384 F. Supp. 3d 982
W.D. Wis.2019Background
- Planned Parenthood of Wisconsin and four providers sued state officials challenging Wisconsin laws and regulations that require physicians to perform or participate in medication and surgical abortions and impose a 24‑hour pre‑abortion exam and in‑room physician presence for medication abortions.
- Defendants (including the Wisconsin Attorney General) answered denying constitutional violations; the Wisconsin Legislature moved to intervene shortly after the answer. All existing parties oppose intervention.
- The Legislature relies on a recent state statute authorizing legislative intervention and argues it has a protectable interest in defending enactments it passed.
- The Attorney General is defending the statutes; Wisconsin DOJ attorneys previously defended similar abortion regulations in this district and on appeal.
- The court considered Rule 24(a) intervention‑as‑right factors and permissive intervention under Rule 24(b), applying Seventh Circuit precedent about uniqueness of interest and adequacy of government representation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Wisconsin Legislature may intervene as of right under Rule 24(a) | Legislature: it has a statutory and cognizable interest to defend state statutes and therefore may intervene to protect those interests | Defs/AG: the legislature's interest duplicates the defendants'; Article III standing does not automatically entitle intervention under Rule 24; DOJ is adequately defending the laws | Denied: Legislature failed to show a unique interest and did not overcome presumption that the Attorney General adequately represents the State's interests |
| Whether the Legislature's claimed interest will be impaired by disposition of the suit | Legislature: a ruling invalidating the statutes would "nullify" legislators' votes and impair legislative interests, and could affect future legislation | Defs/AG: challenged statutes are longstanding; invalidation of statutes does not strip legislative power or uniquely impair the legislature beyond general loss of an enacted law | Denied: court found the "nullified votes" argument inapplicable and insufficient to show a threatened, unique impairment |
| Whether the Attorney General inadequately represents the Legislature's interests | Legislature: political differences and DOJ litigation choices suggest possible inadequate or less zealous defense | Defs/AG: DOJ has statutory duty to defend statutes; same DOJ attorneys defended similar laws previously; no evidence of bad faith or gross negligence | Denied: presumption of adequate representation not rebutted; no showing of bad faith/gross negligence |
| Whether permissive intervention under Rule 24(b) should be allowed | Legislature: even if not a right, permissive intervention could let it defend statutes | Defs/AG: intervention would complicate proceedings and inject political actors; DOJ is defending so intervention is unnecessary | Denied: discretionary factors (prejudice, delay, duplication) counsel against allowing intervention; legislature may file amicus briefs or renew if AG stops defending |
Key Cases Cited
- Wis. Educ. Ass'n Council v. Walker, 705 F.3d 640 (7th Cir. 2013) (sets Rule 24(a) intervention‑as‑right factors and requires unique interest)
- Ligas ex rel. Foster v. Maram, 478 F.3d 771 (7th Cir. 2007) (burden on proposed intervenor to satisfy Rule 24 elements; presumption of adequate government representation)
- Flying J, Inc. v. Van Hollen, 578 F.3d 569 (7th Cir. 2009) (denying legislative intervention while AG defended but allowing later intervention if AG abandons defense)
- Trbovich v. United Mine Workers, 404 U.S. 528 (1972) (characterizes minimal showing required to rebut adequacy of representation)
- Raines v. Byrd, 521 U.S. 811 (1997) (limits legislators' standing and discusses Coleman)
- Coleman v. Miller, 307 U.S. 433 (1939) (recognizes narrow circumstances where legislators may have standing when their votes are nullified)
- Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (addresses when legislators may represent state interests in court)
- Karcher v. May, 484 U.S. 72 (1987) (allows legislative intervention when executive declines to defend statute)
- INS v. Chadha, 462 U.S. 919 (1983) (recognized Congress may defend statutes when executive will not)
- Planned Parenthood of Mid‑Mo. & E. Kan., Inc. v. Ehlmann, 137 F.3d 573 (8th Cir. 1998) (rejects broad reading that legislators may intervene simply to defend enacted statutes)
- Shea v. Angulo, 19 F.3d 343 (7th Cir. 1994) (denial of intervention is appealable as final order)