Wisconsin Supreme Court rules cities can't intervene in state action.

Byline: David Ziemer

Stare decisis is not a sufficient impediment to rights that would entitle a party to intervene in a pending lawsuit, a sharply divided Wisconsin Supreme Court held on Feb. 7.

As a result, a coalition of Wisconsin municipalities cannot intervene in a lawsuit filed by state employees contending that the state violates their equal protection rights by providing health insurance to employees' spouses, but not same-sex domestic partners.

In the case, six current or former state employees, and their same-sex domestic partners, brought suit against the Department of Employee Trust Funds (DETF) and others, challenging the constitutionality of sec. 40.02, which defines "dependent" for purposes of state employee health insurance.

Eight municipalities moved to intervene as parties, three of which administer their own employees' health plans through DETF.

Pursuant to sec. 803.09(1), a movant may intervene as a matter of right if it meets four requirements: (1) the motion to intervene is timely; (2) the movant claims an interest sufficiently related 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 existing parties do not adequately represent the movant's interest.

Subsection (2) governs permissive intervention, and provides that anyone may intervene if the question of fact or law is the same, and intervention will not unduly delay or prejudice adjudication of the rights of the original parties.

The basis of the request for intervention is that the municipalities would be directly affected by the outcome of the suit, because, should DETF lose, they would, like the State, have to provide health insurance to the same-sex domestic partners of their employees.

Dane County Circuit Court Judge David T. Flanagan denied the motion to intervene, either as a matter of right, or by permissive intervention.

The court of appeals affirmed in a published decision, Helgeland v. Wis. Municipalities, 2006 WI App 216, 296 Wis.2d 880, 724 N.W.2d 208. The court of appeals concluded that the municipalities met the first three requirements for intervention as of right, but that the state was adequately defending the case.

The court affirmed the denial of permissive intervention, because the municipalities sought to make a class action of the case, which would cause undue delay.

The Supreme Court accepted review, but affirmed in a decision by Chief Justice Shirley S. Abrahamson. Justice David T. Prosser wrote a dissent joined by Justices Patience Drake Roggensack and Annette Kingsland Ziegler. Justice Louis B. Butler, Jr., wrote a concurrence.

Right to Intervene

Although the Supreme Court affirmed the court of appeals, the majority concluded that the municipalities met only the first criteria -- timeliness --...