Staley v. Harris County Texas

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT December 27, 2005
Charles R. Fulbruge III
No. 04-20732 Clerk
_____________________
KAY STALEY,
Plaintiff - Appellee,
versus
HARRIS COUNTY TEXAS,
Defendant - Appellee,
versus
STAR OF HOPE MISSION,
Movant – Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-3411
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:*
This appeal challenges the district court’s denial of Star of
Hope Mission’s motion to intervene in the underlying case brought
by Kay Staley against Harris County, Texas, which is pending
decision as No. 04-20667. Star of Hope sought both permissive
intervention and intervention of right under Federal Rule of Civil
Procedure 24. We affirm the district court’s denial of both bases
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
of intervention essentially for the reasons provided by the
district court in its exceptionally good opinion.
The underlying action was initiated on August 25, 2003 by
Staley, seeking to remove the County’s display of the King James
Bible in front of the Harris County Civil Courthouse on grounds
that the display violates the First and Fourteenth Amendments to
the United States Constitution. Nearly a year after the complaint
was filed, the case was tried and, on August 10, 2004 the district
court entered a memorandum opinion and final judgment. Among other
relief, the court ordered the removal of the Bible. Nine days
later Star of Hope, as the owner of the monument containing the
Bible, moved to intervene. The district court denied both
intervention of right and permissive intervention.
I
Star of Hope bases its claim for intervention of right on Rule
24(a)(2).2 To intervene successfully under Rule 24(a)(2)
2
Federal Rule 24(a) provides that mandatory intervention, or
intervention of right is permitted:
(1) when a statute of the United States
confers an unconditional right to intervene;
or
(2) when the applicant claims an interest
relating to the property or transaction which
is the subject of the action and the applicant
is so situated that the disposition of the
action may as a practical matter impair or
impede the applicant’s ability to protect that
interest, unless the applicant’s interest is
adequately represented by existing parties.
FED. R. CIV. P. 24(a). Because Star of Hope has not alleged any
2
(1) the application for intervention must be
timely; (2) the applicant must have an
interest relating to the property or
transaction which is the subject of the
action; (3) the applicant must be so situated
that the disposition of the action may, as a
practical matter, impair his ability to
protect that interest; (4) the applicant's
interest must be inadequately represented by
the existing parties to the suit.
Ford v. City of Huntsville, 242 F.3d 235, 239 (5th Cir. 2001).
Failure to meet any one of these requirements precludes
intervention under Rule 24(a)(2). Edwards v. City of Houston, 78
F.3d 983, 999 (5th Cir. 1996) (en banc) (citations omitted). We
review the district court determinations as to timeliness for abuse
of discretion, and the remaining factors de novo. Id. at 999-1000.
The district courts are encouraged to apply the “practical rather
than technical yardstick” in determining intervention under Rule
24(a)(2), United States v. Texas E. Transmission Corp., 923 F.2d
410, 413 (5th Cir. 1991). We hold that here the district court
applied the correct principles and properly concluded that Star of
Hope fails to satisfy both the timeliness and representation of
interest requirements of Rule 24(a)(2).
The timeliness requirement is measured based on four factors:
(1) the length of time during which the
would-be intervenor actually knew or
reasonably should have known of its interest
in the action before petitioning for leave to
statutory unconditional right to intervene, its claim for mandatory
intervention is limited to Rule 24(a)(2).
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intervene, (2) the extent of the prejudice
that the existing parties to the litigation
may suffer as a result of the would-be
intervenor's failure to apply for intervention
as soon as it actually knew or reasonably
should have known of its interest in the
action, (3) the extent of the prejudice that
the would-be intervenor may suffer if its
petition for leave to intervene is denied,
[and] (4) the existence of unusual
circumstances militating either for or against
a determination that the application is
timely.
Stallworth v. Monsanto, 558 F.2d 257, 264-66 (5th Cir. 1977).
Additionally, this Court has noted that “intervention attempts
after final judgments are ordinarily looked upon with a jaundiced
eye [as they] have a strong tendency to prejudice existing parties
to the litigation or to interfere substantially with the orderly
process of the court.” United States v. United States Steel Corp.,
548 F.2d 1232, 1235 (5th Cir. 1977) (internal citation omitted).
Star of Hope rests its claim largely on the first factor,
contending that it could not have known that its “private
expression on public property . . . had been somehow converted to
government expression and judicially deemed to violate the
Establishment Clause.” Star of Hope contends that it did not know
or recognize its interest until the district judge issued its final
order on August 10, 2004. We find this argument without merit.
As the district court thoroughly explained, the publicity
surrounding Staley’s lawsuit could not have escaped the Mission’s
attention. From the outset of the lawsuit, court-ordered removal
of the monument was always a possibility -- indeed it was the
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relief the Plaintiff sought. Furthermore, two persons affiliated
with Star of Hope, one of which was its Director of Operations,
testified concerning the monument at the trial. Clearly the
district court did not err in finding that Star of Hope knew or
should have known of its interest in the action before the entry of
final judgment. Thus its post-judgment motion for intervention was
untimely.
As noted by the district court, Star of Hope has pointed to no
arguable justification for its failure to intervene in a timely
manner -- i.e., there has been no change in the relief sought by
the plaintiff; no alteration of the claims at issue; and no
interests made to conflict by the final judgment. See, e.g.,
Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994) (permitting
intervention where the claims “changed radically over the course of
the []suit” and an injunction was applied in an unusual way).
Consequently, Star of Hope’s motion was untimely without any
acceptable justification or reason. As the district court
correctly noted, “[i]f Star of Hope was genuinely concerned about
protecting its rights in this litigation, it could and should have
filed a motion for leave to intervene long ago.”3
3
Star of Hope Mission cites Americans United for Separation
of Church and State v. City of Grand Rapids, 922 F.2d 303 (6th Cir.
1990), in defense of its position on post-judgment intervention of
right. However, Americans United permitted post-judgment
intervention on behalf of a religious organization where the City
chose not to appeal a preliminary injunction enjoining it from
issuing a permit to erect a holiday display. Additionally, delay
in Americans United would have rendered the claim moot once the
5
Although untimeliness alone is fatal to Star of Hope’s Rule
24(a)(2) intervention, the district court correctly noted that the
intervention fails for a second reason -- the interests of Star of
Hope are adequately represented by the current parties to the
action. Star of Hope has failed to overcome two key presumptions
in this respect: first, a government entity is presumed to
adequately represent the interests of one of its citizens, unless
the interest “is in fact different from that of the [government]
and . . . the interest will not be represented by it.” See Hopwood
v. Texas, 21 F.3d 603, 605 (5th Cir. 1994). As the district court
correctly found, the County has raised identical arguments as to
free speech and free exercise and seeks the identical result. To
the extent Star of Hope is concerned about damage or “conversion”
of its property in the removal process, it is free to participate
in or conduct any required removal itself.
Second, the County is presumed to adequately represent another
party with identical ultimate goals, unless the party requesting
intervention can show “adversity of interest, collusion, or
nonfeasance on the part of the existing party.” See Edwards, 78
F.3d at 1005. If the County prevails in its claim that the
monument, including the Bible, does not violate the Constitution,
then Star of Hope will be completely satisfied with the resulting
holidays passed. However, in the case at hand the County is fully
prepared to litigate its case, and this Court is in a position to
order timely relief if warranted.
6
preservation of the monument -- that is to say, the County and Star
of Hope share the ultimate goal of keeping the monument intact.
The district court correctly determined that the interests and
goals of Star of Hope and the County are in harmony in this case.
Star of Hope’s claims of inadequate representation, arising only
after the district court ruled against the County, are without
merit. Consequently, the district court did not err in denying
Star of Hope’s intervention under Rule 24(a)(2) as untimely, and
failing to meet the representation of interest requirements.
II
Star of Hope additionally contends the district court erred in
denying it permissive intervention under Rule 24(b)(2).4
Permissive intervention is a matter “wholly discretionary with the
[district] court . . . even though there is a common question of
law or fact, or the requirements of Rule 24(b) are otherwise
satisfied.” New Orleans Public Service, Inc. v. United Gas Pipe
Line Co., 732 F.2d 452, 471 (5th Cir. 1984). Consequently, we
review a district court’s denial of permissive intervention under
a “clear abuse of discretion” standard. Cajun Elec. Power Coop.,
Inc. v. Gulf States Utils., Inc., 940 F.2d 117, 121 (5th Cir.
1991). For the reasons we have earlier given, the district court
4
Rule 24(b)(2) states that a party may be entitled to
permissive intervention where “an applicant's claim or defense and
the main action have a question of law or fact in common.” FED. R.
CIV. P. 24(b)(2).
7
did not err in finding that Star of Hope’s application for
intervention was untimely and that the County adequately represents
Star of Hope’s interests in this case. Consequently, the court did
not abuse its discretion in denying Star of Hope’s request for
permissive intervention.
III
For these reasons the district court’s denial of Star of
Hope’s motion to intervene is
AFFIRMED.
8