between a same-sex domestic partner requires greater showing inadequate DETF. representation by do not demonstrate their general- to, ized interest is adverse or more than, powerful DETF's interest.100 The municipalities further do not show that has DETF worked realize inadequately municipalities' mutually-shared objective DETF's action, in the namely tо defeat Helgeland's lawsuit. do They allege collusion between the parties. They fail demonstrate that DETF or has in any its counsel failed in way duty its to defend the action. 99 Madison, Blooming City Town v. Grove 275 Wis. Cf. omitted) (1957) (citation
328, 334,
(refusing
81
713
N.W.2d
Judgment
construe
Declaratory
requiring
Wisconsin's
Act "as
declaratory judgment
validity
that where a
as to the
of a statute
sought, every
or ordinance
person
whose
are af
interests
by
or
party
fected
the statute
must be
ordinance
made a
construed,
remedy
action. If it were so
the valuable
of declara
judgment
tory
impractical
would
rendered
and indeed often
for determining
validity
legislative enactments,
worthless
local,
either state
commonly
since such enactments
affect the
interests of large
people.").
numbers of
(movant's
Broad:,
2d
"per
Armada
at
Wis.
Cf.
particular
sonal" interest
in the
document at
in the action
issue
by
defendant,
party
only general
unshared
which had
interest
files);
maintaining
confidentiality
personnel
Wolff,
of its
(movant
"may
¶ forth, we conclude the reasons set 118. For municipalities under no of intervention have 803.09(1). § Wis. Stat. Did The Circuit Court
III. Denying Intervention Permissive Err in Not question ¶ whether turn now to the 119. We municipalities' denying mo- in court erred circuit permissive Stat. intervention. Wisconsin tion for 803.09(2) part: § provides in relevant to inter- timely anyone may permitted motion be
Upon movant's claim or defense and in an action when a vene or fact in question action have a of law the main exercising In its discretion the court shall common.... unduly delay or intervention will consider whether the original rights of the adjudication of the prejudice parties. 24(b)(2) 803.09(2) is based on Rule Stat.
Wisconsin Procedure.101 the Federal Rules of Civil 803.09(2) itself the text of Wis. Stat. 120. As has discretion to decide clear, makes the circuit court may permitted to intervene when a movant whether the main action have the movant's claim or defense and question fact in common.102This court will a of law or discretionary court's decision so not disturb circuit long "the circuit court's reasoned as the record reflects appropriate legal application standard to the facts in the case."103 relevant 101 Milwaukee, 104 2d at 186. Sewerage Comm'n Wis. See 102 Madison, 2d n.11. City See 234 Wis. 270, 281, Delgado, 223 2d 588 N.W.2d State v. Wis. (1999). municipalities The assert that the circuit erroneously by denying
court exercised its discretion municipalities' permissive motion for intervention ground municipalities' suggestion on sole that the that the action be converted into class action indi- likely unduly cated that delay adjudication Helgoland's were rights. and DETF's municipalities provide argu- ¶ 122. The three support position ments of their that the circuit court relying upon single denying erred in this concern in (1) municipalities' municipalities did motion: raise the issue class certification the context of argument permissive their interventiоn under Wis. *48 803.09(2) § suggested Stat. but instead class certifica- joining municipalities as an tion alternative to all in the (2) § 806.04(11); state under Wis. Stat. The circuit court power prevent delay by denying any had to undue municipalities brought motion the would have for class (3) municipalities willing certification; and The are to suggestion withdraw their of class certification. municipalities' arguments unper- ¶ The 123. are suasive. circuit court was free to consider municipalities' suggestion regard- of class certification municipalities suggestion less of whether the made this specifically discussing permissive in the context inter- delay vention. The circuit court's concern about was also despite authority deny any reasonable its to motion for Indeed, class certification. consideration of a motion for substantially delay class certification could itself action. municipalities willing
¶ 124. That the are to now suggestion bearing upon withdraw their also has no considering sug- erred whether the circuit court in gestion municipalities before the made known their willingness it. to withdraw though Finally, addressed court the circuit
¶ 125. suggestion certification, only municipalities' class opposition for motion municipalities' to DETF's pleadings introduce desire to judgment their on the that the supports court's conclusion the circuit evidence delay adjudi- unduly municipalities' would intervention parties' lawsuit. cation its decision whether based The circuit court 126. permissive consider- grant on reasonable intervention to specified explicitly delay, in Wis. Stat. factor ation of 803.09(2). grounds § to hold that on which Thus, exist no legal appropriate apply the court failed the circuit facts of relevant manner to the a reasoned in standard the case. Accordingly, circuit that the we conclude erroneously its discretion exercise
court did not denying permissive municipalities' inter- motion 803.09(2). Stat. under Wis. vention Required Joinder Is Not IV municipalities' argu- lastly turn 128. We refusing join court erred that the circuit ment sponte either Wis. Stat. under sua 806.04(11). 803.03(l)(b)l. *49 § This issue or Wis. Stat. 803.03(1)(b)l. §§ apply requires Wis. Stat. us to 806.04(11) undisputed such, case. As facts of this question presents this court of law a issue independently court circuit court and of the determines analyses provided benefiting appeals, from the of these courts.104 104 74, 81-82, Basten, 2d 549 202 Wis. Fire Ins. Exch. v. 806.04(11) (1996) § to a set of Stat. (application Wis.
N.W.2d 690
60 803.03(l)(b)l. § A. Wis. Stat. 803.03(1) § Stat. provides Wisconsin
¶ full: person subject process
A who is to service of shall be joined party as a in the action if: (a) person's complete In relief cannot be absence already among parties; accorded those or (b) relating subject The person claims an interest disposition action is so situated that the of the may: person's the action in the absence practical impair impede 1. As a matter or interest; person's ability protect or any persons already parties subject 2. Leave double, incurring multiple to a substantial risk of or obligations by otherwise inconsistent reason his her claimеd interest. 19(a)
This is based on Rule of the Federal provision Rules of Civil Procedure.105 803.03(l)(b)l. contains 130. Wisconsin Stat. identical to the second and third
language essentially law); undisputed presents question facts v. Glaeske Shaw, 71, 44, 549, App 2d 420 WI Wis. 661 N.W.2d ("Whether party necessary party [under is a Wis. Stat. 803.03(1)] question appeals is a of law" the court decides de novo) Park, McCallum, (citing Dairyland Greyhound Inc. v. 474). 210, 2d App 2002 WI 258 Wis. 655 N.W.2d 19(a) form, provides In part its current Rule relevant as follows:
(a) Required if Persons to Be Joined Feasible. (1) subject Required Party. person A who is to service of joinder process deprive and whose will not the court of subject-matter jurisdiction joined party must be as a if: *50 right requirements of intervention as of under Wis. Stat. 803.09(1), namely requirements § that the movant sufficiently subject claim an interest related to the disposition may of the action as a action and that ability practical impair impede matter or the movant's 803.03(l)(b)l. § protect that Wisconsin Stat. interest. requirements of does not list the first and fourth inter- § 803.09(1), namely as of under Wis. Stat. vention inadequacy representa- of the motion and of timeliness by existing parties. tion appeals Nevertheless, the court declared present in the case that inquiry necessary party [t]he of whether a movant is a 803.03(l)(b)l. significant respects
under is in all 803.09(1) inquiry same under Wis. Stat. as to whether a movant is entitled to intervene in an action as a right, including matter factor whether adequately represented interest of a movant existing parties.106 holding, appeals
In so the court of relied on its own precedent interpreting City Madison v. Wisconsin Employment Commission, ¶39, Relations 2000 11 WI (A) absence, person's complete in that the court cannot accord among existing parties,
relief or (B) person relating subject an claims interest disposing the action and is so situated that of the action in the person's may: absence (i) practical impair ability impede person's as a matter or interest; protect the (ii) existing subject incurring party an leave to substantial risk of double, multiple, obligations or otherwise inconsistent because of the interest. 106 Helgeland, (citing Dairy Wis. 2d land 10). Park, Greyhound Wis. 2d *51 City 94.107 In n.8, 550, 2d 610 N.W.2d 234 Wis. of "[intervention as a Madison the court declared 'joinder may... compared be of matter of just adjudication' complete persons needed for 803.03(l)(b)l."108 § under Wis. Stat. object
¶ to the court of 132. The grounds ignores appeals' interpretation that it on provisions. They difference between the two textual interpret argue Wis. Stat. that we should 803.03(l)(b)l. only § impose and third the second 803.09(1) § requirements and not re- of Wis. Stat. inadequate representation. quirement of appeals. agree ¶ The with the court of 133. We interpretation appeals of an Wis. Stat. court of advanced 803.03(l)(b)l. substantially supported by § fed- that is 19(a), construing R. Civ.E Fed. eral court decisions 803.03(l)(b)l. § analogue Further- Stat. federal to Wis. statutory ordinary principles by applying of more, our independently that the court construction, determine we 803.03(l)(b)l. interpretation appeals' is of of Wis. Stat. correct. language" "Despite
¶ distinction 134. 19(a) 24(a) Federal Rules of Civil Rules joinder held that will not Procedure, "some courts have 'impair impede' provision compelled be under the 19(a) adequately rep- if the absentee's interest is Rule reasoning existing party."109 behind an resented 107 Park, 210, 2d 10 Dairyland Greyhound ¶ 258 Wis. See n.6). 550, Madison, 2d 11 (citing City 234 Wis. 108 Madison, 11 City 234 Wis. 2d n.8. 19.03[3][f][ii], Moore, 24, § at 19-56. See supra note Bulen, F.3d also, Valley v. e.g., Ohio Envt'l Coalition (4th 2005) holding (affirming court's "that Cir. district 504-05 capable of parties are joinder required because the was interpretation "[a]s appears practical this to be ability party's protect matter, absent an its interest impaired by will absence not'be its from the suit where existing adequately represented by will its interest parties appeals' interpreta to the suit."110The court of 803.03(l)(b)l. tion line of Wis. Stat. is in with this 19(a). view of Federal Rule interpretation importantly, More this by recognized principles statutory also dictated in- construing terpretation. any provision begin In we with *52 give appropriate its text and consideration to related provisions. give every We effect to so word as to not ,any part superfluous. render of the statute municipalities' interpretation
¶ 136. The of Wis. 803.03(l)(b)l. § Stat. cannot be correct it because 803.09(l)(b)l. § superfluous. would render Wis. Stat. municipalities' interpretation Under the of Wis. Stat. 803.03(l)(b)l., § a movant who fails meet to the fourth requirement right of intervention as of under Wis. Stat. 803.09(1) § may simply way turn around and force its by arguing join into the action that the court must sponte, necessary party movant, sua as a under Wis. 803.03(l)(b)l. § municipalities Stat. The would thus 803.03(l)(b)l. § have this court read Wis. Stat. in a representing parties); the interests of' absent Gwartz v. Jeffer- (8th 1994) Ass'n, Hosp. son Mem'l 23 F.3d Cir. (disposition practical of action "will as a impair not matter impede ability protect [absentee's] to its interest [one because party establishing action] has the same interest the facts does"). [absentee] that (9th 1999) Washington 1158, 1167 Daley, v. 173 F.3d Cir. (holding necessary that absentee were parties tribes not to an challenging regulations action fishing because United interests). adequately represented States their requirement rendering Stat. fourth Wis. manner 803.09(1) interpretation entirely optional. § un- This 803.03(l)(b)l. 803.09(1) § § both dermines Accordingly, that the circuit we conclude 137. join refusing of law not err as a matter court did necessary parties municipalities Stat. under Wis. as 803.03(l)(b)l. right person § of intervention has no If a 803.09(1), duty § the courts have no Wis. Stat. under necessary party person sponte join as a under sua that 803.03(l)(b)l. § Wis. Stat. 806.04(11) § Stat.
B. Wis. portion Stat. of Wis. relevant The 138. Declaratory 806.04(11), the Uniform of "[w]hen a subsection declaratory Judgment relief is Act, states parties sought, persons have or who be made all shall any affected would be interest which claim may prejudice the declaration, and no declaration proceeding...." parties persons they qualify municipalities assert 806.04(11) joinder because the Wis. Stat. under legal, economic and contractual, same "substantial propose policy that the interests"111 *53 warranting will be of intervention a interests declaratory by judgment Helgeland's action. affected municipalities. disagree the We with De- that the has determined 140. This court joinder require claratory Judgment "the Act does not validity declaratory parties, the to determine in a action any persons than the other ordinance, a or of statute 111 Br. Petr's 70.
65
officers
public
charged with
enforcement of the
or
challenged statute
ordinance."112 We have not con-
806.04(11)
§
to
a
strued Wis. Stat.
"that where
require
declaratory judgment as to the
of a statute
validity
ordinance is sought, every person whose interests are
a
affected
the statute or
must be
ordinance
made
If
party
construed,
to
action."113 the statute "were so
remedy
the valuable
of declaratory
would be
judgment
rendered
often
impractical
and indeed
worthless
determining
enactments,
the validity
legislative
ei-
local,
ther state or
since such enactments
commonly
affect the
of large
interests
numbers of people."114
141.
this
Applying
court's established interpreta-
806.04(11)
tion of Wis. Stat.
case,115
to
instant
we
112
Milk,
at
White House
275 Wis.
249. See also North Side
(1986)
Gentile,
208, 215,
Bank v.
129 Wis. 2d
that the court did 806.04(11). municipalities under Wis. Stat. ‡
‡ ‡ (1) municipalities We conclude under Stat. no of intervention Wis. have (Neb. 1956), municipalities offer no reason that we should 806.04(11) prior have in interpret Wis. as we our Stat. cases. 116 Milk, 275 at 249. White House Wis. See 117 rely Kai brief, on v. In their Lozoff (1960) (considering
sershot,
an
11
appeals (concurring). BUTLER, JR., 146. LOUIS B. J. Twelve (including individuals six current or former state employees) bring legal against action the Wiscon- sin Department Employee (DETF), Trust Funds DETF Secretary Stanchfield, Eric Employee Trust (collec- Board, Funds and the Group Insurance Board "DETF"). tively represented DETF is ably by the Wiscon- Attorney sin General. Yet other simply because entities are not at all who involved in this action are concerned that any by decision rendered a court of law might become in some binding precedent legal future action against them., the dissent asserts that as a matter of right, these uninvolved can essentially entities highjack this lawsuit from parties and turn into a it political referendum unrelated to action filed. me a Give break. 147. For purposes concurrence, of this the na-
ture of the lawsuit and the presented are, me, issues irrelevant. What is relevant is the what impact dissent suggests should here. happen Every published of the Wisconsin opinion Court or of Appeals this court on binding precedent all future as to the litigants Thus, issues presented. every does criminal defendant facing have a sentencing to intervene in every They involving sentencing? appellate will bound case they parties a contract? result. What about Can involving any appellate law in contract intervene case They certainly have loss doctrine? economic and/or What tort reform? Can an the outcome. about interest (CTCW) and Trial Counsel of Wisconsin the Wis- Civil (WATL)1 Lawyers Academy Trial intervene consin every precedent brought appeal? on tort action certainly to tort most bind court will decide as law will absurdity And lies the dissent. them. therein *56 ¶ case, the 148. Under the facts of this Wisconsin municipalities sought are defi- have to intervene who only nitely the that have an interest outside entities prepared allow in the outcome of this case. Are we to nationally anti-gay rights group, every pro- and and right in as a matter Wisconsin, intervention within every that has labor union this case? What about by might Politi- that the outcome? members affected groups, activists, and others leaders, social cal church any appellate published decision an bound will be prepared in, let all Are to them court will make. we running up effectively litigation taking the over brought parties the the who costs, do we hear from place? the in first action municipali- keep the Let us mind that 149. any party, matter, can interested
ties, and other putting permission brief, file an amicus forth seek to requests routinely granted. position. are their Such precluded suspect, not be Thus, I the will being in this What the dissent heard matter. from average ultimately suggests, reduce however, will large organizations courts, in that citizen's access to the Wisconsin Association for Justice Now known as (WAJ), January 2008. deep pockets any
with will be allowed intervene in they express driving up case in an interest, which average longer point costs that the can no Joe unacceptable. afford be heard. This major- foregoing join For the reasons, I ity opinion, respectfully concur. 0dissenting). PROSSER, 151. DAVIDT. J. This is ,action challenging constitutionality
an Stat. Wis. § 40.02(20), "dependent" term which defines the Chapter relating 40 of the Wisconsin Statutes Employee challenges Public constitutionality It Trust Fund. also 103.10(3)(b)3., Stat. Wis. which persons defines the with a serious health condition for employee may family whom an take leave under Wis. Family 103.10, Stat. Wisconsin's and Medical Leave Act. complaint, plaintiffs
¶ 152. In their describe couples themselves as in committed, six "lesbian inti- relationships." They mate set out a series of health- hardships they related would if believe be alleviated they were able to obtain certain health care benefits Although couple from the state. each includes a current *57 employee, employees or former state none of these eligible partner family to obtain for her domestic health employees that benefits are available state who are opposite-sex spouse. plaintiffs to an married In the sum, family seek access to the same health insurance and options employees leave that the state in offers to a marriage. traditional plaintiffs' sweeping sig- 153. The action is and part
nificant. It is the American CivilLiberties Union's (ACLU) Gay Rights Project. National Lesbian and It presents major rights every a civil issue that could affect public employer operates under Em- the Public every employer gov- ployee potentially, and, Trust Fund Family and Medical Leave Act. erned Wisconsin's phase of the action does not address 154. This procedural It merits of the suit. is confined eight "municipalities" question cities, two whether —two may villages, tоwns, two inter- two school districts — majority parties. in suit as The denies vene crimped legal right to Its intervene. request analysis municipalities' though the treats zoning nothing more a routine vari- involved than case political great social and ance instead of one of of our time. controversies opinion brings majority to mind the 155. The Congressman and of former United States
lament
Judge
Appeals
Abner Mikva
States Court of
United
Supreme
decision in Roe
the United States
Court's
about
(1973).
Judge
Wade,
told
I—I principal legal ¶ 157. The issue before the court is municipalities satisfy requirements whether the 803.09(1) Wis. Stat. to intervene in this suit as a matter 803.09(1) right. Wisconsin Stat. reads as follows: Upon timely anyone permitted motion shall intervene in an action when the movant claims an relating interest property or transaction which is by Harry 1 Interview Jay Mikva, Kreisler with Abner former United Congressman, States former United States Appeals Judge Circuit, Court of for the D.C. and former White 1999) Counsel, Berkeley, House (April 12, California avail able at http://globetrotter.berkeley.edu/people/Mikva/mikva- (last 2008) added). con4.html (emphasis visited Jan. *59 of the and the movant is so situated subject action may practical disposition of the action as that ability protect or the movant's to impair impede matter interest, adequately the movant's interest is unless by existing parties. represented quoted exception word, of one 158. With the adopted by language in this court identical to the rule is part of as of new Rules Civil 1975 Wisconsin (1975). 585, 2d Procedure.2 See 67 Wis. 650-51 (1) 24(a) of the Subsection is based on Rule 159. CivilProcedure. Charles D. Clausen and Federal Rules of Rules Civil Proce Lowe, E New Wisconsin David of (1976) Marq. Chapters 108 801-803, 1, 59 L. Rev. dure (hereinafter Clausen). Accordingly,"we to cases and look 24(a)(2) guidance commentary relating Rule in to 803.09(1)." interpreting Twp. rel. Bilder v. sec. State ex (1983). 539, Delavan, 547, 112 Wis. 334 N.W.2d252 2d significantly 24 Federal Rule from 160. evolved inception provided A its in 1946 amendment anyone permitted upon timely application shall be to "(3) applicant so as be intervene when the is situated to disposition property adversely which is ... affected disposition custody subject control or in the officer Federal Rule of Civil Proce- the court or thereof." 24(a)(3) (1946). language amplified re- This dure practice. Corp. See Natural Gas v. stated federal Cascade (1967). Co., 386 U.S. 134 El Paso Natural Gas facilitate However, rule altered 1966 to was right. substantially expanded This intervention upon federal civil rules related rule, revised which drew (Rule adjudication just joinder persons needed for (Rule 19) 23), provides appli- that an and class actions 2 rule, place original In "he" was used word "the movant is so phrase in the current situated." word "movant" cant is in an entitled intervene action when the applicant's position comparable person is to that of a 19(a)(2)(i), under Rule unless the movant's interest is already adequately represented in the action.3 See Advi- sory Notes, Amendment, Committee U.S.C.A., Rule at 755-57. procedural
¶ 161. Intervention, as mechanism liberally, under Rule construed and doubts *60 proposed resolved in favor of the 6 intervenor. See James Moore, al., William et Moore's Federal Practice (3d 2002)(hereinafter § 24.03[l][a], 24-24, at 24-25 ed. Moore); Biological Diversity Southwest Center v. for (9th Berg, 2001); Stupak-Thrall 810, 268 F.3d 818 Cir. v. (6th 2000); 226 Glickman, 467, F.3d 472 Cir. Purnell v. (6th City 1991); Akron, 925 941, F.2d 950 Cir. United (9th 1986). Stringfellow, States v. 783 F.2d 826 Cir. requirements Some federal courts have stated that the for intervention are to be in construed favor of interven- Transp., tion. Am. Maritime Inc. States, v. United 870 (Fed. 1989) ("the requirements F.2d Cir. for intervention are to be construed in of interven- favor tion"); Westlands Water v. States, Dist. United 700 F.2d (9th 1983) ("werecognize require- 561, Cir. that the 24(a) ments of Rule are to in be construed favor of the intervention") (citation omitted). applicant 24(a) Federal Rule of Civil Procedure currently reads: (a) Right. timely motion, Intervention of On the court must permit anyone to intervene who: (1) given right is an unconditional to intervene a federal statute; or (2) relating propеrty claims an interest or transaction subject action, that is the disposing and is so situated that may practical impair impede the action aas matter the movant's ability protect interest, existing parties its adequately unless represent that interest. 24, the intervention Federal Rule 162. Under involving balancing inquiry flexible, must be blending requirements, applying often them as § supra, group. 24.03[l][a], at 24-25. Interven Moore, granted right may applicant's if the claimed as of be tion significantly impaired by may action, interest be regarding uncertainty exists interest. Id. if some even II adoption Federal Rule 163. Wisconsin's 803.09(1)
24(a)(2) departure from was a Wis. Stat. (1973)— namely, prior Wis. Stat. 260.205 our law— only prior "was under statute because intervention permissive, permitted i.e., court's discretion." supra, Clausen, at 108. Professor Clausen observed: (1) is of the intervention under subsection While ("shall discretionary permitted"), the rule still court make a determination as to insofar as the must [1] whether or not the motion is timely, whether the [2] *61 may party's ability protect his interest as a absent practical matter be impaired, and [3] whether represented by adequately party's absent interest is existing parties.
Id. of court "dis- 164. Clausen's discussion circuit making our determinations under
cretion" in certain pronouncements at with recent rule somewhat odds in instance, For the Southwest Center in federal cases. provides case, 24 for intervention the court said: "Rule permissive . . We intervention. . review as of a motion to intervene a district court's denial de novo of right, exception timeliness, we which with
75
review
abuse
Center,
discretion." Southwest
268
for
added).
(emphasis
at
F.3d
817
See also United States v.
(7th
2003) ("This
Seidman,
BDO
337 F.3d
802,
Cir.
[intervention]
novo,
court reviews the
factors de
with
exception
of the first factor—the timeliness of the
intervention —which this court
for an
reviews
abuse of
("We
discretion."); Stupak-Thrall,
¶ 165. the more discretion this court gives deny to our circuit courts to motions for interven- right, prior tion as of the more we revert to our law in right." which there was no intervention "as of Immediately ¶ 166. after the Clausen discussion quoted 163, herein, Professor Clausen added: upon "Nevertheless, the new rule is founded the same underlying considerations section 803.03 which define parties joined those who must be in an action if fea supra, City Clausen, sible." at see 108; also Madison WERC, n.8, v. WI 234 Wis. 2d pertinent Thus, N.W.2d Wis. Stat. 803.03 is to our part: review. It reads in persons Joinder just complete needed
adjudication. (1) joined Persons to be person A who is feasible. if subject process to service of joined shall be party as a the action if:
(a) person's In the complete absence relief cannot among already accorded those parties; or *62 (b) person The relating claims an interest subject dispо- action and is so situated that may: in person's the action absence sition practical impair matter 1. As a ability protect impede person's to added.) (Emphasis interest. "just my view, the title of and
In
the words in
803.03—
complete adjudication"
suggest
spirit in
which
—
ought
e.g.,
interpreted. See,
Zabel,
Zabel v.
section
1997)
(Ct. App.
2d
action. Plaintiffs
impact. Although
the named
intended
have wide
only
couples,
plaintiffs
is
include
six same-sex
their suit
couples in
intended to affect all same-sex
state service.
they
suppose
also intend
It is reasonable to
couples
work
decision to affect same-sex
who
favorable
villages,
cities,
towns, and
counties,
for Wisconsin
by necessity,
employ-
thus,
their
districts . . .
school
strategi-
plaintiffs
chosen
have
ers.
fact that
couples
any
cally
not to
this suit
same-sex
include
governments4
preclude
local
should
from Wisconsin
weighing
representative municipalities
in for a
from
nearly
This
identical
Alaska Civil Liberties
suit
Anchorage, 122 P.3d
Municipality
&
v. State Alaska
Union
(Alaska
2005), except
plaintiffs
Alaskan
named
that the
defendant,
had
Anchorage"
Anchorage
"Municipality of
as a
v.
representation
throughout.
See also Baker
own
the case
its
(Vt. 1999) (action
state,
brought against
State,
"just adjudication" complete controversy and the practical because, plaintiffs matter," as "a a decision for the "impair impede" municipalities' or will the ability protect practical to their interests. As "a matter," equivalent suit this is to a class action.
H-f HHb—I 803.09(1) above, 168. As noted Wis. Stat. has multiple requires interpretation. elements and The major interpreting first case the rule was Bilder in 1983. court declared the that Wisconsin interven- four-part proposed tion rule establishes test that the intervenor must meet:
(1) timely intervention; application for (2) relating an interest the property to or transac- subject action; tion which is the of the (3) disposition the that of the may action as a impair practical impede matter or proposed the ability protect interest; intervenor's that (4) proposed that intervenor's interest is adequately represented by existing parties.
Bilder, 2d Wis. at major involving
¶ 169. In a second case interven- four-part tion, this court summarized the test as fol- lows: (1) that motion to intervene timely made
fashion; (2) relating that movant claims an interest property or subject transaction which is action;
(3) disposi- movant is so that situated may practical impair as a matter tion of the action ability interest; protect impede movant's (4) not adequately movant's that the interest existing parties. represented by *64 Stirn, Broad, 463, 471, Inc. v. 183 Wis. 2d Armada (1994). N.W.2d paraphrase either or 170. These two dеcisions may language
repeat of rule. The same the exact the City ¶ 11, WERC, 550, v. 234 Wis. 2d said of Madison of Jamestown, 229 2d v. Town Wis. and Wolff (Ct. 1999). App. the However, 740-41, 601 N.W.2d language majority opinion supplements rule the of our adding previous opinions by a and the formulations relating to the to the element intervenor's new word majority rephrases "interest" claimed The the interest. an to read: the movant claims interest test "that suffi subject Majority action[.]" ciently related the of the to added). op., (emphasis ¶ 38 insignificant. change Its subtle is not 171. This to with discretion determine
effect is to vest courts potential a intervenor's "interest" "sufficient" whether satisfy prong the the rale. The "interest" to second only happens rule to be the element test of the did not mention as element that Professor Clausen involving judicial ¶ discretion. See herein. some ultimately Although majority opinion the municipalities satisfy that the the "interest" concedes element, of the to attack it its new formulation test uses "The claimed, interest so that it can conclude: subject municipalities' generalized in the of the interest constitutionality namely, of a statute action, instant plan applicable employees, to a for state is at far may edge sufficiently of what constitute a inter- related purposes right est for to intervene statute." added). Majority op., (emphasis majority ¶ 74 opinion applies coup grace: then de "The weakness municipalities' showing respect with inter- requirement est means that demonstrate a strong intervention should make showing requirements in the other to intervene as of right." enough words, Id. In other it is not for a potential satisfy all intervenor four elements or tests right; potential as of now, intervention intervenor satisfy "strongly" may must elements, these or it not be permitted right. to intervene
IV timely ¶ 173. The first element of the rule is application dispute for intervention. There is no municipalities' timely. motion for intervention was Consequently, the first element of the rule is satisfied.
V ¶ 174. The second element of the rule is interest, namely, municipalities' whether claim an interest relating property or transaction which subject of the action. City ¶ 175. In Bilder, Armada, like Madison, approved
and Wolff,the court intervention. The decision in Bilder turned on the intervenor's "interest." See Bilder, 112 2d at Wis. 549-50. The court's discussion admittedly places, uses word "sufficient" several spirit quite but the discussion is different from majority opinion. what we see in the The Bilder court said: have not and commentators
The federal courts determining precise test for which to derive a been able party a to inter- to allow type of interest is sufficient right. a matter of vene as differed in their
The various federal courts have sufficiency of approaches. appear Some verbalize standing of as part question as in a interest factor substantial, "direct, legally protectable in- a requiring proceedings." terest in the the interest test for courts have viewed
Other broadly. intervention more broader, pragmatic approach
agreeWe with the to allow a right. deciding In whether intervention as of right, the court should to intervene as a matter party to allow the intervention view the interest sufficient technically. practically rather than approach using pragmatic, policy-based Courts guide "primarily practical test as [ ] view the interest involving many appar- disposing of lawsuits efficiency compatible with ently persons concerned as is Camp, F.2d process." Nuesse v. and due 1967). (D.C. Cir. (internal citations omit- at 547-49
Bilder, 112 Wis. 2d added). ted) (emphasis with ap- Bilder court then quoted 176. The Hobson, v. 408 F.2d from Smuck
proval passage 1969): (D.C. Cir. 179-80 *66 is war- right intervention of
The decision whether between two involves an accommodation ranted thus potentially conflicting goals: judicial to achieve econo- by mies of scale resolving single related issues in a lawsuit, prevent single and to lawsuit from becom- ing fruitlessly complex or unending. Since this task will depend upon the particular contours of the controversy, general past rules and provide decisions cannot uni- formly dependable guides.... require- [T]he [interest] ment be should viewed a prerequisite rather than upon relied as a determinative criterion interven- for tion. barriers are needed to limit extension If intervene, practical criteria harm appli- cant and the adequacy representation by others are better suited to the task. If requirements met, those are the nature of his may play "interest" a role in determin- ing the sort of which intervention should be allowed— whether, example, he should permitted be to contest issues, all he enjoy whether should preroga- all the party tives of a litigant. added). (emphasis
Bilder,
paragraphs discrediting municipalities' interest. The reason for this laborious effort is revealed in opinion, majority where admits that "a strong showing respect movant's require- with to one may ability ment contribute to the movant's to meet requirements Majority other op., (citing as well." ¶ 39 ("[A] supra, § Moore, 24.03[l][b], at 24-25 lesser show- ing impairment may required the court if the applicant's very strong....")). interest is majority *67 municipalities' portrays interest as "weak" so it that dragging the "interest" element as can characterize municipalities' position on the other three down majority op., ¶ elements. See 74. municipalities' What is the interest? 179. 40.01(a), According the Pub- to Wis. Stat. Employee public
lic Trust Fund was created to aid employees protecting in and their beneficia- themselves against hardships age, disability, the financial of old ries death, illness, and The trust fund accident. includes multiple programs, system as the retirement and such coverage, provision make for these health cаre concerns. (WRS) System
¶ 181. The Wisconsin Retirement largest Any public in the United States. is one of the may employer participate in in the Wisconsin elect employers WRS, 40.21, for some Wis. Stat. but —such except County as the state and all counties Milwaukee —participation mandatory. Zimmerman, Art Wiscon- Paper System 78, Wiscon- sin Retirement Informational 2007). Legislative (January sin Fiscal Bureau 8 reports public 1,412 a total Fiscal Bureau of including agencies, participate employers, in 58 state participants in include 71 the WRS. Other the WRS villages, and 426 counties, cities, towns, listing supra, This Zimmerman, at 9. school districts. seeking eight municipalities to intervene includes in this case. purposes suit, this it is clear that not 182. For many employers participate
nearly public in the local (DETF) Department Employee Funds health Trust programs number as in the WRS. The exact insurance participate employers is not known to of local who Compre- according Nonetheless, to the DETF's writer. Report 2004, 11,669 "ac- Annual Financial hensive employees employees 1,787 tive" local participated local retired program through
in a health insurance figure employees fund 2004. This includes from the city village Oostburg, Watertown, town Cottage employers seek Grove whose intervene suit. *68 this 40.02(20) §
¶ 183. Wisconsin Stat. the defines "dependent" throughout Chapter for use ex- word (20) § cept for Wis. Stat. 40.98. Subsection reads: (20) child, "Dependent" spouse, means minor the including stepchildren marriage depen- the current maintenance, dent on for employee support and any age, including child of stepchildren the current marriage, handicapped requiring if to an extent contin- dependence. ued group purposes only, For insurance department may promulgate rules awith different "dependent" definition of one pro- than the otherwise vided in group this subsection for plan. each insurance "dependent," ¶ 184. The word as defined in Wis. 40.03(6)(b) § 40.02(20), appears § Stat. Stat. Wis. (granting Group power Board the Insurance to provide employees dependents group and their with 40.04(10) § plans), (providing insurance for an accumu- employ- sick lated leave conversion for account retired 40.04(11) § surviving dependents), (pro- ees and their viding premium for a health insurance credit account employees surviving dependents), for retired and their (be), 40.05(b), (be), §§ (providing and for sick unused payment leave to be credited of health insurance premiums employees surviving for and their insured 40.51(3) dependents), § (providing that health insur- provisions employees ance contracts shall establish for dependents group coverage), and to continue 40.52(l)(a) § "family (providing coverage option" for a 40.52(2) coverage eligible dependents), allow for all (allowing special plan provisions insurance when spouse dependent eligible one or other is for federal 40.80(2r)(a)2. hospital aged), health and care for the (defining taking "domestic order," relations into consid- assign compensa- eration a court's decision to deferred spouse, spouse, tion assets to "a former child, or other 40.95(l)(a) (2) dependent"), §§ (providing and program provide the DETF administer a credits for purchase employees of health insurance for retired surviving dependents). and their insured altering interpre- Thus, a court decision "dependent" likely tation of the word to have wide participants programs effect on local in a number of Chapter 40. Some of these direct; effects will be clear and others will be unclear and indirect. If there were an evidentiaiy uncertainty suit, record in this about favoring plaintiffs effects of a decision would be reduced. Oostburg, Cottage 186. Watertown, Grove *69 specific plans plaintiffs
are enrolled in the DETF that the modify. municipalities seek to Thus, these three all—and municipalities similarly experience other situated —will any mandating the direct costs of court decision plans partner DETF cover a same-sex domestic and the partner children of a same-sex domestic when those dependent upon employee-partner children are support remaining and maintenance. The five municipalities Bay, Caledonia, Hobart, Green — Raymond School Board of Berlin, New and School Dis- municipalities similarly #14, trict and all situated— likely expensive would confront more health care cover- age they join plan, if wanted to a DETF health care or if they required join plan. were a DETF health care Oostburg, Cottage 187. Watertown, and Grove bargaining agreements. have collective Court-ordered coverage partners of same-sex domestic would rewrite bargaining agreements by mandating these collective negotiated bargaining benefits that were not at the table. provided to, in These new benefits would be addition previously negotiated adding of, benefits, in beu fringe spillover cost of benefits. The of a decision favor- ing plaintiffs bargaining agreements to the collective legal through of other arbitration or — negotiation action, as well as be certain if not —would direct. eight municipalities The here claim that
every any municipality part program DETF that is employing "dependent," term as defined Wis. 40.02(20), directly by any change Stat. will affected interpretation in the of this definition.5 This includes subjects programs ¶¶ all enumerated in 181-82 including compensation programs above, qualified deferred (QDRO). They
domestic relations orders con- persuasively "[t]he [CJonstitution tend Wisconsin requires redefining 'spouse' not so facile that it in one program, completely disregards very but DETF [program]." same effect another municipalities posit ¶ 189. The additional inter- tangible ests that are less than increased costs and existing They modification of contracts. that a contend plaintiffs' complaint change every seeks to DETF plan. heading Sought," plaintiffs' benefits Undеr the "Relief complaint first amended asks the circuit court to: enjoining excluding C. Enter an order the defendants from gay employees lesbian and male and their same-sex domestic partners employment provided from the same benefits *70 similarly-situated employees spouses, including by and their clas- sifying partners employees depen- same-sex domestic of state as purposes participation employment dents in all benefit added.) plans[.~\ (Emphasis contracts and judicial favoring plaintiffs decision would constitute powers govern an into core to incursion their their own system government, municipalities In our affairs. power employees negotiate have the to hire and indi- bargaining agreements vidual or contracts collective employees.6 negotiations with these These involve limited, tradeoffs. Because their are revenues local governments position are seldom a all afford compensation employees and benefits that would local granting like. Thus, of one benefit often comes at expense may compen- of another and affect overall imposed upon sation. aWhen new benefit is local governments strips govern- outside, from the it these authority negotiate perhaps ments of their or even plan for the new benefit. legislature may impose Of course, con- obligations upon
troversial
unwanted benefit
local
governments
thereby
existing
and
affect their costs and
legislatively
repre-
However,
contracts.
created benefits
political process
sent
the fruit of a
in which local
governments freely
actively
Legisla-
participate.
tively
obligations
imposed
given
benefit
can be
a de-
layed
by
effective date or be softened
increased state
political
Legislatively imposed
aid, accommodations.
repealed
By
benefits can also be
later
at a
date.
con-
interpreting
trast, benefits ordered
a court
legislature
delegated
general power
has
munici
palities
personnel
negotiate employment
to hire
contracts
via Wis.
'l
Stat.
111.70. See Glendale
Ass'n v.
Policemen's
Prof
(1978)
Glendale,
City
90, 108,
2d
83 Wis.
Wisconsin Constitution change They simply If the are ordered. modations. costly unpopular, only it will also but is not involved govern- denying understandably perceived as local be destiny. power their own to control ments the argued for the that courts exist ¶ It can be 191. might vindicating "rights" very purpose other- majorities. disregarded by political But courts be wise antago- making legitimacy in calls that their undermine they majority opinion a full thе door on when slam nize municipalities airing here are The of facts and views. many governments representative in local other fully considered. should be interests Wisconsin whose VI impair- rule is ¶ third element of the 192. The is that the The essence of this element ment of interest. impaired may practical matter be interest as a movant's protect by participat- it if is not allowed the movant ing in the suit. decision on the merits It is clear that a 193. immediately impair plaintiffs' favor would Oostburg
rights Cottage Grove, Watertown, and currently municipalities enrolled in are because these plans. appeals reached The court of DETF health care Helgeland Munici- conclusion, v. Wisconsin the same palities, App 2d 19, 296 Wis. 2006 WI majority inexplicably not. The does 208, but the N.W.2d majority municipalities that, are concludes since present any parties at issue in the contract municipalities' litigation, interest be di- "cannot Majority op., by Helgeland's rectly impaired action." majority's The cannot be correct. conclusion plans part DETF that would are three directly by ruling favoring plaintiffs. affected impaired result, As a their financial interests would be in a direct and immediate fashion. If we do not know municipali- more detail financial on effect the three *72 deficiency ties, we can attribute that to an underdevel- oped by involuntary record caused the absence of the municipalities as intervenors.
¶ impair- The couch also negative ment of interest element terms of the effect eight plaintiffs of stare decisis on all if movants prevail majority were to on the merits. The acknowl- edges might that adverse effect stare decisis have on municipalities, impact ge- it but describes this as "essentially any neric, is, that the same effect that might employer claim an when action before court employer threatens to increase costs that the gated is obli- added). pay Majority op., (emphasis ¶ ...". 84 unduly downplays pos- This comment the effects aof ruling litigation. sible constitutional on future ¶ Dictionary 195. Black's Law defines "stare deci- "[t]he precedent, sis" as doctrine of under which it is necessary judicial for a court to follow earlier decisions points again litigation." when the same arise Black's (7th 1999). Dictionary Law 1414 ed. Under the doctrine legal precedent decisis, stare a is established when a expressly specific court a Moore, decides issue law.7 supra, § 24.03[3][b], Thus, at 24—42.2. an intervenor's impaired, practical interest can be matter, if a 7 The doctrine of stare decisis differs from that of res judicata, controversy which a decision involves about factual al., rather than issue of 6 an law. James Moore et William Moore's 24.03(3] (3d 2002). [b], Federal Practice at ed. 24-42.3 The 1966 to Rule 24 requirement amendment eliminated the a mo- legally vant be bound the outcome of the action. Id. 24-42.4. at
89 impact pending that is decisis will cause a stare actiоn applicant. Id. harmful to the analyzed impact of 196. Federal courts have ways. majority cites Be in different stare decisis (7th Lumpkin, Cir. 525, F.2d 533 Inc. v. thune Plaza 1998), proposition should for that stare decisis 24(a)(2) "infrequently," impairment establish a Rule authority decisis is notion that stare it cites op., Majority merely important "an consideration." Oregon, (citing v. State 78, 78 n.69 United States (9th 1988)). However, other F.2d Cir. impact of decisis to have found the stare federal courts Union factor. See Stone v. First be a determinative 2004) (11th (noting Corp., 1309-10 Cir. F.3d negative potential for a stare decisis effect that "the disadvantage 'may supply practical which warrants right'"); Mexico intervention of Coal. Arizona/New Dept. *73 Interior, v. Econ. Growth Counties Stable for (10th 1996) (recognizing that "the 837, 100 F.3d 844 Cir. judgment stare decisis effect of the district court's impairment Rule intervention under sufficient 24(a)(2)"); Envtl., Columbia Inc. v. United
Anderson ("The (1999) potential 880, States, 42 Cl. 882 stare Fed. supplies 'practical a decision often decisis effect of 24(a)."). by impairment' required Rule why decisis 197. There are several reasons stare weighty is a factor in case. In 1992 the court this rejected protection appeals equal and present a discrimination Phillips claim based on facts similar to suit. 121 Comm'n, 167 2d N.W.2d v. Wis. Pers. Wis. (Ct. 1992). App. Phillips decision has served as controlling years. precedent in It for 15 Wisconsin appeals circuit continues to bind court of Cook, 2d N.W.2d courts. See Cook v. 208 Wis. (1997). overruling Any Phillips re- decision will quire by action court. If this this court were to overrule Phillips, the new decision would bind Wisconsin courts just Phillips has bound courts; Wisconsin and if this court's decision were based on the Wisconsin Constitu- plaintiffs request, legislature tion, as even the could not change securing the law without first an amendment to municipalities Thus, Wisconsin Constitution. shaping have vital presented interest the record that will be they so, to this court. To do must intervene. If the are denied the to intervene in they likely gain court, the circuit are less intervenor appellate any right at status level and will lose shape the record. import neatly pre- 198. The of stare decisis is statutory
sented novel issues of construction, Moore, supra, 24.03[3][b], 24-42.2, at and this suit is classic example. Negative impede stare decisis would the mu- nicipalities' they if efforts chose to assert their interest separately litigation, controlling in future as the con- "dependent" struction of the word in Wis. Stat. 40.02(20) effectively position. would foreclose their going statutory Courts are not to construe the term "dependent" meanings municipal to have different beneficiary and state contexts.
¶ In short, there are both direct financial impacts likely impacts potentially stare decisis at play satisfy impair- case, in this and these effects requirement. ment of interest ¶ 200. *74 requirement The fourth and final for inter- VII
vention of is that the movant's interest not adequately represented by existing parties. Supreme
¶ 201. The United States Court has adequate representation requirement stated that the "is
91 representаtion applicant that the if the shows satisfied 'may inadequate" and "the burden his be' of making interest showing minimal." be treated as that should America, 404 U.S. United Mine Workers Trbovich v. (1972) (citing Moore, 3B J. Federal 528, 538 n.10 added). (4) (1969)) "[P]ro- (emphasis Practice 24.09-1 only posed that there is a need show intervenors satisfy inadequate representation" potential this for Bollinger, requirement. 188 F.3d Grutter v. (6th 1999). Accordingly, key inquiry for this Cir. the existing party may requirement an not is whether proposed adequately represent inter- of a the interest existing party will not ad- venor, whether an not regard, may equately represent In this it that interest. enough existing party that the will make to show be arguments proposed intervenor would all the Michigan Miller, v. 103 F.3d make. State AFL-CIO See ("For 1997) (6th example, may it Cir. enough existing party purports that the who to show prospec- all of outcome will not make seek same arguments."). intervenor's tive In 1994 this court listed several factors evaluating adequacy representation. said court it (1) showing to see there is a of collusion looked whether existing "representative" party and the between (2) party's party; representative opposing whether proposed intervenor; interest is adverse to that (3) representative party has failed whether duty. (citing Armada, 2d 476 fulfillment of its 183Wis. at Sewerage City DNR, Milwaukee v. Comm'n State (Ct. 1981)). App. 182, 189, 104 Wis. 2d 311 N.W.2d677 repeated The court also the statement from Trbovich showing required be treated as "mini should n.10). (quoting Trbovich, Id. at mal." 404 U.S. *75 Although properly the court's criteria, three interpreted, especially do not create an difficult hurdle to intervention, these criteria are not meant to be exhaus- may variety tive.8 There be a of additional circum- suggest representation by existing stances that that an party inadequate. Daggett is See v. Comm'n on Govern- mental Ethics & Practices, Election 104, 172 F.3d (1st 1999) (observing trilogy "adversity Cir. that the of — may interest, collusion or not have been nonfeasance"— list). Demonstrating intended to be an exclusive that a degree movant's interest different kind or from party may that of a named suffice to establish inad- equacy representation. of Hnos., B. Fernandez & Inc. v. (1st 2006). Kellogg USA, Inc., 541, 440 F.3d 544-47 Cir. Diversity ¶ 204. of interest can be the conclusive evaluating adequacy representation. factor when of Wright "[t]he important As the notes, treatise most determining adequacy representation factor in of is how compares the interest of the absentee with the interests present parties. of the the interest the absentee is not If represented existing parties all, at or if all are adverse to adequate representation." the absentee, then there is no Wright 7C al., Charles Alan et Federal Practice and (2007) (footnotes Procedure: Civil 3d at 393-94 omitted) added) (hereinafter (emphasis Wright). Signifi- cantly, goes the treatise on to state:
If significant there is a difference between the interest party, absentee and that of the there is a risk that party provide adequate will not representation of 8See Wright al., 7C Charles Alan et Federal Practice and (2007) ("The Procedure: Civil 3d at 393 variety wide cases that come to the unlikely courts make it there are only three and three circumstances that would make represen inadequate tation suggest adequacy representation variable."). very complex is a discriminating appraisal A interest of the absentee. particular required. case is circumstances possibility if a serious the rule is satisfied there is
Since *76 all may inadequate, be reason- representation the allowing in the able doubts should be resolved favor of absentee, any an interest who has different from may intervene so that the absentee existing party, to heard in his own behalf. added). (emphasis
Id. at 440 Diversity tips ¶ 205. of interest the balance to- granting in DETF the intervention this case. and ward municipalities DETF have different admin- functions. agency plans public employees. It an benefit for is isters separate government government; not it is of state entity. By villages, contrast, cities, towns, and school Although they separate governments. must are districts operate imposed law, state within "limits" these budgets governments their and make their own set own policy. public The limits include revenue limits for (Wis. 121.91), levy § for cities, Stat. and limits schools (Wis. 66.0602). villages, and towns Stat. These limits distinguish municipalities state, the from the which has greater governments taxing in much latitude than local implicate spending. a different eviden- These limits might tiary record than the record that serve the state's exclusive interest. status, in 206. Given the difference their the Attorney
municipalities question strategy Gen- constitutionality employed eral has to defend the Wis. 40.02(20), strategy discovery opposing i.e., Stat. judgment pleadings. moving on State's entirely continuing validity strategy relies on the though Phillips Phillips, even did not decide head-on presented by plaintiffs. some of issues now Wright "[a] ¶ 207. notes that mere difference of opinion concerning litigation the tactics with which the inadequate repre- should be handled does make sentation of those whose interests are identical with that existing party formally represented of an or who are in Wright, supra, § (emphasis the lawsuit." 1909, at 431-36 added).9 enough. However, Fair the interests of DETF and the identical, are not and the differ- using ences should not be dismissed words like "attenu- up analysis. Majority op., ¶ ated" to shore See 71. appeals, Judge Dyk- In the court of Charles ap- man in observed his that the concurrence/dissent proach general attorney fundamentally of an different private represent from that of counsel hired to a client. Helgeland, (Dykman, See 296 Wis. 2d J., concurring part, dissenting part). Alluding *77 Attorney Peggy Lautenschlager, Judge former Dykman General attorney general required
stated: "The is defend the issue, statute at but she how does so and what up issues she raises or does not raise are to her. She determines how the case defended, will be for better or precisely problem facing worse." Id. This is the the municipalities summarily and one that should not be dismissed. Judge Dykman
¶ 209. added: good way A deny participa- to create mistrust is to course, government. tion in Of there endpoint is an 9 Wright parties treatise notes that when have identi opinion regarding litigation cal interests mere differences of inadequate representation. tactics are not evidence of See 7C al., Wright Charles Alan et Federal Practice and Procedure: (2007). However, Civil 3d at 431-36 the treatise makes important point, hy implication, parties' that when interests identical, are not a opinion regarding strategy may difference of be a factor to consider.
participation; open lawsuits cannot be to whoever participate only here, wants to or chaos wins. But only keeping municipalities participa- factor from party majority's that, tion as a despite conclusion by attorney statements the State's which at least raise doubts, the statements do not amount to much. Per- haps they not, do but I believe that there is a reasonable perception attorney general that the posi- has taken a contrary tion one to the she advocates on the merits of litigation. this
Id., 61. supreme ¶ 210. From the circuit court to the Department attorneys opposed court, of Justice have by municipalities. change intervention A in attor- neys general Department's position. has not altered the ultimately If the State this merits, wins case on the its opposition municipalities' consistent interven- forgotten. tion will be But if the case, State loses the opposition State's will be seen as hubris collusion, contributing and, in event, either factor to the defeat. If intervention were likely "fruitlessly complex to make this suit or unend- ing," Smuck, 408 F.2d at denial of intervention would make sense. But denial of intervention here has prolonged litigation, it, shortened and has alleged urgency plaintiffs' undermined the cir- municipalities' develop cumstances. The desire to establishing particular factual record their financial *78 policy-setting reasonably and interest cannot be de- weakening position. scribed as the State's ¶ 212. When this case returns to court, circuit municipalities will have been kicked off the field they privilege cheering told have the for the State they prepare rally from the bleachers. As to wave their they may irony plaintiffs' import- towels, ing note explain counsel from Illinois to Wisconsin civil procedure courts, to Wisconsin and of the American seeking diversity to vindicate Civil Liberties Union lifestyles successfully squashing diversity while views. municipalities disappointed by
¶ 213. If the are they get surely they seats, their remote will over it once heartening "presumption" accept the DETF adequately represents municipalities' interest.
VIII ¶ 214. This is not a close case. The 803.09(1) all have satisfied the tests under Wis. Stat. majority right. for intervention as of Because the holds respectfully otherwise, I dissent. PA- I am authorized to state that Justices
TIENCE DRAKE ROGGENSACK ANNETTE join ZIEGLER this dissent. KINGSLAND