Lead Opinion
COLE, J., delivered the opinion of the court, in which MARTIN, J., joined. KENNEDY, J. (pp. 784-88), delivered a separate opinion concurring in part and dissenting in part.
OPINION
Before us are two appeals challenging a district court’s order denying intervention under Federal Rule of Civil Procedure 24(a) and (b) to (1) the Michigan Civil Rights Initiative committee (the “MCRI”), (2) the American Civil Rights Foundation (the “ACRF”), and (8) Toward a Fair Michigan’s (“TAFM,” collectively, the “proposed intervenors”).
I. BACKGROUND
From approximately July 2004 through December 2004, the MCRI, with the assistance of paid agents, solicited signatures in support of placing a statewide ballot initiative, which would later become Proposal 2, on Michigan’s November 2006 general election ballot. Operation King’s Dream v. Connerly,
The day after the election, however, on November 8, the Coalition to Defend Affirmative Action, Integration and Immigrant Rights, and Fight for Equality By Any Means Necessary, along with other organizations and individuals (collectively, the “Plaintiffs”), filed suit in the Eastern District of Michigan against Governor Gran-holm and the Universities, seeking a declaratory judgment that the amendment was invalid and a permanent injunction against its enforcement. “In their amended complaint, [Pjlaintiffs contended that Proposal 2 violates two federal constitutional provisions (the First and Fourteenth Amendments), three federal civil rights statutes (Title VI, Title VII[,] and Title IX)[,] and one presidential order (Executive Order 11246).” Coal. to Defend Affirmative Action v. Granholm,
On December 14, three days after the Universities filed their cross-claim, the Michigan Attorney General, Michael Cox, moved to intervene in the lawsuit. That same day, the MCRI and the ACRF jointly moved to intervene as well. The district court ruled on only the Attorney General’s motion, granting it that day.
On December 18, TAFM and Eric Russell, a white applicant to the University of Michigan Law School, jointly moved to intervene in the lawsuit. That same day, before the district court issued its ruling on the four pending intervention motions (the MCRI’s, the ACRF’s, TAFM’s, and Eric Russell’s), the Plaintiffs in the underlying suit and the three sets of parties to the cross-claim filed a stipulation with the district court, which read in relevant part:
It is hereby stipulated, by and between the parties that this Court may order as follows:
(1) that the application of Const[.] 1963, art[.][l], § 26 to the current admissions and financial aid policies of the University parties is enjoined through the end of the current admissions and financial aid cycles and no later than 12:01 a.m. on July 1, 2007, at which time this Stipulated Injunction will expire;
(2) that, pursuant to Fed.R.Civ.P. 41(a)(1) and 41(c), the Universities’ cross-claim shall be and hereby is dismissed in its entirety, with prejudice only as to the specific injunctive relief requested in the cross-claim [.] ...
Coal. to Defend Affirmative Action,
Having received no response to them motions to intervene, on December 21, Eric Russell and TAFM filed a notice of appeal in this Court, and, the day after that, “they filed in this [Cjourt an ‘Emergency Motion for a Stay Pending Appeal’ of the district court’s preliminary injunction and a Petition for a Writ of Mandamus directing the district court to grant their motion to intervene and to vacate its preliminary injunction.” Coal, to Defend Affirmative Action,
On December 27, 2006, the district court granted Eric Russell’s motion to intervene
On December 29, 2006, based on Eric Russell’s “Emergency Motion for a Stay Pending Appeal,” a panel of this Court stayed the district court’s preliminary injunction pending appeal, allowing article I, section 26 of the Michigan Constitution to take immediate effect. Coal. to Defend Affirmative Action,
II. ANALYSIS
“This is but one piece of litigation spurred by the Proposal 2 saga.” Operation King’s Dream,
A. Intervention as of Right
Rule 24(a) of the Federal Rules of Civil Procedure entitles certain parties to intervene in a lawsuit as of right:
Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Fed.R.Civ.P. 24(a). We have explained that a proposed intervenor must establish four factors before being entitled to intervene: (1) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed intervenor’s ability to protect their interest may be impaired in the absence of intervention; and (4) the parties already before the court cannot adequately protect the proposed intervenor’s interest. Grutter v. Bollinger,
‘We review de novo motions to intervene as of right, except for the timeliness element, which is reviewed for an abuse of discretion.” Northland Family Planning Clinic, Inc. v. Cox,
1. Substantial Legal Interest
“The proposed intervenors must show that they have a substantial interest in the subject matter of this litigation.” Grutter,
a. The MCRI and the ACRF
According to the MCRI and the ACRF, “they were at the forefront of the protracted campaign to adopt Proposal 2 and are committed to ensuring its constitutionality and timely implementation.” The MCRI, headed by Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger,
Both the MCRI and the ACRF argue that as groups substantially involved in the process leading to the adoption of the challenged amendment, they have a legal interest in the subject matter of this lawsuit. They rely primarily on our decisions in Grutter and Miller, as well as several Ninth Circuit decisions that we have cited favorably. See Idaho Farm Bureau Fed’n v. Babbitt,
In Northland Family Planning, six health-care facilities and four physicians filed suit against various Michigan officials, seeking to invalidate and enjoin the enforcement of the Legal Birth Definition Act, which “prohibited] the practice colloquially referred to as partial-birth abortions.”
In affirming the denial of STTOP’s motion to intervene, we held that an organization involved in the process leading to the adoption of a challenged law, does not have a substantial legal interest in the subject matter of a lawsuit challenging the legality of that already-enacted law, unless the challenged law regulates the organization or its members. Id. In so holding, we drew a distinction between cases involving challenges “to the procedure required to pass a particular rule, as opposed to the government’s subsequent enforcement of the rule after its enactment.” Id. at 345 (second emphasis added). In drawing this distinction, we explained that “the public at large — including public interest groups — has an interest in the procedure by which a given legal requirement is enacted as a matter of democratic legislative process.” Id. “On the other hand,” we further explained, “in a challenge to the constitutionality of an already-enacted statute, as opposed to the process by which it is enacted, the public interest in its enforceability is entrusted for the most part to the government, and the public’s legal interest in the legislative process becomes less relevant.” Id; accord Providence Baptist Church v. Hillandale Comm., Ltd.,
Like STTOP’s relationship to the Legal Birth Definition Act, the MCRI was created and continues to exist for the purpose of passing and upholding Proposal 2. See id. at 345. The ACRF’s goals are, of course, more national, but for the purposes of this case, its relationship to Proposal 2 and interest in the underlying litigation is identical to the MCRI’s. That is, like STTOP, their “legal interest can be said to be limited to the passage of [Proposal 2] rather than the state’s subsequent implementation and enforcement of it.” Id. No doubt, each group was instrumental in Proposal 2’s path to the ballot and ultimate approval. Their interest in seeing Proposal 2 enforced, however, “is greatly diminished due to the state’s responsibilities in enforcing and defending [Proposal 2] as written.” Id. at 346. Therefore, North-
This is not to say that all organizations that advocate for the passage of a law lack a substantial legal interest in a suit challenging the government’s subsequent enforcement of that law. Indeed, we have held that where a group is “regulated by the new law, or, similarly, whose members are affected by the law, may likely have an ongoing legal interest in its enforcement after it is enacted.” Id. at 345; accord, e.g., Grutter,
Here, the MCRI and the ACRF have only a general ideological interest in seeing that Michigan enforces Proposal 2. Each group asserts that its mission to enforce civil-rights laws at all levels of government will be impeded if not granted intervention. To be sure, neither the MCRI nor the ACRF maintains that it or its members are specifically regulated by those portions of Michigan’s constitution amended by Proposal 2. The most they claim is that Proposal 2 naturally affects them because each group has at least a few members that are Michigan residents. This, however, amounts to only a generic interest shared by the entire Michigan citizenry. An “interest so generalized will not support a claim for intervention as of right.” Miller,
The MCRI and the ACRF point out, however, that in Grutter we reversed á district court’s denial of intervention as of right to the Citizens for Affirmative Action’s Preservation (“CAAP”), “a nonprofit organization whose stated mission was to preserve the opportunities in higher education for African-American and Latino/a students in Michigan.”
The MCRI and the ACRF misidentify CAAP’s interest in Grutter. Although CAAP certainly had a general ideological aversion to the elimination of the University of Michigan’s race-conscience admissions policy, its members were also directly affected by the challenged policy. At the time of the litigation, CAAP was a coalition consisting of minority students and civil-rights groups, among others, premised on preserving affirmative action in higher education. Indeed, consistent with the makeup of its members, the district court treated CAAP’s interests as identical to the proposed minority-student intervenors in that lawsuit, who, like Eric Russell, no doubt had a substantial legal interest in the litigation. See Gratz v. Bollinger,
Thus, we hold that the MCRI and the ACRF lack a substantial legal interest in the outcome of this case and affirm the district court’s denial of their joint motion to intervene as of right. Accordingly, as mentioned, we need not address the remaining intervention-as-of-right elements.
b. TAFM
TAFM’s contention that it is entitled to intervene as of right is even less compelling. We have little trouble concluding that TAFM is without a substantial legal interest in the outcome of this case. TAFM took no position in favor or against Proposal 2 before, during, or after the November 2.006 election, and instead sought only to “promote an educated decision on the question by Michigan citizens through civil and informed discourse.” By all accounts, neither TAFM nor its members are regulated by the challenged constitutional amendment. At best, TAFM has only an ideological interest in seeing that Proposal. 2 is enforced. As discussed above, consistent with our holding in
B. Permissive Intervention
Under Rule 24(b) of the Federal Rules of Civil Procedure, a district court may grant intervention to certain interested parties:
Upon timely application anyone may be permitted to intervene in an action ... when an applicant’s claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Fed.R.Civ.P. 24(b). “The denial of permissive intervention should be reversed only for clear abuse of discretion by the trial judge.” Purnell,
In denying the proposed interve-nors permissive intervention, the district court explained that, “in cases of this importance, [the district courts] are mere way stations on the judicial road to resolution by courts beyond,” and that granting intervention to the proposed intervenors “will inhibit, not promote, a prompt resolution .... ” Coal, to Defend Affirmative Action,
III. CONCLUSION
For these reasons, we AFFIRM.
Notes
. The district court similarly denied the City of Lansing’s attempt to intervene, and the City of Lansing also appealed. The City of Lansing, however, has since voluntarily dismissed its appeal. See Coalition to Defend Affirmative Action v. Granholm, No. 06-2658 (6th Cir. Aug. 8, 2007) (order).
. The dissent attempts to differentiate a citizen-initiated legislative enactment from a citizen-initiated amendment to a state's constitution, arguing that a public interest group may have a substantial legal interest in the latter's enforcement. Dissent Op. at 786-87. We are not persuaded by this razor-thin distinction. Regardless how a law came into being, the government is, for the most part, entrusted with enforcing it. Thus, as we stated in Northland Family Planning, the public’s legal interest does not extend to suits challenging the enforceability of an already-enacted law.
Concurrence Opinion
concurring in part and dissenting in part.
I concur with the majority’s disposition with regard to appellant TAFM. I cannot, however, agree that Northland Family Planning Clinic v. Cox,
I. Substantial Legal Interest
The majority relies almost solely on Northland Family Planning; indeed, it concludes that case “compels” its holding here. Maj. Op. at 781-82. Northland Family Planning is distinguishable because (1) the challenged state law in that case was enacted by the legislature, rather than by the citizens through constitutional amendment as here, and (2) the groups here have raised reasons why they cannot
At the outset, however, I would note that the majority can only rely on North-land Family Planning because that case fundamentally altered the Rule 24(a) landscape. Prior precedent was consistent in holding that “interest” was to be construed liberally and “close cases should be resolved in favor of recognizing an interest under Rule 24(a).” Michigan State AFL-CIO v. Miller,
In Miller we cited with approval a Ninth Circuit rule that “a public interest group that is involved in the process leading to adoption of legislation has a cognizable interest in defending that legislation.” Id. That rule found its genesis in a case that cannot be distinguished from Northland Family Planning. In Washington State Bldg, and Const. Trades Council, AFL-CIO v. Spellman, a voter approved initiative “prohibited] the transportation and storage within [the state] of radioactive waste produced outside the state.”
There are good reasons to conclude, however, that the sponsors of a constitutional amendment, like Proposal 2 in this case, have a greater interest in defending the measure than the group that sought to intervene in Northland Family Planning.
The procedural history of this case confirms that the plaintiffs have a basis for their fear that the office of the Attorney General cannot be relied on to defend “the public interest in [this amendment’s] enforceability.” Id. As the majority notes, the Attorney General and the Governor have already compromised with the plaintiffs and the cross-claimants in this case and stipulated to an injunction that, we have previously found, had no basis in federal law. Maj. Op. ante at 778-79; Coalition v. Granholm,
Therefore, the State of Michigan (the only appropriate defendant in an action to declare a measure adopted in a general election unconstitutional) does not appear to be a party in this case. Instead, Attorney General Cox and Governor Granholm are both either named defendants or, in the case of Attorney General Cox, an intervening defendant because they have recognized potential for conflicting views (and thus different litigation strategies) between them. It is also unclear what the status of Governor Granholm, as a party, actually is. After Attorney General Cox intervened, she should no longer have been in the case, yet she has continued to file briefs here in support of the denial of intervention, as well as pleadings and briefs in the court below.
All of this reinforces concern with entrusting the “public interest in enforceability” of a general election, voter-approved measure to elected officials. As the example of the Governor proves, there are cases in which the elected officials of a state will disagree with the majority of the voting population on a particular point of public
The point, therefore, is simply that measures approved by the voting public in a general election are different from legislative acts. This point does not depend on the policy preferences of particular elected officials. Rather, the possibility of conflict creates a substantial interest. It does not matter in the substantial interest inquiry that the Attorney General supported Proposal 2 before the election. That fact will be weighed in consideration of the last factor, namely whether a party already in the case will sufficiently represent the position of the proposed intervenor. I turn to that factor, as well as the other remaining ones, presently.
II. Remaining factors
Because it concludes that MCRI and ACRF do not have a substantial legal interest in this case, the majority does not address the remaining factors. I would find, however, that (1) the district court abused its discretion when it determined that the motion to intervene was not timely, (2) the ability of MCRI and ACRF to protect its substantial legal interest may be impaired in the absence of intervention, and (3) that the Attorney General, as well as the other parties in the case, might not adequately represent that interest.
First, the parties’ motion to intervene was timely. While it is true that appellants must have known about the litigation shortly after it was filed, it is equally clear that the litigation had not progressed by the time they moved to intervene. “The absolute measure of time between the filing of the complaint and the motion to intervene is one of the least important ... circumstances” to consider. Stupak-Thrall v. Glickman,
Second, to dispose of the present case without allowing the intervention of the MCRI and ACRF would compromise their ability to protect their interests, as an adverse ruling would threaten the viability of the constitutional amendment that these groups supported. To satisfy this element, “a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied[,]” a “burden [that] is minimal.” Miller,
Third, the Attorney General might not adequately represent the appellants’ interest in this matter. The threshold for this requirement is again low; appellants need not show that representation won’t be inadequate, only that the potential exists that the Attorney General will not make all of their arguments. Grutter v. Bolling
i’fi * Hi
In order to ensure vigorous advocacy so that we do not intrude on states’ interests in the constitutionality of their own laws, I would hold that sponsors of voter initiatives may intervene as of right to defend the measures they sponsored. Therefore, I would reverse the district court with regard to appellants MCRI and ACRF and remand with instructions to allow those parties to intervene pursuant to Rule 24(a).
. In addition, the intervention discussion may well be dicta. The district court in Northland Family Planning denied the State of Michigan's motion to dismiss and ruled that the state statute was unconstitutional. In the same order, it denied the public interest group’s motion to intervene as a defendant. We affirmed the ruling that the statute was unconstitutional, granting summary judgment to the plaintiffs. We also noted that, "[t]he finality of the summary judgment decision clearly has potential to render moot [the group’s] motion to intervene.”
. An elaboration of the facts of Northland Family Planning and the Michigan initiative and constitutional amendment procedures is in order: In Michigan, a group can propose laws to the legislature through an initiative.
To invoke the initiative ... petitions signed by a number of registered electors, not less than eight percent ... of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.... Any*786 law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment.... If any law so proposed is not enacted by the legislature within 40 days, [it] shall [be] submitted] to the people for approval or rejection at the next general election.
Mich. Const. Art. II § 9. In Northland Family Planning, the proposed intervenor had proposed the challenged law to the legislature through an initiative and the legislature had enacted the law. In contrast, in the instant case, a majority Michigan voters approved an amendment to the Michigan Constitution in a general election pursuant to Mich. Const. Art. 12 § 2.