Chapter 803

803.09(2m) (2m) 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 s. 13.365 at any time in the action as a matter of right by serving a motion upon the parties as provided in s. 801.14.

803.09(3) (3) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.

803.09 History History: Sup. Ct. Order, 67 Wis. 2d 585, 650 (1975); 1975 c. 218; 2007 a. 20; 2015 a. 55; 2017 a. 369.

803.09 Annotation A postjudgment applicant for leave to intervene must show sufficient reason for having waited. Sewerage Commission of Milwaukee v. DNR, 104 Wis. 2d 182, 311 N.W.2d 677 (Ct. App. 1981).

803.09 Annotation Intervenors in an action cannot continue their claim once the original action is dismissed. Intervention will not be permitted to breathe life into a nonexistent lawsuit. Fox v. DHSS, 112 Wis. 2d 514, 334 N.W.2d 532 (1983).

803.09 Annotation A newspaper could intervene to protect the right to examine a sealed court file. State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983).

803.09 Annotation A newspaper’s postjudgment motion to intervene to open sealed court records was timely and proper. C.L. v. Edson, 140 Wis. 2d 168, 409 N.W.2d 417 (Ct. App. 1987).

803.09 Annotation Motions to intervene are evaluated practically, and not technically, with an eye toward disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. There is no requirement that the intervenor’s interest be judicially enforceable in a separate proceeding. Wolff v. Town of Jamestown, 229 Wis. 2d 738, 601 N.W.2d 301 (Ct. App. 1999), 98-2974.

803.09 Annotation After intervention, an intervenor’s status is the same as all other parties. Once a party intervenes, all claims and defenses against it may be asserted. Kohler Co. v. Sogen International Fund, Inc., 2000 WI App 60, 233 Wis. 2d 592, 608 N.W.2d 746, 99-0960.

803.09 Annotation A non-party to a circuit court action may intervene in an appeal brought by another party, even after the time for filing a notice of appeal has passed. City of Madison v. WERC, 2000 WI 39, 234 Wis. 2d 550, 610 N.W.2d 94, 99-0500.

803.09 Annotation In order to prevail, a prospective intervenor must demonstrate that: 1) the movant claims an interest relating to the property or transaction subject of the action; 2) the disposition of the action may as a practical matter impair or impede the proposed intervenor’s ability to protect that interest; 3) the movant’s interest will not be adequately represented by existing parties to the action; and 4) the motion to intervene was made in a timely fashion. Motions to intervene must be evaluated with an eye toward disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. M&I Marshall & Ilsley Bank v. Urquhart Cos., 2005 WI App 225, 287 Wis. 2d 623, 706 N.W.2d 335, 04-2743.

803.09 Annotation Timeliness is not defined by statute, and there is no precise formula to determine whether a motion to intervene is timely. The question of timeliness is a determination necessarily left to the discretion of the circuit court and turns on whether, under all the circumstances, a proposed intervenor acted promptly and whether intervention will prejudice the original parties. Postjudgment motions for intervention will be granted only upon a strong showing of justification for failure to request intervention sooner. Olivarez v. Unitrin Property & Casualty Insurance Co., 2006 WI App 189, 296 Wis. 2d 337, 723 N.W.2d 131, 05-2471.

803.09 Annotation Intervention by the legislature in a case with policy or budgetary ramifications when the executive branch, through the attorney general, fulfills its traditional role defending legislation before the court is not required. Legislators may often have a preference for how the judicial branch should interpret a statute, but such mere preferences do not constitute sufficiently related or potentially impaired interests within the meaning of sub. (1). Helgeland v. Wisconsin Municipalities, 2006 WI App 216, 296 Wis. 2d 880, 724 N.W.2d 208, 05-2540.

803.09 Annotation Affirmed on other grounds. 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.

803.09 Annotation In the context of sub. (2), “defense” conveys that the person seeking to intervene, although not named as a defendant, could be a defendant to a claim in the main action or a defendant to a similar or related claim. Sub. (3) supports this construction of “defense,”conveying that the “claim” or “defense” is more than arguments or issues a non-party wishes to address and is the type of matter presented in a pleading—either allegations that show why a party is entitled to the relief sought on a claim or allegations that show why a party proceeded against is entitled to prevail against the claim. Helgeland v. Wisconsin Municipalities, 2006 WI App 216, 296 Wis. 2d 880, 724 N.W.2d 208, 05-2540.

803.09 Annotation Affirmed on other grounds. 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.

803.09 Annotation Courts have no precise formula for determining whether a potential intervenor meets the requirements of sub. (1) The analysis is holistic, flexible, and highly fact-specific. Sub. (1) attempts to strike a balance between two conflicting public policies: that the original parties to a lawsuit should be allowed to conduct and conclude their own lawsuit and that persons should be allowed to join a lawsuit in the interest of the speedy and economical resolution of controversies. Despite its nomenclature, intervention “as of right” usually turns on judgment calls and fact assessments that a reviewing court is unlikely to disturb except for clear mistakes. Helgeland v. Wisconsin Municipalities, 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.

803.09 Annotation If a person has no right of intervention under sub. (1), the courts have no duty to join that person sua sponte as a necessary party under s. 803.03 (1) (b) 1. Whether a movant is a necessary party under s. 803.03 (1) (b) 1. is in all significant respects the same inquiry under sub. (1) as to whether a movant is entitled to intervene in an action as a matter of right, including the factor of whether the interest of the movant is adequately represented by existing parties. A movant who fails to meet that requirement for intervention as of right may not force its way into the action by arguing that the court must join the movant, sua sponte, as a necessary party under s. 803.03 (1) (b) 1. Helgeland v. Wisconsin Municipalities, 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.

803.09 Annotation Certain institutional interests of the legislature were sufficient to defeat a facial challenge to the provisions of this section authorizing legislative intervention in certain cases and those requiring legislative consent to defend and prosecute certain cases. Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35, 19-0614.

803.09 Annotation When the prerequisites in sub. (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. Democratic National Committee v. Bostelmann, 2020 WI 80, 394 Wis. 2d 33, 949 N.W.2d 423, 20-1634.

803.09 Annotation The language of sub. (2m) implies that intervention should be automatic, without any input from the trial court, as long as the conditions for authorization under s. 13.365 are met. The right to intervene in a federal lawsuit is a purely procedural right, and, even in a diversity suit, it is the Federal Rules of Civil Procedure (FRCP) rather than state law that dictate the procedures, including who may intervene, to be followed. Sub. (2m) cannot supplant the FRCP and make intervention automatic. Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (2019). But see Berger v. North Carolina State Conference of the NAACP, 597 U.S. ___, 142 S. Ct. 2191, 213 L. Ed. 2d 517 (2022).

803.10 803.10 Substitution of parties.

803.10(1) (1) Death.

803.10(1)(a) (a) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in s. 801.14 and upon persons not parties in the manner provided in s. 801.11 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

803.10(1)(b) (b) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in the action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

803.10(2) (2) Incompetency. If a party is adjudicated incompetent, the court upon motion served as provided in sub. (1) may allow the action to be continued by or against the party’s representative.

803.10(3) (3) Transfer of interest. In case of any transfer of interest, the action may be continued by or against the original party unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in sub. (1).

803.10(4) (4) Public officers; death or separation from office.

803.10(4)(a) (a) When a public officer, including a receiver or trustee appointed by virtue of any statute, is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

803.10(4)(b) (b) When a public officer sues or is sued in an official capacity, the public officer may be described as a party by the official title rather than by name; but the court may require the officer’s name to be added.

803.10(5) (5) Death after verdict or findings. After an accepted offer to allow judgment to be taken or to settle pursuant to s. 807.01, or after a verdict, report of a referee or finding by the court in any action, the action does not abate by the death of any party, but shall be further proceeded with in the same manner as if the cause of action survived by law; or the court may enter judgment in the names of the original parties if such offer, verdict, report or finding be not set aside. But a verdict, report or finding rendered against a party after death is void.

803.10 History History: Sup. Ct. Order, 67 Wis. 2d 585, 652 (1975); 1975 c. 200, 218; 1993 a. 486; 2005 a. 387.

803.10 Annotation A letter to the court and opposing counsel stating that the plaintiff had died was not a “suggestion of death” under sub. (1) (a). Wheeler v. General Tire & Rubber Co., 142 Wis. 2d 798, 419 N.W.2d 331 (Ct. App. 1987).

803.10 Annotation A “suggestion of death” that failed to identify the proper party to substitute for the deceased did not trigger the running of the 90-day period under sub. (1) (a). Wick v. Waterman, 143 Wis. 2d 676, 421 N.W.2d 872 (Ct. App. 1988).

803.10 Annotation Service of the suggestion of death only on the deceased plaintiff’s attorney was insufficient to activate the 90-day period in which a sub. (1) (a) motion for substitution is to be filed. Sub. (1) (a) does not require service of the suggestion of death on all interested nonparties in every case but requires a determination of what nonparties should be served in that case and how burdensome the task will be to protect the interests of all persons and move the litigation toward a fair and expeditious resolution. Schwister v. Schoenecker, 2002 WI 132, 258 Wis. 2d 1, 654 N.W.2d 852, 01-2621.