BRENNER et al v. SCOTT et al

Filing 40

ORDER DENYING LEAVE FOR FLORIDA FAMILY ACTION TO INTERVENE BUT ALLOWING IT TO PARTICIPATE AS AMICUS - DENIED 22 MOTION to Intervene as Party Defendant filed by FLORIDA FAMILY ACTION INC. FFA may file a memorandum as amicus curiae on any motion. The clerk must add FFA to the docket as an amicus so that its attorneys receive electronic notices of filings. Signed by JUDGE ROBERT L HINKLE on 4/24/2014. (dlt)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JAMES DOMER BRENNER et al.,
Plaintiffs,
CONSOLIDATED
CASE NO. 4:14cv107-RH/CAS

v.
RICK SCOTT, etc., et al.,
Defendants.
_________________________________/

ORDER DENYING LEAVE FOR FLORIDA
FAMILY ACTION TO INTERVENE BUT
ALLOWING IT TO PARTICIPATE AS AMICUS

In these consolidated actions, the plaintiffs challenge provisions of the
Florida Constitution and Florida Statutes on same-sex marriage. The defendants
include Florida’s Governor and Attorney General, both of whom disagree with the
plaintiffs on the merits. Florida Family Action, Inc. (“FFA”), a “cultural action
organization” that opposes same-sex marriage, has moved to intervene in each
consolidated action as a defendant. This order denies the motions but allows FFA
to file a timely amicus memorandum on any legal issue submitted by the parties.

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I
Federal Rule of Civil Procedure 24(a) entitles a person to intervene as of
right if (1) a federal statute gives the person an unconditional right to intervene, or
(2) the person “claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may as a
practical matter impair or impede the movant’s ability to protect its interest, unless
the existing parties adequately represent that interest.”
No federal statute gives FFA an unconditional right to intervene in an action
of this kind. So Rule 24(a)(1) does not entitle FFA to intervene.
Under Rule 24(a)(2), the “interest” that a proposed intervenor claims
must be a particularized interest rather than a general grievance. See
Howard v. McLucas, 782 F.2d 956, 959 (11th Cir.1986) (using
standing cases to determine that intervenors with only generalized
grievance could not intervene); Athens Lumber Co., Inc. v. Federal
Election Commission, 690 F.2d 1364, 1366 (11th Cir.1982) (citing
standing cases to determine that intervenor’s claimed interest that
unions would be financially overwhelmed in federal elections too
generalized to support claim for intervention of right).
Chiles v. Thornburgh, 865 F.2d 1197, 1212-13 (11th Cir. 1989).
FFA “claims an interest” in the same-sex-marriage issue, but it is a
generalized interest, not a particularized interest in anything directly affecting FFA
or its members. No FFA member seeks to enter a same-sex-marriage or will be
directly affected if others enter same-sex marriages. FFA’s generalized interest in
opposing same-sex marriage does not entitle FFA to intervene. See Hollingsworth
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v. Perry, 133 S. Ct. 2652, 2663 (2013) (holding—on the issue of standing—that a
similar advocacy organization had no role in the enforcement of a same-sexmarriage constitutional amendment after its passage and therefore lacked a
“personal stake” in the litigation “that [wa]s distinguishable from the general
interest of every citizen”); see also Chiles, 865 F.2d at 1213 (“[S]tanding cases . . .
are relevant to help define the type of interest that the intervenor must assert.”).
Another ground also supports this result. The existing defendants, especially
the Governor and Attorney General, can be relied upon to adequately—indeed,
zealously—defend these actions on the merits. Under the plain language of Rule
24(a)(2), a person is not entitled to intervene when an existing party already
adequately represents the interest claimed by the proposed intervenor.
II
Federal Rule of Civil Procedure 24(b) gives a district court discretion to
allow a person to intervene on a “timely motion” if (1) a federal statute gives the
person a conditional right to intervene, or (2) the person “has a claim or defense
that shares with the main action a common question of law or fact.”
No federal statute gives FFA a conditional right to intervene in an action of
this kind. But FFA asserts a defense that shares with the main actions common
questions of law. FFA’s motion to intervene was timely. The court has discretion

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to allow—or disallow—intervention. That FFA lacks standing to bring its own
action does not preclude intervention. Chiles, 865 F.2d at 1213.
The better course here is to deny intervention but to allow FFA to be fully
heard as an amicus. Factors that support this conclusion include the meager if not
nonexistent benefit that would flow from allowing FFA to intervene as opposed to
just allowing FFA to participate as an amicus, the unnecessary procedural
complexity that intervention would entail, and the likelihood that allowing FFA to
intervene would bring forth other proposed intervenors who would assert only
generalized political interests and whose participation probably would generate
more heat than light. FFA’s views as amicus will be welcome, but FFA’s
intervention would bring little additional value.
III
For these reasons,
IT IS ORDERED:
1.

FFA’s motions to intervene, ECF No. 22 in Case No. 4:14cv107 and

ECF No. 13 in Case No. 4:14cv138, are DENIED.
2.

FFA may file a memorandum as amicus curiae on any motion. The

deadline for FFA to do so is the corresponding deadline for the memorandum of
the party whose position FFA supports. But when FFA supports the moving party,
the deadline for FFA’s amicus memorandum in support of the motion is the earlier

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of (a) the deadline for filing the motion, if there is a deadline, or (b) seven days
after the filing of the motion, without a three-day extension based on electronic
service of the motion.
3.

The page limit for an amicus memorandum is 25 pages.

4.

Each amicus memorandum must include the information listed in

Federal Rule of Appellate Procedure 29(c)(5).
5.

The clerk must add FFA to the docket as an amicus so that its

attorneys receive electronic notices of filings.
SO ORDERED on April 24, 2014.
s/Robert L. Hinkle
United States District Judge

Consolidated Case No. 4:14cv107-RH/CAS