PLANNED PARENTHOOD OF WISCONSIN, INC., еt al., Plaintiffs-Appellees, v. JOSHUA L. KAUL, et al., Defendants-Appellees. APPEAL OF: WISCONSIN LEGISLATURE, Proposed Intervenor.
No. 19-1835
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 6, 2019 — DECIDED NOVEMBER 7, 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.
Though we аcknowledge that federal law does not mandate that a state speak in a single voice, we conclude that
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,
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 cоncerns 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
II. Intervention as of Right
To intervene in a federal lawsuit under
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
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
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 thаt 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 intervenor‘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
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.10 (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 сharged 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 threetiered 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 Gеneral‘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, а reason to reach another result.2
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 thе 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.1 (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 prеsumption 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) (denying intervention to district attorney because attorney general adequately represented state even under “‘may be’ inadequate” standard). The Legislature points us to no authority granting a state—or any party for that matter—the right to have two separate, independent representatives within the same suit.
The closest it gets is a case out of the Sixth Circuit, Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999 (6th Cir. 2006). The court there granted the State of Ohio and its General Assembly (both jointly represented by Ohio‘s Attorney General) the right to intervene in a
The Legislature goes further than sharing a goal with the Attorney General, though, and intends to represent the same client—the State of Wisconsin. Its status as a state entity hinders it in this framing because it must go beyond the argument any private party could make—that Wisconsin‘s interest does not align fully with its own—and has the unenviable tаsk of convincing a court that the Attorney General inadequately represents Wisconsin, despite his statutory duty. Wisconsin‘s interest may be a complicated question, as a state is a fundamentally corporate body that includes many competing constituencies, but merely showing some conflict among those constituencies is not enough to justify this extraordinary finding, even with deference to Wisconsin law. The district court was right to hold the Legislature to the same standard as a private party and insist on a concrete showing of the Attorney General‘s bad faith or gross negligence before permitting intervention. The Legislature, however, has offered only “quibbles with ... litigation strategy,” and that is not enough to show even “some conflict,” WEAC, 705 F.3d at 659.4
An intervenor must meet this high standard before it can subject the district court to the intractable procedural mess that would result from the extraordinary step of allowing a single entity, even a state, to have two independent parties simultaneously representing it. If the Legislature were allowed to intervene as right, then it and the Attorney General could take inconsistent positions on any number of issues beyond the decision whether to move to dismiss, from briefing schedules, to discovery issues, to the ultimate merits of the case. The district court would, in that situation, have no basis for divining the true position of the State of Wisconsin on issues
That the Wisconsin Attorney General‘s authority is governed by state law, and thus ultimately subject to the Legislature‘s control, does not change our analysis. True, the powers and duties of the attorney general are “prescribed by law,”
We are particularly concerned with the scope of the Legislature‘s argument because it has no limiting principle that we can see; it depends only on a state‘s power to designate agents and not оn any factor unique to the Legislature. Though we have no reason to doubt the good faith of the Legislature in this case, we are concerned that a state could use this same logic to overwhelm a district court, whose hands would be tied by the fundamentally non-discretionary nature of
If the state‘s unbridled authority to designate an agent is limited to an agent, in the singular, regardless of who or what that agent is, then the states can maintain their autonomy without the risk of unmanageable litigation in the federal courts. Likewise, we have no concern if Bethune-Hill‘s statements about a state‘s right not to speak in one voice are limited to the appellate standing context. No matter how many people can appeal a judgment on behalf of a state, there would still be only a single appeal—that of the state itself. The worst that can be said is that this application “would result in an аppeal that is
III. Permissive Intervention
At oral argument, the Legislature acknowledged our concern with the district court‘s lack of discretion, if we accepted its arguments regarding intervention as of right, and it responded by suggesting that permissive intervention may be the better solution. We agree. Permissive intervention allows the district court to consider a wide variety of factors, including the needs of federal-state comity emphasized by the Legislature. Yet, unlike the more mechanical elements of intervention as of right, it leaves the district court with ample authority to manage the litigation before it. The court can even place conditions on the scope of permissive intervention, allowing more voices to be heard without overcomplicating the case with additional claims, defensеs, discovery, and conflicting positions. See Lucent Techs., 642 F.3d at 741; Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 974 F.2d 450, 469 (4th Cir. 1992); 7C Charles Alan Wright, et al., Federal Practice & Procedure § 1922 (3d ed.); cf. Korczak v. Sedeman, 427 F.3d 419, 422 (7th Cir. 2005).5
The district court undoubtedly had the discretion to permit the Legislature‘s intervention in this case. Under
The district court denied permissive intervention “for many of the same reasons [it] found that the proposed intervenor failed to demonstrate a right to intervene.” It relied on two district court decisions for the proposition that “the case for permissive intervention disappears” when a proposed intervenor fails “to overcome the presumption of adequate representation by the government.” One Wis. Inst., Inc. v. Nichol, 310 F.R.D. 394, 399 (W.D. Wis. 2015); Menominee Indian Tribe of Wis. v. Thompson, 164 F.R.D. 672, 678 (W.D. Wis. 1996). The court also expressed concern that the Legislature‘s intervention “would likely infuse additional politics into an already politically-divisive area of the law and needlessly complicate this case.”
The Legislature reads the district court‘s order as imposing an inadequacy of
Though we agree that the Legislature is not required to demonstrate that the Attorney General is an inadequate reрresentative (under any standard) for it to intervene permissively, we do not understand the district court‘s order to say otherwise.
The district court here separated its analyses and made clear that it was exercising its discretion in denying permissive intervention. Even if it referrеd to its reasoning in denying intervention as of right, its discussion of its discretion was thorough and well-reasoned. The court weighed the various parties’ interests and found that the value the Legislature added to the Attorney General‘s representation of the State was outweighed by the practical complications that could have resulted from the State‘s having two representatives at the same time. On the present record, we cannot say the court abused its broad discretion in weighing the costs and benefits of permissive intervention. The district court should be ready to reconsider its ruling if the balance should ever shift or if the Legislature is willing to accept conditions, however strict, that would reduce any disruption to levels the court will tolerate—perhaps even as stringent as allowing it only to file amicus briefs and oppose any consent decrees.
IV. Conclusion
States must have the right to designate their agents, but federal courts must also be able to manage the scope of litigation before them. The proper balance between these two concerns is governed by
AFFIRMED.
SYKES, Circuit Judge, concurring. I agree that the Wisconsin Legislature has not made a convincing case for mandatory intervention under
Two important legal issues are presented, and the majority opinion frames them up well. The first is how to treat
The state statute and the gross-negligence/bad-faith standard represent two sides of an all-or-nothing dilemma. If we defer to the State’s policy choice as reflected in the statute, then the Wisconsin Legislature (or the Assembly or Senate alone) is always permitted to intervene of right under
To borrow a phrase from another context, the gross-negligence/bad-faith standard is strict in theory and fatal in fact.1 No Attorney General or other government lawyer will be so derelict in his duty as to flunk the test. Requiring a showing of gross negligence or bad faith makes intervention of right unavailable in all but the most extreme cases—perhaps only when an Attorney General has gone so far as to refuse to defend a challenged law or take an appeal from an adverse decision. Even in those circumstances, it would be practically impossible to establish gross negligence or bad faith. We can safely assume that any government lawyer worth his salt will be able to offer a plausible justification—whether legal, factual, or prudential—for not mounting a defense or taking an appeal, thus preventing a finding of gross negligence or bad faith. In practice the requirement to show gross negligence or bad faith operates to preclude intervention of right for this entire class of cases. That’s hard to reconcile with the language of
I will return to this point in a moment, but for now it suffices to say that neither of these extremes is consistent with
The Legislature doesn’t argue otherwise. What it does argue is that even though
I’m also in general agreement with the majority’s discussion of the nature of the Legislature’s interest. Majority Op. at 6–7. But I think it’s important to clarify a рoint we made in Wisconsin Education Association Council v. Walker (“WEAC”), 705 F.3d 640, 658 (7th Cir. 2013), when we said that the intervenor’s interest must be “unique.” WEAC cited Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir. 1985), as support for the uniqueness requirement. The relevant passage in Keith, however, doesn’t use the term “unique.” It says this: “The [intervenor’s] interest must be based on a right that belongs to the proposed intervenor rather than to an existing party in the suit.” Id. In other words, the intervenor’s interest must be based on a right that is direct and independent. That much is clear from the immediately preceding sentence: “A proposed intervenor must demonstrate a direct, significant[,] and legally protectable interest in the property [or transaction] at issue in the law suit.” Id.
“Unique” is a suitable word to describe the nature of the required interest, but as used in this context, “unique” means an interest that is independent of an existing party’s, not different from an existing party’s. If the intervenor has a significant independent interest but shares the same goal as an existing party (that is, if their interests align), then the standard for measuring the adequacy of existing representation changes, as WEAC later explains. 705 F.3d at 659 (explaining that a presumption of adequate representation arises when goals align). But sharing the same goal as an existing party doesn’t defeat “uniqueness,” properly understood. Id.
Applying this understanding,
Accordingly, the basic requirements for intervention as of right are satisfied: The Legislature “claims an interest relating to the property or transaction that is the subject of the action” and “is so situated that disposing of the action may as a practical matter impair or impede [its] ability to protect its interest.”
My main point of disagreement relates to the majority’s decision to apply the “gross negligence or bad faith” standard that this circuit has used in cases involving private parties who seek to intervene on the side of a governmental representative. I have two concerns. First, the standard is incompatible with the text of the rule. Here, in full, is the relevant provision:
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
…
(2) claims an interest relating to the property or transaction that is the subject matter of the action[] and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
This language is the product of a substantive revision of the rule in 1966. 7C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1903 (3d ed. 2007) (discussing the history of the rule). As amended, the rule instructs the court to undertake a practical, case-specific analysis of the intervenor’s legal interest, its relationship to the litigation, and the adequacy of existing parties to represent that interest. Judicially created tests that operate as categorical exclusions—like the “gross negligence or bad faith” requirement—аre inconsistent with the contextual, case-specific analysis contemplated by the rule.
Second, the origins of the gross-negligence/bad-faith standard are deeply flawed. The standard is the product of errant doctrinal creep and has no solid foundation. To see why requires some excavation, so bear with me.
The problematic doctrinal shift came in our decision in Ligas and one of the cases cited there as support for requiring a private intervenor to show that the governmental representative has been grossly negligent or acted in bad faith in the litigation. Here’s the key passage:
A party seeking intervention as of right must only make a showing that the representation “may be” inadequate and “the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972). However, when the representative party is a governmental body charged by law with protecting the interests of the proposed intervenors, the representative is presumed to adequately represent their interests unless there is a showing of gross negligence or bad faith. United States v. South Bend Cmty. Sch. Corp., 692 F.2d 623, 627 (7th Cir. 1982); United States v. Bd. of Sch. Comm’rs of Indianapolis, 466 F.2d 573, 575–76 (7th Cir. 1972).
Ligas ex rel. Foster v. Maram, 478 F.3d 771, 774 (7th Cir. 2007).
Our opinion in Ligas relied on two cases for the gross-negligence/bad-faith requirement. Both arose in desegregation litigation brought by the United States against local school boards in Indiana. In the 1982 case of South Bend Community School Corp., a nonprofit parents’ group sought to intervene to represent the interests of the district’s students. We affirmed the denial of intervention, saying this:
[T]he students’ interests were already represented by the school board. The school board is a governmental body[,] and its officers are charged by law with representing the interests of the students. Adequate representation of the
students is therefore to be presumed where, as here, there has been no showing of gross negligence or bad faith. Commonwealth of Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir. 1976).
S. Bend Cmty. Sch. Corp., 692 F.2d at 627 (citation omitted).
This passage rests on a serious misreading of Rizzo, the case cited as support for the rule that a showing of gross negligence or bad faith is required in this situation. In fact, that case never uses the terms “gross negligеnce” or “bad faith” or anything comparable. To be sure, Rizzo recognized that “a presumption of adequate representation generally arises when the representative is a governmental body or officer charged by law with representing the interests of the absentee.” 530 F.2d at 505. But the Third Circuit did not establish any fixed requirements for rebutting the presumption. Instead, the court undertook a practical, case-specific analysis as contemplated by the text of
The second case cited in Ligas was factually similar. In Board of School Commissioners of Indianapolis—decided a decade before the South Bend case—a parents’ organization moved to intervene in desegregation litigation to represent the interests of the district’s students. The district court denied intervention and we affirmed. We first concluded that the threshold requirements for intervention under
We must, however, agree with the trial court’s conclusion that this conceded interest was adequately represented by the school board in those portions of the case which have thus far been adjudicated. “[R]epresentation is adequate if no collusion is shown between the representative and the opposing party, if the representative does not have or represent an interest adverse to the proposed intervenor[,] and if the representative does not fail in the fulfillment of his duty.” Martin v. Kalvar Corp., 411 F.2d 552, 553 (5th Cir. 1969). See also Stadin v. Union Electric Co., 309 F.2d 912, 919 (8th Cir. 1962).
There have been no allegations that the school board’s interests are adverse to the appellants or that it has, at any time, acted in bad faith. Rather, as we read it, the claim is that by entering into stipulations and a consent decree [as to a certain part of the case,] the school board failed to assert appellants’ interests as vigorously and effectively as appellants would hаve had they been parties to the litigation … .
Bd. of Sch. Comm’rs of Indianapolis, 466 F.2d at 575 (alteration and citations omitted). We went on to hold that a mere disagreement over litigation strategy is not enough to show inadequacy of representation. Id.
Notice that the Indianapolis decision never holds that an intervenor must show gross negligence or bad faith by the governmental party as a prerequisite to intervention, as the South Bend case implied and Ligas expressly stated. Indeed, the term “gross negligence” is not found anywhere in the opinion. The term “bad faith” makes an appearance, but only in passing, and it’s used in a purely descriptive manner. The decision notes that the intervenors did not allege bad faith by the school board; it never says as a prescriptive matter that a showing of bad faith is required. In short, there’s no hint whatsoever that the court was promulgating a doctrinal
So to recap: In South Bend Community School we implied, without any support or analysis, that
The Wright & Miller practice manual explains the origins of this doctrinal error. In a chapter discussing the adequacy-of-representation inquiry under the amended rule, the treatise says this:
In a familiar case pre-dating the [1966] amended rule[,] then-Judge Blackmun wrote that inadequacy of representation is or may be shown “by proof of collusion between the representative and an opposing party, by the representative having or representing an interest adverse to the interven[or], or by the failure of the representative in the fulfillment of his duty.” [Stadin, 309 F.2d at 919.] This was a wholly accurate statement. As will be seen later, a showing of any of the circumstances listed by Judge Blackmun is enough to establish inadequacy of representation. But in several cases the statement has been turned around and it has been said:
The rule is that representation is adequate if no collusion is shown between the representative and an opposing party, if the representative does not have or repre-
sent an interest adverse to the proрosed intervenor[,] and if the representative does not fail in the fulfillment of his duty. [Martin, 411 F.2d at 553.]
It is one thing to say that inadequate representation can be shown by establishing one of three circumstances. It is quite another to say that representation is adequate unless one of those three circumstances is present. If Judge Blackmun had said that representation is inadequate “only” if one of the circumstances he listed were present[,] the proposition would be reversible, but he did not say that and there is nothing in his opinion to indicate that he was endeavoring to give a comprehensive list of the circumstances that can establish inadequacy of representation. The wide variety of cases that come to the courts make it unlikely that there are three and only three circumstances that would make representation inadequate and suggest that adequacy of representation is a very complex variable.
WRIGHT, supra, § 1909, at 392–93 (emphasis added).
In other words, the “turned around” version of Judge Blackmun’s stаtement commits the common error of treating a sufficient condition as a necessary condition. Any of the three circumstances on Judge Blackmun’s list is clearly sufficient to establish inadequate representation, but it’s not necessary to establish one of the three to demonstrate inadequate representation. Other circumstances may also suffice.
If the three circumstances on the Blackmun’s list sound familiar, they should. The mistaken “turned around” version is a quote from Martin, 411 F.2d at 553. That same flawed quotation from Martin appears in our 1972 Indianapolis desegregation decision, which in turn was cited in our 1982 South Bend desegregation decision, which in turn provided the support for the strict gross-negligence/bad-faith rule announced in Ligas. Our use of the inaccurate Martin quotation in the Indianapolis case is followed by a “see also” citation to Stadin where the original Blackmun statement appears. Bd. of Sch. Comm’rs of Indianapolis, 466 F.2d at 575. But we quoted the faulty “turned around” version from Martin instead. Id. So to the extent that our circuit’s “gross negligence or bad faith” requirement rests on Martin’s errant, inverted version of Judge Blackmun’s statement in Stadin, it is wrong for this additional reason.
Returning now to this case, the majority accepts that Ligas and the two desegregation cases are distinguishable because they involved private parties seeking to intervene on the side of a governmental party. Majority Op. at p. 9. But my colleagues apply the gross-negligence/bad-faith requirement anyway. I disagree. Those cases do not control, as the majority readily acknowledges, and because they are sо flawed, I would not extend their application beyond their specific facts. Indeed, for the reasons I’ve just highlighted, I think the cases are ripe for correction. But we’re not asked to revisit them here, so it’s enough to note the flawed provenance of the gross-negligence/bad-faith requirement and confine it to cases involving intervention by private parties seeking to enter the litigation on the side of a governmental party.
All of that said, I think the basic underlying presumption is sound. As the majority explains, the default standard for evaluating the adequacy of existing representation is quite lenient. Majority Op. at p. 8. The Supreme Court has held that “[t]he requirement of the Rule is satisfied if the applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972). Our cases apply a presumption of adequate representation in two situations: when the intervenor and the named party share the same goal, and when the named party is a governmental official or body charged by law with protecting the intervenor’s interest. WEAC, 705 F.3d at 659.
Presuming adequate representation makes sense in both situations. When the intervenor’s and the named party’s ultimate goals are identical, or when a governmental official or body is legally required to represent the intervenor’s interest, it is reasonable, fair, and consistent with the practical inquiry required by
But the presumption “does not mean that intervention always must be denied if the interests of an absentee and one of the parties are identical or if there is a party whose function it is to represent the absentee.” Id. at 426–27. Rather, “[i]t means only that there must be a concretе showing of circumstances in the particular case that make the representation inadequate.” Id. at 427. I would apply the presumption of adequate representation here—not the gross-negligence/bad-faith requirement, which is badly flawed for the reasons I’ve discussed.
Still, I agree with the decision to affirm. The Legislature hasn’t identified a significant, concrete conflict or divergence in interests between it and the Attorney General. The argument for intervention of right relies on the lenient “may be inadequate” standard and rests largely on political and policy differences with the Attorney General over abortion regulations, as well as disagreements about litigation strategy in this and other cases. That’s not
Finally, I agree with my colleagues that Judge Conley reasonably exercised his discretion in denying the Legislature’s alternative request for permissive intervention under