The City of Chicago v. Sessions III

Filing 125

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 11/16/2017:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,
Plaintiff,
Case No. 17 C 5720
v.
Judge Harry D. Leinenweber
JEFFERSON BEAUREGARD
SESSIONS III, Attorney
General of the United States,
Defendant.
MEMORANDUM OPINION AND ORDER
Two Motions are before the Court.

The first is the City of

Chicago’s (“Chicago”) Motion for Partial Reconsideration of this
Court’s September 15, 2017 Opinion granting in part and denying
in part Chicago’s Motion for a Preliminary Injunction against
certain conditions on the 2017 Byrne JAG grant.

The second is

the United States Conference of Mayors’ Motion to Intervene as
of

right

and,

alternatively,

permissively.

For

the

reasons

stated herein, Chicago’s Motion for Partial Reconsideration [ECF
No. 99] and the Conference’s Motion to Intervene [ECF No. 91]
are denied.
I.

BACKGROUND

The Edward Byrne Memorial Justice Assistance Grant Program
(“Byrne JAG grant”) is an annual federal grant that provides
financial

assistance

for

state

and

local

law

enforcement

efforts.

See, 34 U.S.C. § 10152.

The Attorney General has

attached three conditions to the 2017 Byrne JAG grant that are
contested in this lawsuit, referred to as the notice, access,
and compliance conditions, respectively.

See, City of Chi. v.

Sessions, No. 17 C 5720, 2017 U.S. Dist. LEXIS 149847, at *4-9
(N.D. Ill. Sep. 15, 2017).

The Court assumes familiarity with

the underlying facts of this case as recited in its previous
opinion granting in part and denying in part Chicago’s motion
for

a

preliminary

injunction,

see,

generally,

id.,

and

will

engage in only a procedural summary here.
On

August

10,

2017,

preliminary

injunction,

imposed

the

on

unconstitutional.
On

September

2017

Chicago

arguing
Byrne

moved

that

JAG

all

grant

for

a

nationwide

three

conditions

were

unlawful

and

Sessions, 2017 U.S. Dist. LEXIS 149847 at *4.

15,

2017,

the

Court

granted

a

preliminary

injunction as to the notice and access conditions, but denied
the preliminary injunction as to the compliance condition. Id.
at *44.

On September 26, 2017, the Attorney General filed a

notice of appeal and moved to stay the nationwide scope of the
injunction pending appeal.
2017,

ECF

Preliminary

No.

79;

Motion

Injunction,

(See, Notice of Appeal, Sept. 26,
to

Stay

Sept.

26,

Nationwide
2017,

ECF

Application
No.

80.)

of
The

Attorney General argued to this Court that Chicago, as the only
- 2 -

plaintiff, lacked standing to pursue an injunction nationwide in
scope.

The

United

States

Conference

of

Mayors

(the

“Conference”) then moved to intervene on October 6, 2017.

(See,

Conference’s Mot. to Intervene, Oct. 6, 2017, ECF No. 91.)
On

October

13,

2017,

this

Court

denied

the

Attorney

General’s Motion to Stay the nationwide scope of the injunction.
City of Chi. v. Sessions, No. 17 C 5720, 2017 U.S. Dist. LEXIS
169518, at *19 (N.D. Ill. Oct. 13, 2017).

On that same day, the

Attorney

Circuit

General

nationwide

petitioned

injunction,

the

and

Seventh
Chicago

to

moved

stay

for

the

partial

reconsideration of the denial of the preliminary injunction as
to

the

third

condition,

Defendant-Appellant’s

Mot.

the
for

compliance
Partial

condition.

Stay

of

(See,

Prelim.

Inj.

Pending Appeal, No. 17-2991, Oct. 13, 2017, Dkt. 8; Chicago’s
Mot.

for

October

Partial
16,

Recons.,

2017,

Chicago

Oct.

13,

moved

2017,
to

ECF

No.

On

briefing

suspend

99.)

and

consideration of the partial stay in the Seventh Circuit due to
the

motion

Court.

for

partial

reconsideration

pending

before

this

(See, Mot. to Suspend Consideration of Mot. for Partial

Stay, No. 17-2991, Oct. 16, 2017, Dkt. 10.)

On October 20,

2017, the Seventh Circuit granted Chicago’s Motion to suspend
proceedings

on

appeal

pending

this

Court’s

Chicago’s motion for partial reconsideration.
- 3 -

resolution

of

(See, Order, City

of

Chi.

v.

Sessions,

Case

No.

17-2991,

Dkt.

27

(7th

Cir.

Oct. 20, 2017).)
This Court now takes the two pending motions in turn.
II.
A.

Chicago

ANALYSIS

The City of Chicago’s Motion for
Partial Reconsideration

asks

the

Court

to

reconsider

its

denial

of

the

preliminary injunction as to the compliance condition on the
Byrne

JAG

grant.

As

explored

thoroughly

in

the

Court’s

September 15, 2017 Opinion, the compliance condition requires a
grant applicant to certify its compliance with 8 U.S.C. § 1373,
a

federal

law

that

prohibits

certain

restrictions

on

communication between federal immigration agents and state and
local government officials regarding an individual’s immigration
status.

See, 8 U.S.C. § 1373.

Chicago bases its Motion on a

letter to Eddie T. Johnson, Chicago Superintendent of Police,
from

Alan

Hanson,

Acting

Assistant

Attorney

General,

dated

October 11, 2017. (See, Oct. 11, 2017 Letter, Ex. A to Decl. of
Ari Holtzblatt, ECF No. 103 (“DOJ Letter”).)

The letter states

that the Department of Justice (the “DOJ”) has determined that
Chicago is in violation of Section 1373 based on its preliminary
review

of

ineligible

Chicago’s
for

Byrne

laws
JAG

and

policies,

funding.

- 4 -

(Ibid.)

and

is

therefore

According

to

the

letter, the DOJ found that at least one section of Chicago’s
Welcoming City Ordinance violates Section 1373 (and potentially
several

other

sections

as

well,

depending

interpretation of the ordinance). (Ibid.)
by

inviting

a

response

and/or

on

Chicago’s

The letter concludes

additional

documentation

from

Chicago based on the DOJ’s preliminary assessment, noting that
the letter does not constitute final agency action. (Ibid.)
The

Federal

Rules

of

Civil

Procedure

provide for motions for reconsideration.

do

not

expressly

However, these motions

are common and understood to fall under either Rule 59(e) (to
amend or alter a judgment) or Rule 60(b) (for relief from a
judgment or order).

See, FED. R. CIV. P. 59, 60.

Although

Chicago does not explicitly state the Federal Rule it is moving
under,

the

Seventh

Circuit

reconsideration

under

proceedings

appeal,

and

(See,

Order,

their

on

briefs.

Rule

construed

59(e)
the

in

Chicago’s

its

parties

City

of

decision
reference

Chi.

v.

motion
to

for

suspend

Rule

59

Sessions,

in

Case

No. 17-2991, Dkt. 27 (7th Cir. Oct. 20, 2017); Chicago’s Mot.
for

Partial

Recons.,

¶

5;

Opp’n

to

Pl.’s

Recons., at 2, Oct. 23, 2017, ECF No. 110.)

Mot.

for

Partial

As such, the Court

construes the motion for reconsideration under Rule 59(e).
Rule 59(e) allows a court to alter or amend a judgment if
the movant clearly establishes:

(1) that the court committed a

- 5 -

manifest error of law or fact, or (2) that newly discovered
evidence precluded entry of judgment.

Cincinnati Life Ins. Co.

v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013).
provide

a

vehicle

for

a

party

to

undo

its

“It does not
own

procedural

failures, and it certainly does not allow a party to introduce
new evidence or advance arguments that could and should have
been presented to the district court prior to the judgment.”
Ibid. (quoting Bordelon v. Chi. Sch. Reform Bd. of Trs., 233
F.3d 524, 529 (7th Cir. 2000)).
on

the

second

Chicago moves this Court to

reconsider

based

option:

newly

evidence.

To succeed on a motion under Rule 59 by invoking

newly discovered evidence, a party must show that:

discovered

“(1) it has

evidence that was discovered post-trial [or judgment]; (2) it
had exercised due diligence to discover the new evidence; (3)
the evidence is not merely cumulative or impeaching; (4) the
evidence is material; and (5) the evidence is such that [it]
would

probably

produce

a

new

result.”

Id.

at

955

(quoting

Envtl. Barrier Co., LLC v. Slurry Sys., Inc., 540 F.3d 598, 608
(7th

Cir.

2008))

(citation

omitted).

Motions

for

reconsideration “should only be granted in rare circumstances,”
and district courts enjoy wide discretion in determining whether
to grant them.

Anderson v. Holy See, 934 F.Supp.2d 954, 958

(N.D. Ill. 2013), aff’d sub nom. Anderson v. Catholic Bishop of
- 6 -

Chicago, 759 F.3d 645 (7th Cir. 2014); see also, Harrington v.
City of Chi., 433 F.3d 542, 546 (7th Cir. 2006) (noting that
motions to reconsider are discretionary).
In support of its motion to reconsider, Chicago points to
this Court’s holding that “only affirmative demands on states
constitute a violation of the Tenth Amendment” and “Section 1373
imposes no affirmative obligation on local governments.”
of

Chi.

v.

Sessions,

No.

17

C

5720,

2017

149847, at *37-38 (N.D. Ill. Sep. 15, 2017).
DOJ

Letter

obligations

interprets
in

Section

contravention

reconsideration proper.

U.S.

Dist.

LEXIS

It argues that the

1373

to

this

of

City

impose

Court’s

affirmative

ruling,

making

See, ibid.

The Court disagrees.

Nothing in the DOJ Letter contravenes

the Court’s prior ruling, which did not rest on either the DOJ
or Chicago’s interpretation of Section 1373’s requirements but,
instead,

rests

solely

on

the

text

of

Section

1373.

Sessions, 2017 U.S. Dist. LEXIS 149487 at *35-38.
ruled

on

the

challenge.
construction

constitutionality

See, ibid.
during

the

of

Section

1373

as

See,

The Court
a

facial

Both parties not only agreed with that
preliminary

injunction

hearing,

but

framed the central legal issue in facial terms and argued for
such an approach.

In response to the Court’s question about

what Section 1373 allows, Mr. Readler on behalf of the Attorney
- 7 -

General

stated:

“Let

me

say

we’re

also

here

on

a

facial

challenge, so [Chicago] [has] not – [Chicago is] not asking for
a preliminary injunction today to declare that [Chicago’s] law
is in compliance with 1373.

That issue would probably require

some discovery in terms of how it’s executed.”
Hr’g at 53:3-8.)

(Prelim. Inj.

Similarly, in response to the Court’s question

about whether Chicago was requesting an injunction limited to
Chicago,
Honor.

Mr.

Safer

on

behalf

of

Chicago

answered,

“No,

your

We’re asking for a nationwide injunction because this is

a facial challenge to a . . . provision that is applied across
the country.” (Id. at 62:9-14.)
question

about

whether

The Court asked a follow-up

Chicago’s

Welcoming

City

Ordinance

distinguished it from other jurisdictions, to which Mr. Safer
responded that he “agree[d] with the Attorney General . . . that
this is a facial challenge, and . . . [that] it is a matter of
saying that these conditions are unconstitutional, ultra vires,
without
(Id.

at

authority,

and

62:7-63:5.)

interpretation

of

that
The

Section

applies
DOJ

1373

throughout

Letter
would

the

country.”

a

different

advancing
not

change

facial analysis of the Tenth Amendment challenge.
the

DOJ

Letter

does

not

meet

two

of

the

Court’s

Accordingly,

requirements

reconsideration based on newly discovered evidence:

- 8 -

the

for

it is not

“material” to the Court’s facial analysis, and its consideration
would not “produce a new result.”

Beyrer, 722 F.3d at 955.

Furthermore, Chicago’s Motion for Partial Reconsideration
brings up issues that were never previously before the Court.
Chicago

did

not

request

a

declaration

of

compliance

with

Section 1373 in its Motion for a Preliminary Injunction, making
its Motion for Reconsideration an improper vehicle for injecting
this issue into the case.

See, Beyrer, 722 F.3d at 954 (quoting

Bordelon, 233 F.3d at 529) (“[Reconsideration] certainly does
not allow a party to . . . advance arguments that could . . .
have

been

presented

judgment.”).

In

to

the

addition,

district

a

denial

court

of

prior

Chicago’s

to

Motion

the
for

Reconsideration will not prevent it from seeking this relief.
Included in Chicago’s seven-count Complaint is Count V, which
seeks

a

declaratory

Section 1373.
Motion

for

judgment

that

Chicago

complies

with

The argument that Chicago makes in support of its
Reconsideration

is

a

distinct

issue

and

more

appropriately ruled upon separately, rather than inserting an
as-applied

challenge

into

what

was

previously

unanimously

formulated and subsequently ruled on as a facial challenge.
Moreover,

addressing

an

as-applied

challenge

Section 1373 based on the DOJ Letter is premature.

to

The DOJ

Letter specifically disclaims final agency action and invites
- 9 -

Chicago to respond before a final determination is made.

If the

DOJ makes a final determination that Chicago is eligible for
2017 Byrne JAG funds, then no harm accrues to Chicago.

Although

Chicago argues that the DOJ letter “staked out a final view” on
Section 1373, this does not change the fact that the DOJ has yet
to make a determination about Chicago’s eligibility for funds.
(See, Reply in Supp. of Pl.’s Mot. for Partial Recons., ECF
No. 114, Oct. 30, 2017, at 3.)

Litigating a policy position

based on a preliminary assessment is premature, and this Court
will not do so.
Accordingly,

the

Court

denies

Chicago’s

Motion

for

Reconsideration because the DOJ letter is not “material” to the
Court’s facial analysis and its consideration would not “produce
a new result.” Beyrer, 722 F.3d at 955. Further, reconsideration
is improper because the question whether Chicago complies with
Section 1373 was not before the Court in its prior ruling.

See,

id. at 954.
B. The U.S. Conference of Mayors’ Motion to Intervene
The

Conference

Rule 24(a)

of

the

moves
Federal

to

intervene

Rules

of

as

Civil

alternatively, permissively under Rule 24(b).
P. 24.

of

right

Procedure

under
and,

See, FED. R. CIV.

The Seventh Circuit has cautioned district courts to

keep the two inquiries — the inquiry under Rule 24(a) and the
- 10 -

inquiry under Rule 24(b) — distinct.

City of Chi. v. FEMA, 660

F.3d 980, 987 (7th Cir. 2011).
The Conference is the official non-partisan organization of
U.S. cities with populations of 30,000 or more.
Intervene, ¶ 2.)
that

federal

The Conference’s role includes “ensur[ing]

policy

“coordinat[ion]

(See, Mot. to

on

meets

shared

urban

policy

needs”

goals.”

and

(See,

promoting

Intervenor’s

Compl., Ex. 1 to Mot. to Intervene, ECF No. 91, Oct. 6, 2017,
¶¶ 17-19.)

The Conference alleges that its members adopt policy

positions that collectively represent the views of the nation’s
mayors.

(See,

Mot.

to

Intervene,

¶

2.)

In

this

specific

instance, the Conference has adopted a policy opposing punitive
sanctuary

city

practices,

including

challenged in this litigation.
1.

the

three

conditions

(Ibid.)
Standing

Before we proceed to determine if the Conference meets the
requirements of intervention under either Rule, we must first
analyze

whether

it

has

standing.

The

U.S.

Supreme

Court

recently held that “an intervenor of right must have Article III
standing in order to pursue relief that is different from that
which is sought by a party with standing.”

Town of Chester,

N.Y. v. Laroe Estates, Inc., 137 S.Ct. 1645, 1651 (2017).
parties

dispute

whether

the

Conference

- 11 -

is

seeking

The

relief

“different”

from

that

Chicago

seeks.

Regardless,

in

this

Circuit an intervenor as of right must demonstrate Article III
standing.

See, Flying J, Inc. v. Van Hollen, 578 F.3d 569, 571

(7th Cir. 2009) (“No one can maintain an action in a federal
court … unless he has standing to sue, in the sense required by
Article III of the Constitution . . . .”); see also, FEMA, 660
F.3d at 985 (noting that “more than Article III standing must be
required” for intervention).
Article III of the Constitution limits the exercise of the
judicial

power

to

“Cases”

art. III, § 2, cl. 1.

and

“Controversies.”

U.S.

Const.

“‘The law of Article III standing, which

is built on separation-of-powers principles, serves to prevent
the judicial process from being used to usurp the powers of the
political

branches.’”
v.

Town

of

Amnesty

Chester,

Int’l

USA,

137

S.Ct.

568

U.S.

at

1650

(quoting

Clapper

398,

408

(2013)).

“Standing exists when the plaintiff suffers an actual

or impending injury, no matter how small; the injury is caused
by

the

defendant’s

acts;

and

a

judicial

plaintiff’s favor would redress the injury.”

decision

in

the

Bauer v. Shepard,

620 F.3d 704, 708 (7th Cir. 2010) (citations omitted).
“It

has

long

been

settled

that

even

in

the

absence

of

injury to itself, an association may have standing solely as the
representative of its members.”

Int’l Union v. Brock, 477 U.S.

- 12 -

274, 281 (1986) (internal quotations and citations omitted).
association

has

members where:

standing

to

bring

a

suit

on

behalf

of

An
its

“(a) its members would otherwise have standing

to sue in their own right; (b) the interests it seeks to protect
are germane to the organization’s purpose; and (c) neither the
claim

asserted

nor

the

relief

requested

requires

participation of individual members in the lawsuit.”

the

Hunt v.

Washington State Apple Advertising Comm’n, 432 U.S. 333, 343
(1977).

Because its constituents have standing to bring the

same challenge that Chicago has brought and the Conference has
adopted a policy at odds with the Attorney General’s Byrne JAG
conditions,

the

Conference

asserts

that

it

has

associational

standing.
The

Attorney

General

disputes

standing.

First,

the

Attorney General argues that the Conference cannot represent the
cities (who have individual standing) because it is composed of
mayors

rather

than

the

cities

themselves.

The

Conference

responds that it is comprised of cities but represented by their
respective
motion

to

mayors.

In

intervene,

allegations as true.

evaluating
the

of

the

must

potential
accept

intervenor’s
all

factual

Reich v. ABC/York-Estes Corp., 64 F.3d

316, 321 (7th Cir. 1995).
assertions

Court

a

Accordingly, we accept the factual

Conference

at

- 13 -

this

stage.

Second,

the

Attorney General argues that the Conference is not authorized to
litigate on behalf of the cities, but offers no authority for
the proposition that litigation must be specifically authorized
by members.
proposition
interest.

Indeed, the Court can find no authority for this
outside

the

context

of

inter-member

conflicts

of

See, Retired Chi. Police Ass’n v. City of Chi., 76

F.3d 856, 865 (7th Cir. 1996).
Finally, the Attorney General contends that the Conference
does

not

have

approximately
Conference

standing
1,400

itself

is

to

cities

bring
that

ineligible

claims
it

for

on

behalf

represents
Byrne

JAG

of

the

because

the

funds

and

it

cannot represent the members because the member cities would not
be bound by the judgment.

The Seventh Circuit has rejected this

argument:
The defendants argue that the association should not
be accorded standing because a judgment against it
might not be binding upon its members. We see little
likelihood that the defendants will suffer the burden
of relitigating the claims raised in this case.
The
Stare decisis effect of our decision provides the
defendants with substantial protection against further
litigation.
Chicago-Midwest Meat Ass’n v. City of Evanston, 589 F.2d 278,
281 n. 3 (7th Cir. 1978).

Additionally, although members may

not

in

individually

be

bound

cases

- 14 -

based

on

associational

standing,

the

U.S.

Supreme

associational standing.
Turning

to

the

Court

has

nonetheless

recognized

See, Hunt, 432 U.S. at 343.

requirements

for

associational

standing,

first, the member cities have the ability to sue on their own
behalf, just as Chicago does.

Second, the Conference’s interest

in protecting local policy decisions in immigration enforcement
is

germane

to

the

organizational

power of city government.
Mot.

to

Intervene,

¶¶

purpose

as

it

involves

the

(See, Intervenor’s Compl., Ex. 1 to

17-22.)

Additionally,

the

Conference

adopted three official resolutions regarding federal sanctuary
policies. (Id. ¶¶ 58-70.)

Each resolution passed by a wide

majority of its voting members.

(Id. at ¶ 70.)

Third, the

relief sought is of a sort – declaratory and injunctive – that
is amenable to associational standing.

For example, the Supreme

Court has upheld a union’s associational standing where neither
the “claims nor the relief sought required the District Court to
consider the individual circumstances of any aggrieved [union]
member”
Brock,

and
477

“[t]he
U.S.

at

suit

raise[d]

288;

see

also,

a

pure

question

Crawford

v.

of

law.”

Marion

Cnty.

Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff’d, 553 U.S.
181 (2008) (holding that the Democratic Party had standing to
assert the rights of members prevented from voting by imposition
of a new photo ID law).

Here, the Conference seeks to intervene
- 15 -

to support the nationwide scope of relief and intends to raise
only raises legal questions that are not contingent on evidence
from a specific city.

(See, Intervenor’s Compl., Ex. 1 to Mot.

to Intervene, ¶¶ 91-154.)

Furthermore, the Conference reassures

the Court that its intervention will not require individualized
proof or other additional evidence.

(See, Reply in Supp. of

Pl.’s

11.)

Mot.

reflects

for

Partial

questions

of

Recons.,
law,

at

the

Conference

As

its

has

complaint

established

associational standing and therefore can represent the interests
of its members who may suffer an impending injury caused by the
defendant’s acts, which injury may be remedied by a favorable
judicial decision.
at 708.

See, Hunt, 432 U.S. at 343; Bauer, 620 F.3d

This is sufficient to demonstrate standing.
2.

See, ibid.

Intervention as of Right
a.

Legal Standard

In order to intervene as of right, the U.S. Conference of
Mayors must satisfy four requirements:

(1) timely application;

(2) an interest relating to the subject matter of the action;
(3)

potential

interest

by

impairment,

the

disposition

as
of

a

practical
the

action;

matter,

of

and

lack

(4)

that
of

adequate representation of the interest by the existing parties
to the action.

Reich, 64 F.3d at 321 (quotation omitted). “The

burden is on the party seeking to intervene of right to show
- 16 -

that all four criteria are met.”

Reid L. v. Illinois State Bd.

of Educ., 289 F.3d 1009, 1017 (7th Cir. 2002) (citing Keith v.
Daley, 764 F.2d 1265, 1268 (7th Cir. 1985)).

Failure to satisfy

any one factor mandates denial of the petition.

United States

v. City of Chicago, 908 F.2d 197, 199 (7th Cir.1990), cert.
denied,

498

U.S.

1067

(1991).

The

Court

analyzes

the

four

factors, although it does so out of sequence for reasons that
will become apparent.
b.

Timeliness

Turning to the first requirement, “[t]imeliness is to be
determined

from

all

the

circumstances.”

Nat’l

Ass’n

for

Advancement of Colored People v. New York, 413 U.S. 345, 366
(1973).

Such

a

determination

is

committed

discretion of the district judge. Ibid.

to

the

sound

The Seventh Circuit has

characterized the test as “essentially one of reasonableness,”
stating

that

“potential

intervenors

need

to

be

reasonably

diligent in learning of a suit that might affect their rights,
and

upon

Reich,

64

assessment

so

learning

F.3d
of

at

they
321

timeliness

need

to

(quotation
is

made

act

reasonably

omitted).

under

the

promptly.”

Although
totality

circumstances, the Court should consider four factors:

of

the
the

“(1) the

length of time the intervenor knew or should have known of his
or her interest in this case; (2) the prejudice to the original
- 17 -

party caused by the delay; (3) the resulting prejudice to the
intervenor

if

the

circumstances.”

motion

is

denied,

and

(4)

any

unusual

Ragsdale, 941 F.2d 501, 504 (7th Cir. 1991)

(citing South v. Rowe, 759 F.2d 610, 612 (7th Cir. 1985)).

“In

making this determination, we must also consider the prejudice
to the original parties if intervention is permitted and the
prejudice to the intervenor if his motion is denied.”

Reich, 64

F.3d at 321 (citation omitted).
The

Conference

argues

that

its

Motion

to

Intervene

is

timely because it did not recognize a need to intervene, nor
could it reasonably have been expected to, until September 26,
2017, when the Attorney General filed a motion to stay arguing
that Chicago did not have standing to sustain the nationwide
injunction.

The Conference appeared before the Court two days

later and, after securing leave, filed its motion to intervene
eight days later.

(See, Mot. to Intervene, ¶ 19.)

The Attorney

General argues that the Conference knew or should have known
that its putative interests were at stake in this litigation
from the filing date of this lawsuit, August 7, 2017, and thus
was required to intervene from the beginning (or at least much
earlier).
The Court finds the Conference’s Motion timely.

Timeliness

is not determined from “the moment the suit is filed or even at
- 18 -

the time they learn of its existence,” but from “the time the
potential

intervenors

impaired.”

learn

that

their

interest

might

be

Reich, 64 F.3d at 321 (citing United States v. City

of Chicago, 870 F.2d 1256, 1263 (7th Cir. 1989); Rowe, 759 F.2d
at 612); but see, United States v. City of Chicago, 908 F.2d
197, 199 n.1 (7th Cir. 1990) (noting that courts should still
consider the length of time the intervenor knew or should have
known

of

his

interest

in

the

case).

Here,

the

Conference

persuasively argues that the Attorney General’s motion to stay
was its first indication of potential impairment to its members’
interests.

Indeed, an earlier intervention attempt would likely

have been dead on arrival, as it would have been difficult to
argue

that

Chicago

was

an

inadequate

Conference’s members’ interests.

representative

of

the

See, Flying J, 578 F.3d at 572

(holding that intervention was timely even after judgment where
state

attorney

general

decided

not

to

pursue

appeal

because

“[h]ad 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 . . . .”); Wisconsin Educ. Ass’n Council v. Walker, 705
F.3d 640, 659 (7th Cir. 2013) (when “the prospective intervenor
and the named party have the same goal, a presumption exists
that

representation

is

adequate”)
- 19 -

(alterations

and

quotation

omitted).

In the same vein, the Seventh Circuit in Reich found

intervention timely where the intervenors moved to intervene as
soon

as

they
that

reasoning

discovered
“we

do

the

not

other

expect

party

a

was

party

to

inadequate,
petition

for

intervention in instances in which the potential intervenor has
no

reason

to

believe

its

interests

are

not

being

properly

represented; we went so far as to suggest that the potential
intervenor would be laughed out of court.”
322.

Nevertheless,

intervention

as

the

even

using

lodestar,

the

the

Reich, 64 F.3d at

time

from

approximately

filing

to

three-month

interim is reasonably timely under the circumstances, especially
in view of the untimely intervention cases cited by the Attorney
General

involving

intervention

action was filed.

attempts

many

years

after

the

See, CE Design Ltd. v. King Supply Co., 791

F.3d 722, 726 (7th Cir. 2015); Larson v. JP Morgan Chase & Co.,
530

F.3d

578,

583-84

(7th

Cir.

2008);

Sokaogon

Chippewa

Community. v. Babbitt, 214 F.3d 941, 945 (7th Cir. 2000); United
States

v.

City

of

Chicago,

908

F.2d

197,

197-200

(7th

Cir.

1990).
The
intervene

Attorney
is

General

untimely

also

contends

because

the

that

the

Conference

motion

to

chose

to

participate as an amicus at the beginning of the litigation and
cannot now alter that decision after a favorable ruling.
- 20 -

The

Attorney

General

implies

that

the

Conference

held

back

on

intervention due to gamesmanship – that the Conference waited to
see

how

the

Court

would

rule

on

Chicago’s

motion

for

a

preliminary injunction before moving to intervene because it did
not want to be bound by any unfavorable judgment.

However, it

is doubtful that this was the motivation for the Conference’s
later intervention, as the individual member cities may not be
bound

by

an

Section II.B.1,
reason

for

unfavorable
supra.)

waiting

–

decision

Secondly,

its

belief

regardless.

the

that

(See,

Conference’s
Chicago

was

adequately

representing its members’ interests – are colorable.
other

cases

appropriate

found

where

intervene.
the

have

a

intervention

specific

later

event

in

revealed

asserted

the

Indeed,

litigation

the

need

to

For example, in United Airlines, Inc. v. McDonald,

Supreme

Court

held

that

intervention

was

timely

on

the

rationale that “[a]s soon as it became clear to the respondent
that the interests of the unnamed class members would no longer
be protected by the named class representatives, she promptly
moved

to

intervene

to

protect

those

interests.”

United

Airlines, 432 U.S. 385, 394 (1977).
In

determining

timeliness,

“the

possible prejudice to the parties.”
v.

Coglianese,

236

F.R.D.

379,

384

- 21 -

Court

must

assess

the

Zurich Capital Mkts., Inc.
(N.D.

Ill.

2006)

(citing

Reich,

64

F.3d

proceeding
General.

at

does

322).

not

Intervention

significantly

at

this

time

prejudice

the

in

the

Attorney

Although the Court has made substantive rulings, the

litigation is not at an advanced stage, and the Attorney General
has

yet

to

answer

the

intervention,

noting

Complaint.

that

“any

See,

prejudice

ibid

to

ZCM

(granting
that

would

result from the Liquidator’s intervention would result simply by
virtue of the Liquidator’s involvement in the case, not from the
Liquidator’s
caused

by

delay
delay

in
is

moving
further

to

intervene”).

diminished

by

Any
the

prejudice

Conference’s

assertion that it will not seek to add any new legal issues into
the

case

nor

members.
Recons.,

adduce

(See,
at

11.)

substantial

Reply

in

“[I]n

Supp.

the

evidence
of

Pl.’s

absence

of

from
Mot.

any

individual
for

Partial

indication

of

prejudice . . . , the motion cannot be adjudged untimely as a
matter

of

law.

We

don’t

want

a

rule

that

would

require

a

potential intervenor to intervene at the drop of a hat; that
would just clog the district courts with motions to intervene.”
Aurora Loan Servs., Inc. v. Craddieth, 442 F.3d 1018, 1027 (7th
Cir. 2006).

On the other hand, there is little prejudice to the

Conference if intervention is denied as it could bring its own
litigation.

The Court does not find any significant unusual

- 22 -

circumstances present to either support or deny intervention.
Thus, on balance, the Court finds timeliness satisfied.
c.

Lack of Adequate Representation

Next, an intervenor must demonstrate a lack of adequate
representation.

This requirement is met “if the applicant shows

that representation of his interest ‘may be’ inadequate; and the
burden of making that showing should be treated as minimal.”
Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n. 10
(1972) (citation omitted).

“However, when the representative

party is a governmental body charged by law with protecting the
interests

of

the

proposed

intervenors,

the

representative

is

presumed to adequately represent their interests unless there is
a showing of gross negligence or bad faith.”

Ligas ex rel.

Foster v. Maram, 478 F.3d 771, 774 (7th Cir. 2007) (citations
omitted).
The Conference argues that the Attorney General’s motion
for a stay of the nationwide injunction specifically challenges
Chicago’s ability to represent the Conference and its members’
interests.

The

law

requires

a

high

threshold

showing

of

inadequacy where a governmental body, like Chicago, is a party
to the litigation.

However, that high threshold only applies

where the “governmental body or officer [is] charged by law with
representing the interests of the proposed intervenor.”
- 23 -

Keith,

764 F.2d at 1270 (citations omitted).

Here, the high threshold

is inapplicable because Chicago as a governmental entity is not
charged

by

Conference

law

with

member

representing

cities.

the

Since

interests

the

high

of

other

threshold

is

inapplicable, the burden is “minimal” and has been met here.
The Attorney General’s challenge to Chicago’s ability to pursue
a nationwide injunction for member cities of the Conference is
sufficient to meet this minimal burden.

See, Trbovich, 404 U.S.

at 538 n. 10.
d.

Interest Relating to the Subject Matter of the Action

The

Court

sufficient

next

interest

analyzes
in

the

whether
subject

the

Conference

matter

of

the

has

a

action.

Although “[t]he ‘interest’ required by Rule 24(a)(2) has never
been defined with particular precision,” it must be “a direct,
significant legally protectable interest.”
Hartford

v.

Schipporeit,

Inc.,

69

F.3d

Sec. Ins. Co. of

1377,

1380

(7th

Cir.

1995); Am. Nat. Bank & Tr. Co. of Chi. v. City of Chi., 865 F.2d
144, 146 (7th Cir. 1989) (quotation omitted).

The necessary

interest is “something more than a mere ‘betting’ interest, but
less than a property right.”
(internal

citations

Schipporeit, 69 F.3d at 1380–81

omitted).

The

central

inquiry

considers

“the issues to be resolved by the litigation and whether the
potential intervenor has an interest in those issues.”
- 24 -

Reich,

64 F.3d at 322 (citations omitted).

“Whether an applicant has

an interest sufficient to warrant intervention as a matter of
right is a highly fact-specific determination, making comparison
to other cases of limited value.”

Schipporeit, 69 F.3d at 1381

(citations omitted).
The Conference contends that it and its members have an
interest in protecting their local law enforcement decisions and
priorities from being compromised by the three conditions the
Attorney General seeks to impose on the 2017 Byrne JAG grant.
(See, Mot. to Intervene, ¶ 15.)
their

complaint

leadership,”

a

list

including

of

The Conference attached to

their

“2017

information

on

elected

and

appointed

whether

a

particular

member is slated to receive a Byrne JAG grant allocation.
Ex. A to Intervenor’s Compl.)

(See,

Of the 81 cities listed, 70

cities anticipate receiving a 2017 Byrne JAG grant allocation.
(Ibid.)
for

The Attorney General does not argue the interest factor

intervention.

Based

on

each

individual

city

member’s

ability to bring its own lawsuit asserting the same interest as
Chicago

and

the

Conference’s

adoption

of

the

sanctuary

city

resolutions, the Court finds the interest requirement met.
e.

Potential Impairment of the Conference’s Interest

Finally,

the

Court

must

analyze

whether

the

Conference

would face “potential impairment, as a practical matter, of that
- 25 -

interest by the disposition of the action.”
321 (quotation omitted).

Reich, 64 F.3d at

“The existence of ‘impairment’ depends

on whether the decision of a legal question involved in the
action

would

proposed

as

a

practical

intervenors

in

a

matter

foreclose

subsequent

rights

proceeding.”

of

the

Meridian

Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 204 (7th
Cir. 1982) (citation omitted).
The Conference argues that it and its members’ ability to
protect their interests would be impaired without intervention
because

they

would

potentially

have

to

file

over

a

thousand

additional lawsuits to vindicate the same rights at issue here.
(See, Mot. to Intervene, ¶ 16.)
correctly

points

out

that

However, the Attorney General

under

the

Conference’s

theory,

it

should only need to file one additional lawsuit – its own – in
order

to

support

a

nationwide

injunction

to

protect

these

interests.
The Attorney General contends that the Conference cannot
demonstrate impairment because its rights will not be prejudiced
by a judgment in the DOJ’s favor.

As the Conference will not

be bound by the judgment of this Court, it will be free — if
Chicago loses on appeal – to bring litigation challenging the
notice

and

injunction.

access

conditions

and

seeking

a

nationwide

However, the fact that the Conference may bring its
- 26 -

own lawsuit is not determinative.
would-be

intervenor

if

“[T]he possibility that the

refused

intervention

might

have

an

opportunity in the future to litigate his claim has been held
not to be an automatic bar to intervention.”

FEMA, 660 F.3d at

985 (citation omitted).
“Impairment under the meaning of Rule 24(a)(2) depends on
whether a ruling on a legal question would as a practical matter
foreclose the intervenor’s rights in a subsequent proceeding.
Such foreclosure is measured by the general standards of stare
decisis.”
Ill.

Revelis v. Napolitano, 844 F.Supp.2d 915, 925 (N.D.

2012)

(internal

citation

omitted).

A

decision

of

a

district court is not sufficient to establish impairment based
on stare decisis.

See, Bethune Plaza, Inc. v. Lumpkin, 863 F.2d

525, 532 (7th Cir. 1988) (“[T]he opinion of a single district
judge

rarely

yields

reasoning carries.

an

effect

broader

than

the

force

its

Such an influence is not reason enough to

complicate litigation by adding [] parties. . . .”).

What is

more,

granted

intervention

based

on

stare

decisis

should

be

infrequently:
When should the prospect of an appellate decision
cutting off further litigation in the circuit (or the
nation as a whole, if the Supreme Court decides the
case)
be
enough
to
support
intervention?
“Infrequently” is one response, an essential one if
cases are to remain manageable.
Trade associations,
labor unions, consumers, and many others may be
- 27 -

affected by (and hence colloquially “interested” in)
the rules of law established by appellate courts. To
allow them to intervene as of right would turn the
court into a forum for competing interest groups,
submerging the ability of the original parties to
settle their own dispute (or have the court resolve it
expeditiously).
Participation as amicus curiae will
alert the court to the legal contentions of concerned
bystanders, and because it leaves the parties free to
run their own case is the strongly preferred option.
Id. at 532–33.
amicus

curiae

Accordingly, the Conference’s involvement as
is

“strongly

preferred,”

especially

considering

that any delay here is uniquely harmful given the timeline of
the

Byrne

JAG

awards.

See,

ibid.

The

nationwide

injunction

currently in force is sufficient to protect the interests of the
Conference’s members and, regardless, a Seventh Circuit decision
overturning the nationwide injunction would not suffice to show
the potential impairment necessary for intervention as of right.
An

appellate

judgment

in

the

DOJ’s

favor

that

Chicago

lacks

standing for a nationwide injunction will not preclude or impair
the

Conference’s

ability

to

bring

a

subsequent

action

for

a

nationwide injunction enjoining the three conditions at issue.
See,

ibid.

The

standing

issue

present

for

Chicago

is

not

present for the Conference and, thus, this is not a case where
the “parties are free to relitigate but are unlikely to get
anywhere.”
1119,

Ibid.

1122–24

(citing

(7th

Colby

v.

Cir.1987)).

- 28 -

As

J.C.
to

Penney
the

Co.,

Seventh

811

F.2d

Circuit’s

ruling

on

appeal

of

the

notice

and

access

conditions,

the

Conference’s participation as amicus curiae is adequate to make
its legal arguments.

The Court finds that the Conference cannot

show that a Seventh Circuit ruling will impair or impede its
ability to bring an action for a nationwide injunction on behalf
of its members.
unable

to

Accordingly, the Court finds the Conference

demonstrate

potential

impairment

to

its

(or

its

members’) interests at this time.
*

*

*

Because the Conference is unable to demonstrate impairment
to its interests, we deny the Conference’s Motion to Intervene
as of right.

See, United States v. City of Chi., 908 F.2d 197,

199 (7th Cir.1990), cert. denied, 498 U.S. 1067 (1991).
3.

Permissive Intervention

The Conference moves in the alternative for this Court to
allow it to intervene permissively.

The court may permit anyone

to intervene who, “[o]n timely motion,” “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).

“In 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).

Permissive intervention is a

practical inquiry. In Justice Posner’s estimation, assuming its
- 29 -

prerequisites have been met, “Rule 24(b) [is] just about economy
in litigation.”

FEMA, 660 F.3d at 987.

The timeliness of the Conference’s Motion to Intervene has
been established.

(See, Section II.B.2.b, supra.)

Further, the

Court concludes that there exists a common question of law upon
which

to

base

intervention,

because

the

Conference’s

involve the same legal questions as Chicago’s claims.
R.

CIV.

P.

24(b)(1).

Accordingly,

the

claims

See, FED.

prerequisites

for

permissive intervention are met.
The

Conference

argues

that

permissive

intervention

is

proper here because it intends to advance the exact same claims
that Chicago has already advanced, such that intervention will
cause no delay or prejudice.

It further argues that permissive

intervention supports judicial economy by obviating the need for
other member cities to bring lawsuits to adjudicate the exact
same

issues

urges

that

before

the

intervention

Court.

Additionally,

would

resolve

the

the

legal

Conference

question

of

standing, obviating the need for the parties and the Seventh
Circuit to expend resources addressing it.
Permissive
finds

it

premature:
currently

intervention

inappropriate

in

is
this

discretionary
case.

and

the

Intervention

Court

here

is

The interests of the Conference’s member cities are
protected

via

the

nationwide

- 30 -

injunction,

and

its

members’ interests have so far been given a voice via the amicus
curiae device.

Unless and until the status of the nationwide

injunction changes, there is no reason to permit an intervention
that will further complicate this litigation.

The addition into

the case of the Conference and its member cities, while it will
not significantly augment the legal or evidentiary issues so as
to prejudice the Attorney General, does pose the prospect of
needlessly

complicating

a

case

that

has

already

engendered

significant motions practice.
Accordingly, the Court denies the Conference’s Motion for
Permissive Intervention.
III.

CONCLUSION

For the reasons stated herein, Chicago’s Motion for Partial
Reconsideration [ECF No. 99] is denied.

The Conference’s Motion

to Intervene [ECF No. 91] is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: November 16, 2017

- 31 -