Vol. 81, No. 4, April
Supreme Court Digest
This column summarizes selected
published opinions of the Wisconsin Supreme Court (except those
involving lawyer or judicial discipline, which are digested elsewhere in
the magazine). Prof. Daniel D. Blinka
and Prof. Thomas J. Hammer invite comments and questions about the
They can be reached at the Marquette University Law School, 1103 W.
Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Intervention - Joinder
Helgeland v. Wisconsin
Municipalities, 2008 WI 9 (filed 7 Feb. 2008)
Some state employees brought a claim contending that Wis. Stat.
violates equal protection by denying gay and lesbian state employees and
same-sex domestic partners employment benefits that are available to
heterosexual state employees and their spouses. Eight municipalities
sought to intervene as
parties, but the circuit court rejected their attempt. The court of
The supreme court, in a majority decision authored by Chief
affirmed. The majority opinion underscored that the appeal concerned an
of civil procedure but only an issue of civil procedure, namely
"whether the court
should allow those eight municipalities to inject themselves into a
state-employee-oriented lawsuit, instead of bringing their own lawsuit
governing the rights of their own
municipal employees" (¶ 3). The majority and dissent traded
sharp broadsides about the
case's underlying politics. The majority's "very long opinion"
(¶ 20) (70 pages), which
features a table of contents, is summarized thusly: "We conclude
(1) that the municipalities
have no right of intervention under Wis. Stat. § 803.09(1);
(2) that the circuit court
properly exercised its discretion in denying the municipalities
under Wis. Stat. § 803.09(2); and (3) that the circuit court
did not err in refusing to
join the municipalities sua sponte under either Wis. Stat. §
§ 806.04(11)" (¶ 34).
Most of the majority opinion concerns the right of intervention
803.09, which is exhaustively analyzed. "Although it is arguable
that the municipalities
may claim a financial interest related to the DETF [Department of
Employee Trust Funds]
plans that are the subject of Helgeland's action and that disposition of
action may, under the effect of stare decisis, as a practical matter
impair or impede
their ability to protect their stated interests, the municipalities make
no showing that
the financial interest is sufficient, direct, immediate, or special and
inadequately represents their interests, much less a showing that could
presumptions of adequacy applicable in this case" (¶ 115). The
denial of permissive
intervention turned on the issue of delay, which the lower courts
(see ¶ 126).
The majority next held that the circuit court properly found no
intervention for the municipalities as a "necessary party":
"If a person has no right of
intervention under Wis. Stat. § 803.09(1), the courts have no
duty to join that person sua sponte as
a necessary party under Wis. Stat. § 803.03(1)(b)1."
(¶ 137). Finally, the majority
held that joinder was inappropriate under the Wis. Stat. section
judgment procedures. "[The cited cases] are inapposite because
Helgeland has not brought
an action to declare her rights under any agreement, much less an
agreement to which
the municipalities are party. Helgeland seeks a declaration of her
rights under state
statutes and the state constitution, not rights under the interpretation
contract. Helgeland is not a party to any contract asserted by the
municipalities" (¶ 142).
Justice Butler filed a brief concurring opinion.
Justice Prosser, joined by Justices Roggensack and Ziegler,
dissented on the
ground that the eight municipalities should have been permitted to
participate in the
"spirit" of securing a "just and complete
adjudication" (¶ 166). The dissent also took issue
with what it saw as the majority's "new formulation" of the
"interest element" under
section 803.09 (¶ 172).