Ligas ex rel. Foster v. Maram

• Decision Date: 15 February 2007
• Docket Number: No. 06-1327.,06-1327.
• Citation: 478 F.3d 771
• Parties: Stanley LIGAS, by his sister and next friend Gina FOSTER, et al., Plaintiffs-Appellees, v. Barry S. MARAM, et al., Defendants-Appellees, Anne Golden, by her father and guardian, Samuel Golden, et al., Proposed Intervenors-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

478 F.3d 771

Stanley LIGAS, by his sister and next friend Gina FOSTER, et al., Plaintiffs-Appellees, v. Barry S. MARAM, et al., Defendants-Appellees Anne Golden, by her father and guardian, Samuel Golden, et al., Proposed Intervenors-Appellants.

No. 06-1327.

United States Court of Appeals, Seventh Circuit.

Argued October 30, 2006.

Decided February 15, 2007.

Barry C. Taylor, Equip for Equality, Inc., Max Lapertosa (argued), Access Living of Metropolitan, Chicago, IL, for Plaintiffs-Appellees.

Mary E. Welsh (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.

James W. Ducayet, Sidley Austin, Chicago, IL, Michael Rato (argued), Sidley Austin, New York, NY, for Proposed Intervenors-Appellants.

Before EASTERBROOK, Chief Judge, and KANNE and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

The appellants are the representatives of a number of developmentally disabled people who were worried that they might have been unwilling members of a proposed class in a lawsuit filed under the Americans with Disabilities Act. Fearing that the remedy being sought by the plaintiffs was contrary to their wishes, they sought to intervene. The plaintiffs and defendants opposed the intervention, and the district court denied the petition. The intervenors appeal that decision, and we affirm.

I. BACKGROUND

This case arises in the context of a much larger debate over the proper way to provide care for the developmentally disabled. See generally Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). For some, institutionalized care is the best plan, while others are best served by integration into the community. Id. What might otherwise seem to be a question to be left to local health care officials, patients, their families, and their doctors now takes on a federal significance by operation of the Americans with Disabilities Act (ADA), among other legislation. Id.

Olmstead established that it is a violation of the ADA to force developmentally disabled patients to reside in institutionalized settings when they are able to live more fully integrated into society at large and do not oppose doing so. Olmstead, 527 U.S. at 597-602, 119 S.Ct. 2176. But with three dissenters and multiple concurrences, including a swing vote that joined in only part of the opinion, Olmstead has left the exact route to implementing this integration mandate somewhat murky.

With this background, the current suit was brought on behalf of a number of developmentally disabled people to hasten the state of Illinois down the road to community-based care. In addition to plaintiff-specific relief, the plaintiffs sought to certify a class and to require the state to provide community-based care for those class members. The class would have consisted of those who live in institutions, or are at risk of living in institutions, and who could live in the community.

There were, however, some potential members of that proposed class who did not want to live in community-based care. Enter the proposed intervenors: representatives of patients who could live in the community but do not want to, preferring instead to remain in institutional care. Worrying that they were about to become members of a class that would be forced to live in community-based care if the plaintiffs succeeded, the Golden Intervenors¹ sought to ensure that the disabled would still retain a choice in where they lived.

The Golden group petitioned the district court to grant intervention as of right under FED.R.CIV.P. 24(a), or, failing that, permissive intervention under FED.R.CIV.P. 24(b)(2). The plaintiffs and defendants opposed the petition to intervene and the district court denied the petition on December 22, 2005, a decision that the proposed intervenors now appeal.

II. ANALYSIS

A. Intervention as of Right

A party may seek intervention as of right if the party has "an interest" and 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)(2). This court has determined that intervention as of right is required only where parties "establish[ ] that: (1) their motions to intervene were timely; (2) they possess an interest related to the subject matter of the . . . action; (3) disposition of the action threatens to impair that interest; and (4) the [parties] fail to represent adequately their interest." United States v. BDO Seidman, 337 F.3d 802, 808 (7th Cir.2003). A failure to establish any of these elements is grounds to deny the petition. Id. With the exception of timeliness, which is reviewed for abuse of discretion, the elements are reviewed de novo on appeal. Id.

Much of this dispute now centers on whether the Golden group met its burden of proof on the third and fourth elements. The parties do not dispute that the petition was timely. We will assume without deciding that the Golden group has an interest related to the subject matter of the action.² The questions, then, are whether the action threatens to impair that interest and whether the parties fail to represent those interests adequately. We conclude, as did the district court, that Golden has not met its burden with respect to the third or fourth elements.

The appellants argued in the district court that the impairment to their interests stems from the proposed relief that the plaintiffs sought: a permanent injunction "requiring Defendants promptly to provide eligible Plaintiffs and class members with appropriate services sufficient to allow them to live in the most integrated setting appropriate to their needs." Compl. for Decl. and Inj. Relief. at 29; Appellee's Br. at 17. The intervenors' argument below was that this language would leave them no ability to choose to remain in institutional care if they were eligible for community-based care. The district court considered this argument in light of the language of the complaint and concluded that this interest could not be impaired by the relief sought by the complaint. We agree.

As the district court correctly noted, the complaint is "replete with language on choice." Nothing in the complaint, either on its face or as correctly construed by the district court, would require the state to force those who desire institutional care to move out. For example, the complaint alleges that the law requires the state to "offer persons ... a choice between institutional and community services." Compl. for Decl. and Inj. Relief ¶ 7. It alleges that the state "defendants do not provide plaintiffs or class members the choice between institutional or community settings." Id. ¶ 115. If the plaintiffs succeed in class certification and win on the merits, the relief that they seek would only require that Illinois provide that which (they allege) it does not currently provide: the existence of appropriate services tailored to the needs of the individual.

The district court also considered the question of whether the existing parties were able to adequately represent the Golden intervenors' interests. Finding that the inadequacy was "at best speculative, and at worst conclusory," the court held that the fourth element of the test for intervention as of right was not met. We agree.

A party seeking intervention as of right must only make a showing that the representation "may be" inadequate and "the burden of making that showing should be treated as minimal." Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972). However, when the representative party is a governmental body charged by law with protecting the interests of the proposed intervenors, the representative is presumed to adequately represent their interests unless there is a showing of gross negligence 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).

The defendants are the Director of the Illinois Department of Health and Family Services and the Secretary of the Illinois Department of Human Services in their official capacities. Compl. ¶ 12-15. Both the defendants and the proposed intervenors admitted in their pleadings that the defendants are responsible for administering the Illinois Medicaid and developmental disabilities programs. The intervenors have made no effort to show gross negligence or bad faith on the part of the state defendants, and have therefore not overcome the presumption that the defendants, as governmental bodies charged with protecting the interests of the proposed intervenors, will provide adequate representation.

Nevertheless, the district court recognized that the proposed class could be narrowed somewhat to avoid the perception that the intervenors would be pulled along with the plaintiffs down the road to community-based care. The court had previously dismissed the plaintiff's motion for class certification until the intervention question had been properly aired. In its denial of the petition to intervene, the district court encouraged the plaintiffs (if they were to seek renewed class certification) to more narrowly tailor their proposed class to "those who desire to be placed in community settings." Between the denial of the petition to intervene and the filing of this appeal, the plaintiffs renewed their motion for class certification. The language of the new proposed class was changed to those "who would not oppose community placement."

On this appeal, the Golden group makes much ado about the distinction between those who would "desire" and those would "not oppose." We believe that this is a distinction without a difference, at least as it relates to the Golden intervenors under the facts of this case. The language in the new proposed class is taken...