Last week, a panel of the Court of Appeals vacated Judge Davis' order directing the GAB to undertake certain activities in connection with the Walker recall petitions. The decision does not reflect a determination that Davis was wrong on the merits*, but only that he should have let recall proponents intervene in the case before deciding. Presumably what he must do now is permit them to participate and then decide again.
Here's one for you. While I think Judge Davis was clearly right, I think that the Court of Appeals has a point on the intervention issue. It's not a point that is often recognized. In fact, what the Court of Appeals did can be criticized as inconsistent with a line of appellate decisions that do not require intervention to parties that are essentially taking the same position as the government. In other words, these cases say that, while the trial court has discretion to permit intervention, it generally need not do so when the parties seeking to intervene will take the same position as the Attorney General - in this case, that the GAB need not take the steps that the plaintiff Friends of Scott Walker argued that it must take.
The Court of Appeals tried to distinguish these cases but its altogether persuasive. Still I think the Court had a point. In cases of substantial public interest, those who are most immediately affected by a case (as the recall proponents undoubtedly were), justice may be served by letting those parties in along side those whose defense of a position is only officially required. If the Court means to signal a more favorable stance on intervention), then it is to be welcome. Broader public participation in these cases is a good thing.
Of course, in court cases, even if intervention is not permitted, participation as amicus curiae generally is.
Then there is the GAB's announcement that it will not consider submissions by persons other than recall proponents and the office holders subject to recall.
The idea that it may not do so (a position reported by the media) is fairly weak. Nothing in the statute governing recall (Wis. Stat. sec. 9.10) limits participation in the process to the filers of the petition and the targeted office holder. The closest the statute comes is in language authorizing (or, perhaps, requiring) the targeted office holder to file a challenge within ten days. But there is no language making this exclusive or superimposing a "system" or "process" that has no place for the broader public.
A better question, it seems to me, is whether the GAB must allow such participation. Does the public at large have a legally cognizable interest in a recall election going forward only if the requirements for a recall are met? Even if it does not (and although there is certainly some interest in not having a recall free for all), is it right - as a matter of policy - for the GAB to allow absolutely no participation on the part of the larger public?
To be clear, I do not think that GAB should "partner" with independent organizations. That would be wrong. But the merits of a decision to announce - a priori - that the board will not to listen to such groups (which is what we have here) is not self evident and certainly not articulated in Kevin Kennedy's memo to the board.
There is a certain - albeit not precise - congruity between permitting interventions in law suits and allowing public participation here. In one case, we have a decision in favor of broader public input. In another case, we see that participation rejected.