LOPEZ-AGUILAR v. MARION COUNTY SHERIFF'S DEPARTMENT et al

Filing 62

ORDER denying 53 State of Indiana's Motion to Intervene. ***SEE ORDER*** Signed by Judge Sarah Evans Barker on 1/5/2018. (LDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANTONIO LOPEZ-AGUILAR,

)
)
Plaintiff,
)
)
v.
)
)
MARION COUNTY SHERIFF'S
)
DEPARTMENT, Marion County Sheriff
)
JOHN R. LAYTON, in his official capacity
)
and his individual capacity, Marion County
)
Sheriff’s Sergeant DAVIS, in his individual
)
capacity,
)
)
Defendants.
)
)
)
STATE OF INDIANA,
)
)
Intervenor Defendant )
(Putative).
)
)
)
UNITED STATES OF AMERICA,
)
)
Interested Party.
)

No. 1:16-cv-02457-SEB-TAB

ORDER ON STATE OF INDIANA’S MOTION TO INTERVENE (DKT. 53)
Now before the Court is the State of Indiana’s Motion to Intervene for the Limited
Purpose of Appeal. Dkt. 53. On November 7, 2017, we entered final judgment in this
lawsuit, Dkt. 50, by approving and entering the parties’ Stipulated Judgment, Dkt. 37, for
the reasons explained in our contemporaneously issued Memorandum Order. Dkt. 49.
Nearly a month later, on December 4, 2017, the State of Indiana (“the State”) filed a

1

Motion for Extension of Time to Appeal, Dkt. 54, which we granted, Dkt. 58, to permit
full consideration of the instant Motion to Intervene. The parties have now been heard in
opposition to the State’s motion, Dkts. 59 (Plaintiff), 60 (Defendants), and the State has
been heard in reply. Dkt. 61. Upon due consideration, for the reasons below, the State’s
motion is DENIED.
Standard of Decision
Federal Rule of Civil Procedure 24 provides that a nonparty to an action, on timely
motion, may intervene in the action under certain circumstances. Fed. R. Civ. P. 24(a),
(b). The nonparty is entitled to intervention of right if a federal statute gives it “an
unconditional right” to intervene, id. at (a)(1), or “if the [non]party has ‘an interest’ and is
‘so situated that the disposition of the action may as a practical matter impair or impede
[its] ability to protect that interest, unless [its] interest is adequately represented by
existing parties.” Ligas ex rel. Foster v. Maram, 478 F.3d 771, 773 (7th Cir. 2007)
(quoting Fed. R. Civ. P. 24(a)(2)). As restated by the Seventh Circuit, under Rule
24(a)(2), Fed. R. Civ. P., the putative intervenor must “establish that[] (1) [its] motion[]
w[as] timely; (2) [it] possess[es] an interest related to the subject matter of the action; (3)
disposition of the action threatens to impair that interest; and (4) the parties fail to
represent adequately [its] interest.” Id. (original alterations, ellipsis, quotations, and
citation omitted). A district court has no discretion in determining whether the nonparty
has satisfied these elements, apart from timeliness. See id. (all elements but timeliness
reviewed de novo).

2

The nonparty may be entitled to permissive intervention where it “is given a
conditional right to intervene by federal statute[,]” Fed. R. Civ. P. 24(b)(1)(A), or “where
the applicant’s claim and the main action share common issues of law or fact and where
there is independent jurisdiction.” Ligas, 478 F.3d at 775 (restating Fed. R. Civ. P.
24(b)(1)(B)). Permissive intervention by a “governmental officer or agency” is also
authorized where “a party’s claim or defense is based on” a statute, executive order, or
other legal obligation flowing from either that is “administered by the officer or
agency[.]” Fed. R. Civ. P. 24(b)(2). No matter the grounds on which permissive
intervention is sought, “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). “This language suggests that intervention postjudgment—which necessarily
disturbs the final adjudication of the parties’ rights—should generally be disfavored.”
Bond v. Utreras, 585 F.3d 1061, 1071 (7th Cir. 2009).
Analysis
In the course of approving the parties’ Stipulated Judgment, we held that the
Stipulated Judgment did not impose on Defendants obligations that were contrary to
Indiana law. Mem. Order (Dkt. 49) 16–31. Specifically, we held that Indiana law did not
require Defendants’ cooperation with federal immigration detainers or removal orders. Id.
We concluded that the only arguable locus for such a cooperation requirement, Section 4,
Ind. Code ch. 5-2-18.2, prohibiting a unit of local government (like Defendants) from
implementing a policy that “limit[s] or restrict[s] the enforcement of federal immigration
laws to less than the full extent permitted by federal law[,]” Ind. Code § 5-2-18.2-4
3

(emphasis added), did not in fact require such cooperation “for three reasons: (1) the text
of the statute does not require cooperation; (2) the [Immigration and Nationality Act, 8
U.S.C. §§ 1101 et seq.,] does not permit such cooperation . . . ; and (3) the Fourth
Amendment does not permit such cooperation . . . .” Mem. Order 31.
The State, however, disagrees with this interpretation, believing that Indiana law
does require such cooperation, and seeks to intervene for the purpose of obtaining
vacation of the Stipulated Judgment on appeal. Mot. Interv. (Dkt. 53) 4. The State takes
issue, not with our approval as such of the Stipulated Judgment—as the State
acknowledges, “this Court could theoretically approve the [Stipulated Judgment]
regardless” of our statutory interpretation, Mot. Interv. 15, see Mem. Order 10–12 (bases
for entry of consent decree)—but with the particular decisional path we took to reach that
conclusion. “If [its] motion to intervene is not granted,” the State argues, “a binding
interpretation of Indiana statutes will be enshrined without ever hearing from the State[.]”
Mot. Interv. 3.
The State contends it is entitled to intervention both of right and by permission. Id.
We disagree. The State has no standing to seek either and both are untimely sought.
Moreover, the State fails to satisfy the respectively applicable procedural standards.
I. The State Must, But Cannot, Show Standing to Intervene
No matter whether the State seeks intervention of right or by permission, the State
concedes that it must show Article III standing to intervene. Mot. Interv. 4. Though the
interaction of Rule 24 and Article III is not definitively settled, see Bond v. Utreras, 585
F.3d 1061, 1069–70 (7th Cir. 2009), the State’s concession is well taken.
4

Article III of the Constitution “limits the jurisdiction of federal courts to ‘Cases’
and ‘Controversies[.]’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992) (quoting
U.S. Const. art. III, § 1). One of the principal mechanisms for identifying justiciable cases
or controversies is the doctrine of standing. Id. at 560. Defendants as well as plaintiffs
must show standing to litigate. Arizonans for Official English v. Arizona, 520 U.S. 43, 64
(1997) (citing Diamond v. Charles, 476 U.S. 54, 56 (1986) (standing to defend on
appeal)). Where, as here, a putative intervenor-defendant seeks to continue a case or
controversy after one no longer exists between the original parties, “[the] intervenor’s
right to continue a suit in the absence of the party on whose side intervention was
permitted [or is sought] is contingent upon a showing by the intervenor that [it] fulfills
the requirements of Art[icle] III.” Diamond, 476 U.S. at 68; also Hollingsworth v. Perry,
133 S. Ct. 2652, 2661–62 (2013).
The “irreducible constitutional minimum” of standing is injury-in-fact traceable to
the conduct complained of and redressable by a favorable ruling from a federal court.
Lujan, 504 U.S. at 560. “Injury in fact” is “an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical.” Id. (quotations and citations omitted). Traceability requires that the injury
complained of be “fairly traceable to the challenged action . . . , and not the result of the
independent action of some third party not before the court.” Id. (quotations, ellipses,
alterations, and citation omitted). Finally, redressability requires that it be “likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.”

5

Id. at 561 (quotations and citation omitted). The burden of proving these three elements
rests with the litigant invoking federal jurisdiction: here, the State. Id.
The State has not carried that burden. As for injury-in-fact, it is well established
that a state has a legally protected interest, sufficient to confer standing, “‘in the
continued enforceability’ of its laws that is harmed by a judicial decision declaring a state
law unconstitutional.” Hollingsworth, 133 S. Ct. at 2664 (quoting Maine v. Taylor, 477
U.S. 131, 137 (1986)). But, as the State acknowledges, neither the Stipulated Judgment
nor our Memorandum Order approving it purports to invalidate any part of state law.
State’s Reply Br. Supp. Mot. Interv. (Dkt. 61) 2–4. Indiana law, specifically Section 4,
Ind. Code ch. 5-2-18.2, remains just as enforceable today as it was the day before we
approved the Stipulated Judgment.
Nevertheless, the State accuses our Memorandum Order of rendering its laws,
presumably referring specifically to Section 4, “toothless,” State’s Reply Br. 2, and with
having arrested the operation of “the substance of a statute,” id., such that the distinction
between our order and an order invalidating the statute is a distinction without a
difference. See id. 2–4. From the face of our order and the statutes interpreted, however,
it is clear that this is not so. The distinction is entirely clear and important. The extent of
our statutory holding as set out in the order was that no Indiana statute “require[s]
[Defendants’] cooperation with removal orders, standing alone, or [immigration]
detainers, standing alone.” Mem. Order 30. The order was entirely silent as to other forms
of state-federal cooperation the statutes may or plainly do require. See, e.g., id. at 16–17
(noting extent of plain cooperation requirement of Ind. Code § 5-2-18.2-3), 23 n.11
6

(noting extent of possible cooperation requirement of Ind. Code § 5-2-18.2-4). More
fundamentally, however, as Plaintiff observes, Pl.’s Br. Opp. Mot. Interv. (Dkt 59) 6, the
State’s argument on this point elides the “patent” distinction between “assailing the
validity of a statute” and “relying upon a special construction” of a statute. Erie R.R. Co.
v. Hamilton, 248 U.S. 369, 371–72 (1919) (holding that, where “the plaintiff in error has
not assailed the validity” of a treaty, “but on the contrary has claimed under an asserted
construction of it, which was denied,” Supreme Court review to be had only by writ of
certiorari, not by writ of error).
Taking a different tack, the State attempts to recasts its interest “‘in the continued
enforceability’ of its laws . . . ,” Hollingsworth, 133 S. Ct. at 2664, as an interest in
having its laws “properly enforced,” State’s Reply Br. 3 (emphasis added), that is,
enforced only to the extent of, and only in accordance with, the views of its lawyers. See
id. (“an obstacle to the correct understanding and enforcement of the State’s laws”
(emphasis added); “reversal will eliminate that misreading of the statutes at issue”
(emphasis added)). The State does not, and cannot, point to any authority for this
proposition that it has a legally protected interest, sufficient to confer standing, in
defending its statutes from any judicial interpretation its lawyers deem undesirable or do
not otherwise share. As Plaintiff suggests, Pl.’s Br. Opp. 5, to accept the State’s argument
on this point would establish the State’s entitlement to one free call for the views of its
attorney general whenever any court interprets any part of state law. To the contrary,
however, “[a] litigant’s desire to vindicate a position does not establish standing.”
Greening v. Moran, 953 F.2d 301, 305 (7th Cir. 1992).
7

To be sure, “States are not normal litigants for the purposes of invoking federal
jurisdiction[,]” Massachusetts v. E.P.A, 549 U.S. 497, 518 (2007) (citing Georgia v.
Tenn. Copper Co., 206 U.S. 230, 237 (1907)), and the State’s “stake in protecting its
quasi-sovereign interests . . . is entitled to special solicitude in our standing analysis.” Id.
at 520. But establishing the “correct understanding” of Indiana law, State’s Reply Br. 3,
is not a quasi-sovereign interest to be vindicated by Indiana’s attorney general, but the
quasi-sovereign function of the Indiana Supreme Court. Reiser v. Residential Funding
Corp., 380 F.3d 1027, 1029 (7th Cir. 2004) (citing Erie R.R. Co. v. Tompkins, 304 U.S.
64 (1938)); see also Allen v. Wright, 468 U.S. 737, 750 (1984) (standing problems are
separation-of-powers problems), abrogated on other grounds by Lexmark Int’l, Inc. v.
Static Control Components, Inc., 134 S. Ct. 1377, 1387–88 (2014).
A related observation defeats the State’s charge that our Memorandum Order
“enshrined” “a binding interpretation of Indiana statutes . . . without ever hearing from
the State[.]” Mot. Interv. 3. Of course, our order neither did nor purported to do any such
thing. This Court “lack[s] competence to rule definitively on the meaning of state
legislation[.]” Arizonans for Official English, 520 U.S. at 48. Again, the “correct
understanding” of an Indiana statute, State’s Reply Br. 3, is definitionally supplied by the
Indiana Supreme Court. Reiser, 380 F.3d at 1029. Exercises in state statutory
interpretation by this Court, federal courts of appeals, and even state intermediate courts
“are just prognostications[,]” id., which become unnecessary once state law has received
an authoritative construction. Id. Until the Indiana statutes at issue here receive such a
construction, our interpretation of them binds no one (not even this Court, in a different
8

case) but the parties to this particular litigation. Arizonans for Official English, 520 U.S.
at 57, 58 n.11, 66.
Finally, it is because the State in fact seeks, not a different judgment, but a
different legal opinion, that the State’s position suffers from the redressability problems
identified by Plaintiff. Pl.’s Br. Opp. 7–10. This is so because the judicial relief the State
seeks (vacation of the Stipulated Judgment on appeal) will, if at all, only contingently and
collaterally remedy the asserted injury to the State’s asserted interest. In this sense the
State is in the same position as the appealing defendants in 1000 Friends of Wisc., Inc. v.
U.S. Dep’t of Transp., 860 F.3d 480 (7th Cir. 2017), and Kendall-Jackson Winery, Ltd. v.
Branson, 212 F.3d 995 (7th Cir. 2000). Kendall-Jackson posed the question, “[W]hen a
district judge enters an order creating obligations only for Defendant A, may the court of
appeals alter the judgment on appeal by Defendant B when obligations imposed on A
indirectly affect B?” The Court of Appeals answered in the negative, 212 F.3d at 998,
focusing on the redressability element of the standing analysis. Id.
In Kendall-Jackson, Illinois liquor suppliers sued Illinois liquor distributors and
the Illinois Liquor Control Commission, seeking an injunction against enforcement of an
Illinois statute regulating the relationship between liquor suppliers and liquor distributors
as violative of certain constitutional provisions. Id. at 995–96. The district court agreed
with the suppliers, finding that the statute probably did violate the Constitution as
alleged, and entered preliminary injunctions in the suppliers’ favor against the
Commission. Id. at 996. The distributors, but not the Commission, appealed, and a
Seventh Circuit panel dismissed their appeal for lack of redressable injury. Id. at 1000.
9

The distributors’ “injury [was] derivative rather than direct. Nothing in the injunctions
impose[d] any disabilities on them, rather than the Commission.” Id. at 998. The
distributors responded that enforcement by the Commission of the statute would run to
their benefit, but the court rejected that argument, finding that benefit would accrue to
distributors, if at all, only collaterally to vacation of the injunctions, as the distributors
could not assert control over or an interest in the Commission’s enforcement decisions.
Id.
Similarly, in 1000 Friends of Wisconsin, an environmental group sued the United
States and Wisconsin departments of transportation, seeking to set aside the federal
agency’s statutorily required environmental impact statement on a proposed state-federal
highway project as inadequate under the Administrative Procedure Act. 860 F.3d at 481.
The district court granted the requested relief and set aside the federal agency’s findings,
precluding it from distributing funds to the state for use in the project. Id. The state
agency, but not the federal agency, appealed, which a Seventh Circuit panel dismissed for
lack of redressable injury on the authority of Kendall-Jackson. Id. at 483. The court held
that “Wisconsin cannot seek relief against a judgment that does not bind it[,]” and that
“[i]t would be nothing but an advisory opinion for a court of appeals to discuss the
adequacy of this environmental impact statement,” where, even if the judgment were
vacated and the environmental impact statement reinstated, the state agency would not
necessarily benefit because lacking control over or interest in the federal agency’s
funding decisions. Id. at 482.

10

Though there are factual differences between the case at bar, on the one hand, and
1000 Friends of Wisconsin and Kendall-Jackson, on the other, the relevant principle
operates identically: a defendant does not have standing to appeal an order binding a
different, nonappealing defendant which injures the appealing defendant only indirectly,
and which, if set aside, will benefit the appealing defendant only collaterally or
contingently. On appeal, the court of appeals may agree with the State and find that
Indiana law did conflict with the Stipulated Judgment, yet still affirm entry of the
Stipulated Judgment on the basis of Perkins v. City of Chicago Heights, 47 F.3d 212 (7th
Cir. 1995), and its predecessor decisions. See Mem. Order 11 (citing cases). The State
would have obtained the “relief” it sought without any change in any legal relations, that
is, without winning actual legal relief. Conversely, the court of appeals may vacate the
Stipulated Judgment on other grounds, reversing the judgment while leaving intact the
legal opinion offensive to the State. In other words, it is not “likely, as opposed to merely
speculative, that the [asserted] injury will be redressed by a favorable decision.” Lujan,
504 U.S. at 561 (quotations and citation omitted).
Thus, for lack of any injury-in-fact redressable by a favorable ruling, the State
lacks standing, and its motion to intervene must be and therefore is denied.
II. The State’s Motion Is Untimely
Even assuming the State’s standing to intervene, however, and regardless of
whether intervention is sought of right or by permission, the State’s motion to intervene
fails on the basis of its untimeliness. Fed. R. Civ. P. 24(a), (b); City of Bloomington v.
Westinghouse Elec. Corp., 824 F.2d 531, 533–34 (7th Cir. 1987).
11

Timeliness is determined “from all the circumstances[,]” City of Bloomington, 824
F.2d at 534 (quotations and citation omitted), and “is not a word of exactitude or of
precisely measurable dimensions.” Id. (quotations and citation omitted). The Seventh
Circuit has identified four factors to shape our consideration of “all the circumstances”:
(1) “the length of time the intervenor knew or should have known of [its] interest in the
case;” (2) the extent of prejudice to the original litigating parties from the intervenor’s
delay;” (3) “the extent of prejudice to the would-be intervenor if her or his motion is
denied; and (4) “any unusual circumstances.” Id. (quoting United States v. Kemper
Money Market Fund, Inc., 704 F.2d 389, 391 (7th Cir. 1983) (quotations omitted).
We begin with the length of time the State knew or should have known of its
interest in this case, which, to repeat, is asserted by the State to be its interest in a
different construction of Indiana law than our Memorandum Order relied upon. The State
maintains that it did not because it could not have known of this interest before entry of
the order on November 7, 2017, and that filing a motion to intervene within the appeals
period for the underlying judgment is timely. Mot. Interv. 6 (citing Flying J, Inc. v. Van
Hollen, 578 F.3d 569, 572 (7th Cir. 2009) (“Nor do we think the association’s motion to
intervene, even though not filed until the district judge had entered his final judgment,
was untimely—assuming that all the association wants is to take an appeal . . . .”)).
We disagree. The parties first submitted the Stipulated Judgment for our approval
on July 10, 2017. Dkt. 37. Thus, it ought to have been clear to the State at that point that
Defendants had no absolutely interest in defending an interpretation of Indiana law
mirroring the State’s view, namely, one that would prohibit, and potentially defeat, the
12

very obligations Defendants were then seeking to contract for. The State’s position is
unlike that of the intervenors in Flying J and United Airlines, Inc. v. McDonald, 432 U.S.
385 (1977). There, postjudgment intervention was deemed timely because the
intervenors’ interests, or, more precisely, the failure of original parties to defend those
interests, did not become clear until judgment was entered and the original parties failed
to appeal. United Airlines, 432 U.S. at 394 (“[A]s soon as it became clear to the
respondent[, intervenor below,] that the interests of the unnamed class members would no
longer be protected by the named class representatives [following their failure to appeal
from district court’s denial of class certification], she promptly moved to intervene to
protect those interests.”); Flying J, 578 F.3d at 572 (“[T]here was nothing to indicate that
the attorney general was planning to throw the case—until he did so by failing to
appeal.”). Here, by contrast, from the outset, everything indicated that Defendants were
“planning to throw the case[,]” Flying J, 578 F.3d at 572, that is, they did not intend to
advance or defend the State’s preferred legal position, as of July 10, 2017, when the
parties jointly submitted the Stipulated Judgment. The State’s delay must therefore be
measured from that date until the filing of the instant motion, December 4, 2017, a period
of approximately five months, which is by any measure a substantial interval. 1
We next address the extent of prejudice that would befall the original parties from
the State’s nearly five-month delay. In the postjudgment settlement context, where
neither original party had reason to believe an appeal would be taken, compare id. at 573

1

As Plaintiff points out, the federal government moved to participate in this case three days after
the parties submitted the Stipulated Judgment for approval. Dkts. 38–40.
13

(“There is no prejudice to Flying J, because it could not have assumed that, if it won in
the district court, there would be no appeal.”), especially in view of the “federal policy
encouraging settlement[,]” United States v. George A. Whiting Paper Co., 644 F.3d 368,
372 (7th Cir. 2011), compare Security Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d
1377, 1381 (7th Cir. 1995) (“Security can hardly be said to be prejudiced by having to
prove a lawsuit it chose to initiate . . . [as] it is the policy of this circuit to favor trials on
the merits over default judgments.”), the prejudice to the original parties is real and
appreciable. The personal-capacity Defendants were dismissed with prejudice; reopening
this lawsuit disturbs their repose. The official-capacity Defendants, caught between the
Scylla of civil-rights plaintiffs and the Charybdis of the federal government’s
immigration enforcement apparatus, sought and secured a dependable explication of their
obligations vis-à-vis both, confusion over which prompted Defendants’ desire to settle in
the first instance. Reopening this lawsuit plucks Defendants from the calm waters into
which they have now sailed, returning them to the tumultuous straits they sought to
escape when resolving this lawsuit. Plaintiff’s sense of security in his person, and of
vindication for his injury, will be wholly overthrown if the State’s motion is granted.
Finally, the parties obviously incurred various costs associated with this litigation,
including in the course of settlement negotiations, and in part to avoid altogether costs
relative to any appeal, see Dkt. 37, which economies the State’s intervention will
frustrate, if not defeat entirely. See City of Bloomington, 824 F.2d at 536 (noting
“prejudice that the original parties suffer when another party seeks to intervene after a

14

settlement has been reached”; quoting Jones v. Caddo Parish Sch. Bd., 735 F.2d 923, 935
(5th Cir. 1984)).
Regarding the issue of any prejudice befalling the State if its motion is not
granted, the prejudice would be minimal or nonexistent. As noted above, our
Memorandum Order embodies a statutory construction that binds only the original parties
to this action. The State has numerous courts, state and federal, and numerous potential
cases, open to it for the vindication of its preferred legal position, should it choose to
engage in such litigation. If the State’s position is not advanced in the context of this
particular case, other avenues are available to it.
Finally, in terms of “unusual circumstances,” particularly any “‘other than lack of
knowledge’ for why [the State] was unable to intervene sooner[,]” Id. at 537 (quoting
Stallworth v. Monsanto Co., 558 F.2d 257, 266 (5th Cir. 1977)), the State has pointed us
to no such circumstances, and we perceive none.
Accordingly, given the untimeliness of the State’s motion, the substantial
prejudice to the parties if the motion were granted, the minimal prejudice to the State if it
were not, and the lack of any unusual circumstances warranting our consideration, we
conclude that the State’s motion should be and therefore is denied on these grounds as
well.
III. The State Is Not Entitled to Intervention of Right
Even assuming a timely motion for intervention of right brought by a litigant with
standing, still the State’s application fails. The State cites no federal statute giving it an
“unconditional right” to intervene in this case, Fed. R. Civ. P. 24(a)(1), and is unable to
15

show an “interest” in the subject matter of this case the protection of which will be
“impede[d]” or “impair[ed]” by denial of the motion. Id. at 24(a)(2).
“The ‘interest’ required by Rule 24(a)(2) has never been defined with particular
precision.” Security Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1380 (7th Cir.
1995). The interest required is “a ‘direct, significant, and legally protectable’ interest in
the question at issue in the lawsuit.” Wisc. Educ. Ass’n Council v. Walker, 705 F.3d 640,
658 (7th Cir. 2013) (quoting Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir. 1985)). It
must be “unique to the proposed intervenor[,]” id., and “so direct that the applicant would
have a right to maintain a claim for the relief sought.” Keith, 764 F.2d at 1268 (quotations
and citation omitted). Beyond these general principles, however, the inquiry as to
whether an asserted interest is sufficient is so “highly fact-specific” that “comparison to
other cases” is “of limited value.” Sec. Ins. Co., 69 F.3d at 1381.
The State asserts the interest of the United States in receiving state cooperation in
immigration enforcement, Mot. Interv. 7, but that is clearly not an interest unique to it
upon which it would have the right to maintain its own lawsuit. So too with the State’s
asserted interest in “the guidance provided to Indiana law enforcement by” the statutes
interpreted by our Memorandum Order. Id. The State asserts finally an interest in its
“ability to balance cooperation with federal law enforcement while shielding Indiana law
enforcement from civil lawsuits which could arise from” our Memorandum Order, id.,
but that interest will not be in the least impaired if intervention is not granted. The State
(specifically, the General Assembly) remains free to reach and enact whatever policy
judgments it deems appropriate. To the extent that this asserted interest is
16

indistinguishable from the State’s asserted interest, noted above, in a particular
interpretation of its statutes, the same conclusion follows here: every judicial
interpretation of Indiana law is subject to authoritative revision and correction by the
Indiana Supreme Court, and the State’s ability to advance its legal position until such an
authoritative declaration is made is not in the least impaired by the State’s exclusion from
this case.
Accordingly, for lack of a direct, significant, and protectable interest unique to the
State which will be impaired by the denial of its motion to intervene, the State is not
entitled to intervention of right. Its motion for intervention of right is therefore denied on
that ground.
IV. The State Is Not Entitled to Permissive Intervention
Similarly, even assuming a timely motion for permissive intervention brought by a
litigant with standing, still the State’s application fails. The State cites no federal statute
giving it a “conditional right” to intervene in this case, Fed. R. Civ. P. 24(b)(1)(A), does
not have a “claim or defense that shares with the main action a common question of law
or fact[,]” id. at 24(b)(1)(B), and is not a “governmental officer or agency . . . .” Id. at
24(b)(2). Moreover, its late postjudgment intervention would “unduly delay and
prejudice” the original parties’ rights. Id. at 24(b)(3).
The State has no “claim or defense” to Plaintiff’s suit because the State, as already
noted, does not wish to litigate the action, but to erase a disfavored legal rationale from
the record. If that were done (for example, if this Court were simply to vacate that portion
of our Memorandum Order to which the State objects but nevertheless affirm approval of
17

the Stipulated Judgment on alternate grounds), then the State would wish “‘to have
nothing to do’” with this lawsuit after that. Hughes v. Kore of Ind. Enter., Inc., No. 1:11cv-1329, 2013 WL 312868, at *1 (S.D. Ind. Jan. 25, 2013) (quoting Tech. Licensing
Corp. v. Thomson, Inc., 684 F.Supp.2d 1206, 1207 (E.D. Cal. 2010)). “This is not the
purpose of intervention . . . .” Id.
Nor, clearly, is the State a governmental “agent or officer” entitled to intervene
under Rule 24(b)(2), Fed. R. Civ. P, and cannot be said to “administer” the entire body of
its law, contrary to its position.
Finally, for the same reasons as noted above as to the timeliness question, the
prejudice to the original parties is clear.
For these reasons, we conclude that permissive intervention is not warranted. The
State’s motion for permissive intervention is therefore denied.
Conclusion
Because the State does not have standing to intervene, has not timely filed its
motion, and otherwise fails to satisfy the applicable standards under Rule 24, Fed. R. Civ.
P., the State’s motion to intervene is hereby DENIED.
IT IS SO ORDERED.

Date:

1/5/2018

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

18

Distribution:
Thomas M. Fisher
INDIANA ATTORNEY GENERAL
[e-mail]
Jill Z. Julian
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Winston Lin
INDIANA ATTORNEY GENERAL
[e-mail]
Jan P. Mensz
ACLU OF INDIANA
[e-mail]
Diana Lynn Moers Davis
INDIANA ATTORNEY GENERAL
[e-mail]
Donald Eugene Morgan
OFFICE OF CORPORATION COUNSEL
[e-mail]
Anthony W. Overholt
FROST BROWN TODD LLC
[e-mail]
Erez Reuveni
U.S. Department of Justice
[e-mail]
Gavin Minor Rose
ACLU OF INDIANA
[e-mail]
Andrew J. Upchurch
OFFICE OF CORPORATION COUNSEL
[e-mail]

19