United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON STATE OF INDIANA'S MOTION TO INTERVENE
EVANS BARKER, JUDGE
before the Court is the State of Indiana's Motion to
Intervene for the Limited Purpose of Appeal. Dkt. 53. On
November 7, 2017, we entered final judgment in this lawsuit,
Dkt. 50, by approving and entering the parties'
Stipulated Judgment, Dkt. 37, for the reasons
explained in our contemporaneously issued Memorandum
Order. Dkt. 49. Nearly a month later, on December 4,
2017, the State of Indiana (“the State”) filed a
Motion for Extension of Time to Appeal, Dkt. 54,
which we granted, Dkt. 58, to permit full consideration of
the instant Motion to Intervene. The parties have
now been heard in opposition to the State's motion, Dkts.
59 (Plaintiff), 60 (Defendants), and the State has been heard
in reply. Dkt. 61. Upon due consideration, for the reasons
below, the State's motion is DENIED.
Rule of Civil Procedure 24 provides that a nonparty to an
action, on timely motion, may intervene in the action under
certain circumstances. Fed.R.Civ.P. 24(a), (b). The nonparty
is entitled to intervention of right if a federal statute
gives it “an unconditional right” to intervene,
id. at (a)(1), or “if the [non]party has
‘an interest' and is ‘so situated that the
disposition of the action may as a practical matter impair or
impede [its] ability to protect that interest, unless [its]
interest is adequately represented by existing
parties.” Ligas ex rel. Foster v. Maram, 478
F.3d 771, 773 (7th Cir. 2007) (quoting Fed.R.Civ.P.
24(a)(2)). As restated by the Seventh Circuit, under Rule
24(a)(2), Fed. R. Civ. P., the putative intervenor must
“establish that (1) [its] motion w[as] timely; (2)
[it] possess[es] an interest related to the subject matter of
the action; (3) disposition of the action threatens to impair
that interest; and (4) the parties fail to represent
adequately [its] interest.” Id. (original
alterations, ellipsis, quotations, and citation omitted). A
district court has no discretion in determining whether the
nonparty has satisfied these elements, apart from timeliness.
See Id. (all elements but timeliness reviewed de
nonparty may be entitled to permissive intervention where it
“is given a conditional right to intervene by federal
statute[, ]” Fed.R.Civ.P. 24(b)(1)(A), or “where
the applicant's claim and the main action share common
issues of law or fact and where there is independent
jurisdiction.” Ligas, 478 F.3d at 775
(restating Fed.R.Civ.P. 24(b)(1)(B)). Permissive intervention
by a “governmental officer or agency” is also
authorized where “a party's claim or defense is
based on” a statute, executive order, or other legal
obligation flowing from either that is “administered by
the officer or agency[.]” Fed.R.Civ.P. 24(b)(2). No.
matter the grounds on which permissive intervention is
sought, “the court must consider whether the
intervention will unduly delay or prejudice the adjudication
of the original parties' rights.” Fed.R.Civ.P.
24(b)(3). “This language suggests that intervention
postjudgment-which necessarily disturbs the final
adjudication of the parties' rights-should generally be
disfavored.” Bond v. Utreras, 585 F.3d 1061,
1071 (7th Cir. 2009).
course of approving the parties' Stipulated Judgment, we
held that the Stipulated Judgment did not impose on
Defendants obligations that were contrary to Indiana law.
Mem. Order (Dkt. 49) 16-31. Specifically, we held that
Indiana law did not require Defendants' cooperation with
federal immigration detainers or removal orders. Id.
We concluded that the only arguable locus for such a
cooperation requirement, Section 4, Ind. Code ch. 5-2-18.2,
prohibiting a unit of local government (like Defendants) from
implementing a policy that “limit[s]
or restrict[s] the enforcement of federal
immigration laws to less than the full extent permitted
by federal law[, ]” Ind. Code § 5-2-18.2-4
(emphasis added), did not in fact require such cooperation
“for three reasons: (1) the text of the statute does
not require cooperation; (2) the [Immigration and Nationality
Act, 8 U.S.C. §§ 1101 et seq., ] does not
permit such cooperation . . .; and (3) the Fourth Amendment
does not permit such cooperation . . . .” Mem. Order
State, however, disagrees with this interpretation, believing
that Indiana law does require such cooperation, and
seeks to intervene for the purpose of obtaining vacation of
the Stipulated Judgment on appeal. Mot. Interv. (Dkt. 53) 4.
The State takes issue, not with our approval as such of the
Stipulated Judgment-as the State acknowledges, “this
Court could theoretically approve the [Stipulated Judgment]
regardless” of our statutory interpretation, Mot.
Interv. 15, see Mem. Order 10-12 (bases for entry of
consent decree)-but with the particular decisional path we
took to reach that conclusion. “If [its] motion to
intervene is not granted, ” the State argues, “a
binding interpretation of Indiana statutes will be enshrined
without ever hearing from the State[.]” Mot. Interv. 3.
State contends it is entitled to intervention both of right
and by permission. Id. We disagree. The State has no
standing to seek either and both are untimely sought.
Moreover, the State fails to satisfy the respectively
applicable procedural standards.
The State Must, But Cannot, Show Standing to
matter whether the State seeks intervention of right or by
permission, the State concedes that it must show Article III
standing to intervene. Mot. Interv. 4. Though the interaction
of Rule 24 and Article III is not definitively settled,
see Bond v. Utreras, 585 F.3d 1061, 1069-70 (7th
Cir. 2009), the State's concession is well taken.
III of the Constitution “limits the jurisdiction of
federal courts to ‘Cases' and
‘Controversies[.]'” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559 (1992) (quoting U.S. Const.
art. III, § 1). One of the principal mechanisms for
identifying justiciable cases or controversies is the
doctrine of standing. Id. at 560. Defendants as well
as plaintiffs must show standing to litigate. Arizonans
for Official English v. Arizona, 520 U.S. 43, 64 (1997)
(citing Diamond v. Charles, 476 U.S. 54, 56 (1986)
(standing to defend on appeal)). Where, as here, a putative
intervenor-defendant seeks to continue a case or controversy
after one no longer exists between the original parties,
“[the] intervenor's right to continue a suit in the
absence of the party on whose side intervention was permitted
[or is sought] is contingent upon a showing by the intervenor
that [it] fulfills the requirements of Art[icle] III.”
Diamond, 476 U.S. at 68; also Hollingsworth v.
Perry, 133 S.Ct. 2652, 2661-62 (2013).
“irreducible constitutional minimum” of standing
is injury-in-fact traceable to the conduct complained of and
redressable by a favorable ruling from a federal court.
Lujan, 504 U.S. at 560. “Injury in fact”
is “an invasion of a legally protected interest which
is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical.”
Id. (quotations and citations omitted). Traceability
requires that the injury complained of be “fairly
traceable to the challenged action . . ., and not the result
of the independent action of some third party not before the
court.” Id. (quotations, ellipses,
alterations, and citation omitted). Finally, redressability
requires that it be “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Id. at 561 (quotations and citation
omitted). The burden of proving these three elements rests
with the litigant invoking federal jurisdiction: here, the
State has not carried that burden. As for injury-in-fact, it
is well established that a state has a legally protected
interest, sufficient to confer standing, “‘in the
continued enforceability' of its laws that is harmed by a
judicial decision declaring a state law
unconstitutional.” Hollingsworth, 133 S.Ct. at
2664 (quoting Maine v. Taylor, 477 U.S. 131, 137
(1986)). But, as the State acknowledges, neither the
Stipulated Judgment nor our Memorandum Order
approving it purports to invalidate any part of state law.
State's Reply Br. Supp. Mot. Interv. (Dkt. 61) ...