Disability Rights Wisconsin v. Wisconsin Elections Commission

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 1, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1347 Cir. Ct. No. 2024CV1141

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV/I

DISABILITY RIGHTS WISCONSIN, LEAGUE OF WOMEN VOTERS OF WISCONSIN,
MICHAEL R. CHRISTOPHER, STACY L. ELLINGEN, TYLER D. ENGEL AND
DONALD NATZKE,

PLAINTIFFS-RESPONDENTS,

V.

WISCONSIN ELECTIONS COMMISSION, MEAGAN WOLFE, AS ADMINISTRATOR
OF WEC, DON MILLIS, AS COMMISSIONER OF WEC, ROBERT SPINDELL, JR.,
AS COMMISSIONER OF WEC, MARGE BOSTELMANN, AS COMMISSIONER OF
WEC, ANN JACOBS, AS COMMISSIONER OF WEC, MARK THOMSEN, AS
COMMISSIONER OF WEC AND CARRIE RIEPL, AS COMMISSIONER OF WEC,

DEFENDANTS-APPELLANTS,

WISCONSIN STATE LEGISLATURE,

INTERVENOR-DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
EVERETT D. MITCHELL, Judge. Reversed and cause remanded with directions.
No. 2024AP1347

Before Donald, P.J., Geenen, and Colón, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. The Attorney General, who represents the
Wisconsin Elections Commission, its administrator, and its individual members
(collectively the Defendants), appeals from an order of the trial court granting the
Legislature’s motion to intervene in a lawsuit brought by Disability Rights
Wisconsin, League of Women Voters of Wisconsin, Michael R. Christopher,
Stacy L. Ellingen, Tyler D. Engel, and Donald Natzke (collectively the Plaintiffs).
Because the trial court’s order granting the Legislature’s motion to intervene is
devoid of any legal reasoning or factual findings, we reverse and remand with
directions.

BACKGROUND

¶2 On April 16, 2024, the Plaintiffs filed a lawsuit against the
Defendants, alleging that Wisconsin’s statutory absentee-voting scheme violates
the Americans with Disabilities Act, the Rehabilitation Act, the Wisconsin
Constitution, and the United States Constitution.

¶3 The Legislature moved to intervene under WIS. STAT. § 803.09
(2023-24).1 In particular, the Legislature argued that it had a right to intervene
under § 803.09(2m) on the grounds that the Plaintiffs challenged the
constitutionality of Wisconsin’s absentee-voting laws. The Legislature also

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP1347

argued that it had a right to intervene under § 803.09(1) because its request was
timely, it has a substantial interest in the subject matter of the lawsuit, the
disposition of the lawsuit may impede the Legislature’s interests, and no other
party adequately represents the Legislature’s interests. Lastly, the Legislature
asserted that the trial court should exercise its discretion and grant permissive
intervention under § 803.09(2).

¶4 The Plaintiffs did not take a position on the Legislature’s
intervention, however, the Attorney General did. The Attorney General contended
that the Legislature’s intervention under WIS. STAT. § 803.09(1) and (2m) violated
the separation of powers doctrine, the Legislature did not meet the statutory
standard for intervention under § 803.09(1), and permissive intervention under
§ 803.09(2) should be denied.

¶5 On June 24, 2024, the trial court heard oral argument on the
Legislature’s intervention motion and a motion filed by the Plaintiffs seeking an
injunction. At the conclusion of the hearing, the trial court did not make an oral
ruling. The next day, the trial court issued a written order granting the injunction
and a separate written order ruling in favor of the Legislature as to intervention.
The written order granting the Legislature grounds to intervene provides in its
entirety:

After considering Proposed-Intervenor Defendant’s
Notice Of Motion And Motion To Intervene, as well as the
parties’ briefing and supporting materials and any oral
arguments before the Court, this Court ORDERS that
Proposed-Intervenor Defendant’s Motion To Intervene is
GRANTED.

SO ORDERED.

(Emphasis omitted.)

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No. 2024AP1347

¶6 The Attorney General petitioned for leave to appeal the trial court’s
order granting the Legislature’s motion to intervene, and this court granted the
petition. This appeal follows.2

DISCUSSION

¶7 On appeal, the Attorney General argues: (1) WIS. STAT.
§ 803.09(2m) is unconstitutional as applied in violation of the separation of
powers because the executive branch is defending the case; (2) the Legislature
failed to meet the standards for intervention set forth in § 803.09(1); and (3) the
Legislature could not permissively intervene under § 803.09(2).3

¶8 As the Attorney General observes, the trial court granted the
Legislature’s motion to intervene, but did not explain why. The trial court’s one-
page decision does not state whether it believes the Legislature was entitled to
intervene as a matter of right under WIS. STAT. § 803.09(2m) or (1) or if the trial
court was granting permissive intervention under § 803.09(2). Nor does the trial
court’s decision make any factual findings.

¶9 While Wisconsin does not have a specific rule requiring a trial court
to state its reasons for granting or denying a motion to intervene, the absence of
any legal reasoning or factual findings deprives the parties and the public of
knowledge of the grounds for the trial court’s decision. See generally Democratic

2
The Legislature appealed the injunction and the District II Court of Appeals concluded
that the trial court erred in granting the injunction and reversed. Disability Rights Wisconsin v.
WEC, 2025 WI App 27, 416 Wis. 2d 151, 20 N.W.3d 790.
3
Although declining to take a position in the trial court, the Plaintiffs on appeal join the
Attorney General in asking that this court reverse the decision granting the Legislature’s motion
to intervene.

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No. 2024AP1347

Party of Wis. v. DOJ, 2016 WI 100, ¶10, 372 Wis. 2d 460, 888 N.W.2d 584
(noting in a public records challenge that Wisconsin is “firmly committed to open
and transparent government”). Additionally, the absence of any legal reasoning or
factual findings creates a difficult situation for a reviewing court. It is well
established that the court of appeals cannot make any factual findings. Wurtz v.
Fleischman, 97 Wis. 2d 100, 108-09, 293 N.W.2d 155 (1980).

¶10 Here, given the complete absence of any legal reasoning or factual
findings from the trial court, we reverse and remand. We believe that a decision
from the trial court setting forth legal reasoning and factual findings would assist
us in fully and fairly deciding the complex issues presented in this case.4

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

4
We note that the Attorney General does not identify the applicable standard of review
for any of the three issues it presents. Even if we assume that all of the issues in this case present
questions of law subject to independent review, we would still benefit in this case from factual
findings. For example, the Attorney General’s second issue contests whether the Legislature met
the statutory standard for intervention as of right under WIS. STAT. § 803.09(1). While the
question of whether to grant or deny intervention under § 803.09(1) is reviewed independently,
“[t]he analysis is holistic, flexible, and highly fact-specific.” Helgeland v. Wisconsin Muns.,
2008 WI 9, ¶¶40-41, 307 Wis. 2d 1, 745 N.W.2d 1 (footnote omitted). Our supreme court has
observed that “intervention ‘as of right’ usually turns on judgment calls and fact assessments that
a reviewing court is unlikely to disturb except for clear mistakes.” Id., ¶41 (citing Daggett v.
Commission on Governmental Ethics & Election Pracs., 172 F.3d 104, 113 (1st Cir. 1999)).
Thus, factual findings from the trial court would assist us in fully and fairly deciding this case.

5