Federal Bar Update: A primer on intervention as of right by non-parties

FedBarMaley-sigIntervention — Rule 24 allows a non-party to intervene in a pending action as of right in limited circumstances, either as of right or permissively. In Common Cause of Indiana v. Lawson, No. 1:17-cv-03936, 2018 U.S. Dist. LEXIS 30917, 2018 WL 1070472 (S.D. Ind. Feb. 27, 2018), plaintiff challenges Indiana’s voter registration law, suing the Indiana Secretary of State and the co-directors of the Indiana Election Division. The Public Interest Legal Foundation moved to intervene as a defendant, seeking to advance its mission of accurate voter rolls. Magistrate Judge Matthew Brookman denied the foundation’s motion to intervene, ruling instead that the Foundation could submit amicus curiae briefs. The opinion provides an excellent, comprehensive summary of the intervention standards and their application.

First, Judge Brookman addressed whether standing is required for intervenors, discussing extensive Seventh Circuit authority including Flying J, Inc. v. Van Hollen, 578 F.3d 569, 571, 573 (7th Cir. 2009) (discussing, specifically, that standing is required for both intervention types), and Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009), decided a few months after Flying J. Judge Brookman noted that Bond recognized that Flying J had stated “without discussion that a permissive intervenor must establish Article III standing.” Judge Brookman noted, however, that the Bond court found it “an ‘open question in this circuit … whether Article III standing is required for permissive intervention under Rule 24(b).’” Navigating other precedent, Judge Brookman ruled, “This Court concludes that the Seventh Circuit requires standing for all intervenors.”

Second, Judge Brookman analyzed whether the foundation had standing, setting forth the standard: “Standing is ‘an essential and unchanging part of the case-or-controversy requirement of Article III.’ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, (1992). … [T]he elements [that] must [be] show[n] are: (i) an injury in fact, which is an invasion of a legally protected interest that is concrete and particularized and, thus, actual or imminent, not conjectural or hypothetical; (ii) a causal relation between the injury and the challenged conduct, such that the injury can be fairly traced to the challenged action of the defendant; and (iii) a likelihood that the injury will be redressed by a favorable decision. DH2, Inc. v. U.S. S.E.C., 422 F.3d 591, 596 (7th Cir. 2005).” Further, “A party’s ‘mere interest in a problem,’ no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself” to establish standing, the court held, citing Sierra Club v. Morton, 405 U.S. 727, 739, (1972).

Judge Brookman concluded that the foundation lacked standing, writing: “The foundation’s mission to ensure that states and counties properly maintain voter-registration lists as required under federal law and its actions, including list-maintenance activities of states and counties, including in Indiana, differentiates the foundation from voters generally. But neither Common Cause nor the State of Indiana proposes to interfere in any way with the foundation’s monitoring activities. While the outcome of this litigation may impact the methods by which the foundation monitors voter lists or the requirements it must consider as it monitors lists, there is no indication the foundation’s mission will be entirely foreclosed. The foundation’s interest in the maintenance of accurate voting lists — to the extent those interests are implicated by this litigation at all — will be adequately represented by Indiana.”

Third, the court then addressed whether, even if standing did exist, the foundation would satisfy intervention as of right or permissive intervention under Fed. R. Civ. P. 24. As to intervention as of right, it is only available under Rule 24(a) if the intervenor: “(1) is given an unconditional right to intervene by a federal statute; or (2) 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 the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Further, the court explained, citing Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir. 1985), “For intervention by right, (1) the application must be timely; (2) the applicant must have a direct and substantial interest in the subject matter of the litigation; (3) the applicant’s interest must be impaired by disposition of the action without the applicant’s involvement; and (4) the applicant’s interest must not be represented adequately by one of the existing parties to the action.”

Judge Brookman ruled that Rule 24(a)(2) was not satisfied for the foundation’s intervention as of right. He wrote, “It lacks a direct and substantial interest relating to the subject matter of this litigation. Its purported interests will not be impaired without its involvement. Lastly, the present Defendants adequately represent any interest the Foundation contends it has in the case.” He further reasoned that any differences between the State’s interest and the foundation’s “are so small that the Foundation’s interests do not require separate representation,” and that the state and the foundation “share the same narrow objective: to uphold [the Indiana statute].”

Fourth, as for permissive intervention, it is controlled by Rule 24(b), “which provides in relevant part: Upon timely application anyone may be permitted to intervene in an action: … (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. … In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”

After determining that the foundation did not have a defense in common with the main action, Judge Brookman concluded, “Finally, even if it could be said that the applicants had a claim or defense in common with the main action, this Court would exercise its discretion to decline to permit the Foundation to intervene. The Foundation’s connection to the case is relatively attenuated, in that the Foundation does not vote, does not participate in voter registration drives, and does not claim any real, tangible and particularized effect on itself or its programs and activities from SEA 442 or a challenge to it. When intervention of right is denied because the state is likely to provide adequate representation, the case for permissive intervention is largely eroded.”•


John Maley [email protected] – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. He clerked for Judge Larry McKinney from 1988-90. Opinions expressed are those of the author.

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