Planned Parenthood Minnesota v. Alpha Center , 213 F. App'x 508 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3142
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Planned Parenthood Minnesota, *
North Dakota, South Dakota; Carol *
E. Ball, M.D., *
*
Plaintiffs - Appellees, *
*
v. *
*
Alpha Center; Black Hills Crisis *
Pregnancy Center, doing business as * Appeal from the United States
Care Net; Dr. Glenn A. Ridder; Eleanor * District Court for the
D. Larsen, M.S.W.A., * District of South Dakota.
*
Intervenors - Appellants, * [UNPUBLISHED]
*
Michael Rounds; Larry Long, *
*
Defendants - *
Amici Curiae. *
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Submitted: January 11, 2007
Filed: January 25, 2007
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Before MURPHY, MELLOY and GRUENDER, Circuit Judges.
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PER CURIAM.
This matter comes before the court on the intervenors' appeal from an order of
the district court terminating their status in the underlying case. Appellants moved in
the district court on July 28, 2005 to intervene in this case after the issuance of a
temporary injunction barring the enforcement of a South Dakota statute which
amended the state's informed consent law to require additional procedures and
disclosures to women contemplating abortion. The district court granted appellants'
motion to intervene on September 23, 2005. Thereafter appellant intervenors fully
participated in the discovery and motions practice in the district court, including their
individual response to a motion by plaintiffs for summary judgment. They also filed
their own appeal from the order of the district court granting the temporary injunction
and briefed and argued their positions.
On April 25, 2006 plaintiffs moved to amend their complaint by withdrawing
their challenge to the referral provision of the South Dakota statute which requires
physicians to notify women contemplating abortion of the name, address, and
telephone number of a nearby pregnancy crisis center. Simultaneously plaintiffs
moved to terminate appellants' intervention. Plaintiffs argued that with the
amendment of the complaint, the intervenors no longer had an interest in the litigation
which the state officials could not adequately represent. The district court granted the
motion to amend as well as the motion to terminate the intervention. The court
decided that since the statutory requirement to inform women about the availability
of a pregnancy crisis center would no longer be in the case, the state officials could
now adequately represent appellants' interests and concluded that their intervention
of right under Fed. R. Civ. P. 24(a) should be terminated. It also held that permissive
intervention was inappropriate.
A panel of this court issued an opinion on October 30, 2006, see Planned
Parenthood Minn. v. Rounds, 467 F.3d 716 (8th Cir. 2006) (Judge Gruender
dissenting), and the appellants as well as the state officials petitioned for rehearing en
banc. Both petitions were granted and the panel opinion vacated by the court en banc
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on January 9, 2007, and their petitions are both scheduled for hearing before the en
banc court on April 11, 2007.
Appellants appeal only the termination of their intervention of right. A district
court's decision about mandatory intervention is a question of law which we review
de novo. Sierra Club v. Robertson, 960 F.2d 83, 85 (8th Cir. 1992). When no statute
confers the right to intervene, mandatory intervention requires that the proposed
intervenor show that (1) it has a cognizable interest in the subject matter of the
litigation, (2) the interest may be impaired as a result of the litigation, and (3) the
interest is not adequately protected by the existing parties to the litigation. Chiglo v.
City of Preston, 104 F.3d 185, 187 (8th Cir. 1997). Because this appeal concerns the
termination of an intervention and not an order granting or denying intervention, it
requires us only to review the correctness of the district court's termination decision,
not its initial decision to grant intervention.
Appellants are two organizations which provide counseling to women
considering an abortion and a doctor and social worker who work at the centers.
Alpha Center is located in Sioux Falls and Black Hills Crisis Pregnancy Center in
Rapid City. The South Dakota law challenged by appellees requires physicians to
speak to women contemplating an abortion about the embryo or fetus they are
carrying. Because of these provisions, appellants have potential reputational and
financial interests beyond their interest in obtaining referrals which this litigation
could impair. Moreover, their interests are even stronger now than when the district
court terminated intervention, for appellants' petition for rehearing en banc has been
granted and they will be full participants in the April argument before this court. They
also participated in discovery and motions practice by filing their own legal
submissions and conducting their own depositions and helped develop all the issues
in this case, not just the challenge to the referral requirement. The issues appellants
raise in their petition for rehearing are different from those which the state officials
raise, and the interests which they have at stake in this litigation are not identical to
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those which the state seeks to protect. At this point in the litigation we see merit in
appellants' contention that the state officials cannot adequately represent their
interests.
For these reasons we reverse the order of the district court terminating
appellants' status as intervenors in this case.
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