Wisconsin Statutes & Annotations
Chapter 803 - Civil procedure — parties.
803.09 - Intervention.

803.09 Intervention.
(1) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest, unless the movant's interest is adequately represented by existing parties.
(2) Upon timely motion anyone may be permitted to intervene in an action when a movant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order or rule administered by a federal or state governmental officer or agency or upon any regulation, order, rule, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely motion may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(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.
(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.
History: Sup. Ct. Order, 67 Wis. 2d 585, 650 (1975); 1975 c. 218; 2007 a. 20; 2015 a. 55; 2017 a. 369.
A postjudgment applicant for leave to intervene must show sufficient reason for having waited. Milwaukee Sewerage Commission v. DNR, 104 Wis. 2d 182, 311 N.W.2d 677 (Ct. App. 1981).
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).
A newspaper could intervene to protect the right to examine a sealed court file. State ex rel. Bilder v. Town of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983).
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).
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.
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.
A nonparty 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.
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.
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.
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.
Affirmed on other grounds. 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.
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.
Affirmed on other grounds. 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.
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.
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.
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.
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.
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).