Helgeland v. Wisconsin Municipalities, 2005AP2540.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtShirley S. Abrahamson
Citation2008 WI 9,745 N.W.2d 1
PartiesJody HELGELAND, Jessie Tanner, Virginia Wolf, Carol Schumacher, Diane Schermann, Michelle Collins, Megan Sapnar, Ingrid Ankerson, Eloise McPike, Janice Barnett, Jayne Dunnum and Robin Timm, Plaintiffs-Respondents, v. WISCONSIN MUNICIPALITIES, Appellant-Petitioner, Wisconsin State Senate and Assembly, Co-Appellant, Department of Employee Trust Funds, Employee Trust Funds Board, Eric Stanchfield and Group Insurance Board, Defendants-Respondents.
Docket NumberNo. 2005AP2540.,2005AP2540.
Decision Date07 February 2008
745 N.W.2d 1
2008 WI 9
Jody HELGELAND, Jessie Tanner, Virginia Wolf, Carol Schumacher, Diane Schermann, Michelle Collins, Megan Sapnar, Ingrid Ankerson, Eloise McPike, Janice Barnett, Jayne Dunnum and Robin Timm, Plaintiffs-Respondents,
v.
WISCONSIN MUNICIPALITIES, Appellant-Petitioner,
Wisconsin State Senate and Assembly, Co-Appellant,
Department of Employee Trust Funds, Employee Trust Funds Board, Eric Stanchfield and Group Insurance Board, Defendants-Respondents.
No. 2005AP2540.
Supreme Court of Wisconsin.
Argued October 3, 2007.
Decided February 7, 2008.

[745 N.W.2d 4]

For the appellant-petitioner there were briefs by Michael D. Dean and Michael D. Dean, LLC, Waukesha, and oral argument by Michael D. Dean.

For the plaintiffs-respondents there was a brief by Linda Roberson and Balkisle & Roberson, Madison; Laurence J. Dupis and ACLU of Wisconsin Foundation, Inc., Milwaukee; John A. Knight and American Civil Liberties Union Foundation, Chicago; and Rose A. Saxe, James D. Esseks and

American Civil Liberties Union Foundation, New York, NY, and oral argument by John A. Knight.

For the defendants-respondents the cause was argued by Jennifer Sloan Lattis, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

¶ SHIRLEY S. ABRAHAMSON, C.J.


Eight Wisconsin municipalities, municipal school boards, and school districts (collectively "the municipalities")1 seek review of a published court of appeals decision2 affirming an order of the Circuit Court for Dane County, David T. Flanagan, III, Judge. The circuit court denied the municipalities participation as parties in the instant case brought by state employees relating to state benefits.3 The court of appeals affirmed the order of the circuit court. We affirm the decision of the court of appeals.

¶ 2 We begin by explaining what this case is about and what it is not about.

¶ 3 The case is about court procedure. Eight municipalities want to insert themselves into a lawsuit brought by several state employees challenging their state benefits. The question before this court is whether the court should allow these 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.

745 N.W.2d 5

¶ 4 The procedural issue before, the court is known in the law as "intervention" or "joinder."

¶ 5 Procedure is important in the law. Our judicial system values procedure because we view good procedure as tending to produce fair and sound outcomes. In deciding the procedural issue presented in the instant case, we must consider the positions of the complaining parties, the named defendants, and the eight municipalities, as well as the public's and court's interest in fair, effective, efficient case management. The municipalities do not have a monopoly interest on the procedural issue in the instant case, as they and the dissent want the reader to believe.

¶ 6 Broadly speaking, a court determines whether an outside entity should intervene in or join an existing lawsuit by striking a balance between allowing the original parties to a lawsuit to conduct and conclude their own lawsuit and allowing others to join a lawsuit in the interest of the speedy and economical resolution of a controversy without rendering the lawsuit fruitlessly complex or unending. Whether to order intervention or joinder turns on' judgment calls and fact assessments.

¶ 7 The eight municipalities in the present case make only generalized claims that they have interests related to the subject of the action. As we' explain at length below, and as Justice Butler's concurrence explains, the municipalities have failed to demonstrate in the circuit court or here how their interests relate to the subject of the action in a direct and immediate fashion. Indeed, the dissent concedes, as it must, that the record does not detail the effects on the municipalities of a decision favoring the complainant.4 Importantly, the Department of Employee Trust Funds and the Attorney General of the State of Wisconsin adequately represent the interest of the eight municipalities in defeating the lawsuit. The municipalities' disagreement with the way DETF and the Attorney General are handling the action is not a basis for intervention.

¶ 8 Procedure is what the instant case is about.

¶ 9 The instant case is not about the merits of the state employees' assertion that Wis. Stat. § 40.02(2) (2003-04), the state statute defining "dependent," violates the equal protection guarantees of Article I, Section 1 of the Wisconsin Constitution by denying gay male and lesbian state employees and their same-sex domestic partners employment benefits that are available to similarly situated heterosexual state employees and their spouses. We do not even come close to addressing this issue.

¶ 10 After acknowledging that the constitutional issue of benefits for persons in gay and lesbian domestic relationships is not at issue in the instant case,5 the dissent immediately stirs the cauldron of hot-button issues. It touches on many issues totally unrelated to the narrow procedural question presently before this court and not even tangentially related to the constitutional question that may ultimately be raised and decided in the instant lawsuit when it is remanded to the circuit court.

¶ 11 Within its first four paragraphs, the dissent asserts elliptically that the present case involves "one of the great social and political controversies of our time"6 and that the case affects "every public employer that operates under the Public Employee Trust Fund" and "potentially, every

745 N.W.2d 6

employer governed by Wisconsin's Family and Medical Leave Act."7 The dissent also identifies the instant action as part of the. American Civil Liberties Union's National Lesbian and Gay Rights Project.8 The dissent is certainly mindful that any reference to the ACLU stirs up partisan passions. See George H.W. Bush's criticism of presidential candidate Michael Dukakis as a "card-carrying member of the ACLU."9

¶ 12 Although musing that "[i]t can be argued that courts exist for the very purpose of vindicating `rights' that might otherwise be disregarded by political majorities,"10 the dissent in effect undermines the legitimacy of court decisions that review the constitutionality of legislative enactments.11 The dissent's thesis appears to be, in contrast to the Code of Judicial Conduct, that courts should not determine as a matter of constitutional law politically controversial issues raised in cases legitimately before them.12

¶ 13 The dissent does not present the traditional, mainstream, well-accepted view that courts in the United States are, in settling disputes brought to them, supposed to protect the rights guaranteed to each of us by the United States Constitution Bill of Rights and the Wisconsin Constitution Declaration of Rights, even when such protection may be unpopular. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 180, 2 L.Ed. 60 (1803), the best-known case in American legal history (and indeed in jurisprudence across the world), announced the basic tenet of judicial review, namely that courts have the power and duty to hold that "a law repugnant to the Constitution is void,"

¶ 14 Finally, the fifth paragraph of the dissent contrives to raise the specter of abortion, questioning the legitimacy of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the United States Supreme Court's decision on abortion.13 Abortion? Hard to believe that abortion has, found its way into the instant case!14

¶ 15 The only issue the dissent hasn't brought in to rile up as many readers as possible is, as far as we can tell, the issue of immigration.

¶ 16 Unfortunately, the dissent encourages the reader to confuse the legislative function, which determines public policy in a forum open to all and not governed by

745 N.W.2d 7

court rules of evidence, and the judicial function, which resolves a legal dispute between named parties according to the facts and law (including rules of evidence) in a fair, neutral, impartial, and nonpartisan way.

¶ 17 As United States Supreme Court Chief Justice John Roberts has stated, a judge's job is like an umpire's, "to call balls and strikes and not to pitch or bat,"15 to make calls according to the rules, not according to the voices of a partisan crowd.

¶ 18 Without support in the facts or law on intervention and joinder, the dissent has unfortunately turned to political considerations and appeals to emotions.

¶ 19 We turn now to the procedural issues before us and the facts and law governing intervention and joinder.

¶ 20 Our painstaking and thorough consideration of the municipalities' and the state employees' numerous arguments has resulted in a very long opinion. To assist the reader, we set out the following road-map to our discussion:

I. Factual and Procedural Background: ¶¶ 21-34

II. The Municipalities Do Not Have the Right to Intervene: Wis. Stat. § 803.09(1): ¶¶ 35-120

A. Motion to Intervene is Timely: ¶ 42

B. The Municipalities' Interests Are Insufficiently Related to the Subject of the Action: ¶¶ 43-74

(1) The Financial Interest of Three Municipalities in DETF Health Plans Is Not Direct, Immediate, or Special: ¶¶ 47-53

(2) The Municipalities' Collective Bargaining Agreements Are. Not at Stake: ¶ 54-58

(3) The Municipalities' Pension and Deferred Compensation Plans Are Not at Stake: ¶¶ 59-66

(4) The Municipalities' Home Rule Authority Is Not at Stake: ¶¶ 67-69

(5) Summary: ¶¶ 70-74

C. Disposition of the Action Does Not Impair the Municipalities' Ability to Protect Their Interests: ¶¶ 75-84

D. The Municipalities Are Adequately Represented by DETF and the Attorney General in the Action: ¶¶ 85-114

E. Summary: ¶¶ 115-118

III. The Circuit Court Did Not Err in Denying Permissive Intervention: ¶¶ 119-127

IV. Joinder is Not Required: ¶¶ 128-143

A. Wis...

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