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Planned Parenthood of Wisconsin, Inc. v. Kaul

United States District Court, W.D. Wisconsin

April 23, 2019

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.

          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, 70 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 ...


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