Wisconsin Legislature – Authority to Represent State’s Interest Regarding Validity of State Laws
Democratic Nat’l Comm. v. Bostelmann, 2020 WI 80 (filed 6 Oct. 2020)
HOLDING: Under Wis. Stat. section 803.09(2m), the Wisconsin Legislature has the authority to represent the state of Wisconsin’s interest regarding the validity of state laws.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
SUMMARY: In connection with litigation over election-related laws challenged in the federal courts, the U.S. Court of Appeals for the Seventh Circuit certified the following question to the Wisconsin Supreme Court: “whether, under Wis. Stat. § 803.09(2m), the Wisconsin Legislature has the authority to represent the State of Wisconsin’s interest in the validity of state laws.” In a majority opinion authored by Justice Hagedorn, the supreme court answered that question in the affirmative.
Wisconsin Statutes section 803.09(2m) provides as follows: “When a party to an action challenges in state or federal court the constitutionality of a statute, facially or as applied, challenges a statute as violating or preempted by federal law, or otherwise challenges the construction or validity of a statute, as part of a claim or affirmative defense, the assembly, the senate, and the legislature may intervene as set forth under [Wis. Stat. §] 13.365 at any time in the action as a matter of right by serving a motion upon the parties as provided in [Wis. Stat. §] 801.14.”
The majority concluded that “Wis. Stat. § 803.09(2m) gives the Legislature a statutory right to participate as a party, with all the rights and privileges of any other party, in litigation defending the state’s interest in the validity of its laws. While defending state law is normally within the province and power of the Attorney General, § 803.09(2m) grants this same power to defend the validity of state law to the Legislature in certain circumstances. Where the prerequisites in § 803.09(2m) are met, Wisconsin law gives the Legislature, if it chooses to intervene, the power to represent the State of Wisconsin’s interest in the validity of its laws” (¶ 13).
Justice Dallet filed a dissenting opinion that was joined in by Justice A.W. Bradley and Justice Karofsky. Said Justice Dallet: “The certified question before us is whether, pursuant to Wis. Stat. § 803.09(2m), the Wisconsin Legislature has the authority to represent not only its own interest as the state’s lawmaking institution, but the interests of the State of Wisconsin as a whole. It does not. The plain language of our statutes demarcates a clear line between the legislature’s right to appear and be heard on behalf of its own interests, and the attorney general’s mandatory duty to appear and make litigation decisions on behalf of the State of Wisconsin” (¶ 15).