Planned Parenthood of Wisconsin, Inc., et al., Plaintiffs-Appellees,
Joshua L. Kaul, et al., Defendants-Appellees. Appeal of: Wisconsin Legislature, Proposed Intervenor.
September 6, 2019
from the United States District Court for the Western
District of Wisconsin, No. 3:19-cv-00038-wmc - William M.
Flaum, Sykes, and St. Eve, Circuit Judges.
EVE, CIRCUIT JUDGE.
state can speak in litigation only through its agents and may
select its agents without the interference of the federal
courts. Typically, a state chooses to designate a singular
attorney general to defend its interests, but nothing in the
United States Constitution mandates this procedure, or even
the existence of an attorney general position. The State of
Wisconsin has chosen to have an attorney general as its
representative, but it also has recently provided a mechanism
by which its legislature (or either of its constitutive
houses) can intervene to defend the State's interest in
the constitutionality of its statutes. Relying on this
provision, the Wisconsin Legislature moved to intervene in
this lawsuit in which the Wisconsin Attorney General was
already defending state law. The district court denied the
we acknowledge that federal law does not mandate that a state
speak in a single voice, we conclude that Federal Rule of
Civil Procedure 24 expresses a preference for it. The
Legislature's motion to intervene as of right was
appropriately denied because the Legislature did not
demonstrate that the Attorney General is an inadequate
representative of the State's interest absent a showing
he is acting in bad faith or with gross negligence. The
district court has discretion still to permit the Legislature
to intervene as a second voice for the State, or even perhaps
on its own behalf, but nothing in the record demonstrates an
abuse of that discretion. We therefore affirm the district
court's decision in all respects.
underlying allegations in this suit are largely irrelevant to
the issues before the court, so we offer only the barest of
contexts. Planned Parenthood of Wisconsin, Inc. (PPWI), and
four of its employees filed a suit against Wisconsin's
Attorney General and an assortment of other state officials,
all in their official capacities. PPWI sought to enjoin
enforcement of state abortion regulations that it alleges
violate the constitutional rights of it and its patients. The
Attorney General, acting as counsel for all defendants,
answered the complaint instead of moving to dismiss for
failure to state a claim. His answer denied that the
regulations violated the Constitution.
later, the Wisconsin Legislature moved to intervene in the
suit, hoping to dismiss the complaint for failure to state a
claim. Consistent with the requirement that a motion to
intervene be accompanied by a pleading, Fed.R.Civ.P. 24(c),
the Legislature also provided an answer that tracked the
Attorney General's, but with legal authorities. The
Legislature sought to intervene both as of right and with the
court's permission. For its right to intervene, the
Legislature relied principally on a recently enacted state
statute that allows "the assembly, the senate, and the
legislature" to intervene "at any time in [an]
action as a matter of right" if "a party to an
action challenges in state or federal court the
constitutionality of a statute, facially or as applied."
Wis.Stat. § 803.09(2m). It also asserted an interest
based on Supreme Court precedent holding that legislators had
standing to challenge actions that nullified the
"effectiveness of their votes." Coleman v.
Miller, 307 U.S. 433, 438 (1939). Both PPWI and the
Attorney General opposed the Legislature's intervention.
district court denied the motion to intervene as of right on
three grounds. First, the Legislature lacked an interest that
was unique to it. Second, the Legislature's interest in
the effectiveness of its votes would not be impaired even if
the regulations were declared unconstitutional. Third, the
Attorney General had the duty to defend the statutes being
challenged and therefore was presumed to be an adequate
representative. Finally, the court declined to allow the
Legislature permissive intervention for many of the same
reasons it was unconvinced of a right to intervene, as well
as concerns with politicizing and complicating the case.
Legislature appealed the denial of its motion to intervene.
We have jurisdiction because, "from the perspective of a
disappointed prospective intervenor, the denial of a motion
to intervene is the end of the case, so an order denying
intervention is a final, appealable decision under 28 U.S.C.
§ 1291." CE Design, Ltd. v. Cy's Crab House
N., Inc., 731 F.3d 725, 730 (7th Cir. 2013).
Intervention as of Right
intervene in a federal lawsuit under Federal Rule of Civil
Procedure 24(a)(2), a proposed intervenor needs to meet four
elements: "(1) timely application; (2) an interest
relating to the subject matter of the action; (3) potential
impairment, as a practical matter, of that interest by the
disposition of the action; and (4) lack of adequate
representation of the interest by the existing parties to the
action." Illinois v. City of Chicago, 912 F.3d
979, 984 (7th Cir.), cert denied, 2019 WL 4921330
(2019). A party granted leave to intervene as of right under
this rule has the "full rights of a party." See
Aurora Loan Servs., Inc. v. Craddieth, 442 F.3d 1018,
1022 (7th Cir. 2006). The proposed intervenor has the burden
of establishing all four elements; the lack of even one
requires that the court deny the motion. Vollmer v.
Publishers Clearing House, 248 F.3d 698, 705 (7th Cir.
2001). We review the denial of a motion to intervene as of
right de novo, except to the extent that it was denied as
untimely. See id. Here, timeliness is not disputed,
so our review is plenary.
first question that we must address is the weight to give to
Wisconsin law. Section 803.09(2m) provides that "the
legislature may intervene ... at any time ... as a matter of
right" in an action "in state or federal
court." This language implies that intervention should
be automatic, without any input from the trial court, as long
as the conditions for authorization under Wis.Stat. §
13.365 are met. Wisconsin's courts may apply §
803.09(2m) that way, but no one argues that this
interpretation can control in federal court. The right to
intervene "is a purely procedural right and even in a
diversity suit it is the Federal Rules of Civil Procedure
rather than state law that dictate the procedures, including
who may intervene, to be followed." Williams v.
Katz, 23 F.3d 190, 192 (7th Cir. 1994). The supremacy of
federal procedure is even more pronounced in a case, like
this one, arising under the Federal Constitution. The parties
agree on this point at least: the statute cannot supplant the
Federal Rules of Civil Procedure and make intervention
automatic. Nevertheless, we think the statute represents the
State of Wisconsin's strong policy judgment of how it
wishes to litigate in federal court. We will therefore rely
on it to "inform the Rule 24(a)(2) calculus" even
if "it cannot displace the requirement that a would-be
intervener satisfy each of the rule's
prerequisites." Pub. Serv. Co. of N.H. v.
Patch, 136 F.3d 197, 208 (1st Cir. 1998); accord
Dep't of Fair Employment & Hous. v. Lucent Techs.,
Inc., 642 F.3d 728, 741 (9th Cir. 2011).
to the three disputed elements of intervention, we can assume
that the Legislature has an interest that might be impaired.
We nevertheless conclude that this interest is being
adequately represented by the Attorney General and affirm the
denial of the motion to intervene as of right.
we will assume the Legislature has an interest, we must
define what that interest is before we can consider whether
it is adequately represented.
unlike the district court, have the benefit of the Supreme
Court's recent decision in Virginia House of
Delegates v. Bethune-Hill, 139 S.Ct. 1945 (2019), to
help us define the possible interests at play. There, the
Supreme Court was called on to address whether a single house
of the Virginia legislature had standing to appeal a judgment
in a case in which it had already intervened. Id. at
1951. In doing so, the Supreme Court expressly distinguished
the two capacities through which the House had sought to
appeal-as a representative of the state or as a
legislature-and addressed and rejected each in different
sections of its opinion. Id. at 1951, 1953.
we are concerned here with the "interest" element
of Rule 24, the standing inquiry can assist us, because we
have required "more than the minimum Article III
interest" for intervention. Flying J, Inc. v. Van
Hollen, 578 F.3d 569, 571 (7th Cir. 2009). A party
without standing cannot intervene as of right, so we must
determine in which of these two respects the Legislature is
arguing for its standing to defend state law. The Legislature
has complicated our analysis because even up until its
opening brief (filed about a month before the decision in
Bethune-Hill), it had switched freely between
championing the State's interests and insisting on its
"unique institutional interests" as a legislature.
At oral argument, though, it clarified that it was seeking to
intervene only as an agent of the State.
was a wise concession. The Legislature argued in the district
court that its votes would be nullified by an adverse ruling
under Coleman v. Miller, 307 U.S. 433.
Bethune-Hill confirms the district court rightly
dismissed this argument. Coleman "concern[ed]
the results of a legislative chamber's poll or the
validity of any counted or uncounted vote" and did not
extend to "the constitutionality of a concededly enacted
[statute]." Bethune-Hill, 139 S.Ct. at 1954
(citing Raines v. Byrd, 521 U.S. 811, 823 (1997)).
The regulations PPWI challenges are also "concededly
enacted" (the Legislature notes that some have existed
for decades), and so the Legislature-as-legislature has no
interest in this case under Article III or Rule 24.
however, comfortable adopting the district court's
assumption that § 803.09(2m) gives the Legislature
standing as an agent of the State of Wisconsin. The district
court nevertheless concluded that this assumption was not
enough for purposes of Rule 24, because the Legislature's
interest was not "unique" under Wisconsin
Education Association Council v. Walker (WEAC), 705 F.3d
640, 658 (7th Cir. 2013). In WEAC we used the phrase
"unique" as a shorthand for the proposition that an
intervener's interest "must be based on a right that
belongs to the proposed intervenor rather than to an existing
party in the suit," Keith v. Daley, 764 F.2d
1265, 1268 (7th Cir. 1985). We need not decide whether the
Legislature's interest is unique in that sense, because
the Legislature has the burden of proving all four elements
of intervention, and we agree with the district court that
the Legislature has failed to establish that the Attorney
General is an inadequate representative of the State's
Adequacy of Representation
recognized three standards for the adequacy of representation
under Rule 24 depending on the context of each case. The
default rule is a liberal one: "The requirement of the
Rule is satisfied if the applicant shows that representation
of his interest 'may be' inadequate."
Trbovich v. United Mine Workers of Am., 404 U.S.
528, 538 n.l0 (1972); Ligas ex rel. Foster v. Maram,
478 F.3d 771, 774 (7th Cir. 2007). Where the prospective
intervenor and the named party have "the same
goal," however, there is a rebuttable presumption of
adequate representation that requires a showing of "some
conflict" to warrant intervention. WEAC, 705
F.3d at 659. This presumption of adequacy becomes even
stronger when the representative party "is a
governmental body charged by law with protecting the
interests of the proposed intervenors"; in such a
situation the representative party is presumed to be an
adequate representative "unless there is a showing of
gross negligence or bad faith." Ligas, 478 F.3d
at 774. The district court applied the last of these tests
and found that the Legislature had failed to meet it.
Legislature does not ask us to abandon our three-tiered
structure but argues that the district court applied the
wrong standard. It accepts that it and the Attorney General
currently have the same goal-to uphold the constitutionality
of the challenged statutes. It also does not dispute the
general proposition that the Attorney General is
"charged by law" with protecting the State's
interest in the enforcement of its laws. See, e.g.,
Helgeland v. Wis. Municipalities, 745 N.W.2d 1, 24 (Wis.
2008) ("The Attorney General of Wisconsin has the duty
by statute to defend the constitutionality of state
statutes."). Though it agrees these facts would obligate
a private party seeking intervention to demonstrate the
Attorney General's bad faith or gross negligence, the
Legislature contends that this should not be the end of the
inquiry because Wisconsin has concluded, as a policy matter,
that the Attorney General should not be the exclusive
representative of the State's interests. A federal court,
it argues, should respect this sovereign judgment and permit
intervention as long as there is any reason to believe the
State's current representation "may be
true that our prior cases applying a heightened standard each
involved a private party seeking to intervene on the side of
a governmental entity. In the school desegregation cases, it
was groups of parents looking to defend school boards'
policies. See United States v. S. Bend Cmty. Sch. Corp.
(South Bend I), 692 F.2d 623, 627 (7th Cir. 1982);
United States v. Bd. of Sch. Comm'rs of
Indianapolis, 466 F.2d 573, 575 (7th Cir. 1972).
Likewise, in Ligas, it was a woman with disabilities
who sought to defend the current care provided by two
Illinois agencies from attack by a group who wanted different
care. 478 F.3d at 774-75. We agree that our precedent does
not directly control this case, but that is not, by itself, a
reason to reach another result.
intervention of another governmental entity is different, the
Legislature urges, because the State has a sovereign right to
determine how it will represent itself in federal court. It
relies principally on Bethune-Hill, in which the
Supreme Court held that the Virginia House did not have
standing as an agent of the state because Virginia had chosen
to "speak as a sovereign entity with a single
voice." 139 S.Ct. at 1952. The Court contrasted this
with states that have chosen to authorize their legislatures
to litigate "either generally or in a defined class of
cases," including, by way of example, Indiana.
Id. (citing Ind. Code § 2-3-8-1). As the
Legislature sees it, Wisconsin has, like Indiana, chosen to
split its sovereign voice among several entities, so a
federal court must respect this decision by lowering the
burden for it to intervene.
cannot bear the weight the Legislature puts on it. The Court
was simply not addressing a situation, like this one, in
which two state entities were trying to speak on behalf of
the State at the same time. The Court even framed
the question presented as whether the Virginia House had
"authority to displace Virginia's Attorney
General as representative of the State, ” id.
at 1950 (emphasis added), not whether it had the right to
represent the State in parallel with the Attorney General.
The Court had no reason to reach this question because the
Virginia Attorney General had dropped out of the case. The
Court was not being asked to allow Virginia two voices, but
to grant it just the one, the House's.
fact, every decision the Legislature cites as
favorable authority involves a situation in which a
legislature intervened once the governmental defendant's
default representative had dropped out of the case. See,
e.g., Karcher v. May,484 U.S. 72, 75 (1987);
McLaughlin v. Hagel,767 F.3d 113, 115 n.l (1st Cir.
2014); Adolph Coors Co. v. Brady,944 F.2d 1543,
1546 (10th Cir. 1991). Moreover, none discusses the propriety
of intervention under Rule 24 but merely recognizes that
intervention had occurred. Those courts of appeals that have
been asked to consider a state entity's intervention
alongside existing governmental parties have continued to
apply a presumption of adequacy. See Del. Valley
Citizens' Council for Clean Air v. Pennsylvania, 674
F.2d 970, 973 (3d Cir. 1982) (concluding that
legislators' intervention on side of Pennsylvania
Attorney General was properly denied); Envtl. Def. Fund,
Inc. v. Higginson,631 F.2d 738, 740 (D.C. Cir. 1979)
(affirming denial of intervention for water districts
represented by their states); see also United States v.
Hooker Chems. & Plastics Corp.,749 F.2d 968, 985
(2d Cir. 1984) (rejecting argument that presumption applies
only to intervenors that are "political
subdivisions of the state"); cf. Saldano v.
Roach,363 F.3d 545, 553 (5th Cir. 2004) ...