Planned Parenthood of Wis., Inc. v. Kaul
Planned Parenthood of Wis., Inc. v. Kaul
Opinion of the Court
WILLIAM M. CONLEY, District Judge *984Plaintiff Planned Parenthood of Wisconsin, Inc., and four of its health care providers bring this lawsuit against Wisconsin Attorney General Joshua Kaul, the District Attorney for Dane County Ismael Ozanne, in his official capacity and as a representative of a defendant class of District Attorneys, the Secretary of the Department of Safety and Professional Services Dawn Crim and members of the Medical Examining Board and the Board of Nursing. Plaintiffs claim that various laws and regulations unnecessarily require the participation of a physician (and at times the same physician) at various stages of the abortion services in violation of their rights, as well as the rights of their patients. (Compl. (dkt. #1).) In answering the complaint, defendants deny that these requirements violate the constitutional rights of plaintiffs or their patients. (Answ. (dkt. #20).) Presently before the court is a motion by the Wisconsin legislature that seeks to intervene in this ongoing lawsuit, either as a matter of right or by permission under Federal Rule of Civil Procedure 24. (Dkt. #21.) All the parties to this lawsuit oppose the motion. (Dkt. ##27, 28.) Having reviewed the parties' submissions, as well as the proposed intervenor's unsolicited reply brief (dkt. #30), the court will deny the motion for the reasons set forth below, principal of which is the failure of the proposed intervenor to distinguish controlling Seventh Circuit case law.
BACKGROUND
Plaintiffs filed their complaint on January 16, 2019, seeking a declaratory judgment that the following abortion-related regulations violate the Fourteenth Amendment and the Equal Protection Clause.
•Wis. Stat. § 940.15 (5) andWis. Admin. Code MED § 11.03 , which prohibit anyone other than a physician from performing a medication or surgical abortion. (Compl. (dkt. #1) ¶ 2.)
•Wis. Stat. § 253.105 (2)(a) and § 253.10(3)(c)(1), which require that "woman may not be given an abortion-inducing drug for a medication abortion unless the same physician who prescribes the drug has also conducted a pre-abortion physical examination of the woman at least 24 hours before the medication abortion is induced." (Id. at ¶ 5.)
•Wis. Stat. § 253.105 (2)(b), which requires that a physician must be in the same room as the woman when she is given the abortion-inducing drug. (Id. at ¶ 6.)
As indicated above, defendants answered the complaint on March 21, 2019, denying that these regulations violate the Fourteenth Amendment. (Answ. (dkt. #20.)) On March 28, 2019, the Wisconsin legislature filed the present motion to intervene. This case is set for a preliminary pretrial conference with Magistrate Judge Steven Crocker today, April 23, 2019.
OPINION
I. Intervention as of Right
In this case, there is no statutory basis for intervention under
Rule 24(a) recognizes a "right to intervene when: (1) the motion to intervene is timely filed; (2) the proposed intervenors possess an interest related to the subject matter of the action; (3) disposition of the action threatens to impair that interest; and (4) the named parties inadequately represent that interest." Wis. Educ. Ass'n Council v. Walker ("WEAC "),
There is no dispute that the first element is met here. The Wisconsin legislature filed the motion to intervene approximately two and a half months after the complaint was filed and within a week of defendants' answer, before a schedule was even set in this case. However, all parties challenge whether the other three requirements are satisfied.
As for the interest requirement, "[i]ntervention as of right requires a 'direct, significant[,] and legally protectable' interest in the question at issue in the lawsuit." WEAC ,
When a party to an action challenges in state or federal court the constitutionality of a statute, facially or as applied ... the assembly, the senate, and the legislature may intervene as set forth under § 13.365 at any time in the action as a matter of right by serving a motion upon the parties as provided in § 804.14.
The legislature also points to United States Supreme Court cases, which primarily address whether a legislative body has standing to represent the state's interest. (Id. at 5-6 (citing Arizonans for Official English v. Arizona ,
Nothing in the earlier decisions by the United States Supreme Court cited by the proposed intervenor suggests otherwise. In Arizonans for Official English , the Supreme Court explained that its earlier decision in Karcher recognized that "state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests," but concluded that the coalition seeking to intervene on appeal was not a legislative body, and therefore its standing was in doubt.
In Flying J , the Seventh Circuit followed this approach, granting an association of Wisconsin gasoline dealer's motion to intervene on appeal because the Wisconsin attorney general opted not to appeal an adverse decision by the district court. The court explained:
Had the association sought to intervene earlier, its motion would doubtless (and properly) have been denied on the ground that the state's attorney general was defending the statute and that adding another defendant would simply complicate the litigation. For there was nothing to indicate that the attorney general was planning to throw the case-until he did so by failing to appeal.
So, too, here. A state statute purporting to provide the Wisconsin legislature with the authority under state law to defend the State in federal court, arguably satisfying the standing requirements under Article III, does not relieve the legislature from satisfying the requirements for intervening under a federal rule. Even if it did impact the calculus, the statute certainly does not automatically satisfy the requirements for intervention as of right under Rule 24(a).
Putting aside this state statutory hook, the Seventh Circuit has instructed that the intervenor's "interest must be unique to the proposed intervenor." WEAC ,
*987Even if the Wisconsin legislature's interest were sufficiently unique, a proposed intervenor must also demonstrate that "the disposition of this action threatens to impair that interest." WEAC ,
Even if the cases cited by the proposed intervenor could be read as allowing intervention of a state legislature (or individual legislators) to defend their vote, the 2018-2019 Wisconsin legislature's interest in the legislation at issue in this case is far less clear than the interests at stake in the standing cases cited above, where the challenged legislation was enacted or up for passage in the current term. The challenged statutes and regulations implicated in this lawsuit are not new. The requirement that abortions "must be performed by physicians duly licensed by the medial examining board," now codified in Wisconsin Administrative Code § MED 11.03, was adopted in January 1974 in the wake of Roe v. Wade ,
The proposed intervenors also complain that an adverse decision in this case could have an impact on the legislature's ability to pass abortion-related legislation in the future. While any decision in this case necessarily will be limited to the challenged regulations, any attempt by the legislature to reenact the same regulations would be thwarted. However, the desire to reenact invalidated legislation hardly serves as a cogent basis for intervening. Moreover, while "concern with the stare decisis effect of a decision can be a ground for intervention, ... the decision of a district court has no authority as precedent." Flying J ,
Even assuming the Wisconsin legislature could point to a direct, unique interest implicated by this lawsuit, and that this lawsuit somehow threatens to impair that interest, the proposed intervenor's argument that defendants, including Attorney General Kaul, "inadequately represent that interest" falls short. Typically, as the proposed intervenor notes, "only a 'minimal' showing of inadequate representation" is required. WEAC ,
*989Here, the attorney general is a defendant in this case and the Wisconsin Department of Justice, which the Wisconsin attorney general oversees, is defending the constitutionality of the challenged statutes and regulations. Moreover, under Wisconsin law, the attorney general "has the duty by statute to defend the constitutionality of state statutes." Helgeland v. Wis. Municipalities ,
Still, the Wisconsin legislature persists that this case "illustrates the divergence between the legislative and executive branches," arguing that Attorney General Kaul "may not litigate this case as ardently as the Legislature." (Proposed Intervenor Mot. (dkt. #22) 9.) Specifically, the proposed intervenor points to: the attorney general's endorsement by the political arm of Planned Parenthood during the election; his decision to join a lawsuit against the federal government challenging a regulation barring taxpayer-funded family planning clinics from referring patients to abortion providers; his decision to withdraw Wisconsin from two, multi-state amicus briefs defending abortion regulations unrelated to those challenged here, nor adopted by Wisconsin; and defendants' choice to file an answer, rather than a motion to dismiss. (Id. at 9-10.)
Even viewed collectively, this litany fails to demonstrate (or even come close to demonstrating) either gross negligence or bad faith. See Ligas ,
II. Permissive Intervention
In the alternative, the Wisconsin legislature seeks permissive intervention under Rule 24(b), which is "wholly discretionary." Sokaogon v. Chippewa Cmty. v. Babbitt ,
For many of the same reasons the court found that the proposed intervenor failed to demonstrate a right to intervene, the court declines to exercise its discretion to allow it to intervene permissively. Moreover, to allow intervention would likely infuse additional politics into an already politically-divisive area of the law and needlessly complicate this case. See Flying J ,
While denying this motion, the Wisconsin legislature is free to seek leave to file amicus curiae briefs, see Nat'l Org. for Women, Inc. v. Scheidler ,
Finally, the Wisconsin legislature may appeal immediately this denial to the Seventh Circuit Court of Appeals. See Shea v. Angulo ,
ORDER
IT IS ORDERED that the Wisconsin Legislature's motion to intervene (dkt. #21) is DENIED.
As the proposed intervenor acknowledges, there are pending challenges to the constitutionality of this legislation. (Proposed Intervenor's Br. (dkt. #22) 6 n.1.)
Independent of its statutorily recognized interest, the proposed intervenor argues that its interest is "powerful," directing the court to Coleman v. Miller ,
Effective November 1, 1976,
In its reply brief, the proposed intervenor contends that this language constitutes dicta since the court concluded that intervention was appropriate. The discussion, however, was material to the court's finding that the intervenor's rights would be impaired by the disposition of this lawsuit. In that case, intervention was not appropriate until the Wisconsin attorney general opted not to appeal an adverse decision. The court explained that while the adverse decision in the district court had no stare decisis effect -- and, thus, this was not an adequate basis to find an impairment of the proposed intervenor's interest -- the lack of an appeal would impair the intervenor's interest. Flying J. ,
In its reply brief, the proposed intervenor urges the court not to adopt the "bad faith or gross negligence" standard, arguing that this standard has not been endorsed by the United States Supreme Court. (Proposed Intervenor's Reply (dkt. #30) 9.) This argument is silly. The Seventh Circuit has repeatedly required a showing of bad faith or gross negligence to rebut the presumption of adequacy of representation when the party is charged with defending against a constitutional challenge. See United States v. South Bend Cmty. Sch. Corp. ,
The proposed intervenor contends that it would have filed a motion to dismiss or a motion for judgment on the pleadings, and that if its motion is granted, it will promptly do so. This argument, however, is simply a "quibble[ ] with the state's litigation strategy," and does not rise to the level of negligence or bad faith, or otherwise support a finding that the attorney general is not adequately representing the State's interests. WEAC ,
Reference
- Full Case Name
- PLANNED PARENTHOOD OF WISCONSIN, INC., Dr. Kathy King, Natalee Hartwig, Sara Beringer and Katherine Melde v. Joshua KAUL, Ismael Ozanne, Dawn Crim, Kenneth B. Simons, Timothy W. Westlake, Mary Jo Capodice, Alaa A. Abd-Elsayed, David A. Bryce, Michael Carton, Padmaja Doniparthi, Rodney A. Erickson, Bradley Kudick, Lee Ann R. Lau, David M. Roelke, Robert L. Zoeller, Peter J. Kallio, Pamela K. White, Romsemary Dolatowski, Jennifer Eklof, Elizabeth S. Houskamp, Sheryl A. Krause, Lillian Nolan and Luann Skarlupka
- Cited By
- 5 cases
- Status
- Published