Wisconsin Legislature v. Joshua Kaul ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1835
PLANNED PARENTHOOD OF WISCONSIN,
INC., et al.,
Plaintiffs-Appellees,
v.
JOSHUA L. KAUL, et al.,
Defendants-Appellees.
APPEAL OF: WISCONSIN LEGISLATURE,
Proposed Intervenor.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin,
No. 3:19-cv-00038-wmc — William M. Conley, Judge.
____________________
ARGUED SEPTEMBER 6, 2019 — DECIDED NOVEMBER 7, 2019
____________________
Before FLAUM, SYKES, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. A state can speak in litigation only
through its agents and may select its agents without the inter-
ference of the federal courts. Typically, a state chooses to des-
ignate a singular attorney general to defend its interests, but
2 No. 19-1835
nothing in the United States Constitution mandates this pro-
cedure, or even the existence of an attorney general position.
The State of Wisconsin has chosen to have an attorney general
as its representative, but it also has recently provided a mech-
anism by which its legislature (or either of its constitutive
houses) can intervene to defend the State’s interest in the con-
stitutionality of its statutes. Relying on this provision, the
Wisconsin Legislature moved to intervene in this lawsuit in
which the Wisconsin Attorney General was already defending
state law. The district court denied the motion.
Though we acknowledge that federal law does not man-
date that a state speak in a single voice, we conclude that Fed-
eral Rule of Civil Procedure 24 expresses a preference for it.
The Legislature’s motion to intervene as of right was appro-
priately denied because the Legislature did not demonstrate
that the Attorney General is an inadequate representative of
the State’s interest absent a showing he is acting in bad faith
or with gross negligence. The district court has discretion still
to permit the Legislature to intervene as a second voice for the
State, or even perhaps on its own behalf, but nothing in the
record demonstrates an abuse of that discretion. We therefore
affirm the district court’s decision in all respects.
I. Background
The underlying allegations in this suit are largely irrele-
vant 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 At-
torney 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 consti-
tutional rights of it and its patients. The Attorney General,
No. 19-1835 3
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 inter-
vene 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, Fed. R. Civ. P.
24(c), the Legislature also provided an answer that tracked the
Attorney General’s, but with legal authorities. The Legislature
sought to intervene both as of right and with the court’s per-
mission. For its right to intervene, the Legislature relied prin-
cipally on a recently enacted state statute that allows “the as-
sembly, the senate, and the legislature” to intervene “at any
time in [an] action as a matter of right” if “a party to an action
challenges in state or federal court the constitutionality of a
statute, facially or as applied.” Wis. Stat. § 803.09(2m). It also
asserted an interest based on Supreme Court precedent hold-
ing that legislators had standing to challenge actions that nul-
lified the “effectiveness of their votes.” Coleman v. Miller, 307
U.S. 433, 438 (1939). Both PPWI and the Attorney General op-
posed the Legislature’s intervention.
The district court denied the motion to intervene as of
right on three grounds. First, the Legislature lacked an inter-
est 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 Attor-
ney General had the duty to defend the statutes being chal-
lenged and therefore was presumed to be an adequate repre-
sentative. Finally, the court declined to allow the Legislature
permissive intervention for many of the same reasons it was
4 No. 19-1835
unconvinced of a right to intervene, as well as concerns with
politicizing and complicating the case.
The Legislature appealed the denial of its motion to inter-
vene. 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 inter-
vention is a final, appealable decision under 28 U.S.C. § 1291.”
CE Design, Ltd. v. Cyʹs Crab House N., Inc., 731 F.3d 725, 730
(7th Cir. 2013).
II. Intervention as of Right
To intervene in a federal lawsuit under Federal Rule of
Civil Procedure 24(a)(2), a proposed intervenor needs to meet
four elements: “(1) timely application; (2) an interest relating
to the subject matter of the action; (3) potential impairment, as
a practical matter, of that interest by the disposition of the ac-
tion; and (4) lack of adequate representation of the interest by
the existing parties to the action.” Illinois v. City of Chicago, 912
F.3d 979, 984 (7th Cir.), cert denied, 2019 WL 4921330 (2019). A
party granted leave to intervene as of right under this rule has
the “full rights of a party.” See Aurora Loan Servs., Inc. v.
Craddieth, 442 F.3d 1018, 1022 (7th Cir. 2006). The proposed
intervenor has the burden of establishing all four elements;
the lack of even one requires that the court deny the motion.
Vollmer v. Publishers Clearing House, 248 F.3d 698, 705 (7th Cir.
2001). We review the denial of a motion to intervene as of right
de novo, except to the extent that it was denied as untimely.
See id. Here, timeliness is not disputed, so our review is ple-
nary.
The first question that we must address is the weight to
give to Wisconsin law. Section 803.09(2m) provides that “the
No. 19-1835 5
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 author-
ization under Wis. Stat. § 13.365 are met. Wisconsin’s courts
may apply § 803.09(2m) that way, but no one argues that this
interpretation can control in federal court. The right to inter-
vene “is a purely procedural right and even in a diversity suit
it is the Federal Rules of Civil Procedure rather than state law
that dictate the procedures, including who may intervene, to
be followed.” Williams v. Katz, 23 F.3d 190, 192 (7th Cir. 1994).
The supremacy of federal procedure is even more pro-
nounced in a case, like this one, arising under the Federal
Constitution. The parties agree on this point at least: the stat-
ute cannot supplant the Federal Rules of Civil Procedure and
make intervention automatic. Nevertheless, we think the stat-
ute represents the State of Wisconsin’s strong policy judg-
ment of how it wishes to litigate in federal court. We will
therefore rely on it to “inform the Rule 24(a)(2) calculus” even
if “it cannot displace the requirement that a would-be inter-
venor satisfy each of the rule’s prerequisites.” Pub. Serv. Co. of
N.H. v. Patch, 136 F.3d 197, 208 (1st Cir. 1998); accord Depʹt of
Fair Employment & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 741
(9th Cir. 2011).
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.
6 No. 19-1835
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 Su-
preme Court’s recent decision in Virginia House of Delegates v.
Bethune-Hill, 139 S. Ct. 1945 (2019), to help us define the pos-
sible interests at play. There, the Supreme Court was called on
to address whether a single house of the Virginia legislature
had standing to appeal a judgment in a case in which it had
already intervened. Id. at 1951. In doing so, the Supreme
Court expressly distinguished the two capacities through
which the House had sought to appeal—as a representative
of the state or as a legislature—and addressed and rejected
each in different sections of its opinion. Id. at 1951, 1953.
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 in-
tervention. 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 clari-
fied that it was seeking to intervene only as an agent of the
State.
No. 19-1835 7
This was a wise concession. The Legislature argued in the
district court that its votes would be nullified by an adverse
ruling under Coleman v. Miller, 307 U.S. 433. Bethune-Hill con-
firms the district court rightly dismissed this argument. Cole-
man “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 [stat-
ute].” 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 never-
theless 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
8 No. 19-1835
establish that the Attorney General is an inadequate repre-
sentative of the State’s interests.1
B. Adequacy of Representation
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 representa-
tion 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 presump-
tion of adequacy becomes even stronger when the representa-
tive party “is a governmental body charged by law with pro-
tecting the interests of the proposed intervenors”; in such a
situation the representative party is presumed to be an
1 The Legislature has, in passing, directed us to a state trial court de-
cision in which a judge opined that the Legislature could intervene only
on its own behalf and that the “legislative defendants’ lawyer cannot rep-
resent the State of Wisconsin.” SEIU Local 1 v. Vos, 2019 WL 1396826, at
*18–20 (Dane Cty. Cir. Ct. Mar. 26, 2019) (denying preliminary injunction
declaring § 803.09(2m) unconstitutional), bypass appeal granted, Nos.
2019AP614-LV & 2019AP622 (Wis. arg. Oct. 21, 2019). Though
§ 803.09(2m) and the concerns the State sought to address through its en-
actment inform our analysis, we are, in the end, interpreting only federal
law, so we need not consider the possibility that the Wisconsin Supreme
Court will adopt this same interpretation. At least currently, we see some
tension, but no inherent contradiction, in the possibility that the statute
grants the Legislature authority to represent itself in state court, but only
standing to represent the State in federal court.
No. 19-1835 9
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 Legis-
lature had failed to meet it.
The Legislature does not ask us to abandon our three-
tiered 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 stat-
utes.”). Though it agrees these facts would obligate a private
party seeking intervention to demonstrate the Attorney Gen-
eral’s bad faith or gross negligence, the Legislature contends
that this should not be the end of the inquiry because Wiscon-
sin has concluded, as a policy matter, that the Attorney Gen-
eral should not be the exclusive representative of the State’s
interests. A federal court, it argues, should respect this sover-
eign 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 stand-
ard 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. Commʹrs of Indianapolis, 466 F.2d 573, 575 (7th Cir.
10 No. 19-1835
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 di-
rectly control this case, but that is not, by itself, a reason to
reach another result.2
The intervention of another governmental entity is differ-
ent, the Legislature urges, because the State has a sovereign
right to determine how it will represent itself in federal court.
It relies principally on Bethune-Hill, in which the Supreme
Court held that the Virginia House did not have standing as
an agent of the state because Virginia had chosen to “speak as
a sovereign entity with a single voice.” 139 S. Ct. at 1952. The
Court contrasted this with states that have chosen to author-
ize their legislatures to litigate “either generally or in a de-
fined class of cases,” including, by way of example, Indiana.
Id. (citing Ind. Code § 2-3-8-1). As the Legislature sees it, Wis-
consin has, like Indiana, chosen to split its sovereign voice
among several entities, so a federal court must respect this de-
cision by lowering the burden for it to intervene.
Bethune-Hill cannot bear the weight the Legislature puts
on it. The Court was simply not addressing a situation, like
2The Legislature also contends that in each case the government was
the party with “exclusive” authority to represent the interests involved.
We do not see how this interpretation can square with our application of
the standard to plaintiff-intervenors. See United States v. S. Bend Cmty. Sch.
Corp. (South Bend II), 710 F.2d 394, 396 (7th Cir. 1983); South Bend I, 692 F.2d
at 628. The government does not have exclusive authority to represent
those who want to challenge state policies. That was a reason we denied
them intervention: the proposed intervenors were free to “prosecute their
own suit against the school board.” South Bend II, 710 F.2d at 396.
No. 19-1835 11
this one, in which two state entities were trying to speak on
behalf of the State at the same time. The Court even framed the
question presented as whether the Virginia House had “au-
thority to displace Virginia’s Attorney General as representa-
tive of the State,” id. at 1950 (emphasis added), not whether it
had the right to represent the State in parallel with the Attor-
ney 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 au-
thority 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 inter-
vention 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 gov-
ernmental parties have continued to apply a presumption of
adequacy. See Del. Valley Citizensʹ Council for Clean Air v. Penn-
sylvania, 674 F.2d 970, 973 (3d Cir. 1982) (concluding that leg-
islators’ intervention on side of Pennsylvania Attorney Gen-
eral was properly denied); Envtl. Def. Fund, Inc. v. Higginson,
631 F.2d 738, 740 (D.C. Cir. 1979) (affirming denial of inter-
vention 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 ap-
plies 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
12 No. 19-1835
general adequately represented state even under “’may be’ in-
adequate” standard). The Legislature points us to no author-
ity 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, North-
east 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 Attor-
ney General) the right to intervene in a suit in which the Ohio
Secretary of State was already participating in his official ca-
pacity. Id. at 1008. We do not find that decision persuasive as
applied to this case. First, though the Sixth Circuit granted in-
tervention under the “may be inadequate” standard, it did so
in the context of the Secretary of State’s refusal to appeal a
preliminary injunction. Id. The posture of the case is, thus,
more like Bethune-Hill and the other cases the Legislature
cites, where the intervenor was the only voice for the state on
appeal, even if there was an understanding that intervention
would continue in the district court. Second, the court prem-
ised its holding on the finding that “the State and the Secre-
tary do not have ‘the same ultimate objective’” and so no pre-
sumption of adequate representation applied. Id. Here, the At-
torney General and the Legislature have the same objective—
ensuring the validity of Wisconsin law—even if the Legisla-
ture might desire a more aggressive litigation position.3
3The Sixth Circuit had no reason to consider whether to apply a pre-
sumption of adequacy based on the Secretary of State’s status as a govern-
mental party because it has not adopted that presumption. See Stupak-
Thrall v. Glickman, 226 F.3d 467, 479 (6th Cir. 2000).
No. 19-1835 13
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 hin-
ders it in this framing because it must go beyond the argu-
ment any private party could make—that Wisconsin’s interest
does not align fully with its own—and has the unenviable
task of convincing a court that the Attorney General inade-
quately represents Wisconsin, despite his statutory duty. Wis-
consin’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 At-
torney General’s bad faith or gross negligence before permit-
ting 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
4 We see no flaws in the concurrence’s history of the gross negligence
or bad faith standard, Concurring Op. at pp. 26–32, but that the rule might
be of questionable origin does not convince us to carve out an exception
for the Legislature. Whether we should revisit the standard entirely is a
question for another case—the Legislature does not ask us to do so and it
would not change the result today. We also doubt that the difference be-
tween our approach and the concurrence’s will have much practical effect
on the Legislature’s intervention in this or similar cases. As we explain
below, permissive intervention provides a superior path for the Legisla-
ture to litigate beside the Attorney General, when that is warranted, and
does not require the Legislature to demonstrate that its interests are inad-
equately represented under any standard.
14 No. 19-1835
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 al-
lowed to intervene as right, then it and the Attorney General
could take inconsistent positions on any number of issues be-
yond 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 is-
sues like the meaning of state law, or even for purposes of
doctrines like judicial estoppel.
That the Wisconsin Attorney General’s authority is gov-
erned by state law, and thus ultimately subject to the Legisla-
ture’s control, does not change our analysis. True, the powers
and duties of the attorney general are “prescribed by law,”
Wis. Const. Art. VI, § 3, and that means “statutory law,” State
v. City of Oak Creek, 605 N.W.2d 526, 532 (Wis. 2000). A state
has a sovereign right to govern its representative agents as it
sees fit, and a federal court generally has no reason to ques-
tion the state’s choices (at least if the representative is, in fact,
an agent, cf. Hollingsworth v. Perry, 570 U.S. 693, 712–13
(2013)). So, we can see no reason why a federal court would
bat an eye if a state required its attorney general to withdraw
from his representation and allow another entity, including a
legislature, to take over a case. This would be, from the federal
court’s perspective, the same as a state that elected not to have
an attorney general at all. This, however, is not what Wiscon-
sin purports to do. The Legislature wants to litigate beside the
Attorney General, not in place of him. In that respect,
§ 803.09(2m) is not an exercise of the State’s undoubted power
No. 19-1835 15
to control the Attorney General, it is an attempt to control the
proceedings in the court. We have no right to opine whether
this law can have that effect on a state court, but even the Leg-
islature concedes it cannot on a federal one.
We are particularly concerned with the scope of the Legis-
lature’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 on 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 Rule
24(a)(2). Under the Legislature’s rule, a state could split its
voice among as many entities as it wishes, and each would be
able to intervene if it could meet the minimal standard that its
interest may be inadequately represented. Indeed, the Legis-
lature, relying on SEIU, notes in its brief that § 803.09(2m) al-
lows “the Legislature, the Assembly or the Senate” to inter-
vene as of right and “each of them can hire outside counsel.”
2019 WL 1396826, at *18 (emphasis added). By the Legisla-
ture’s understanding, then, Wisconsin could have up to four
independent agents representing it in this case, each of which
would have “the full rights of a party.” Aurora Loan, 442 F.3d
at 1022. Perhaps a state could even designate its individual
legislators as agents and thereby flood a district court with a
cacophony of voices all purporting to represent the state.
Though we respect a state’s autonomy as a sovereign, we can-
not leave a district court powerless to control litigation involv-
ing states. The district court must maintain the authority to
assess whether an intervenor meets the ordinary Rule 24 re-
quirements, including the need to demonstrate inadequacy of
representation, in each individual case.
16 No. 19-1835
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 state-
ments about a state’s right not to speak in one voice are lim-
ited 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 appeal that is otherwise not forthcoming,” Flying J, 578
F.3d at 573. A state is free to decide how often it wishes to
appeal, and if it chooses to appeal more often, that prejudices
no one and causes no unjustified strain on the courts. Id.
III. Permissive Intervention
At oral argument, the Legislature acknowledged our con-
cern with the district court’s lack of discretion, if we accepted
its arguments regarding intervention as of right, and it re-
sponded 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, includ-
ing the needs of federal-state comity emphasized by the Leg-
islature. Yet, unlike the more mechanical elements of inter-
vention as of right, it leaves the district court with ample au-
thority to manage the litigation before it. The court can even
place conditions on the scope of permissive intervention, al-
lowing more voices to be heard without overcomplicating the
case with additional claims, defenses, discovery, and conflict-
ing 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 &
No. 19-1835 17
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 per-
mit the Legislature’s intervention in this case. Under Federal
Rule of Civil Procedure 24(b)(1) a district court “may permit
anyone to intervene who … has a claim or defense that shares
with the main action a common question of law or fact.” The
Legislature has a defense—that PPWI’s complaint fails to
state a claim—that shares a question of law with the main ac-
tion. The decision to permit intervention is “wholly discre-
tionary,” and we review the denial of permissive intervention
for an abuse of that discretion. Sokaogon Chippewa Cmty. v. Bab-
bitt, 214 F.3d 941, 949 (7th Cir. 2000). The Rule requires the
court to consider “whether the intervention will unduly delay
or prejudice the adjudication of the original parties’ rights,”
Fed. R. Civ. P. 24(b)(3), but otherwise does not cabin the dis-
trict court’s discretion. We have thus said that “[r]eversal of a
district courtʹs denial of permissive intervention is a very rare
bird indeed, so seldom seen as to be considered unique.” Shea
v. Angulo, 19 F.3d 343, 346 n.2 (7th Cir. 1994) (quoting United
States v. Pitney Bowes, Inc., 25 F.3d 66, 73 (2d Cir. 1994)). This
is not that unique case.
The district court denied permissive intervention “for
many of the same reasons [it] found that the proposed inter-
venor failed to demonstrate a right to intervene.” It relied on
5 It is also possible that permissive intervention does not require
standing if the existing parties present a case or controversy, so that the
Legislature could be allowed to intervene even on its own behalf. We have
not yet directly addressed this question, see Bond v. Utreras, 585 F.3d 1061,
1069 (7th Cir. 2009), and we have no occasion to do so now.
18 No. 19-1835
two district court decisions for the proposition that “the case
for permissive intervention disappears” when a proposed in-
tervenor fails “to overcome the presumption of adequate rep-
resentation 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 interven-
tion “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 impos-
ing an inadequacy of representation element on permissive
intervention and refusing to exercise any discretion for failure
to prove it. Because there is no such element, the Legislature
contends the district court erred as a matter of law.
Though we agree that the Legislature is not required to
demonstrate that the Attorney General is an inadequate rep-
resentative (under any standard) for it to intervene permis-
sively, we do not understand the district court’s order to say
otherwise. Rule 24(b)(1) is vague about the factors relevant to
permissive intervention, but it is not just a repeat of Rule
24(a)(2). We have thus cautioned courts not to deny permis-
sive intervention solely because a proposed intervenor failed
to prove an element of intervention as of right. See City of Chi-
cago v. FEMA, 660 F.3d 980, 987 (7th Cir. 2011); Solid Waste
Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 101 F.3d
503, 509 (7th Cir. 1996). Still, we have never gone so far as con-
fining the district court’s discretion to only the two manda-
tory factors in Rule 24(b)(3) or to prohibit consideration of the
elements of intervention as of right as discretionary factors.
Even when a district court “did not explicitly break out its
No. 19-1835 19
reasoning” on the two requests, we have affirmed so long as
the “decision shows a thorough consideration of the interests
of all the parties.” Ligas, 478 F.3d at 776.
The district court here separated its analyses and made
clear that it was exercising its discretion in denying permis-
sive intervention. Even if it referred to its reasoning in deny-
ing 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 toler-
ate—perhaps even as stringent as allowing it only to file ami-
cus 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 litiga-
tion before them. The proper balance between these two con-
cerns is governed by Federal Rule of Civil Procedure 24 and
the requirement that a proposed intervenor show that the ex-
isting parties do not adequately represent its interests before
it has a right to intervene. Nothing in the record demonstrates
the Attorney General’s bad faith or gross negligence, so we
hold that the Wisconsin Legislature cannot intervene to rep-
resent those same interests without the district court’s
20 No. 19-1835
permission. The district court acted well within its discretion
in denying that permission, so its decision is
AFFIRMED.
No. 19-1835 21
SYKES, Circuit Judge, concurring. I agree that the
Wisconsin Legislature has not made a convincing case for
mandatory intervention under Rule 24(a)(2) of the Federal
Rules of Civil Procedure. I agree as well that the district
judge reasonably exercised his discretion to deny permissive
intervention under Rule 24(b)(1). I disagree, however, on a
key part of the Rule 24(a)(2) analysis and write separately to
explain my reasoning.
It is common ground that this case involves a novel ap-
plication of Rule 24’s intervention standards. There is no
controlling or closely analogous precedent in our circuit, nor
is there any guidance in caselaw from other circuits.
Two important legal issues are presented, and the majori-
ty opinion frames them up well. The first is how to treat
section 803.09(2m) of the Wisconsin Statutes, which gives the
Wisconsin Legislature (or either of its constitutive houses)
the right to intervene in litigation challenging the constitu-
tionality of a state law. The second is the “gross negligence
or bad faith” standard that appears in some of our cases
involving intervention motions in litigation against public
officials or governmental bodies.
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
Rule 24(a)(2) whenever a state law is challenged. On the
other hand, if we apply the highly restrictive gross-
negligence/bad-faith standard to assess whether the Attor-
ney General’s representation is inadequate—a Rule 24(a)(2)
22 No. 19-1835
prerequisite—then the Legislature is never permitted to
intervene of right.
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 Rule 24(a)(2), which calls
for a contextual, case-specific analysis and does not imply
the existence of categorical exclusions.
I will return to this point in a moment, but for now it suf-
fices to say that neither of these extremes is consistent with
Rule 24(a)(2). The majority steers clear of the first one,
explaining that the State’s policy choice as reflected in the
statute informs the Rule 24(a)(2) calculus but cannot dictate
1 See, e.g., Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 314 (2013) (explain-
ing that “[s]trict scrutiny must not be ‘strict in theory, but fatal in fact’’’)
(quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995)).
No. 19-1835 23
the outcome. Majority Op. at pp. 4–5. That’s clearly correct;
intervention in federal court is a question of federal proce-
dural law.
The Legislature doesn’t argue otherwise. What it does ar-
gue is that even though section 803.09(2m) is not conclusive,
it should get very strong deference in federal court as a
matter of comity. My colleagues do not specify the weight
the statute deserves, and I agree with that approach. Inter-
vention requires a particularized assessment of the interve-
nor’s interest and relationship to the case. A specific
deference rule is inconsistent with that norm.
I’m also in general agreement with the majority’s discus-
sion of the nature of the Legislature’s interest. Majority Op.
at 6–7. But I think it’s important to clarify a point 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,
24 No. 19-1835
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 representa-
tion changes, as WEAC later explains. 705 F.3d at 659 (ex-
plaining that a presumption of adequate representation
arises when goals align). But sharing the same goal as an
existing party doesn’t defeat “uniqueness,” properly under-
stood. Id.
Applying this understanding, section 803.09(2m) plainly
gives the Legislature a direct and independent right to
defend state laws in court, and this right is neither derivative
of nor subordinate to the Attorney General’s. In Wisconsin
the Attorney General is a constitutional officer, but his
powers and duties are prescribed entirely by statute. State v.
City of Oak Creek, 605 N.W.2d 526, 532 (Wis. 2000) (interpret-
ing art. VI, § 3 of the Wisconsin Constitution). The Attorney
General has a statutory duty to defend state laws when they
are challenged in court. Id. at 536 (explaining the scope of
section 165.25 of the Wisconsin Statutes, which authorizes
the Wisconsin Department of Justice to “represent the state,
any state department, agency, official, employee or agent” in
any civil or criminal matter). By virtue of statutory amend-
ments enacted late last year, the Legislature now has its own
independent statutory right to appear in court in defense of
state laws. This right is neither attenuated nor insubstantial:
section 803.09(2m) reflects a sovereign policy judgment that
the Attorney General is not the State’s exclusive representa-
tive in court when state laws are challenged. Considerations
of comity call on us to respect that policy choice.
No. 19-1835 25
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.” FED. R. CIV. P. 24(a)(2). Judge Conley
ruled that because the Legislature shares the same goal as
the Attorney General—their shared objective is to defend the
challenged abortion regulations—its interest is not “unique,”
as WEAC requires. That’s incorrect, as I’ve just explained,
but his misstep was understandable given the possible
ambiguity in WEAC’s use of that term.
My main point of disagreement relates to the majority’s
decision to apply the “gross negligence or bad faith” stand-
ard 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 proper-
ty or transaction that is the subject matter of
the action[] and is so situated that disposing
of the action may as a practical matter im-
pair or impede the movant’s ability to pro-
tect its interest, unless existing parties
adequately represent that interest.
26 No. 19-1835
FED. R. CIV. P. 24(a)(2).
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—are 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 requir-
ing 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 mak-
ing that showing should be treated as mini-
mal.” Trbovich v. United Mine Workers of Am.,
404 U.S. 528, n.10 (1972). However, when the
representative party is a governmental body
charged by law with protecting the interests of
No. 19-1835 27
the proposed intervenors, the representative is
presumed to adequately represent their inter-
ests unless there is a showing of gross negli-
gence 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 desegrega-
tion 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 repre-
sented 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 negli-
gence or bad faith. Commonwealth of Pennsylva-
nia 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 negligence” or “bad
28 No. 19-1835
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 presump-
tion. Instead, the court undertook a practical, case-specific
analysis as contemplated by the text of Rule 24(a)(2). Id.
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
Rule 24(a)(2) were satisfied: the parents and students had a
cognizable interest in the subject matter of the litigation, and
their interests might, as a practical matter, be impaired by
the disposition of the case. Bd. of Sch. Comm’rs of Indianapolis,
466 F.2d at 575. We then moved to the question of the ade-
quacy of the school board’s representation:
We must, however, agree with the trial court’s
conclusion that this conceded interest was ad-
equately represented by the school board in
those portions of the case which have thus far
been adjudicated. “[R]epresentation is ade-
quate if no collusion is shown between the rep-
resentative 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
No. 19-1835 29
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 enter-
ing into stipulations and a consent decree [as to
a certain part of the case,] the school board
failed to assert appellants’ interests as vigor-
ously and effectively as appellants would have
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
test for evaluating the adequacy of representation under
Rule 24(a)(2) in this category of cases.
30 No. 19-1835
So to recap: In South Bend Community School we implied,
without any support or analysis, that Rule 24(a)(2) requires a
showing of gross negligence or bad faith by government
counsel as a prerequisite to intervention on the side of a
governmental party. In Ligas we elevated South Bend’s
unconsidered statement to a legal standard, again without
support or analysis.
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] amend-
ed rule[,] then-Judge Blackmun wrote that in-
adequacy of representation is or may be shown
“by proof of collusion between the representa-
tive and an opposing party, by the representa-
tive having or representing an interest adverse
to the interven[or], or by the failure of the rep-
resentative in the fulfillment of his duty.”
[Stadin, 309 F.2d at 919.] This was a wholly ac-
curate statement. As will be seen later, a show-
ing of any of the circumstances listed by Judge
Blackmun is enough to establish inadequacy of
representation. But in several cases the state-
ment 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 repre-
sentative does not have or repre-
No. 19-1835 31
sent an interest adverse to the
proposed 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 represen-
tation 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 inad-
equate “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 statement 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 inade-
quate representation. Other circumstances may also suffice.
32 No. 19-1835
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 quota-
tion in the Indianapolis case is followed by a “see also” cita-
tion 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 re-
quirement anyway. I disagree. Those cases do not control, as
the majority readily acknowledges, and because they are so
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 prove-
nance 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.
No. 19-1835 33
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 appli-
cant shows that representation of his interest ‘may be’
inadequate; and the burden of making this 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 pre-
sumption 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 practi-
cal inquiry required by Rule 24(a)(2) to start from a pre-
sumption of adequate representation and put the intervenor
to a heightened burden to show a concrete, substantive
conflict or an actual divergence of interests to overcome it.
Id.; see also Solid Waste Agency of N. Cook Cnty. v. U.S. Army
Corps of Eng’rs, 101 F.3d 503, 508 (7th Cir. 1996). Indeed, this
is the general rule. See WRIGHT, supra, § 1909, at 393–94
(collecting cases).
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 func-
tion it is to represent the absentee.” Id. at 426–27. Rather, “[i]t
34 No. 19-1835
means only that there must be a concrete showing of circum-
stances 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 argu-
ment 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 strate-
gy in this and other cases. That’s not enough to rebut the
presumption of adequate representation. It’s possible that a
concrete and significant conflict may arise down the road,
but that showing has not been made. At this stage in the
litigation, the Attorney General is adequately representing
the shared goal of defending the challenged abortion regula-
tions.
Finally, I agree with my colleagues that Judge Conley
reasonably exercised his discretion in denying the Legisla-
ture’s alternative request for permissive intervention under
Rule 24(b)(1). I have nothing to add on that subject. Because
my analysis of the Rule 24(a)(2) question differs from the
majority’s, I respectfully concur.