3:13-cv-05038 #28

Case 3:13-cv-05038-FLW-LHG Document 28 Filed 09/11/13 Page 1 of 15 PageID: 422
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION TARA KING, ED.D., individually and on behalf of her patients, RONALD NEWMAN, PH.D., individually and on behalf of his patients, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, ERIC T. KANEFSKY, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, in his official capacity, MILAGROS COLLAZO, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, in her official capacity, J. MICHAEL WALKER, Executive Director of the New Jersey Board of Psychological Examiners, in his official capacity; PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Defendants. Case No. 13-cv-5308
PLAINTIFFS MEMORANDUM IN SUPPORT OF THEIR MOTION FOR RECONSIDERATION OF THE COURTS BRIEFING ORDER AND RESPONSE IN OPPOSITION TO GARDEN STATE EQUALITYS MOTION TO INTERVENE
TABLE OF CONTENTS INTRODUCTION.1 ARGUMENT .3 1. Garden State Equalitys interests are already adequately represented, and its contribution would be superfluous at best..........4 2. Garden State Equalitys motion is untimely......7 3. Garden State Equalitys motion is unduly prejudicial..9 CONCLUSION10 TABLE OF AUTHORITIES Bumgarner v. Ute Indian Tribe of Uintah & Ouray Reservation, 417 F.2d 1305 (10th Cir. 1969) 7 City of Lakewood v. Plain Dealer Publg Co., 486 U.S. 750 (1988)9 Delaware Valley Citizens Council for Clean Air v. Pennsylvania, 674 F.2d 970 (3d Cir. 1982)5, 6 Dept of Fair Empt and Housing v. Lucent Technologies, Inc., 642 F.3d 728 (9th Cir. 2011)7 Edwards v. Beck, No. 4:13-cv-00224-SWW (W.D. Ark. June 6, 2013)..9, 10 Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167 (2d Cir. 2006) 9 Hoots v. Pennsylvania, 672 F.2d 1133 (3d Cir. 1982).4, 5 In re Cmty. Bank of N. Va., 418 F.3d 277 (3d Cir. 2005)5, 7 In re Fine Paper Antitrust Litig., 695 F.2d 494 (3d Cir. 1982)...7 In re Stingfree Tech. Co., 427 B.R. 337 (E.D. Penn. 2010).5 Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 286 (3d Cir. 1982). 7 Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996)4
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Mountain Top Condo. Assn v. Dave Stabbert Master Builder, Inc., 72 F.3d 361 (3d Cir. 1995)...7 NAACP v. New York, 413 U.S. 345 (1973)..3, 7 Pennsylvania v. Rizzo, 530 F.2d 501 (3d Cir. 1976)5 United States v. Bd. of Sch. Commrs, 466 F.2d 573 (7th Cir. 1992)..6 Statutes Fed. R. Civ. P. 24 3
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COME NOW Plaintiffs, by and through counsel, and file this Memorandum in Support of their Motion for Reconsideration of the Courts September 9, 2013, scheduling order permitting proposed intervenor to file an independent motion for summary judgment and their Opposition to Garden State Equalitys proposed motion to intervene in the present litigation.1 INTRODUCTION Plaintiffs filed this action August 22, 2013 seeking a temporary restraining order and a preliminary and permanent injunction to restrain the State from enforcing New Jersey Assembly Bill 3371 (A3371). (Dkt. 1). On August 27, 2013, the Court held a telephone conference with counsel for Plaintiffs and the State Defendants. During that discussion and in subsequent communications between the parties, all parties agreed that Plaintiffs motion should be converted to a motion for summary judgment because this case presented a pure question of law without the need to develop a factual record. Plaintiffs and Defendants subsequently agreed to a briefing schedule whereby Plaintiffs would file a supplemental memorandum on their free exercise claims on September 3, 2013, Defendants would file a response/cross-motion for summary judgment on September 13, 2013, and Plaintiffs would file a reply brief in support of summary judgment a mere seven days later on September 20, 2013. (Dkt. 17, Defendants Letter to Judge Wolfson). The Court subsequently approved that expedited schedule and set oral argument on the cross-motions for summary judgment for October 1, 2013. On Friday September 6, 2013 -- after Plaintiffs had already submitted their motion for temporary restraining order and preliminary injunction (which was converted to a summary judgment motion by agreement) and only one week before the States motion for summary judgment is due -- Garden State Equality filed numerous documents seeking to intervene. (Dkt.
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In the interests of judicial economy and because the issues involved in the motion for reconsideration and the response in opposition to the motion for leave to intervene are inextricably intertwined, Plaintiffs file this single memorandum to address both pleadings.
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19, 19-1, 19-2, 19-3, 19-4). Garden State Equalitys filing consists of a voluminous 83-page discussion admitting that it seeks to introduce numerous declarations and attempt to develop a factual record that the parties themselves have agreed is irrelevant to the question of law at issue here. Garden State Equalitys motion to intervene should therefore be summarily denied. On Monday September 9, 2013, this Court issued an order setting the motion to intervene on October 7, 2013, to be decided on the papers. Later that morning, the Courts law clerk sent counsel an email asking whether the parties would oppose the motion to intervene, in which case the Court was inclined to set a truncated briefing schedule on that motion. (Email from Wayne Fang, dated Sept. 9, 2013). Plaintiffs responded that they would oppose the motion. Thereafter, the Court issued a revised briefing schedule, (Dkt. 26), but the result of this order is to impose the very prejudice that Plaintiffs seek to avoid by opposing the proposed intervention. In fact, the current briefing schedule permits Garden State Equality to file its voluminous and factually detailed submission that the parties have agreed is irrelevant to the pure question of law at issue here, while delaying a ruling on the ultimate merits of the motion to intervene until October 1. The effect of this ruling is that Plaintiffs will have no choice but to respond to all of the States cross-motion for summary judgment and supporting declarations as well as Garden State Equalitys motion for summary judgment and supporting declarations within seven (7) days.. This is substantially prejudicial in itself and is the precise prejudice that Plaintiffs were seeking to avoid by opposing the intervention in the first place. In effect, the burden is the same on Plaintiffs under this order as if the Court had simply granted the motion to intervene. Indeed, the burden is even greater, because had the Court simply granted the motion to intervene outright Plaintiffs would not have had to prepare a substantive response to the motion itself. Under the
Courts current order, Plaintiffs are now under the burden of responding to an 83-page motion to intervene, the States cross-motion for summary judgment, and a voluminous new motion for summary judgment filed by Garden State Equality, all on an accelerated schedule. Plaintiffs should not be required to divert their attention from the substantive questions of law before this Court to analyze and respond to Garden State Equalitys 83-page diversion, and Garden State Equality should not be permitted to intervene in this action. Plaintiffs therefore ask the Court to reconsider its revised briefing schedule and to deny the motion for leave to intervene. Specifically, Plaintiffs ask that the motion to intervene be denied, and that Garden State Equality not be allowed to file its own motion for summary judgment. Alternatively, Plaintiffs move the Court to disallow Garden State Equalitys filing of a separate motion for summary judgment and to postpone the deadline for responding substantively to the motion for leave to intervene until after the hearing on the cross-motions for summary judgment, at which time it will be known whether there are indeed factual disputes remaining to which issue Garden State Equalitys submissions may have some relevance. ARGUMENT Federal Rule of Civil Procedure 24(b) states that [o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact. Fed. R. Civ. P. 24(b)(1)(B). Additionally, [i]n exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties rights. Fed. R. Civ. P. 24(b)(3). Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of both Rule 24(a) and Rule 24(b), that the application must be timely. If it is untimely, intervention must be denied. NAACP v. New York, 413 U.S. 345, 365 (1973) (emphasis added).
In determining whether the intervention would result in undue delay or prejudice, the Court should consider whether the proposed intervenors contributions would be superfluous and whether their interests are already adequately represented. Hoots v. Pennsylvania, 672 F.2d 1133, 1136 (3d Cir. 1982). Here, Garden State Equalitys contributions would at best be superfluous, because Garden State Equalitys interests are already adequately represented; indeed, Garden State Equality does not even attempt to show that the St ates representation is somehow inadequate. Instead, it suggests that because it lobbied for passage of the Act and some of its members testified in its favor its deep understanding of the consensus of the organizations that support the Act would assist the Court in efficiently adjudicating the matter. (Dkt. 19-1, Brief of Garden State Equality, Intervention Brief at 1). In fact, Garden State Equalitys intervention would add nothing to the States already-adequate representation and would instead distract from the essence of the case by introducing irrelevant and unnecessary factual material that would undoubtedly be disputed. Moreover, Garden State Equalitys proposed intervention is untimely and so must be denied. It will also impose substantial and undue prejudice on Plaintiffs adjudication of their rights. The motion should therefore be denied. While Rule 24 promotes judicial economy by facilitating, where constitutionally permissible, the participation of interested parties, the fact remains that a federal case is a limited affair, and not everyone with an opinion is invited to attend. Mausolf v. Babbitt, 85 F.3d 1295, 1301 (8th Cir. 1996) (emphasis added). 1. Garden State Equalitys interests are already adequately represented, and its contribution would be superfluous at best.
As a threshold matter, Garden State Equalitys motion would add nothing to the States already-adequate representation, and would instead seek to introduce irrelevant and unnecessary factual matters that would detract from the analysis and determination of the legal issues
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presented by this case.2 When the interests of the application in every manner match those of an existing party and the partys representation is deemed adequate, the district court is well within its discretion in deciding that the applicants contributions to the proceedings would be superfluous and that any resulting delay would be undue. Hoots v. Pennsylvania, 672 F.2d 1133, 1135-36 (3d Cir. 1982); see also In re Stingfree Tech. Co., 427 B.R. 337, 349-50 (E.D. Penn. 2010) (denying permissive intervention because the proposed intervenors interest were presumed adequate and that its contributions to the proceedings would be superfluous). The interests of the proposed intervenor here, Garden State Equality, in every way match those of the State Defendants. The States interests are in upholding A3371 as constitutional, which is identical to Garden State Equalitys overall objective in seeking to intervene. When the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented. In re Cmty. Bank of N. Va., 418 F.3d 277, 315 (3d Cir. 2005) (quoting Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976)). Therefore, the State is presumed to adequately represent the interest of those seeking to uphold its laws. Furthermore, a presumption of adequate representation generally arises when the representative is the governmental body or officer charged by law with representing the interest. Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir. 1976); see also Delaware Valley Citizens Council for Clean Air v. Pennsylvania, 674 F.2d 970, 973 (3d Cir. 1982) (A party charged by law with representing the interests of the absent party will usually be deemed adequate to represent the absentee.). Indeed, [w]here official policies and practices are challenged, it seems
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In fact, Garden State Equality has already introduced irrelevant and inadmissible material. See, e.g., Exhibit 1 to Certification of Troy Stevenson (Doc. 19-2) (containing Mr. Stevensons testimony to the Legislature in favor of A3371 and purporting to describe the hearsay representations of his childhood lover).
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unlikely that anyone could be better situated to defend than the governmental department involved. Id. The burden is on the proposed intervenor to show that its interests are not adequately represented. Delaware Valley, 674 F.2d at 974. Garden State Equality has not established that the State cannot adequately represent the interest of those supporting A3371. [I]nadequate representation would not be established ipso facto merely because of proposed intervenors disagreements concerning litigation strategies, stipulations, or potential outcomes based on the governments representation Id. Proposed intervenors assert, as they must in order to prevail on their motion to intervene, that allowing them to intervene would not expand the issues before this Court. (Intervention Brief at 1). However, the parties have agreed that this case presents a pure question of law that may accordingly be decided on streamlined cross-motions for summary judgment. Proposed intervenors, by contrast, appear poised to turn this matter into a protracted factual quagmire, as evidenced by their instant motion and their supporting materials. It would appear that proposed intervenors would not have agreed to the expedited and streamlined presentation of this case without voluminous factual submissions. Nevertheless, [t]hat intervenors would have been less likely prone to agree to the facts and would have taken a different view of the applicably law does not mean that the defendants did not adequately represent their interests. Delaware Valley, 674 F.2d at 974 (quoting United States v. Bd. of Sch. Commrs, 466 F.2d 573, 575 (7th Cir. 1992)). Claims that the current parties have failed to represent the proposed intervenors interest as vigorously and effectively as [they] would have had they been parties to the litigation are insufficient to overcome the presumption of inadequate representation. Bd. of Sch. Commrs, 466 F.2d at 575-76. Indeed, Garden State Equalitys claims here amount to a mere disagreement
over litigation strategy, which does not, in and of itself, establish inadequacy of representation. In re Cmty. Bank of N. Va., 622 F.3d at 305 (citing Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 2010)); see also Dept of Fair Empt and Housing v. Lucent Technologies, Inc., 642 F.3d 728, 740 (9th Cir. 2011). Garden State Equality apparently would have handled the defense of the case differently than did the [State]. This however is not sufficient to challenge the adequacy of the representation. Bumgarner v. Ute Indian Tribe of Uintah & Ouray Reservation, 417 F.2d 1305, 1308 (10th Cir. 1969) (emphasis added). Garden State Equality has failed to meet its burden of establishing inadequate representation. Its participation is thus unnecessary and unduly prejudicial. Its motion to intervene should be summarily denied. 2. Garden State Equalitys motion is untimely.
Garden State Equalitys motion to intervene is also untimely. The timeliness of a motion to intervene is determined from all of the circumstances and, in the first instance, by the trial court in the exercise of its sound discretion. In re Fine Paper Antitrust Litig., 695 F.2d 494, 500 (3d Cir. 1982) (quoting NAACP v. New York, 413 U.S. 345, 366 (1973)). The three factors to be considered in determining the timeliness of a motion to intervene include (1) the stage of the proceedings; (2) the prejudice that the delay may cause the parties; and (3) the reason for the delay. Id. Among these factors, the stage of the proceedings is inherently tied to the question of the prejudice the delay in intervention may cause to the parties already involved. Mountain Top Condo. Assn v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 370 (3d Cir. 1995). Courts should also consider the purpose for which the intervention is sought. Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 286, 293 (3d Cir. 1982). Here, Plaintiffs have already submitted their converted motion for summary judgment on all issues before the Court and are in the midst of preparing for an anticipated forty-page cross-
motion for summary judgment supported by numerous declarations to be filed by the State in three (3) days, on Friday, September 13, 2013. Plaintiffs will then have only seven (7) days to analyze the States motion, review and attempt to rebut or respond to the declarations, and prepare an extensive response to the States response/cross-motion for summary judgment. Garden State Equalitys attempt to enter the litigation in the middle of the expedited schedule that all parties have agreed to is untimely and therefore improper. The prejudice proposed intervenors motion and participation will cause to Plaintiffs in the adjudication of their rights is substantial. As shown above, under the Courts revised briefing schedule Plaintiffs must now not only work non-stop between September 13 and September 20 to respond to the States crossmotion for summary judgment, but it must also respond to Garden State Equalit ys own motion for summary judgment, together with its promised voluminous declarations and factual materials which Plaintiffs fully anticipate will be disputed in any event. Indeed, Garden State Equality admits that it is seeking solely to place before the court an alternative viewpoint from the vantage of some persons who have undergone sexual orientation change efforts. (Intervention Brief at 1). This admission reveals that the proposed intervenors are attempting to enter the litigation for purposes of introducing facts the parties have determined are unnecessary and irrelevant. Given that the Third Circuit has instructed courts to consider the purpose for which intervention is sought when considering the timeliness of a motion to intervene, the fact that Garden State Equality has promised substantial evidentiary matters deemed irrelevant by the parties should reveal that the purpose for which intervention is sought is improper. The motion is therefore untimely under the circumstances.
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Garden State Equalitys motion is unduly prejudicial.
The Eastern District of Arkansas recently considered this precise type of situation and found that a proposed intervention at this stage of the proceedings in an expedited matter was substantially prejudicial and should be rejected out of hand. See Edwards v. Beck, No. 4:13-cv00224-SWW (W.D. Ark. June 6, 2013) (copy attached). There, the court found that the urgent nature of the proceedings and what it deemed an undue risk of expense and delay that would have substantially prejudiced the plaintiffs in the proceedings mandated that the proposed intervenors motion be denied. The Court should do likewise here. The urgency of this matter and the substantial increase in costs and burden on Plaintiffs to respond to and address substantial pleadings, which the proposed intervenor has admitted will be based on a factual record the parties have agreed is irrelevant, is substantially prejudicial and should be denied. Moreover, the undue prejudice to Plaintiffs is palpable -- one need look no further than the 83 pages of materials filed by Garden State Equality simply in support of its motion. (Dkt. 19, 19-1, 19-2, 19-3, 19-4). The legal issues in this case are narrow and concrete. All parties have agreed that this case presents a matter of law that can be decided without the need for development of a substantial factual record, as Garden State Equality seeks to introduce. Garden State Equality readily admits that it intends to significantly contribute to the development of the record and include irrelevant facts that the parties have agreed are unnecessary and irrelevant to the adjudication of this pure question of law. (Intervention Brief at 11). Indeed, facial challenges by their nature are not dependent on the facts surrounding [the particular statute]. City of Lakewood v. Plain Dealer Publg Co., 486 U.S. 750, 770 n.11 (1988); see also Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006) (A facial challenge to a statute
considers only the text of the statute itself, not its application to the particular circumstances of an individual.). Additionally, Garden State Equality seeks to file its own motion for summary judgment. Therefore, if the motion to intervene were granted, Plaintiffs would be required to respond not only to the States substantial motion for summary judgment, but also to Garden State Equalitys motion as well, all within a period of seven (7) days. Indeed, even to have to substantively review Garden State Equalitys lengthy motion to intervene is prejudicial on its face given the expedited schedule that the Court and all parties have agreed to in this matter. See Edwards. Moreover, the expedited schedule here was necessitated by the fact that Plaintiffs are suffering irreparable harm by virtue of the fact that the law is currently in effect, thereby prohibiting Plaintiffs from continuing their practices with respect to their minor clients insofar as they involve sexual orientation change efforts. Accordingly, extending the deadlines and delaying the ultimate determination of the cross-motions for summary judgment is no solution, as it would only increase the harm already being suffered by Plaintiffs and their clients, and so further prejudice Plaintiffs. Thus, while Garden State Equality blandly asserts that its intervention causes neither prejudice nor delay (Intervention Brief at 1), in fact it has already caused prejudice and in order to allow Plaintiffs adequate opportunity to respond to Garden State Equalitys additional motion for summary judgment it necessitates delay -- which in turn causes further harm to Plaintiffs and their clients. The motion to intervene should therefore be denied. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court issue an order denying Garden State Equalitys motion to intervene on the following grounds: 1) that the motion is untimely;
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2) 2)
that the motion is unduly prejudicial to Plaintiffs; that Plaintiffs should not be required to file a substantive response to this Garden
State Equalitys 83-page filing requesting intervention, as it would unduly prejudice the adjudication of Plaintiffs rights given the expedited schedule all parties have agreed to here; and 3) that Garden State Equality is admittedly seeking to introduce substantial facts that
the existing parties have already determined are irrelevant to this pure question of law, which further reveals the prejudice that would be imposed by intervention. Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991 Mathew D. Staver* Stephen M. Crampton* Daniel J. Schmid* Liberty Counsel Attorneys for Plaintiffs P.O. Box 11108 Lynchburg, VA 24502 Tel. 434-592-7000 Fax: 434-592-7700 court@LC.org *Admitted Pro Hac Vice Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on September 11, 2013. Service will be effectuated by the Courts electronic notification system upon all counsel of record.
/s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991 Mathew D. Staver* Stephen M. Crampton* Daniel J. Schmid* Liberty Counsel Attorneys for Plaintiffs P.O. Box 11108 Lynchburg, VA 24502 Tel. 434-592-7000 Fax: 434-592-7700 court@LC.org *Admitted Pro Hac Vice Attorneys for Plaintiffs
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Case 3:13-cv-05038-FLW-LHG Case 4:13-cv-00224-SWW Document Document 28-1 46 Filed Filed 09/11/13 06/06/13 Page Page 1 of18of PageID: 8 437
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LOUIS JERRY EDWARDS, M.D., on behalf of himself and his patients, ET AL. Plaintiffs V. JOSEPH M. BECK, M.D., President of the Arkansas State Medical Board, and his successors in office, in their official capacities, ET AL. Defendants ORDER Plaintiffs Louis Jerry Edwards and Tom Tvedten, physicians who provide services at Little Rock Family Planning Services, Inc., bring this action under 42 U.S.C. 1983 against members of the Arkansas State Medical Board (the "Board"), sued in their official capacities. Plaintiffs challenge the constitutionality of Arkansas Act 301 of the 2013 Regular Session of the 89th General Assembly of Arkansas, titled the "Arkansas Human Heartbeat Protection Act." Before the Court is a motion to intervene by Concepts of Truth, Inc. ("Concepts") (ECF Nos. 20, 21, 22). Defendants have filed a response stating no opposition (ECF No. 23), Plaintiffs have filed a response in opposition (ECF No. 38), and Concepts has filed a reply (ECF No. 44). After careful consideration, and for reasons that follow, the motion to intervene is denied. Also before the Court is Concepts motion (ECF No. 31) seeking leave to file an amicus brief supporting Defendants opposition to a preliminary injunction. In response, Plaintiffs note that the Court has issued a preliminary injunction, which renders moot Concepts motion, but they state that they have no objection to Concepts participating as amicus curiae in support of * * * * * * * * * * * * *
NO: 4:13CV00224 SWW
Defendants opposition to permanent injunctive relief. Accordingly, although Concepts present motion to file an amicus brief is moot, the Court will permit Concepts to file an amicus brief regarding permanent injunctive relief. I. The Arkansas Human Heartbeat Protection Act ("Act 301") amends Arkansas law governing abortions, and it will become effective on Friday, August 16, 2013. See Act 301, 1 (to be codified at Ark. Code Ann. 20-16-1301 through 1307). Plaintiffs charge that Act 301 violates the Constitution, and they seek declaratory and injunctive relief preventing enforcement of the Act. Plaintiffs commenced this action on April 16, 2013, and along with the complaint, they filed a motion for a preliminary injunction. On April 25, 2013, following a telephone conference with counsel, the Court entered an agreed scheduling order, setting briefing deadlines and a preliminary injunction hearing date. On May 7, 2013, ten days before the scheduled hearing, Concepts filed its motion to intervene. In response, Plaintiffs filed a motion asking the Court to proceed with the hearing as scheduled, without Concepts participation. Given the timing of Concepts motion and the need for timely resolution of Plaintiffs motion for preliminary injunctive relief, the Court ruled that the hearing would proceed without Concepts. Following a hearing held on May 17, 2013, the Court stated findings of fact and conclusions of law from the bench and granted Plaintiffs motion for a preliminary injunction, and on May 23, 2013, the Court entered a written order reaffirming the findings of fact and conclusions of law stated from the bench. Plaintiffs have now responded in opposition to the motion to intervene, Concepts has filed a reply, and the matter is ready for decision.
II. Concepts, a non-profit organization based in Wynne, Arkansas, seeks to intervene in this case as of right, pursuant to Fed. R. Civ. P. 24(a)(2) or, in the alternative, by permissive intervention under Fed. R. Civ. P. 24(b)(2). Millie Lace (Lace) and her husband Dail Lace founded Concepts in 1998, after a doctor-recommended abortion caused Lace to suffer physical and psychological pain.1 See ECF No. 20, Ex. #1 (Lace Decl. at 5-7). Lace explains that Concepts mission is to provide a place for pregnant women to come for counseling, consulting, assistance, and resources to keep their child and preserve the vital relationship between the mother and her child and to help women find healing from the psychological, emotional, and physical problems that result from abortion. Id. (Lace Decl. at 8). In support of the motion to intervene, Lace testifies that Concepts has a significant interest in the outcome of this proceeding that is separate and distinct from other groups or individuals because the organization was "instrumental in lobbying for and enlisting public support for Act 301." Id. (Lace Decl. at 12). Lace further testifies:
Lace testifies:
I wanted to help women avoid the serious issues that I had to endure because of that traumatic experience. My husband and I therefore founded Concepts in 1998. We founded this organization because we wanted to change hearts, minds, and decisions about abortion. We wanted to establish a place for women who are considering abortion to come and receive assistance, counseling, and resources about the true consequences of abortion and to learn about other assistance that is available. I also founded Concepts because of my desire to help those women who have had abortions to recover from the severe physical, emotional, and psychological problems that arise because of the decision to have an abortion. I thought my experience and recovery could help other women cope and deal with the substantial issues that arise because of abortion. ECF No. 20, Ex. #1 (Lace Decl. at 7). 3
Concepts stands to uniquely benefit from Act 301 in a manner separate from the general public in that the number of clients that it sees will increase, and it will be able to further its primary mission of providing valuable resources to pregnant women who desire to keep their child. Women who might consider abortion after 12 weeks will be more likely to approach Concepts for assistance if they are not able to have abortions. Concepts is better prepared to assist these women than many other facilities because its expertise and core mission are focused intently on helping pregnant women who have a desire to keep their child. Id. (Lace Decl. at 9). The Board has responded that it has no objection to Concepts intervening in this case. However, Plaintiffs oppose Concepts proposed intervention, arguing that the organization lacks Article III standing and cannot meet the requisites for intervention of right, pursuant to Fed. R. Civ. P. 24(a)(2) or, for permissive intervention under Fed. R. Civ. P. 24(b)(2). III. The Eighth Circuit has held that Article III standing is a prerequisite for interventionwhether of right or permissive--in a federal lawsuit. See Curry v. Regents of University of Minnesota, 167 F.3d 420, 422 (8th Cir. 1999) (citing Standard Heating & Air Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 570, 573 (8th Cir. 1998)). The irreducible constitutional minimum of standing has three elements: First, the would-be litigant must have suffered an injury in fact'; that is, an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical . . . . Second, the would-be litigant must establish a causal connection between the alleged injury and the conduct being challenged. Third, he must show that the injury is likely to be redressed by a favorable decision. Mausolf v. Babbitt, 85 F.3d 1295, 1301 (8th Cir. 1996)(citing Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136-37(1992)). In addition to standing, a party seeking intervention of right under Rule 24(a)(2) must 4
establish (1) it has a recognized interest in the subject matter of the litigation, (2) the interest might be impaired by the disposition of the case, and (3) the interest will not be adequately protected by the existing parties. See South Dakota ex rel Barnett v. U.S. Dept. of Interior, 317 F.3d 783, 785 (8th Cir. 2003). Under the law of this Circuit, the interest asserted by an
applicant for intervention must be "direct, substantial and legally protectable." Standard Heating and Air Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 571 (8th Cir. 1998). The assertion that Act 301 will have the effect of furthering Concepts mission because fewer women will have abortions and more women will seek Concepts services is speculative and fails to demonstrate the type of actual and imminent injury required for Article III standing. See Diamond v. Charles, 476 U.S. 54, 66, 106 S.Ct. 1697, 1705 (1986)(finding no standing where a pediatrician, who supported a law restricting abortions, speculated that if the law were enforced, he would gain patients).2 Further, Act 301 does not require physicians to inform a Concepts contends that the Supreme Courts decision in Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697 (1986), has no application here. In Diamond, a class of physicians who provided abortion services, challenged the constitutionality of an Illinois abortion law that imposed criminal liability on physicians for violating certain provisions of the law. A pediatrician moved to intervene as a party defendant based on his conscientious objection to abortions and his status as a pediatrician. The district court enjoined provisions of the challenged law, and the Court of Appeals affirmed. The pediatrician intervenor appealed to the Supreme Court, but the State chose not to pursue further appeal. The Supreme Court held that because the intervenor was the sole appellant, he could no longer piggyback on the states standing as a defendant, and he shouldered the burden to show that he met the requirements for Article III standing. Concepts argues that the decision in Diamond is wholly distinct from the issue here, where the State is clearly involved in the litigation and there is certainly a case for Concepts to join. ECF No. 44, at 3. Concepts fails to recognized that in Diamond, the Supreme Court expressly left open the question of whether a party seeking to intervene must individually satisfy Article IIIs standing requirements, or whether he could simply ride the coattails of an existing party. See Diamond, 476 U.S. at 68-69, 106 S. Ct. at 1706-1707(We need not decide today whether a party seeking to intervene before a District Court must satisfy not only the requirements of Rule 24(a)(2), but also the requirements of Art. III.). The Eighth Circuit has 5
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woman seeking an abortion about the services offered by Concepts or any other organization,3 and the invalidation of Act 301 would not upset the status quo or restrict Concepts ability to continue providing services to pregnant women.4 Additionally, neither Concepts general mission nor its lobbying efforts toward the enactment of Act 301 suffice to confer standing. See Planned Parenthood of MidMissouri and East Kansas, Inc. v. Ehlmann, 137 F.3d 573, 578 (8th Cir.1998)(holding that legislators lacked standing merely because they voted for the challenged enactment). In sum, the Court finds that Concepts is unable to assert an injury in fact and thus lacks standing to intervene in this case as of right or by permission. For the same reasons that the Court finds no injury in fact, the Court also finds that Concepts has failed to show that it possesses a recognized, protectable interest in the subject matter of this litigation that might be impaired, as required for intervention of right under Rule 24(b)(2). The Court further finds that the State is ably defending Act 301, and Concepts has
answered the standing question, and has held that Article III standing is a prerequisite for interventionwhether of right or permissive--in a federal lawsuit. See Curry v. Regents of University of Minnesota, 167 F.3d 420, 422 (8th Cir. 1999) (citing Standard Heating & Air Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 570, 573 (8th Cir. 1998)). Act 301 does not require a woman to consult a pregnancy help center prior to obtaining an abortion, unlike the law challenged Planned Parenthood Minnesota, North Dakota, South Dakota v. Daugaard, 836 F. Supp. 2d 933, 936 (D.S.D. 2011). Concepts maintains that its argument for standing is virtually identical to Plaintiffs. The Court disagrees. Act 301 directly regulates the conduct of physicians, like Plaintiffs, who are authorized to perform abortions under Arkansas law, and a violation of the Act would subject Plaintiffs to license revocation. The risk or threat of medical license revocation is sufficient to establish the invasion of a legally protectable interest. Furthermore, the Court has determined that Plaintiffs have alleged facts sufficient to demonstrate that they have standing to assert the rights of their patients. Although a plaintiff may not ordinarily claim standing to assert the rights of a third party, the Supreme Court has held that it is generally acceptable for physicians to assert their patients constitutional right to have access to legal abortions. See Singleton v. Wulff, 428 U.S. 106, 11418, 96 S. Ct. 2868, 2875-2876 (1976). 6
4 3
failed to show that its interests will not be adequately represented. Adequacy of representation can be assumed when the defendant is an arm or agency of the government, presumed to represent the interests of its citizens as parens patriae, or parent of the country. Mausolf v. Babbitt, 85 F.3d 1295, 1303 (8th Cir.1996). A proposed intervenor may rebut the presumption of adequate representation by showing that he or she stands to gain or lose from the litigation in a way different from the public at large. See Chiglo v. City of Preston, 104 F.3d 185, 187-88 (8th Cir. 1997)([T]he government only represents the citizen to the extent his interests coincide with the public interest.). But for reasons previously explained, Concepts has failed to make such a showing. Finally, the Court finds that Concepts participation in this case would increase litigation costs and delay final resolution of the dispute, without counterbalancing benefits. See South Dakota ex rel Barnett v. United States, 317 F.3d 783, 787 (8th Cir. 2003)(explaining that the decision to grant or deny a motion for permissive intervention under Rule 24(b) is wholly discretionary, and the principal consideration is whether the proposed intervention would unduly delay or prejudice the adjudication of parties rights). IT IS THEREFORE ORDERED that the motion to intervene by Concepts of Truth (ECF No. 20) is DENIED. IT IS FURTHER ORDERED that Concepts of Truths motion to file an amicus brief in support of Defendants opposition to a preliminary injunction (ECF No. 31) is DENIED AS MOOT, but Concepts is granted leave to file an amicus brief regarding Plaintiffs request for permanent injunctive relief. IT IS FURTHER ORDERED that motions to appear pro hac vice by attorneys Stephen
M. Crampton and Allan E. Parker (ECF Nos. 26, 27) are GRANTED. Attorneys Crampton and Parker are admitted to the bar of this Court for the limited purpose of filing an amicus brief in this case on behalf of Concepts of Truth, Inc. IT IS SO ORDERED THIS 6TH DAY OF JUNE, 2013.
/s/Susan Webber Wright UNITED STATES DISTRICT JUDGE

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Case 3:13-cv-05038-FLW-LHG Document 28 Filed 09/11/13 Page 1 of 15 PageID: 422

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Garden State Equalitys motion is unduly prejudicial.

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NO: 4:13CV00224 SWW

/s/Susan Webber Wright UNITED STATES DISTRICT JUDGE

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