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Keith v. Daley

June 18, 1985

LOUIS G. KEITH, M.D., ET AL., PLAINTIFFS-APPELLEES,
v.
RICHARD M. DALEY, STATE'S ATTORNEY FOR THE COUNTY OF COOK, NEIL F. HARTIGAN, ATTORNEY GENERAL OF THE STATE OF ILLINOIS AND FRED H. UHLIG, ACTING DIRECTOR OF PUBLIC HEALTH, STATE OF ILLINOIS, DEFENDANTS, AND ILLINOIS PRO-LIFE COALITION, INC., ILL, INTERVENING DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 C 5602 - John A. Nordberg, Judge.

Bauer and Cudahy, Circuit Judges, and Fairchild, Senior Circuit Judge.

Author: Bauer

BAUER, Circuit Judge. The Illinois Pro-Life Coalition (IPC), a state lobbying organization, seeks to intervene in a suit brought by a group of physicians who perform abortions and challenging the constitutionality of an Illinois statute regulating abortion. The district court denied IPC leave to intervene as a matter of right. The district court also denied IPC's motion for permissive intervention. We affirm both decisions of the district court.

I

On June 30, 1984, the Illinois General Assembly enacted, over gubernatorial veto, House Bill 1399 (HB 1399), further amending the Illinois Abortion Law of 1975. On July 1, 1984, plaintiff physicians filed a class action lawsuit seeking a declaratory judgment that HB 1399 violated the United States Constitution and a permanent injunction prohibiting the State of Illinois from enforcing any of its provisions. Named as defendants were Illinois Attorney General Neil F. Hartigan, Acting Director of the Illinois Department of Public Health, Fred H. Uhlig, and Richard M. Daley, in his capacity as Cook County State's Attorney and as a representative of a proposed defendant class of all Illinois state's attorneys. Plaintiffs allege that HB 1399 violates a woman's right of privacy and violates their right to practice medicine. Plaintiffs allege that certain of the unchallenged subsections are identical to sections held unconstitutional in Charles v. Carey, 579 F. Supp. 464 (N.D.Ill. 1983), aff'd, 749 F.2d 452, 461-62 (7th Cir. 1984). Plaintiffs also challenge sections of HB 1399 which inter alia, declare, that human life begins at conception, Section 2(6), require physicians to elevate fetal life above that of a pregnant woman, Section 6(1), require physicians to use "life-saving" abortion techniques on non-viable fetuses, Section 6(4), subject physicians to prosecution under the homicide law for aborting nonviable fetuses, Section 6(3), and require physicians to inform their patients about "fetal pain." Section 6(6).

Illinois Pro-Life Coalition is a not-for-profit organization incorporated in Illinois in 1980. IPC's bylaws provide that its purposes include the promotion of the basic human right to life, specifically for unborn children, and the presentation and support of alternatives to abortion. IPC championed HB 1399 throughout its consideration by the Illinois state legislature. IPC lobbied for the original bill and against the governor's veto, and distributed a detailed constitutional analysis of the bill. IPC supported HB 1399's new standards of care to improve the likelihood of abortion survival for viable fetuses, Section 6(1), and for fetuses for whom "there is a reasonable possibility of sustained survival . . . outside the womb," Section 6(4), as well as its requirement that second physicians be present when abortions are done after viability. Section 6(2).

On August 16, 1984, IPC moved to intervene as a defendant in this case. IPC asserted as interests of its members the intensive lobbying for abortion alternatives and fetal protections in which IPC has been engaged and the willingness of its members to adopt fetuses which have survived abortions. Americans United for Life Legal Defense Fund, counsel for IPC, also asserted its frequent representation of intervenors in other lawsuits relating to the constitutionality of abortion, including Williams v. Zbaraz, 448 U.S. 358, 65 L. Ed. 2d 831, 100 S. Ct. 2694 (1980), Harris v. McRae, 448 U.S. 297, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980), Charles v. Daley, 749 F.2d 452 (7th Cir. 1984); Planned Parenthood Association-Chicago Area v. Kempiners, 700 F.2d 1115 (7th Cir. 1983); Wynn v. Carey (II), 599 F.2d 193 (7th Cir. 1979), and Wynn v. Carey (I), 582 F.2d 1375 (7th Cir. 1978). After the matter was briefed and after oral argument, the district court denied the motion without a written opinion on September 28, 1984. The court did grant IPC leave to participate as amicus curiae stating that it would carefully consider "any briefs filed by IPC."

II

The Federal Rules of Civil Procedure set forth four requirements which a proposed intervenor must satisfy before intervention of right is allowed: (1) the application must be timely; (2) the applicant must have a direct and substantial interest in the subject matter of the litigation, (3) the applicant's interest must be impaired by disposition of the action without the applicant's involvement; and (4) the applicant's interest must not be represented adequately by one of the existing parties to the action. Fed. R. Civ. P. 24(a)(2); United States v. 36.96 Acres of Land, 754 F.2d 855, 858 (7th Cir. 1985). The applicant has the burden of proving each of the four elements of intervention as of right; the lack of one element requires that the motion to intervene be denied. 36.96 Acres, 754 F.2d at 858; CFTC v. Heritage Capital Advisory Services, Ltd., 736 F.2d 384, 386 (7th Cir. 1984). Plaintiffs conceded that the defendants had filed their motion to intervene in a timely fashion and the district court gave no indication that IPC had failed to meet the timeliness requirement. We hold, however, that IPC lacks the direct interest required to support intervention as of right and we will discuss only this criteria. Because the four requirements, however, are facets of the same problem, 3B Moore's Federal Practice P24.07[1] at 24-51, some of our analysis will refer to the other factors of impairment and representation.

A proposed intervenor must demonstrate a direct, significant and legally protectable interest in the property at issue in the law suit. The interest must be based on a right that belongs to the proposed intervenor rather than to an existing party in the suit. Wade v. Goldschmidt, 673 F.2d 182, 185 (7th Cir. 1982). The interest must be so direct that the applicant would have "a right to maintain a claim for the relief sought." Heyman v. Exchange National Bank of Chicago, 615 F.2d 1190, 1193 (7th Cir. 1980).

IPC first asserts that the "interest" factor must be broadly construed in public law cases where public interest organizations seek intervention. IPC asserts that this court supported a more liberal reading of public law intervention requirements in United States v. Board of Sch. Com'rs, Indianapolis, Inc., 466 F.2d 573 (7th Cir. 1972). IPC also relies on several commentators who assert that the "complexity and multiplicity of interests in modern claims for relief" require "liberalized intervention practices." IPC Brief at 5, citing Albert, Standing to Challenge Administrative Action An Inadequate Surrogate for Claim to Relief, 83 Yale L.J. 425, 484 & n.285 (1974); Bremet, A Study in the Allocation of Scarce Judicial Resources: The Efficiency of Federal Intervention Criteria, 12 Ga. L. Rev. 701 (1982); Weinstein, Litigation Seeking Changes in Public Behavior & Institutions -- Some Views on Participation, 13 U.CAL. DAVIS L. REV. 231 (1980).

We do not believe that Indianapolis supports a broad interpretation of the interest factor in public law cases. In Indianapolis, Citizens of Indianapolis for Quality Schools (CIQS) moved to intervene as a party defendant on behalf of all students in the Indianapolis Public Schools in a lawsuit brought by the United States charging the Board of School Commissioners for the City of Indianapolis with racial discrimination in the assignment of faculty and students. This court recognized that "all students . . . have an interest in a sound educational system in accordance with the law," id. at 575, but affirmed the district court's denial of intervention as of right and held that the district court had not abused its discretion by denying permissive intervention. Id. at 576. This court vacated the district court's order and remanded only for consideration of the appropriateness of intervention in other expanded parts of the litigation. Later desegregation cases have reaffirmed that a generalized interest in a "sound educational system" is not enough to establish intervention as of right. See, e.g., Brookins v. South Bend Community School Corp., 710 F.2d 394 (7th Cir. 1983); United States v. South Bend Community School Corp., 692 F.2d 623 (7th Cir. 1982).

Contrary, therefore, to IPC's arguments, no special broad definition of "interest" applies to suits involving "public law" cases in this circuit. Intervention as of right requires a direct and substantial interest. IPC asserts that its interests as a lobbyist support its intervention as of right, arguing that its "very existence is intertwined with its ability to promote this type of legislation and to insure that such laws are adequately defended if challenged." IPC Br. at 15. IPC also asserts an interest in the protection of the unborn and its members' interests in adopting children who survive abortions. None of the three particular interests asserted by IPC meet the "direct and substantial interest" test.

IPC's interest as chief lobbyist in the Illinois legislature in favor of HB 1399 is not a direct and substantial interest sufficient to support intervention in the instant lawsuit. In Wade v. Goldschmidt, 673 F.2d 182 (7th Cir. 1982), this court concluded that the status of lobbyist did not alone create a direct and substantial interest sufficient to support intervention as of right. The intervenors in Wade, a lobbyist group in support of the construction of a bridge, whose construction the Wade plaintiffs had challenged, asserted ...


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