Court of Appeals Addresses Numerous Motions in Act 10 Case

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On January 22, 2013, the Wisconsin Court of Appeals issued an order in Madison Teachers Inc. v. Walker, the case in which Dane County Judge Juan Colas struck down substantial parts of Governor Walker’s collective bargaining reform as unconstitutional.  The order did not make any decision on the merits of the case, but rather disposed of several pending motions to intervene and file amicus briefs.

First, the court denied the City of Milwaukee’s motion to intervene as a party.  The city wanted to intervene to support the unions’ challenge to portions of Act 10 found by Judge Colas to violate Milwaukee’s home rule powers and certain contractual obligations to participants in Milwaukee’s additional pension plan.  The court denied the City’s motion, citing to well-established precedent that a municipality “has no standing to challenge the constitutionality of a state statute in a suit against the state or its agents.”

Second, the court denied another intervention motion, this from Laborers Local 236, AFL-CIO and AFSCME Local 60, AFL-CIO, because the unions already participating in the lawsuit adequately represent their interests.

Third, the court granted the motions of four groups to file amicus briefs on the merits of the case: (1) a group of public employees who support Act 10 and are represented by WILL and the National Right to Work Legal Defense Foundation; (2) Laborers Local 236 and AFSCME Local 70, who were denied permission to intervene as parties; (3) the City of Madison; and (4) a large coalition of various unions including, among others, WEAC, WSEU, and AFSCME.  However, the court chided Madison for failing to abide by a rule limiting the length of amicus briefs, ordering the city to submit a shorter brief.

Finally, the court denied permission to two insurance companies who provide coverage to counties and municipalities to file an amicus brief on the issue of whether the court should stay the lower court’s ruling.  According to the court, “there is no mechanism in the appellate rules for non-parties to file their own motions or memoranda for or against motions,” and furthermore, the companies’ brief “relie[d] heavily upon materials outside of the record before the circuit court.”

Although that final ruling does not affect our clients, we disagree with the court of appeals that a non-party may not file a brief in support of a motion.  Wis. Stat. 809.19(7) provides that a non-party may, by motion, request permission to file a brief.   Nothing in the language of that statute limits non-party briefs to the merits of the appeal or otherwise prohibits a non-party brief on any relevant topic.

We are glad to see the court of appeals turning its attention to this case and hope to see decisions on imposing a stay and the merits of the case soon.


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