Doe v. State, 101220 MNCA, A20-0273

• Opinion Judge: SLIETER, JUDGE
• Party Name: Dr. Jane Doe, et al., Respondents, v. State of Minnesota, et al., Respondents, Pro-Life Action Ministries, Incorporated, et al., intervenors, Appellants.
• Attorney: Christy L. Hall, Jessica Braverman, Gender Justice, St. Paul, Minnesota; and Dipti Singh (pro hac vice), Lawyering Project, Los Angeles, California (for respondents Dr. Jane Doe, et al., ) Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Leah Tabbert, Jacob Campion, Kathryn Iverson...
• Judge Panel: Considered and decided by Bratvold, Presiding Judge; Cochran, Judge; and Slieter, Judge.
• Case Date: October 12, 2020
• Court: Minnesota Court of Appeals

Dr. Jane Doe, et al., Respondents,

v.

State of Minnesota, et al., Respondents,

Pro-Life Action Ministries, Incorporated, et al., intervenors, Appellants.

No. A20-0273

Court of Appeals of Minnesota

October 12, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Ramsey County District Court File No. 62-CV-19-3868

Christy L. Hall, Jessica Braverman, Gender Justice, St. Paul, Minnesota; and Dipti Singh (pro hac vice), Lawyering Project, Los Angeles, California (for respondents Dr. Jane Doe, et al., )

Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Leah Tabbert, Jacob Campion, Kathryn Iverson Landrum, Assistant Attorneys General, St. Paul, Minnesota (for respondents State of Minnesota)

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for appellants)

Considered and decided by Bratvold, Presiding Judge; Cochran, Judge; and Slieter, Judge.

SLIETER, JUDGE

Appellants Pro-Life Action Ministries (PLAM) and the Association for Government Accountability (AGA) appeal the district court's denial of their motion for intervention as a matter of right. They argue that the district court's order should be reversed because (1) they satisfied the criteria for intervention as a matter of right in Minn. R. Civ. P. 24.01, (2)"there is a sound reason to allow the intervention," and (3) affirming the order denying their intervention would unlawfully create a private cause of action. Because appellants are unable to demonstrate that the state must defend the lawsuit on the basis that plaintiffs constitutionally lack a private cause of action against the government, they fail to demonstrate an interest in the litigation based upon taxpayer standing. Further, because appellants failed to preserve for review the alternative public interest basis to intervene, that claimed interest has been forfeited. Finally, because appellants do not have an interest in the subject matter of the action, they are not entitled to intervene, and we do not analyze the merits of their purported defense. In sum, appellants failed to demonstrate a basis for intervention of right pursuant to Minn. R. Civ. P. 24.01, and we therefore affirm.

FACTS

The underlying litigation began in May 2019 when plaintiffs Dr. Jane Doe, Mary Moe, Our Justice, ¹ and the First Unitarian Society of Minneapolis filed a complaint against the state, governor, attorney general, commissioner of health, Minnesota Board of Medical Practice, and Minnesota Board of Nursing. The complaint argues that Minnesota's targeted regulation of abortion provider laws, mandatory disclosure and delay laws, fetal tissue disposition requirement, two-parent notification requirement, and ban on advertising sexually-transmitted-infection treatments violate the Minnesota Constitution. Dr. Doe and Ms. Moe challenged the laws on behalf of themselves and their patients, First Unitarian Society on behalf of its congregants, and Our Justice on behalf of its clients. Defendants moved to dismiss, arguing that (1) plaintiffs failed to sufficiently plead their standing, (2) plaintiffs failed to name the proper defendants, and (3) six of plaintiffs' claims fail as a matter of law. Notably, defendants did not raise the argument that plaintiffs lack a private cause of action against the government.

Appellants filed a "Notice of Limited Intervention to Assert the Defense of Lack of Private Cause of Action" two weeks after defendants filed their memorandum in support of their motion to dismiss. This defense is based on the premise that Minnesota has not recognized, absent a legislative grant not here applicable, either in the constitution or common law the right of private citizens to commence a lawsuit against the government. Appellants argued to the district court that they were entitled to intervene as a matter of right pursuant to Minn. R. Civ. P. 24.01, and alternatively that the court should grant permissive intervention under Minn. R. Civ. P. 24.02. The plaintiffs and defendants both opposed appellants' motion to intervene. ²

The district court issued a written order denying appellants' motion to intervene. The district court began its analysis by addressing the merits of the defense that appellants wish to raise upon their intervention explaining that "there would be no reason to allow intervention to assert a meritless defense." It decided that appellants' defense is meritless because "[l]itigants who seek declaratory or injunctive relief for violations of the Minnesota Constitution can sue the government." The district court concluded, "[s]ince it would be futile to allow limited intervention in order to allege a defense which would undoubtedly fail, the motion to intervene effectively collapses on itself."

The district court separately concluded that appellants' arguments fail pursuant Minn. R. Civ. P. 24.01 and 24.02. This appeal follows.

DECISION

I.

Appellants do not have a right to intervene pursuant to rule 24.01 because they do not have an interest in the subject of the action.

Appellants argue that they are entitled to intervene as a matter of right pursuant to...