Rise, Inc. v. Wis. Elections Comm'n

• Docket Number: 2022AP1838
• Decision Date: 07 July 2023
• Parties: Rise, Inc. and Jason Rivera, Plaintiffs, v. Wisconsin Elections Commission, Defendant-Respondent, Maribeth Witzel-Behl, Defendant, Wisconsin State Legislature, Intervenor, Michael White and Eva White, Proposed-Intervenors-Appellants.
• Court: Wisconsin Court of Appeals

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Rise, Inc. and Jason Rivera, Plaintiffs, v. Wisconsin Elections Commission, Defendant-Respondent, Maribeth Witzel-Behl, Defendant, Wisconsin State Legislature, Intervenor, Michael White and Eva White, Proposed-Intervenors-Appellants.

No. 2022AP1838

Court of Appeals of Wisconsin, District IV

July 7, 2023

Not recommended for publication in the official reports.

APPEAL from an order of the circuit court for Dane County, No 2022CV2446 JUAN B. COLÁS, Judge.

Before Blanchard, P.J., Kloppenburg, and Graham, JJ.

BLANCHARD, J.

¶1 This an appeal from a special proceeding involving a request for intervention.^[1] Michael White and Eva White appeal the denial by the Dane County circuit court of their motion to intervene in a suit brought by nonprofit Rise, Inc. and Jason Rivera ("Rise") against the Wisconsin Elections Commission and the City of Madison clerk.

¶2 In the underlying case, Rise seeks a declaratory judgment regarding one issue of statutory interpretation: the correct definition of "the address of a witness" that is required to be included in the witness certification accompanying absentee ballots in a Wisconsin election.

¶3 We conclude that the circuit court correctly applied Wis.Stat. § 803.09(1) (2020-21) to deny the Whites intervention as of right because they fail to overcome multiple presumptions that existing parties in the case will adequately represent the Whites' interests.^[2] We also conclude that the court did not erroneously exercise its discretion in denying the Whites permissive intervention under § 803.09(2). Accordingly we affirm the order denying the Whites' motion to intervene in its entirety.

BACKGROUND

¶4 The following is pertinent legal context. An elector's completion of an absentee ballot must be witnessed and, as proof of that, an envelope containing a ballot is required to contain a written certification by a witness. Wis.Stat § 6.87(2), (4)(b)1. The required witness certification must include the witness's address. Id. In 2015 Wisconsin Act 261, the legislature enacted § 6.87(6d) which provides that a witness certification that "is missing the address of a witness" "may not be counted." Neither § 6.87(2) nor § 6.87(6d) defines the word "address." Regarding permitted activities of clerks in this context, § 6.87(9) provides in pertinent part, "[i]f a municipal clerk receives an absentee ballot with an improperly completed [witness] certificate or with no certificate, the clerk may return the ballot to the elector … whenever time permits the elector to correct the defect and return the ballot."

¶5 In October 2016 the Commission, responding to the enactment of Wis.Stat. § 6.87(6d), sent guidance to local clerks statewide that contained two positions pertinent to the arguments made by the parties in this appeal. First, the "address" on the witness certification must include the following information: street number, street name, and municipality name. Second, local clerks were to "take corrective actions in an attempt to remedy a witness address error." Options for corrective actions included making corrections to a witness address directly on the certificate envelope, so long as the clerk was "reasonably able to discern" "from outside sources" the content of "any missing information." For example, the guidance provided, a clerk could use "lists or databases at his or her disposal to determine the witness's address." Other options to attempt to complete an address included directly contacting voters and "offer[ing] suggestions for correcting the certificate envelope to ensure the voter's absentee ballot will not be rejected."

¶6 One of the Whites' arguments for intervention in the Dane County case rests on the outcome of a separate legal action that the Whites and others successfully pursued against the Commission in the Waukesha County circuit court. The Waukesha case involved the options clerks have under the law to correct address information on witness certifications. The Waukesha County case was resolved before the Whites moved to intervene in the Dane County case. We now summarize the Waukesha County case.

¶7 The Whites' position in the Waukesha County case was that the aspect of the Commission's guidance that called for clerks to use various options to attempt to complete witness certifications violated the intent of pertinent Wisconsin statutes. White v. WEC, Waukesha Cnty. No 2022CV1008, Compl. (Waukesha Cnty. Cir. Ct. July 12, 2022). As the Waukesha County circuit court explained in addressing the parties' arguments, the issue was "whether Wisconsin law authorizes clerks to insert address information in the witness certification on an absentee ballot and, if not, whether the guidance [that the Commission] provides mandating such actions can be tolerated." Id. (hearing held Sept. 7, 2022)

¶8 The Waukesha County circuit court agreed with the Whites and the other plaintiffs, entering an order enjoining the Commission from disseminating the following guidance: (1) clerks "can add information to absentee ballot witness certifications in any form," (2) clerks may take actions contrary to the terms of Wis.Stat. § 6.87(9), quoted in pertinent part above; or (3) clerks "have the duty or ability to modify or add information to incomplete absentee ballot certifications." White, No. 2022CV1008 (order issued Oct. 3, 2022). The order granting final judgment states that it "applies to portions" of the Commission's guidance "that contain[] or indicate[] that municipal clerks or local election officials can modify or add information to absentee ballot certifications." Id. The order also states: "Nothing herein is intended, nor shall be construed, to enjoin [the Commission] from issuing or distributing its guidance regarding the definition of 'address' as used in Wis.Stat. § 6.87." White, No. 2022CV1008 (order issued Oct. 3, 2022).

¶9 No party appealed the final order of the Waukesha County circuit court.

¶10 Shortly after the Waukesha County circuit court made its oral ruling and shortly before the court entered its final order, Rise initiated the Dane County case underlying the special proceeding here, naming as defendants the Commission and the Madison clerk. Rise does not challenge the ruling in the Waukesha County case involving how witness certifications may or may not be corrected or completed by clerks or others. Instead, the Dane County case is about the correct definition of the phrase "the address of a witness" in Wis.Stat. § 6.87(6d) and related statutory references. More specifically, Rise seeks a declaratory judgment (and matching injunctive relief) containing the following closely related propositions: that "address" in this context means "a place where a witness may be communicated with"; that certifications "that include portions of a witness's address are sufficient under Wis.Stat. § 6.87(2) if a local clerk can reasonably discern where a witness may be communicated with"; and that "[a]n otherwise valid ballot from which a local clerk can reasonably discern where a witness may be communicated with is properly completed for purposes of Wis.Stat. § 6.87(9)."

¶11 The Wisconsin State Legislature and the Whites filed motions to intervene as defendants in the Dane County case. The Commission (represented by the state Department of Justice) opposed intervention by the Whites, but it did not oppose intervention by the Legislature. The circuit court granted the Legislature permissive intervention based on Wis.Stat. § 803.09(2), without deciding whether it could intervene as of right under § 803.09(1).^[3]

¶12 After considering the arguments of the parties, the circuit court in a written order denied the Whites' motion for intervention, either as of right or on a permissive basis. The Whites appeal that order. No party raises an issue about intervention by the Legislature in the Dane County case. The city clerk is not a party to this appeal. Our review is limited to the challenged intervention rulings of the circuit court in the special proceeding denying the Whites's motion and we do not consider subsequent events in the Dane County case.

DISCUSSION

I. Intervention of Right

A. Legal standards

¶13 We review de novo a circuit court order addressing a motion to intervene as of right under Wis.Stat. § 803.09(1). Helgeland v. Wisconsin Muns., 2008 WI 9, ¶41, 307 Wis.2d 1, 745 N.W.2d 1.

¶14 Wisconsin Stat. § 803.09(1) provides:

Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest, unless the movant's interest is adequately represented by existing parties.

¶15 Our supreme court has explained that this requires that the movant show that four criteria are met: (1) the movant made a timely application; (2) the movant has an interest relating to the subject of the action; (3) disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest; and (4) the movant's interest is not adequately represented by existing parties. Helgeland, 307 Wis.2d 1, ¶¶38-39. While a "movant must meet" each of the four criteria, the criteria "need not be analyzed in isolation from one another, and a movant's strong showing with respect to one [criterion] may contribute to the movant's ability to meet" others. Id., ¶39 (footnotes omitted).

¶16 The Helgeland court explained further how the four criteria are to be considered:

The analysis is holistic, flexible, and highly fact-specific. A court must look at the facts and circumstances of each case "against the

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