case: 19-1835 document: 24 filed: 07/03/2019 pages: 31negligence when a party to the case is a...

No. 19-1835

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PLANNED PARENTHOOD OF

WISCONSIN, INC., et al.,

Plaintiffs-Appellees,

v.

JOSHUA KAUL, et al.,

Defendants-Appellees.

APPEAL OF: WISCONSIN LEGISLATURE

Proposed Intervenors

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF WISCONSIN, NO. 3:19-CV-00038-WMC

THE HON. WILLIAM M. CONLEY, PRESIDING

RESPONSE BRIEF OF DEFENDANTS-APPELLEES

JOSHUA L. KAUL

Attorney General of Wisconsin

BRIAN P. KEENAN

Assistant Attorney General

State Bar #1056525

Attorneys for Defendants-Appellees

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-0020

(608) 267-2223 (Fax)

[email protected]

Case: 19-1835 Document: 24 Filed: 07/03/2019 Pages: 31

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TABLE OF CONTENTS

Page

JURISDICTIONAL STATEMENT ......................................................................1

STATEMENT OF THE ISSUES ..........................................................................1

STATEMENT OF THE CASE .............................................................................2

I. The complaint and answer ...............................................................2

II. Proceedings related to the Legislature’s motion to

intervene ............................................................................................3

A. The motion to intervene .........................................................3

B. The defendants’ response .......................................................4

C. The district court’s denial of the motion ................................5

III. The scheduling order ........................................................................7

SUMMARY OF THE ARGUMENT .....................................................................7

STANDARD OF REVIEW ....................................................................................9

ARGUMENT .........................................................................................................9

I. The Legislature does not meet the standard for

intervention as of right. ................................................................. 10

A. The Legislature does not have a unique

interest that would be impaired in this case. ..................... 10

1. The Legislature does not satisfy this

Court’s standard for an interest

justifying intervention. .............................................. 10

2. The result in this case will not impair or

impede the Legislature’s ability to

protect its alleged interest. ........................................ 14


Page

ii

B. The Attorney General’s representation of the

defendants adequately protects the

Legislature’s interest. .......................................................... 15

1. The Legislature must overcome the

presumption of adequate representation

by showing gross negligence or bad faith.

..................................................................................... 15

2. The Legislature has not shown any

deficiencies in the Attorney General’s

representation, let alone bad faith or

gross negligence. ........................................................ 17

II. The district court did not abuse its discretion in

denying permissive intervention. ................................................. 21

CONCLUSION ................................................................................................... 24


Page

iii

TABLE OF AUTHORITIES

Cases

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) .................................................................................................... 12

Coleman v. Miller,

307 U.S. 433 (1939) ............................................................................................ 14–15

Falls Church Med. Ctr., LLC v. Oliver,

346 F. Supp. 3d 816 (E.D. Va. 2018) ................................................................. 18–19

Flying J, Inc. v. Van Hollen,

578 F.3d 569 (7th Cir. 2009) ........................................................................ 5, passim

Helgeland v. Wis. Municipalities,

2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1 ....................................................... 9, 11, 16

INS v. Chadha,

462 U.S. 919 (1983) .................................................................................................. 12

Int’l Ass’n of Machinists Dist. Ten & Local Lodge 873 v. Allen,

904 F.3d 490 (7th Cir. 2018) .............................................................................. 20–21

Karcher v. May,

484 U.S. 72 (1987) .................................................................................................... 12

Keith v. Daley,

764 F.2d 1265 (7th Cir. 1985) .............................................................................. 8, 10

Lake Investors Development Group, Inc. v. Egidi Development Group,

715 F.2d 1256 (7th Cir. 1983) .................................................................................. 15

Ligas ex rel. Foster v. Maram,

478 F.3d 771 (7th Cir. 2007) ............................................................................ 7–8, 16

Mazurek v. Armonstrong,

520 U.S. 968 (1997) .................................................................................................. 18

Menominee Indian Tribe of Wis. v. Thompson,

164 F.R.D. 672 (W.D. Wis. 1996) ............................................................................. 24

Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union,

Local 1199 v. Blackwell, 467 F.3d 999 (6th Cir. 2006) ........................................... 12

One Wisconsin Institute, Inc. v. Nichol,

310 F.R.D. 394 (W.D. Wis. 2015) ............................................................................. 24


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iv

Planned Parenthood of Wisconsin, Inc. v. Schimel,

806 F.3d 908 (7th Cir. 2015) .................................................................................... 18

Planned Parenthood of Wisconsin, Inc. v. Van Hollen,

94 F. Supp. 3d 949 (W.D. Wis. 2015) ....................................................................... 18

Revelis v. Napolitano,

844 F. Supp. 2d 915 (N.D. Ill. 2012) ........................................................................ 14

Shea v. Angulo,

19 F.3d 343 (7th Cir. 1994) ................................................................................ 17, 22

Sokaogon Chippewa Cmty. v. Babbitt,

214 F.3d 941 (7th Cir. 2000) .................................................................................... 21

State Pub. Intervenor v. Wis. Dep’t of Nat.,

Res., 115 Wis. 2d 28, 339 N.W.2d 324 (Wis. 1983) ................................................. 16

State v. City of Oak Creek,

2000 WI ¶ 23 , 232 Wis.2d 612, 605 N.W.2d 526 ................................................... 16

Trbovich v. United Mine Workers,

404 U.S. 528 (1972) .................................................................................................. 15

United States v. Pitney Bowes, Inc.,

25 F.3d 66 (2d Cir. 1994) ......................................................................................... 22

Virginia House of Delegates v. Bethune-Hill,

No. 18-281, 2019 WL 2493922 (U.S. June 17, 2019) ........................................ 13–15

Wis. Educ. Ass’n Council v. Walker,

705 F.3d 640 (7th Cir. 2013) ........................................................................ 4, passim

Statutes

Wis. Stat. § 14.11 ......................................................................................................... 21

Wis. Stat. § 111.06(1)(i) ............................................................................................... 20

Wis. Stat. § 165.25(6) ................................................................................................... 11

Wis. Stat. § 803.09(2m) .................................................................................................. 4

Rules

Fed. R. Civ. P. 24 ..................................................................................................... 8, 13

Fed. R. Civ. P. 24(a)(2) ................................................................................... 3, 7, 10, 16

Fed. R. Civ. P. 24(b) ................................................................................................... 3, 9


JURISDICTIONAL STATEMENT

The jurisdictional statement in the Wisconsin Legislature’s brief is

complete and correct.

STATEMENT OF THE ISSUES

1. This Court holds that a proposed intervenor must have a unique interest

in the case to be entitled to intervene as of right. The Legislature’s interest in

defending the laws at issue is identical to that of the Wisconsin Attorney

General. Does the Legislature have a unique interest justifying intervention

as of right?

2. This Court holds that a proposed intervenor must show bad faith or gross

negligence when a party to the case is a governmental body charged with

protecting the proposed intervenors’ interest. Here, the Attorney General is

charged with defending the Legislature’s stated interest—defending the

constitutionality of Wisconsin laws—and the Legislature has not alleged any

bad faith or gross negligence. Has the Legislature shown the defendants do not

adequately represent its interest?

3. Because permissive intervention is wholly discretionary, a denial will

only be reversed for an abuse of discretion. The district court denied permissive

intervention because adding another party to defend the laws at issue when

the current defendants are already defending those laws would needlessly


2

complicate the case. Did the district court abuse its discretion in denying

permissive intervention?

STATEMENT OF THE CASE

I. The complaint and answer

The plaintiffs, Planned Parenthood of Wisconsin, Inc. (“Planned

Parenthood”), and several nurses and one doctor employed by Planned

Parenthood, filed a complaint alleging that three aspects of Wisconsin’s laws

governing abortion were unconstitutional as an undue burden on women’s

right to an abortion. The named defendants, all sued in their official capacities,

are the Wisconsin Attorney General, a Wisconsin district attorney, and various

state officials and board members responsible for enforcing the challenged

laws. (Dkt. 1 ¶¶ 27–31.) The plaintiffs challenged three aspects of Wisconsin’s

regulation of abortion: (1) laws that require abortions to be performed by

physicians (Dkt. 1 ¶ 42–92); (2) laws that require the physician who gives

abortion-inducing drugs to a woman to have also conducted a physical

examination of the woman at least 24 hours prior (Dkt. 1 ¶ 93–107); and

(3) a law that requires the physician who gives the abortion-inducing drugs to

be in the same room as the woman. (Dkt. 1 ¶ 108–159.)

The defendants filed an answer that denied the challenged laws were

unconstitutional. (Dkt. 20.) While the Legislature apparently takes issue with

the “boilerplate denials” in that answer (Leg. Br. 7), the Legislature’s own


3

proposed answer “largely mirrors the answer submitted by defendants,”

(Dkt. 31:12, A-12), likely because simple denials are all that is required by

Rule 8.

The Legislature’s statement of the case contends that the defendants should

have moved to dismiss because there are cases supporting an argument that

states can limit the performance of abortions to physicians. (Leg. Br. 7–8.) The

Legislature, however, does not explain how a successful motion to dismiss on

this claim would have resulted in the dismissal of the two other claims in the

case. Without dismissal of all claims, the case would have been “heading for

more than a year of costly and burdensome litigation,” (Leg. Br. 8), even if the

challenge to the physician requirement had been dismissed.

II. Proceedings related to the Legislature’s motion to intervene

A. The motion to intervene

On March 28, 2019, the Legislature filed a motion to intervene as of right

under Rule 24(a)(2) and permissively under Rule 24(b). (Dkt. 21.)

In support of the motion to intervene as of right, the Legislature argued

that it had an interest in defending the constitutionality of its enactments and

that its votes would be nullified if a law were declared unconstitutional.

(Dkt. 22:5–7.) The Legislature relied on a state law, passed during an

extraordinary session called after the November 2018 elections, to support its

interest. That law provides that, “[w]hen a party to an action challenges in


4

state or federal court the constitutionality of a statute, . . . 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 § 801.14.” Wis. Stat.

§ 803.09(2m). The Legislature contended that an adverse decision would

impair its ability to protect its interest because a decision could have a negative

stare decisis effect. (Dkt. 22:7–8.)

The Legislature argued that the defendants did not adequately represent

their interests because the Attorney General was endorsed by a political

organization associated with Planned Parenthood. (Dkt. 22:9.) It also pointed

out that the Attorney General joined a suit against a federal regulation

regarding clinic funding and withdrew from two amicus briefs defending other

states’ abortion regulations. (Dkt. 22:10.)

The Legislature also moved for permissive intervention, although its

argument was only three paragraphs long and largely restated its argument

in support of intervention as of right. (Dkt. 22:10–11.)

B. The defendants’ response

The defendants opposed the motion. (Dkt. 27.)1 The defendants argued that

the Legislature did not have an interest that was “unique to the proposed

intervenor” required by this Court. (Dkt. 27:3 (quoting Wis. Educ. Ass’n

1 While the plaintiffs also opposed the motion (Dkt. 28), this brief only addresses

the defendants’ arguments.


5

Council v. Walker, 705 F.3d 640, 658 (7th Cir. 2013) (WEAC)).) The

Legislature’s interest—defending the constitutionality of the law—was

identical to that of the defendants because the Attorney General has a duty to

defend state laws. (Dkt. 27:3–4.) The Legislature’s interest, moreover, would

not be impaired because the district court’s decision would not have a stare

decisis effect. (Dkt. 27:6–7 (citing Flying J, Inc. v. Van Hollen, 578 F.3d 569,

573 (7th Cir. 2009).) And because the Attorney General had a duty to defend

the law, the court was required to presume the Attorney General adequately

represented the Legislature’s interest unless the Legislature could show gross

negligence or bad faith, which it had not shown. (Dkt. 27:7–10.) Lastly, the

defendants contended the court should not grant permissive intervention

because it would undermine the presumption that government entities

adequately represent interests by allowing a party to sidestep the need to show

gross negligence or bad faith. (Dkt. 27:11–12.)

C. The district court’s denial of the motion

The district court denied the motion to intervene. (Dkt. 31, A-1–14.) On

mandatory intervention, the court held that the Legislature did not meet three

of the requirements: (1) a direct, significant, and legally protectable interest in

the question at issue in the lawsuit, (Dkt. 31:4–7, A-4–7), (2) disposition of the

lawsuit would impair that interest (Dkt. 31:7–9, A-7–9), and (3) the parties to

the lawsuit did not adequately represent its interest. (Dkt. 31:9–12, A-9–12.)


6

On the interest element, the district court began by noting that the

authority relied upon by the Legislature stood for the proposition that

legislators may have interests that satisfy Article III standing, but that

“establishing standing is not a sufficient basis to seek intervention as of right.”

(Dkt. 31:5, A-5 (citing Flying J, 578 F.3d at 571).) While the state statute might

give them an interest for standing, it “does not automatically satisfy the

requirements for intervention as of right under Rule 24(a).” (Dkt. 31:6, A-6.)

Further, the Legislature did not establish the unique interest required by this

Court because its interest in defending the laws was the same as the

defendants’ interest. (Dkt. 31:6, A-6.)

Even if the Legislature had the requisite interest, its interest would not be

impaired. After rejecting the Legislature’s argument that its votes would be

nullified, the court held there was no impairment of its interest because there

would be no stare decisis effect given that “the decision of a district court has

no authority as precedent.” (Dkt. 31:9, A-9 (quoting Flying J, 578 F.3d at 573).)

The district court also held that the Legislature had not shown that the

defendants were inadequately representing its interests. The Legislature’s

motion failed to recognize this Court’s rule that, “when the representative

party is a governmental body charged by law with protecting the interests of

the proposed intervenors, the representative is presumed to represent their

interests adequately unless there is a showing of gross negligence or bad faith.”


7

(Dkt. 31:10, A-10 (quoting Ligas ex rel. Foster v. Maram, 478 F.3d 771, 774

(7th Cir. 2007).) This presumption applied because the Attorney General had

the duty to defend state laws, and the Legislature submitted no evidence that

the Attorney General did not intend to fulfill his duty or of gross negligence or

bad faith. (Dkt. 31:10–11, A-10–11.)

Lastly, the district court did not exercise its discretion to allow permissive

intervention “[f]or many of the same reasons the court found the proposed

intervenor failed to demonstrate a right to intervene.” (Dkt. 31:13, A-13.) The

court thought that intervention “would likely infuse additional politics into an

already politically-driven area of the law and needlessly complicate this case.”

(Dkt. 31:13, A-13.) The court did note that the Legislature was free to seek

leave to file amicus briefs. (Dkt. 31:13, A-13.)

III. The scheduling order

After denying the motion to intervene, the district court entered a

scheduling order for the case. (Dkt. 32.) The court set initial expert reports for

December 6, 2019, response expert reports for February 21, 2020, dispositive

motions for May 8, 2020, and trial for December 7, 2020. (Dkt. 32:2–5.)

SUMMARY OF THE ARGUMENT

The district court correctly denied the Legislature’s motion to intervene

because the Legislature does not meet three of the criteria for intervention as

of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure: an interest


8

in the case justifying intervention, impairment of that interest, and inadequate

protection of that interest by the parties.

The Legislature does not have an interest supporting mandatory

intervention that would be impaired by an adverse result. As this Court

has explained, mandatory intervention “requires a ‘direct, significant[,] and

legally protectable’ interest in the question at issue.” WEAC, 705 F.3d at 658

(alteration in original) (quoting Keith v. Daley, 764 F.2d 1265, 1268

(7th Cir. 1985)). This “interest must be unique to the proposed intervenor.” Id.

Here, the Legislature’s interest—to defend the laws at issue—is identical to

that of the Attorney General, who has a duty to defend the laws, which he is

fulfilling. The Legislature’s role in this case would be duplicative of the

Attorney General’s. Further, the Legislature’s interest would not be impaired

by a decision with stare decisis effect because the district court’s decision has

no such effect. The state statute the Legislature relies upon to support its

interest cannot override Rule 24’s requirements or this Court’s case law.

Further, the Attorney General is adequately representing the Legislature’s

interest in this case. When the party to the case “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.” Ligas, 478 F.3d at 774.

While the Legislature claims an interest in defending the constitutionality of


9

laws, the Attorney General is charged with doing just that. The Attorney

General “has the duty by statute to defend the constitutionality of state

statutes.” Helgeland v. Wis. Municipalities, 2008 WI 9, ¶ 96, 307 Wis. 2d 1,

745 N.W.2d 1. The Legislature has not shown bad faith or gross negligence.

Lastly, the district court did not abuse its discretion in denying the

Legislature permission to intervene under Rule 24(b). Permissive intervention

is wholly discretionary. The district court did not err in refusing permissive

intervention to a party that would fulfill the same role as the defendants in

defending the laws, thus complicating the case with little benefit. Moreover,

reversing the district court would eviscerate the requirement that proposed

intervenors show gross negligence or bad faith of a governmental party who is

charged with defending the intervenors’ interest.

STANDARD OF REVIEW

The Legislature’s brief accurately states the standards of review for the

denial of intervention as of right and permissive intervention.

ARGUMENT

The district court correctly denied the Legislature’s motion to intervene as

of right because it did not meet three of the required elements. The district

court also properly exercised its discretion in denying the Legislature’s motion

for permissive intervention.


10

I. The Legislature does not meet the standard for intervention as

of right.

The Legislature fails to satisfy three of Rule 24(a)(2)’s requirements. While

no one disputes it timely filed its motion, the Legislature does not possess a

unique interest in the case, the “disposition of the action” does not “threaten[ ]

to impair that interest,” and the named parties adequately represent the

Legislature’s interest. WEAC, 705 F.3d at 658. The Legislature bears the

burden of establishing its entitlement to intervene as of right, and the failure

to meet any of the elements requires denial of the motion. Keith, 764 F.2d at

1268. Given its failure to meet multiple elements, the Court should affirm the

denial of intervention as of right.

A. The Legislature does not have a unique interest that would

be impaired in this case.

1. The Legislature does not satisfy this Court’s standard

for an interest justifying intervention.

While the Legislature may have an interest in the outcome of this litigation,

it does not have a legal interest that supports mandatory intervention. As this

Court explained, mandatory intervention “requires a ‘direct, significant[,] and

legally protectable’ interest in the question at issue.” WEAC, 705 F.3d at 658

(alteration in original) (quoting Keith, 764 F.2d at 1268). This “interest must

be unique to the proposed intervenor.” Id. Importantly, merely establishing an

injury for Article III standing purposes “is not enough by itself to allow a person


11

to intervene in a federal suit and thus become a party to it. There must be

more.” Flying J, 578 F.3d at 571. Thus, the Legislature’s brief misunderstands

the district court’s rationale, which was that, even if the Legislature could

establish Article III standing, it did not show the “more” required for

intervention.

The Legislature does not meet the standard for intervention as of right

because its asserted interest in defending the constitutionality of laws is not

unique. The Attorney General “has the duty by statute to defend the

constitutionality of state statutes.” Helgeland, 307 Wis. 2d 1, ¶ 96. The

Wisconsin Supreme Court holds that “[t]he obligation of both the Department

of Justice and public officers charged with the enforcement of state statutes is

clear: they must defend the statute regardless of whether they have diverse

constituencies with diverse views.” Id. ¶ 108. The Attorney General has the

statutory authority to defend this case, Wis. Stat. § 165.25(6), and is fulfilling

his duties. (Dkt. 20.) The Legislature does not have a unique interest justifying

intervention because its asserted interest is merely supplementary to the

Attorney General’s and the other defendants’ interest in defending the laws.

This is true even if this Court would interpret WEAC and Keith as the

Legislature prefers, (Leg. Br. 27), because the Legislature does not even have

its own interest—its interest in defending the laws is the same as the Attorney


12

General’s interest. That fact does not change by labeling the Legislature’s

interest an “institutional” interest.

The Legislature cites no authority that granted a legislative body the right

to intervene in a case where the defendants were defending the laws being

challenged. Instead, it relies on cases in which legislative bodies intervened

after the defendants failed to defend the constitutionality of the laws at issue.

In Karcher v. May, 484 U.S. 72, 75 (1987), the presiding officers of both houses

of the New Jersey legislature intervened after “it became apparent that neither

the Attorney General nor the named defendants would defend the statute.”

Likewise, in INS v. Chadha, 462 U.S. 919, 940 (1983), the Court allowed

Congress to intervene because “Congress is the proper party to defend the

validity of a statute when an agency of government, as a defendant charged

with enforcing the statute, agrees with plaintiffs that the statute is

inapplicable or unconstitutional.”2 These cases do not support a “unique”

interest here because the defendants are defending the challenged laws.

2 The Court in Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997)

merely summarized these cases. The Legislature also relies on a case allowing the

Ohio Attorney General—on behalf of the State of Ohio—to intervene in order to

appeal a temporary restraining order that the Ohio Secretary of State declined to

appeal. Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v.

Blackwell, 467 F.3d 999, 1006 (6th Cir. 2006). While the General Assembly was also

a party, the court analyzed the issue as “[t]he Attorney General [ ] seek[ing] to

intervene on behalf of the State.” Id.


13

The Legislature relies heavily on the recently passed state statute that

authorizes the Legislature to intervene in state and federal courts. While the

Legislature admits that “Wisconsin law cannot . . . override the Federal Rules

of Civil Procedure or authorize intervention in a manner inconsistent with

Rule 24,” (Leg. Br. 38), it essentially argues that state law is determinative of

whether the Legislature meets Rule 24’s interest requirement. As shown

above, however, the Legislature does not meet the standards for intervention

as of right because whatever interest the Legislature has via the statute, it

merely supplements the Attorney General’s duty to defend state laws.

Because this Court requires more to intervene than the minimum interest

required by Article III standing, the Supreme Court’s recent decision in

Virginia House of Delegates v. Bethune-Hill, No. 18-281, 2019 WL 2493922

(U.S. June 17, 2019), cannot justify the Legislature’s intervention. In that case,

the Court held that one house of the Virginia legislature had no standing to

represent the state’s interest on appeal because Virginia law vested that

authority “exclusively with the State’s Attorney General,” id. at *3, and

because “a single House of a bicameral legislature lacks capacity to assert

interests belonging to the legislature as a whole.” Id. at *5. Assuming for

argument’s sake that this case is distinguishable given that both Houses of the

Legislature intervened here pursuant to a state law, it would not matter. The

Legislature was not denied intervention based on a lack of Article III standing;


14

the district court found that its interest was duplicative of the defendants’

interest. Thus, Virginia House cannot support the Legislature’s right to

intervene, but it could support the district court’s decision if this Court holds

that the Legislature does not have standing under the rule announced in that

case.

2. The result in this case will not impair or impede the

Legislature’s ability to protect its alleged interest.

The result in the district court will not impair or impede whatever interest

the Legislature has in this case. In the district court, the Legislature contended

that the district court’s decision may constrain its ability to enact future

regulations of abortion. (Dkt. 22:7.) This Court recognizes that there is no

concern with stare decisis because “the decision of a district court has no

authority as precedent.” Flying J, 578 F.3d at 573. The decision in Revelis v.

Napolitano, 844 F. Supp. 2d 915, 925 (N.D. Ill. 2012), relied upon by the

Legislature, is inconsistent with this Court’s precedent because it used the

stare decisis rationale rejected in Flying J.

In addition, the Supreme Court recently held, as the defendants argued

below, that the Legislature’s votes would not be “nullified” under the reasoning

in Coleman v. Miller, 307 U.S. 433 (1939). Virginia House, 2019 WL 2493922,

at *9–10. In Coleman, the legislators were plaintiffs challenging a

constitutional amendment they alleged passed by unconstitutional actions—


15

specifically, the lieutenant governor’s allegedly illegal tie-breaking vote.

307 U.S. at 436. The Supreme Court recognized that Coleman’s “nullification”

rationale does not apply when a federal court holds that an enacted law is

unconstitutional. Virginia House, 2019 WL 2493922, at *10. A case holding

that legislators have standing to sue as plaintiffs to challenge laws passed in

an allegedly illegal manner over their opposition does not support state

legislatures intervening to defend the laws they passed.

B. The Attorney General’s representation of the defendants

adequately protects the Legislature’s interest.

1. The Legislature must overcome the presumption of

adequate representation by showing gross negligence

or bad faith.

The Legislature was not entitled to intervene as of right because the

defendants, through the Attorney General, adequately protect the

Legislature’s interest. While in an ordinary case, a party need only make a

“minimal” showing that the representation “‘may be’ inadequate,” Lake

Investors Development Group, Inc. v. Egidi Development Group, 715 F.2d 1256,

1261 (7th Cir. 1983) (quoting Trbovich v. United Mine Workers, 404 U.S. 528,

538 n.10 (1972)), that standard does not apply here. When the party to the case

“is a governmental body charged by law with protecting the interests of the

proposed intervenors, the representative is presumed to adequately represent


16

their interests unless there is a showing of gross negligence or bad faith.”

Ligas, 478 F.3d at 774.

That presumption applies here. When the Wisconsin Attorney

General represents the defendants in a case challenging a state law, the

Attorney General “has the duty by statute to defend the constitutionality of

state statutes.” Helgeland, 307 Wis. 2d 1, ¶ 96; State v. City of Oak Creek,

2000 WI 9, ¶ 23 n. 14, 232 Wis.2d 612, 605 N.W.2d 526; State Pub. Intervenor

v. Wis. Dep’t of Nat. Res., 115 Wis. 2d 28, 37, 339 N.W.2d 324 (Wis. 1983).

Defending the constitutionality of the laws at issue in this case is the very

interest that the Legislature asserts. Because the Attorney General has that

duty, the Legislature must show gross negligence or bad faith to overcome the

presumption of adequate representation.

The Legislature fails to distinguish the cases applying this standard. The

question is whether the parties adequately represent the proposed intervenor’s

interest. Fed. R. Civ. P. 24(a)(2). Thus, this Court focuses on the duties of the

governmental party to the case—whether the party is “charged by law with

protecting the interests of the proposed intervenors” Ligas, 478 F.3d at 774—

and not on the alleged rights or interests of the proposed intervenors. If the

governmental party has a such a duty, then the federal courts will presume it

is fulfilling its duty and, as a result, adequately represents the proposed

intervenors’ interest. The proposed intervenors’ authority (or lack thereof) to


17

bring a lawsuit is not relevant to the question of whether the governmental

party is adequately representing the intervenors’ interest.

This Court’s decision in WEAC does not support the Legislature’s argument.

The proposed intervenors in WEAC—non-union public employees—did not

have to meet the heightened standard discussed above because they did not

assert an interest in defending the challenged laws. Instead, they intervened

to protect their First Amendment rights, which the Attorney General had no

duty to protect. 705 F.3d at 659. Here, in contrast, the Attorney General has a

duty to defend the constitutionality of laws, which is the Legislature’s asserted

interest in this case. Moreover, WEAC still imposed a higher burden on

proposed intervenors that, as here, “have the same goal” as a party to the case.

Id. In that situation, this Court presumes “that the representation in the suit

is adequate” and requires the proposed intervenor to rebut the presumption by

showing a conflict. Id. (quoting Shea v. Angulo, 19 F.3d 343, 347 (7th Cir.

1994). The proposed intervenors in WEAC could not show such a conflict, and

neither can the Legislature given that the Attorney General has a duty to

defend the challenged laws.

2. The Legislature has not shown any deficiencies in the

Attorney General’s representation, let alone bad faith

or gross negligence.

The Legislature has not made the required showing of gross negligence or

bad faith to overcome the presumption. There is no evidence that the


18

defendants will not vigorously defend the challenged laws. The Attorney

General has filed an answer denying that any of the challenged laws are

unconstitutional. (Dkt. 20.) Lead counsel for the defendants was a member of

the team that defended the admitting privileges law in Planned Parenthood of

Wisconsin, Inc. v. Van Hollen, 94 F. Supp. 3d 949 (W.D. Wis. 2015), and argued

the appeal before this Court in Planned Parenthood of Wisconsin, Inc. v.

Schimel, 806 F.3d 908 (7th Cir. 2015). The Legislature’s fears of a half-hearted

defense are mere speculation, and its argument would create a right to

intervene whenever the Legislature contends there is a political difference

with the Attorney General.

The Legislature takes issue with the defendants’ litigation strategy of not

filing a motion to dismiss. (Leg. Br. 22–23.) As an initial matter, quibbling with

litigation strategy cannot show inadequate representation, let alone bad faith

or gross negligence. WEAC, 705 F.3d at 659. Further, the Legislature’s attack

is based on a misunderstanding of the relevant authority. The Legislature

presents the dismissal of the physician requirement claim as a foregone

conclusion, even though a motion to dismiss this same claim was recently

denied. Falls Church Med. Ctr., LLC v. Oliver, 346 F. Supp. 3d 816, 829 (E.D.

Va. 2018). The court in that case noted that Mazurek v. Armonstrong, 520 U.S.

968 (1997) (per curiam) did not address “the possible effect of compelling

evidence of a substantial obstacle to abortion posed by a physician-only


19

requirement.” Falls Church, 346 F. Supp. 3d 829. As a result, the court denied

the motion to dismiss because, in “an as-applied analysis, the door remains

slightly ajar as to whether the physician-only law in Virginia places an undue

burden on the fundamental right to choose an abortion prior to viability.” Id.

There is no guarantee that the district court would have granted a motion to

dismiss in this case.

In addition, the Legislature curiously ignores the two other claims in this

case for which there is no Supreme Court authority foreclosing the plaintiffs’

claims. While Mazurek noted that a state may limit abortions to licensed

physicians, the Court has not ruled on laws requiring the physician who

provides the abortion medication be the same physician who performed a

physical exam or the provider to be present in the room when medication

abortion drugs are given. Thus, this case was going to proceed beyond the

pleadings stage regardless of whether the defendants filed a motion to dismiss

on the physician requirement claim.

The balance of the Legislature’s argument for inadequate representation is

based on unrelated cases that did not involve defending a Wisconsin law, and

thus cannot show fad faith or gross negligence in this case. The Legislature

relies on the Attorney General withdrawing from two amicus briefs in cases

challenging abortion laws (Leg. Br. 33)—importantly, laws that Wisconsin

does not have. Jessie Opoien, AG Josh Kaul Withdraws Wisconsin from two


20

Cases Challenging Abortion Access, The Cap Times (Mar. 19, 2019),

https://perma.cc/TT49-JHC6. This is not analogous to defending a state law.

The decision to withdraw from these amicus briefs relating to other state’s law

does not show the Attorney General will inadequately fulfill his duty to defend

the laws Wisconsin has enacted.

The Legislature also relies on the Attorney General joining a challenge to a

federal Title X regulation, (Leg. Br. 34), which involves a very different issue

from this case. The Attorney General joined a multi-state challenge to a federal

regulation that bars any recipient of Title X funds from referring a patient for

abortion. Wisconsin Joins 20 AG’s Challenging New Title X Restrictions on

Women’s Reproductive Healthcare, Wisconsin Dept. of Justice (Mar. 5, 2019),

https://perma.cc/9UBK-PRXW. Challenging a federal regulation about clinic

funding does not conflict with the Attorney General defending a state’s medical

regulations regarding abortion.

Lastly, the Legislature relies on the Attorney General’s decisions in cases

having nothing to do with the issues here. (Leg. Br. 39–40.) The Legislature

takes issue with the Attorney General dismissing a certiorari petition to the

Supreme Court. However, the State litigated and lost that case at each level

because the state law “applies to the extent permitted under federal law,” Wis.

Stat. § 111.06(1)(i), and governing federal case law held the state law was

preempted. See Int’l Ass’n of Machinists Dist. Ten & Local Lodge 873 v. Allen,


https://perma.cc/TT49-JHC6

21

904 F.3d 490, 493 (7th Cir. 2018). Withdrawing a petition for certiorari in those

circumstances is not comparable to the situation here.3 The Legislature also

takes issue with the Attorney General declining to represent certain state

officials sued in relation to Wisconsin laws passed during the extraordinary

session late last year, but tellingly does not address why the Attorney General

made that decision. The extraordinary session laws had a direct impact on the

Department of Justice’s powers, thus creating a conflict of interest for the office

to defend those laws. Having recognized the conflict, the Department of Justice

asked the Governor’s office to obtain outside counsel as provided in Wis. Stat.

§ 14.11. In any event, these unrelated cases say nothing about whether the

Attorney General has shown gross negligence or bad faith in this case, and thus

cannot support a finding of inadequate representation.

II. The district court did not abuse its discretion in denying

permissive intervention.

The district court also properly exercised its discretion in denying

the Legislature permissive intervention. “Permissive intervention under

Rule 24(b) is wholly discretionary.” Sokaogon Chippewa Cmty. v. Babbitt,

214 F.3d 941, 949 (7th Cir. 2000). Because of the discretionary nature of

permissive intervention, “[r]eversal of a district court’s denial of permissive

3 To the extent the Legislature is concerned about future appeals in this case,

Flying J shows that the Legislature can move to intervene should the defendants fail

to appeal. 578 F.3d at 572.


22

intervention is a very rare bird indeed, so seldom seen as to be considered

unique.” Shea, 19 F.3d at 346 n.2 (quoting United States v. Pitney Bowes, Inc.,

25 F.3d 66, 73 (2d Cir. 1994)). The Legislature has not shown an abuse of

discretion to warrant such a rarity.

Here, the district court reasonably concluded that adding another party who

would defend the laws alongside the defendants would needlessly complicate,

and inject politics into, the case. This is undoubtedly true—with multiple

defendants, the case will become more complex during discovery, summary

judgment, and trial. Instead of a single group of defendants represented by the

same counsel, there would be two sets of counsel asking questions at

depositions, propounding discovery, and trying the case (including negotiating

stipulated facts, examining witnesses, marking trial exhibits, etc.). The

Legislature did not justify this added complexity by identifying a

corresponding benefit.

The district court did not, as the Legislature suggests (Leg. Br. 43–44), add

a requirement to permissive intervention; in fact, it is difficult to understand

how a district court can add a requirement to a standard that is wholly

discretionary. Instead, the district court merely decided not to exercise its

discretion to allow the Legislature to intervene.

This Court has recognized that permissive intervention can be denied to a

party attempting to defend a law alongside an Attorney General. Flying J,


23

578 F.3d at 572. In Flying J, the court noted that a proposed intervenor’s

“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.” Id. The Legislature

misunderstands the import of the Flying J decision. The defendants have never

contended that it is identical in all ways; it merely shows that a district court

is well within its discretion to deny permissive intervention to a party seeking

to intervene in circumstances like those here.

While the Legislature takes issue with the district court relying on its

failure to meet the standard for intervention as of right in denying permissive

intervention, the Legislature’s motion for permissive intervention was based

on the same arguments. The Legislature argued (as it does on appeal) that a

denial of permissive intervention “could significantly prejudice its interests

and rights,” and that an adverse finding would “nullify the Legislature’s votes

on the specific measures at issue here” and “constrain the Legislature’s ability

to enact legislation on similar matters in the future.” (Dkt. 22:11.) These were

the same arguments the Legislature made regarding its interests in support of

intervention as of right. (Dkt. 22:7.) Having used the same argument from its

motion to intervene as of right in its three-paragraph argument supporting

permissive intervention, the Legislature can hardly complain that the district

court found the argument just as unpersuasive.


24

Lastly, the Legislature wrongly takes issue with the district court’s citation

of two district court decisions declining to grant permissive intervention

when a proposed intervenor failed to overcome the presumption of

adequate representation by government bodies. (Dkt. 31:12–13, A-12–13

(citing Menominee Indian Tribe of Wis. v. Thompson, 164 F.R.D. 672, 678

(W.D. Wis. 1996); One Wisconsin Institute, Inc. v. Nichol, 310 F.R.D. 394, 399

(W.D. Wis. 2015)).) These decisions merely reflect that, if this Court’s

presumption of adequate representation is to mean anything, a proposed

intervenor should not be able to sidestep the presumption via permissive

intervention. If the government party is adequately representing the proposed

intervenor’s interest, why should a district court exercise its discretion to allow

intervention? The Legislature did not provide a good answer to that question

here because it merely parroted its arguments in favor of intervention as of

right. Reversing the district court would eviscerate the presumption of

adequate representation; it would mean that district courts must exercise their

discretion to allow permissive intervention even when proposed intervenors’

interests are being adequately represented by an entity with a duty to protect

those interests.

CONCLUSION

For the foregoing reasons, this Court should affirm the district court.


25

Dated this 3rd day of July, 2019.

Respectfully submitted,

JOSHUA L. KAUL

Attorney General of Wisconsin

Electronically signed by:

s/ Brian P. Keenan

BRIAN P. KEENAN


State Bar #1056525

Attorneys for Defendants-Appellees

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-0020

(608) 267-2223 (Fax)

[email protected]


26

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME

LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE

REQUIREMENTS

This brief complies with the type-volume limitation of

Fed. R. App. P. 32(a)(7)(B), typeface requirements of Fed. R. App. P. 32(a)(5),

and type style requirements of Fed. R. App. P. 32(a)(6).

This brief contains 5613 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(f) and has been prepared in a

proportionally spaced typeface using Microsoft Word 2013 in

13 point Century Schoolbook.


s/ Brian P. Keenan

BRIAN P. KEENAN


CERTIFICATE OF SERVICE

I certify that on June 3rd, 2019, I electronically filed the foregoing Response

Brief with the clerk of court using the CM/ECF system, which will accomplish

electronic notice and service for all participants who are registered CM/ECF

users.

I further certify that a copy of the above document was mailed to:

Susan J. Kohlmann

Jenner & Block LLP

919 Third Avenue, 38th Floor

38th Floor

New York, NY 10022-3908

Diana Salgado

Planned Parenthood Federation

of America

123 William Street

New York, NY 10038-3804

Tamara B. Packard

Lester A. Pines

Pines Bach LLP

122 West Washington Avenue

Suite 900

Madison, WI 53703-2718

Jeffrey Matthew Harris

Consovoy McCarthy PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209


s/ Brian P. Keenan

BRIAN P. KEENAN



case: 19-1835 document: 24 filed: 07/03/2019 pages: 31negligence when a party to the case is a...

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