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Planned Parenthood of Wisconsin, Inc. v. Kaul

United States Court of Appeals, Seventh Circuit

November 7, 2019

Planned Parenthood of Wisconsin, Inc., et al., Plaintiffs-Appellees,
Joshua L. Kaul, et al., Defendants-Appellees. Appeal of: Wisconsin Legislature, Proposed Intervenor.

          Argued September 6, 2019

          Appeal from the United States District Court for the Western District of Wisconsin, No. 3:19-cv-00038-wmc - William M. Conley, Judge.

          Before Flaum, Sykes, and St. Eve, Circuit Judges.


         A 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 motion.

         Though 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.

         I. Background

         The 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.

         A week 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.

         The 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.

         The 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).

         II. Intervention as of Right

         To 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.

         The 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).

         Looking 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.

         A. Interest

         Though we will assume the Legislature has an interest, we must define what that interest is before we can consider whether it is adequately represented.

         We, 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.

         Though 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.

         This 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.

         We are, 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 interests.[1]

         B. Adequacy of Representation

         We have 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.

         The 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 inadequate."

         It is 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.[2]

         The 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.

         Bethune-Hill 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.

         In 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) ...

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