Joshua Yount of Mayer Brown

We find artifacts of our current partisan age in all sorts of places these days. That includes a recent U.S. Court of Appeals for the Seventh Circuit decision regarding intervention under Federal Rule of Civil Procedure 24. The decision—Planned Parenthood of Wisconsin v. Kaul, No. 19-1835 (7th Cir. Nov. 7, 2019)—arose from the intersection of two trends in today's partisan battles. In one trend, the election or appointment of a new attorney general from a different political party than his predecessor has resulted in changes in the government's litigation positions. In the other trend, legislatures controlled by one political party have enacted laws limiting or eliminating certain powers exercised by executive officers following elections that installed executive officers from a different political party.

Kaul addressed whether the Wisconsin Legislature (controlled by Republicans) should be able to intervene in a suit against the Wisconsin attorney general (a Democrat) and other state officers challenging the constitutionality of certain abortion regulations. The Legislature invoked a recently enacted Wisconsin law that allows the Legislature to intervene in actions challenging the constitutionality of a state statute. The Legislature wanted to intervene in Kaul in order to pursue a motion to dismiss after the attorney general had simply answered the complaint with a denial that the regulations were unconstitutional. The Kaul panel ultimately affirmed the district court's denial of intervention because the attorney general adequately represented the Legislature's interests in defending the abortion regulations. But in reaching that conclusion, the panel clarified several aspects of Rule 24 law, flagged other issues for future resolution and divided over one potentially important question of legal standards.

The majority opinion (authored by Judge Ant St. Eve and joined by Judge Joel Flaum) first considered whether the Wisconsin intervention statute compelled the district court to permit the Legislature to intervene. The statute provides that "the legislature may intervene … at any time … as a matter of right" in a constitutional challenge to state law "in state or federal court," Wis. Stat. 803.09(2m). Although that statutory language implies that intervention should be automatic, the panel concluded that the statute cannot be read that way in federal court. Instead, intervention is governed by Rule 24 because it is a purely procedural right and federal law controls procedural rights in federal court. But the panel majority did not deem the Wisconsin intervention statute irrelevant.  It viewed the statute as a "strong policy judgment of how [Wisconsin] wishes to litigate in federal court" and thus relied on the statute "to inform the Rule 24(a)(2) calculus."

The majority opinion then turned to Rule 24(a)(2), which authorizes intervention-as-of-right. Under established Seventh Circuit law, that species of intervention requires a proposed intervenor to make a timely application; have an interest relating to the subject matter of the action; show potential impairment of that interest by the disposition of the action; and show a lack of adequate representation of the interest by existing parties. Only the last three requirements were in dispute.

The panel majority offered only a partial analysis of whether the Legislature had a potentially impaired interest in the challenge to Wisconsin abortion regulations. It rejected the notion that the Legislature had standing to champion its "institutional interests" as a legislature, reasoning that such interests do not carry weight in challenges to the constitutionality of "concededly enacted" statutes. The panel majority concluded that it was "comfortable adopting the district court's assumption" that the Wisconsin intervention statute "gives the Legislature standing as an agent of the state of Wisconsin" to participate in such challenges. But it declined to decide whether the Legislature's interest in the challenge to abortion regulations satisfied the additional requirement that the interest be "unique" in the sense that it belongs to the Legislature rather than an existing party. The panel majority left that question for another day because it concluded that the Legislature had not shown a lack of adequate representation.

In analyzing the adequacy of existing representation for the Legislature's interests, the panel majority started by reiterating the three-tiered structure the Seventh Circuit uses to assess adequacy of representation for intervention purposes. The first-tier default standard requires only that the proposed intervenor show that its interest "may be" inadequately represented.  If the intervenor has the "same goal" as a named party, a second-tier rebuttable presumption of adequacy arises, requiring the intervenor to show "some conflict" warranting intervention. Finally, if a party is a "governmental body charged by law with protecting the interests of the proposed intervenor," a third-tier standard presumes that the party is an adequate representative unless the intervenor shows "gross negligence or bad faith."

The Legislature disputed neither that it has the same goal as the attorney general nor that the attorney general is charged by law with protecting Wisconsin's interests in defending state law. But it argued that the first-tier adequacy-of-representation standard should apply, taking the position that the second and third tiers should apply only to intervention requests by private parties. The panel majority rejected that argument. It concluded that when an intervenor is trying to add a second voice for the state while pursuing the same goal as the party that is already speaking for the state, the third-tier standard is the right one. The intervenor and the party both represent the state. Allowing them to litigate in parallel could "subject the district court" to an "intractable procedural mess," as they "could take inconsistent positions on any number of issues," leaving the district court with "no basis for divining the true position" of the state. Indeed, "a state could split its voice among as many entities as it wishes," which could "overwhelm a district court." The panel majority did not want to "leave a district court powerless to control litigation involving states." Accordingly, the panel majority concluded that it was appropriate to condition intervention-as-of-right on a showing by the Legislature that the attorney general was operating in bad faith or a grossly negligent manner. As there was no such showing, the panel majority saw no grounds for reversing the denial of intervention-as-of-right.

The panel majority turned next to permissive intervention under Rule 24(b)(1), which it viewed as a potentially "better solution" for intervention requests like the Legislature's. "Permissive intervention allows the district court to consider a wide variety of factors, including the needs of federal-state comity," but "leaves the district court with ample authority to manage the litigation before it." A court "can even place conditions on the scope of permissive intervention, allowing more voices to be heard without over-complicating the case." So the question was whether the district court wrongly denied the Legislature permissive intervention. The panel majority thought not. Permissive intervention is "wholly discretionary," and reversal of a denial of permissive intervention is "a very rare bird indeed." The panel majority could not say that the district court "abused its discretion in weighing the costs and benefits of permissive intervention" and finding 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." But the panel majority cautioned that the district court should be ready to reconsider its ruling if circumstances change.

Concurring, Judge Diane Sykes agreed with the panel majority's conclusions and most of its reasoning. But she disagreed with one aspect of the Rule 24(a)(2) analysis. She believed that intervention-as-of-right requests like the Legislature's should be subject to the second-tier standard rather than the third-tier one. In her view, "requiring a showing of gross negligence or bad faith makes intervention of right unavailable in all but the most extreme cases," which is inconsistent with the case-specific analysis required by Rule 24. Moreover, she traced the third-tier standard to a misreading of prior precedent that turned sufficient conditions for intervention into necessary ones.

Joshua D. Yount is a partner in Mayer Brown's Chicago office and a member of the firm's Supreme Court and appellate practice.