Opinion and Order — Democratic National Committee and Democratic Party of Wisconsin, Plaintiffs (Dkt. 85, W.D. Wis.)

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Opinion and Order in the United States District Court for the Western District of Wisconsin, 20-cv-249-wmc, Democratic National Committee and Democratic Party of Wisconsin v. Bostelmann et al., entered March 28, 2020 by District Judge William M. Conley. The ruling grants the motions of the assistant attorneys general to withdraw as counsel, denies the Wisconsin Legislature's motion to intervene (dkt. #20), and grants the Republican National Committee and Republican Party of Wisconsin's motion to intervene as defendants (dkt. #41). The opinion permits the Republican committees to intervene permissively as the mirror-image of plaintiffs, citing the need to expedite and not overly complicate the proceedings. It says the Wisconsin Legislature may participate as amicus and may renew its motion if an actual conflict arises.

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“Opinion and Order — Democratic National Committee and Democratic Party of Wisconsin, Plaintiffs (Dkt. 85).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-wiwd-45522-85-0-26ab1d8d02/, SHA-256 2650ecefd2a0ef9b36c1df862d91adf26488a630e5b297f35b6d017008216046.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE
and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, OPINION AND ORDER
v.
20-cv-249-wmc
MARGE BOSTELMANN, JULIE M. GLANCEY,
ANN S. JACOBS, DEAN KNUDSON, ROBERT
F. SPINDELL, JR. and MARK L. THOMSEN,

Defendants,
and

REPUBLICAN NATIONAL COMMITTEE
and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants

In this case, the Democratic National Committee and the Democratic Party of

Wisconsin (jointly, “the DNC/DPW”) seek to enjoin defendants’ enforcement of certain

election laws, arguing that due to the COVID-19 public health emergency these laws

impose unconstitutional burdens on citizens’ right to vote in the upcoming April 7, 2020,

primary election. Now, the Republican National Committee and the Republican Party of

Wisconsin (jointly, “the RNC/RPW”) have joined the Wisconsin Legislature in moving to

intervene to defend enforcement of the challenged laws. (Dkts. #20, 41.) Plaintiffs oppose

these motions. For the reasons set forth below, the court will deny the Wisconsin

Legislature’s motion, but will permit the RNC/RPW to intervene permissively. The

Wisconsin Legislature and other, interested non-parties may continue to participate by

filing timely amicus curiae briefs as this court attempts to resolve the difficult questions

posed by this lawsuit consistent with Federal Rule of Civil Procedure 1.

BACKGROUND

On March 18, 2020, plaintiffs filed the present lawsuit, arguing that the spread of

the novel coronavirus in the state of Wisconsin presents new and unprecedented problems

for the upcoming April 7, 2020, election. In particular, plaintiffs point out that state and

federal officials have both urged individuals to stay at home and out of public spaces as

much as possible. In light of these concerns, plaintiffs requested emergency injunctive

relief from this court, arguing that certain of Wisconsin’s elections laws now impose undue

burdens on citizens’ right to exercise their voting franchise.

Plaintiffs named the six current members of the Wisconsin Election Commission as

defendants. Initially, the defendants were represented by the Attorney General of

Wisconsin. Two days ago, however, the Governor appointed special counsel to represent

the defendants in this case under Wis. Stat. § 14.11(2)(a), and the three assistant attorneys

general originally assigned to work on this case have moved to withdraw as counsel for

defendants. (See dkts. #56, 57, 58.)

The day after the lawsuit was filed -- March 19, 2020 -- the Wisconsin Legislature

filed a notice with the court expressing its intent to intervene. Later that afternoon, the

court held a telephonic hearing with all parties, in which counsel for the Wisconsin

Legislature was included as representative of a proposed intervenor. The next day, the

court issued an order, granting in part plaintiffs’ request for a temporary restraining order,

and denying without prejudice the remainder of their motion. Shortly before the court

issued this order, the RNC/RPW informed the court that they, too, intended to move to

intervene as defendants in the suit; they then formally did so two days later on March 22,

2020.

The court held another telephonic hearing on March 23, 2020, at which plaintiffs,

defendants, and all of the proposed intervenors were permitted to appear. At the hearing,

the court set an expedited briefing schedule for both intervention motions, among other

matters. Initially, both plaintiffs and defendants opposed the proposed interventions;

however, defendants have since withdrawn their opposition. Having now received all

briefing from the parties, the court will address both intervention motions in this opinion.

OPINION

I. Motions to Withdraw as Attorneys

As an initial matter, the court will address the three motions to withdraw filed by

assistant attorneys general Brian P. Kennan (dkt. #56), Jody J. Schmelzer (dkt. #57), and

S. Michael Murphy (dkt. #58). The ABA Model Rules of Professional Conduct provide that

an attorney may withdraw from a case if “good cause for withdrawal exists.” See Fid. Nat.

Title Ins. Co. of New York v. Intercounty Nat. Title Ins. Co., 310 F.3d 537, 540 (7th Cir. 2002)

(citing Model Rules of Professional Conduct, Rule 1.16(b)(7)). Here, the Governor ordered

that the attorneys be replaced by private counsel, which certainly constitutes “good cause.”

Although the Wisconsin Legislature questions the validity of the Governor’s order under

state law (see Wis. Legislature Reply (dkt. #71) 3), that issue is not before this court.

Accordingly, the motions of the assistant attorneys general to withdraw as counsel will be

granted.

II. Motions to Intervene

The proposed intervenors argue that they are entitled to intervene as a matter of

right under Federal Rule of Civil Procedure 24(a) or, in the alternative, that permissive

intervention under Rule 24(b) is warranted. Under the Rules of Civil Procedure, a court

must permit intervention when: “(1) the application is timely; (2) the applicant has an

‘interest’ in the property or transaction which is the subject of the action; (3) disposition

of the action as a practical matter may impede or impair the applicant’s ability to protect

that interest; and (4) no existing party adequately represents the applicant’s interest.” Sec.

Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1380 (7th Cir. 1995) (citing Fed. R.

Civ. P. 24(a)(2)).

Plaintiffs and defendants primarily argue that the proposed intervenors cannot

establish the fourth element -- adequacy of representation -- and so this court will begin its

discussion there. 1 As an initial matter, the applicable standard of review as to this element

must be determined. The Seventh Circuit has “recognized three standards for the

adequacy of representation under Rule 24 depending on the context of each case.” Planned

Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793, 799 (7th Cir. 2019).

The default rule is a liberal one: The requirement of the Rule
is satisfied if the applicant shows that representation of his
interest may be inadequate. Where the prospective intervenor
and the named party have the same goal, however, there is a
rebuttable presumption of adequate representation that
requires a showing of some conflict to warrant intervention.
This presumption of adequacy becomes even stronger when the

1
Plaintiffs specifically note that they do not concede that the RNC/RPW have established the other
elements, but explain that their “brief, prepared in the rush of events, focuses only on the most
obvious reasons to deny both intervention of right and by permission.” (Pls.’ Opp’n to RNC/RPW
Mot. to Intervene (dkt. #52) 3 n.3.)

representative party is a governmental body charged by law
with protecting the interests of the proposed intervenors; in
such a situation the representative party is presumed to be an
adequate representative unless there is a showing of gross
negligence or bad faith.

Id.

As an initial matter, the default liberal standard is plainly inapplicable. Defendants

and proposed intervenors currently share the same goal: to uphold the constitutionality of

the challenged laws. See Planned Parenthood, 942 F.3d at 799 (holding that the defendants

and the proposed intervenor shared the same goal where both sought “to uphold the

constitutionality of the challenged statutes”); Wis. Educ. Ass'n Council v. Walker, 705 F.3d

640, 659 (7th Cir. 2013) (“WEAC”) (holding that defendant and proposed intervenor

“share the same goal: protecting Act 10 against the Unions’ constitutional challenge”).

Thus far in the litigation at least, defendants have actively defended all of the challenged

laws, and they have indicated that they will continue to do so. (Defs.’ Opp’n (dkt. #51)

5-6.)

The proposed intervenors’ arguments to the contrary are not persuasive. The

RNC/RWP argue for the first time in their reply brief that they do not share the same goal

as defendants, whose “broader interests” make them less likely to pursue an emergency

appeal. (RNC/RWP Reply (dkt. #78) 4.) 2 Similarly, the Legislature couches its arguments

in hypotheticals, writing that the liberal standard “may well” apply “if” the defendants

2
In their initial brief, the RNC/RWP fail to even recognize the three standards applied in the
Seventh Circuit, erroneously asserting instead (and concluding without citation) that they need
only show that the representation “may be” inadequate. (RNC/RPW Mot. to Intervene (dkt. #42)
8.)

decline to defend some of the challenged laws or “if” defendants do not choose to pursue

an appeal. (Wis. Legislature Br. (dkt. #21) 8.) Certainly, if defendants do fail to appeal

any future decision, one or both of the proposed intervenors may well be entitled to

intervene as of right. Indeed, in Flying J., Inc. v. Van Hollen, 578 F.3d 569 (7th Cir. 2009),

the Seventh Circuit held that even a private association seeking to defend a challenged

state statue was permitted to intervene as a matter of right where the state attorney general

failed to appeal a court order enjoining enforcement of the statute. Id. at 573-74. But in

that same case, the court also noted:

Had the association sought to intervene earlier, its motion
would doubtless (and properly) have been denied on the
ground that the state's attorney general was defending the
statute and that adding another defendant would simply
complicate the litigation. For there was nothing to indicate that
the attorney general was planning to throw the case -- until he
did so by failing to appeal.

Id. at 572. So, too, here.

Having concluded that the default, liberal standard is inapplicable, the next

question is whether the middle “some conflict” standard or the heighted “gross negligence

or bad faith” standard apply. Certainly, if the Attorney General continued to represent

defendants, the Seventh Circuit’s decision in Planned Parenthood, upholding the application

of the “gross negligence or bad faith” standard, would appear to control. 942 F.3d 793.

There, the Wisconsin Legislature sought to intervene in a suit filed against the Attorney

General and other state officials challenging the constitutionality of certain state abortion

regulations. Id. at 796. The court held that, absent a showing that the Attorney General

was acting with bad faith or gross negligence, the Wisconsin Legislature had not

demonstrated inadequate representation and was not entitled to intervene. Id.

However, the Attorney General no longer represents defendants, as the Governor

has apparently ordered him to be substituted by private counsel. This is at least arguably

significant because, while the “Attorney General of Wisconsin has the duty by statute to

defend the constitutionality of state statutes,” Helgeland v. Wis. Municipalities, 307 Wis.2d

1, 745 N.W.2d 1, 24 (2008), no such express statutory obligation would appear to exist

for the defendants or their newly-appointed private counsel. Even so, the Wisconsin

Election Commissioners are charged generally with the “administration” of election laws.

See Wis. Stat. § 5.05(1). Accordingly, as members of the governmental body charged by

law with administering the law that protect the interests of the proposed intervenors seek

to be enforced their interests appear to be fully protected. In an abundance of caution,

however, the court will not hold the proposed intervenors to this heightened “gross

negligence or bad faith” standard, as even under the more lenient “some conflict” standard

the propose intervenors have not demonstrated that they are entitled to intervene in this

case.

Under the “some conflict” standard, a proposed intervenor must still overcome the

presumption of adequate representation by showing “a concrete, substantive conflict.”

Planned Parenthood, 942 F.3d at 810 (Sykes, J., concurring). Here, both proposed

intervenors have failed to do so. As noted already, the Legislature argues that “if”

defendants do not fully defend the constitutionality of any of the challenged laws, then it

would “plainly” show inadequate representation (Wis. Legislature Br. (dkt. #21) 9), but

this mere hypothetical has obviously not yet come to pass. To the contrary, defendants

have and continue to actively and competently oppose plaintiffs’ challenges. If anything,

in no longer objecting to intervention by either group, the Commissioners seem to have

taken a more favorable position to the proposed intervenors since the Attorney General

withdrew its representation.

This leaves the proposed intervenors’ joint argument that they do not share the

same interests as defendants and, therefore, are inadequately represented. Specifically, the

RNC/RPW note that defendants represent the “public interest,” and have to consider the

expense of defending state laws, the social and political divisiveness of elections issues,

their own desires to remain politically popular, and the interests of opposing parties.

(RNC/RPW Br. (dkt. #42) 7-8.) They contrast this with their “particular interests,”

including the election of particular candidates, the mobilization of particular voters, and

the costs of both. (Id. at 8.) Similarly, the Legislature argues that the defendants only

represent the views and interests of the Wisconsin Election Commission and not that of

the state as a whole. (Wis. Legislature Reply (dkt. #71) 1.)

However, different political considerations held by the proposed intervenors and

defendants are not sufficient by themselves to show inadequate representation. See Am.

Nat. Bank & Tr. Co. of Chicago v. City of Chicago, 865 F.2d 144, 148 (7th Cir. 1989)

(differing “political considerations” between City and prospective intervenor not enough

to make requisite “concrete showing of inadequacy of representation”); Keith v. Daley, 764

F.2d 1265, 1270 (7th Cir. 1985) (proposed intervenor’s different political and moral

justifications for defending a statute regulating abortion did not create conflict sufficient

to rebut presumption of adequate representation). Thus far, the proposed intervenors have

not shown that any of their divergent interests has resulted in “a concrete, substantive

conflict,” as is still required to overcome the “medium” presumption of adequate

representation. See Planned Parenthood, 942 F.3d at 810 (Sykes, J., concurring).

The RNC/RPW also speculates that the replacement of the Attorney General with

private counsel evinces a conflict, noting that the Governor may appoint special counsel to

“act instead of the attorney general in any action or proceeding, if the attorney general is .

. . interested adversely to the state.” (RNC/RPW Reply (dkt. #78) 5 (citing Wis. Stat. §

14.11(2)(a)(2)). Interestingly, the Wisconsin Legislature takes the exact opposite

interpretation of the Governor’s actions, arguing that the Governor “believes that the

Attorney General represents the State’s sovereign interests.” (Wis. Legislature Reply (dkt.

#71) 3-4.) The speculative nature of these arguments belies any possible argument that

the Governor’s action evinces a concrete conflict, and they are accordingly rejected. See

Clorox Co. v. S.C. Johnson & Son, Inc., 627 F. Supp. 2d 954, 962 (E.D. Wis. 2009)

(speculation that a defendant’s interests “could conceivably differ” from proposed

intervenor’s was insufficient to demonstrate “that any current conflict exists”). If anything,

the Attorney General’s office substitution appears to be exactly what the statute requires:

a recognition that it has a conflict with the position of the Commissioners, who are charged

with administering the statutes as written, again the very position of the proposed

intervenors. 3

Because neither the RNC/RPW nor the Wisconsin Legislature has demonstrated

any “concrete conflict,” they have not overcome the presumption of adequate

representation, and therefore have failed to demonstrate that they are entitled to intervene

as of right under Rule 24(a). However, this is not the end of the analysis, since the

proposed intervenors alternatively argue that the court should allow them to intervene as

a matter of discretion under Fed. R. Civ. P. 24(b), which provides that a court may permit

an applicant to intervene in the exercise of its own discretion if: (1) the motion is timely

and (2) the applicant “has a claim or defense that shares with the main action a common

question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). In exercising its discretion, “[t]he

Rule requires the court to consider ‘whether the intervention will unduly delay or prejudice

the adjudication of the original parties’ rights,’ Fed. R. Civ. P. 24(b)(3), but otherwise does

not cabin the district court’s discretion.” Planned Parenthood, 942 F.3d at 803.

Here, given that both the RNC/RPW’s and the Wisconsin Legislature’s motions to

intervene were filed within mere days of the lawsuit, the motions are certainly timely.

Moreover, there is no reasonable dispute that their proposed defense of the challenged laws

shares common questions of law and fact with the main action.

3
The Legislature suggests that, now that the Attorney General has withdrawn from the case, the
state of Wisconsin “has the sovereign right to have at least one of its chosen representatives defend
its laws.” (Wis. Legislature Reply (dkt. #71) 4-5.) However, the Seventh Circuit in Planned
Parenthood specifically declined the Legislature’s request to lower its burden for it to intervene, 942
F.3d at 796, and without any compelling reason to do so here, the court will apply the standard as
it would to any other party, especially since, by the Legislature’s reasoning, it would then also have
to allow the Governor and Attorney General to intervene as well should they wish to express their
own unique position as representatives of the “state,” only further complicating an already
complicated lawsuit.

Still, a court may deny permissive intervention where “adding the proposed

intervenors could unnecessarily complicate and delay all stages of this case.” One Wisconsin

Inst., Inc. v. Nichol, 310 F.R.D. 394, 399 (W.D. Wis. 2015); see also United States v. 36.96

Acres of Land, 754 F.2d 855, 860 (7th Cir. 1985) (upholding district court’s denial of

permissive intervention “in order to avoid the likelihood of undue delay and prejudice to

the rights of the original parties” and to avoid prolonging “an already lengthy and tired

lawsuit”). Here, where time is of the essence, the court will deny the Wisconsin

Legislature’s motion to intervene in an effort to expedite and not overly complicate the

proceedings. See n.3 supra. Although the same is arguably true for the RNC/RPW, the

court will nevertheless permit those entities to intervene as they are uniquely qualified to

represent the “mirror-image” interests of the plaintiffs, as direct counterparts to the

DNC/DPW. See Builders Ass’n of Greater Chicago v. Chicago, 170 F.R.D. 435, 441 (N.D. Ill.

1996) (permissive intervention is appropriate where “applicants’ interest in the litigation

is the mirror-image” of an original party’s interest). Of course, if some new facts were to

arise that established an actual conflict -- such as a decision by the current or intervening

defendants not to appeal -- then the Wisconsin Legislature is welcome to renew its motion.

Moreover, the court again emphasizes that the Wisconsin Legislature and other interested

non-parties are free to offer their views as amici.

ORDER

IT IS ORDERED that:

1) The motions of the assistant attorneys general to withdraw as counsel (dkts. #
56, 57, 58) are GRANTED;

2) The Wisconsin Legislature’s motion to intervene (dkt. #20) is DENIED; and

3) The Republican National Committee and the Republican Party of Wisconsin’s
motion to intervene as defendants (dkt. #41) is GRANTED.

Entered this 28 day of March, 2020.

BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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