Planned Parenthood of Wis., Inc. v. Kaul

• Decision Date: 23 April 2019
• Docket Number: 19-cv-038-wmc
• Citation: 384 F.Supp.3d 982
• Parties: PLANNED PARENTHOOD OF WISCONSIN, INC., Dr. Kathy King, Natalee Hartwig, Sara Beringer and Katherine Melde, Plaintiffs, v. Joshua KAUL, Ismael Ozanne, Dawn Crim, Kenneth B. Simons, Timothy W. Westlake, Mary Jo Capodice, Alaa A. Abd-Elsayed, David A. Bryce, Michael Carton, Padmaja Doniparthi, Rodney A. Erickson, Bradley Kudick, Lee Ann R. Lau, David M. Roelke, Robert L. Zoeller, Peter J. Kallio, Pamela K. White, Romsemary Dolatowski, Jennifer Eklof, Elizabeth S. Houskamp, Sheryl A. Krause, Lillian Nolan and Luann Skarlupka, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

384 F.Supp.3d 982

PLANNED PARENTHOOD OF WISCONSIN, INC., Dr. Kathy King, Natalee Hartwig, Sara Beringer and Katherine Melde, Plaintiffs,

v.Joshua KAUL, Ismael Ozanne, Dawn Crim, Kenneth B. Simons, Timothy W. Westlake, Mary Jo Capodice, Alaa A. Abd-Elsayed, David A. Bryce, Michael Carton, Padmaja Doniparthi, Rodney A. Erickson, Bradley Kudick, Lee Ann R. Lau, David M. Roelke, Robert L. Zoeller, Peter J. Kallio, Pamela K. White, Romsemary Dolatowski, Jennifer Eklof, Elizabeth S. Houskamp, Sheryl A. Krause, Lillian Nolan and Luann Skarlupka, Defendants.

19-cv-038-wmc

United States District Court, W.D. Wisconsin.

Signed April 23, 2019

Leslie Anne Freehill, Lester A. Pines, Pines Bach LLP, Tamara Beth Packard, Cullen Weston Pines & Bach LLP, Madison, WI, Alison I. Stein, David B. Diesenhouse, Emily A. Bruemmer, Jessica A. Martinez, Susan J. Kohlmann, Jenner & Block LLP, Diana Olga Salgado, Planned Parenthood Federation of America, New York, NY, for Plaintiffs.

Brian P. Keenan, Jennifer Lynn Vandermeuse, Wisconsin Department of Justice, Madison, WI, for Defendants.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge Plaintiff Planned Parenthood of Wisconsin, Inc., and four of its health care providers bring this lawsuit against Wisconsin Attorney General Joshua Kaul, the District Attorney for Dane County Ismael Ozanne, in his official capacity and as a representative of a defendant class of District Attorneys, the Secretary of the Department of Safety and Professional Services Dawn Crim and members of the Medical Examining Board and the Board of Nursing. Plaintiffs claim that various laws and regulations unnecessarily require the participation of a physician (and at times the same physician) at various stages of the abortion services in violation of their rights, as well as the rights of their patients. (Compl. (dkt. #1).) In answering the complaint, defendants deny that these requirements violate the constitutional rights of plaintiffs or their patients. (Answ. (dkt. #20).) Presently before the court is a motion by the Wisconsin legislature that seeks to intervene in this ongoing lawsuit, either as a matter of right or by permission under Federal Rule of Civil Procedure 24. (Dkt. #21.) All the parties to this lawsuit oppose the motion. (Dkt. ##27, 28.) Having reviewed the parties' submissions, as well as the proposed intervenor's unsolicited reply brief (dkt. #30), the court will deny the motion for the reasons set forth below, principal of which is the failure of the proposed intervenor to distinguish controlling Seventh Circuit case law.

BACKGROUND

Plaintiffs filed their complaint on January 16, 2019, seeking a declaratory judgment that the following abortion-related regulations violate the Fourteenth Amendment and the Equal Protection Clause.

• Wis. Stat. § 940.15(5) and Wis. Admin. Code MED § 11.03, which prohibit anyone other than a physician from performing a medication or surgical abortion. (Compl. (dkt. #1) ¶ 2.)

• Wis. Stat. § 253.105(2)(a) and § 253.10(3)(c)(1), which require that "woman may not be given an abortion-inducing drug for a medication abortion unless the same physician who prescribes the drug has also conducted a pre-abortion physical examination of the woman at least 24 hours before the medication abortion is induced." (Id. at ¶ 5.)

• Wis. Stat. § 253.105(2)(b), which requires that a physician must be in the same room as the woman when she is given the abortion-inducing drug. (Id. at ¶ 6.)

As indicated above, defendants answered the complaint on March 21, 2019, denying that these regulations violate the Fourteenth Amendment. (Answ. (dkt. #20.)) On March 28, 2019, the Wisconsin legislature filed the present motion to intervene. This case is set for a preliminary pretrial conference with Magistrate Judge Steven Crocker today, April 23, 2019.

OPINION

I. Intervention as of Right

In this case, there is no statutory basis for intervention under 28 U.S.C. § 2403(b), because that provision is limited to cases where "the State or an agency, officer, or employee thereof is not a party." (Emphasis added.) Nevertheless, some courts have concluded that a lack of a statutory right to intervene does not undermine a finding of a right to intervene under Federal Rule of Civil Procedure 24(a). See, e.g., Ne. Ohio Coalition for Homeless v. Blackwell , 467 F.3d 999, 1007-08 (6th Cir. 2006) (rejecting State's argument that it had a right to intervene under § 2403(b), but finding intervention as of right under Rule 24(a) was appropriate).

Rule 24(a) recognizes a "right to intervene when: (1) the motion to intervene is timely filed; (2) the proposed intervenors possess an interest related to the subject matter of the action; (3) disposition of the action threatens to impair that interest; and (4) the named parties inadequately represent that interest." Wis. Educ. Ass'n Council v. Walker ("WEAC "), 705 F.3d 640, 657–58 (7th Cir. 2013) (citing Ligas ex rel. Foster v. Maram , 478 F.3d 771, 773 (7th Cir. 2007) ). The proposed intervenor has the burden to demonstrate each of these requirements is satisfied. Ligas , 478 F.3d at 773. "A failure to establish any of these elements is grounds to deny the petition. Id. (citing United States v. BDO Seidman , 337 F.3d 802, 808 (7th Cir. 2003) ).

There is no dispute that the first element is met here. The Wisconsin legislature filed the motion to intervene approximately two and a half months after the complaint was filed and within a week of defendants' answer, before a schedule was even set in this case. However, all parties challenge whether the other three requirements are satisfied.

As for the interest requirement, "[i]ntervention as of right requires a ‘direct, significant[,] and legally protectable’ interest in the question at issue in the lawsuit." WEAC , 705 F.3d at 658 (quoting Keith v. Daley , 764 F.2d 1265, 1268 (7th Cir. 1985) ). The Wisconsin legislature argues that it is "well established that state legislatures (or legislators) have an interest in defending the constitutionality of legislative enactments when state law authorizes them to do so." (Proposed Intervenor's Br. (dkt. #22) 5.) In support, the proposed intervenor points to recently-enacted legislation providing:

When a party to an action challenges in state or federal court the constitutionality of a statute, facially or as applied ... the assembly, the senate, and the legislature may intervene as set forth under § 13.365 at any time in the action as a matter of right by serving a motion upon the parties as provided in § 804.14.

Wis. Stat. § 803.09(2).¹ Section 13.365 further provides that the Joint Committee on Legislative Organization may retain legal counsel and seek to intervene. The Committee authorized intervention in this lawsuit on March 14, 2019. (Proposed Intervenor's Br. (dkt. #22) 6.)

The legislature also points to United States Supreme Court cases, which primarily address whether a legislative body has standing to represent the state's interest. (Id. at 5-6 (citing Arizonans for Official English v. Arizona , 520 U.S. 43, 65, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ; Karcher v. May , 484 U.S. 72, 75, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987) ; INS v. Chadha , 462 U.S. 919, 930 n.5, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) ).) As the Seventh Circuit has explained, however, establishing standing is not a sufficient basis to seek intervention as of right. See Flying J, Inc. v. Van Hollen , 578 F.3d 569, 571 (7th Cir. 2009) ("The interest required by Article III is not enough by itself to allow a person to intervene in a federal suit and thus become a party to it. There must be more.").

Nothing in the earlier decisions by the United States Supreme Court cited by the proposed intervenor suggests otherwise. In Arizonans for Official English , the Supreme Court explained that its earlier decision in Karcher recognized that "state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests," but concluded that the coalition seeking to intervene on appeal was not a legislative body, and therefore its standing was in doubt. 520 U.S. at 66, 117 S.Ct. 1055. As a result, the Supreme Court did not consider whether the motion to intervene satisfied the requirements of Rule 24. Like the Seventh Circuit's Flying J decision, the other two Supreme Court cases concerned proposed intervention because the state attorney general or other state entities decided not to defend the challenged statute. See Karcher , 484 U.S. at 75, 108 S.Ct. 388 (allowing intervention after "it became apparent that neither the Attorney General nor the named defendants would defend the statute"); Chadha , 462 U.S. at 940, 103 S.Ct. 2764 ("Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.").

In Flying J , the Seventh Circuit followed this approach, granting an association of Wisconsin gasoline dealer's motion to intervene on appeal because the Wisconsin attorney general opted not to appeal an adverse decision by the district court. The court explained:

Had the association sought to intervene earlier, its motion would doubtless (and properly) have been denied on the ground that the state's attorney general was defending the statute and that adding another defendant would simply complicate the litigation. For there was nothing to indicate that the attorney general was planning to throw the case—until he did so by failing to appeal.

578 F.3d at 572.

So, too, here. A state statute purporting to provide the Wisconsin legislature with the authority under state law to defend the State in federal court, arguably satisfying the standing requirements under Article III, does not relieve the legislature from satisfying the requirements for intervening under a federal rule. Even if it did impact the...