MAINE REPUBLICAN PARTY v. DUNLAP

Filing 16

ORDER denying 9 Motion to Intervene By JUDGE JON D. LEVY. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MAINE REPUBLICAN PARTY,
Plaintiff,
v.
MATTHEW DUNPLAP, in his
Official capacity as Secretary of
State for the State of Maine
Defendant,
and
THE COMMITTEE FOR
RANKED-CHOICE VOTING,
Prospective Intervenors.

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ORDER ON MOTION TO INTERVENE
The Committee for Ranked-Choice Voting (the “Committee”) represents that it
is a public interest group that drafted and campaigned for the passage of legislation
entitled “An Act to Implement Ranked-Choice Voting,” L.D. 1557 § 1 (effective Jan.
7, 2017) (codified at 21-A M.R.S.A. §§ 1(27-C), 1(35-A), 601, 722, and 723-A (2017))
(hereinafter, the “Ranked-Choice Voting Act”).

The Committee has moved to

intervene (ECF No. 9) in this case, contending that it has grounds to intervene as of
right pursuant to Fed. R. Civ. P. 24(a)(2), or, in the alternative, it should be granted
permissive intervention pursuant to Fed. R. Civ. P. 24(b).

The Plaintiff Maine

Republican Party (the “Party”) opposes the Motion (ECF No. 12). The Defendant,

Matthew Dunlap, Secretary of State for the State of Maine (the “Secretary”), does not
oppose the Motion.
Federal Rule of Civil Procedure 24(a) provides that “a would-be intervenor [as
of right] must demonstrate that: (i) its motion is timely; (ii) it has an interest relating
to the property or transaction that forms the foundation of the ongoing action; (iii)
the disposition of the action threatens to impair or impede its ability to protect this
interest; and (iv) no existing party adequately represents its interest.” Ungar v.
Arafat, 634 F.3d 46, 50 (1st Cir. 2011). Here, the first requirement is unquestionably
satisfied. The remaining requirements are subject to a “balancing of factors,” which
I turn to consider together. Students for Fair Admissions, Inc. v. President and
Fellows of Harvard Coll., 807 F.3d 472, 474 (1st Cir. 2015).
The first question is whether the Committee has a “significantly protectable”
interest in this suit, such that its claims “bear a sufficiently close relationship to the
dispute between the original litigants and [] the interest [is] direct, not contingent.”
Conservation Law Found. of New England, Inc. v. Mosbacher, 966 F.2d 39, 41, 42 (1st
Cir. 1992) (internal quotation marks and alterations omitted).

In Daggett v.

Commission on Governmental Ethics & Election Practices, the court found that a
group of candidates affected by a campaign finance reform law had a sufficiently
protectable interest in constitutional challenges brought by other candidates and
political contributors because “the applicants belong[ed] to a small group, quite
distinct from the ordinary run of citizens, who could expect to receive direct payments
for their campaigns if the Reform Act [were] upheld but not otherwise.” 172 F.3d 104,
110 (1st Cir. 1999). Here, the Committee is a discrete entity, “distinct from the
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ordinary run of citizens,” id., which has invested significant amounts of time and,
presumably, resources in drafting and ultimately winning the approval of the
legislation at issue.

Thus, although the Committee’s interest may not be as

significant as the interests at stake in Daggett, it does have a cognizable interest in
the outcome of this suit that sets it apart from the general public.
Recognizing the Committee’s interest, “[t]his case presents a recurring
situation: a group with recognized interests wishes to intervene and defend an action
of the government which the government is itself defending.” Maine v. Dir., U.S. Fish
and Wildlife Serv., 262 F.3d 13, 19 (1st Cir. 2001). There is a dual presumption that
a potential intervenor’s interests will be adequately represented where (1) the goals
of the intervenor and the defendant are the same; and (2) the government is defending
the validity of a statute and the intervenors are citizens who support the statute. See
Daggett, 172 F.3d at 111; see also, U.S. Fish and Wildlife, 262 F.3d at 19.
The Committee argues that the Secretary may not adequately represent its
position because the Committee and the Secretary are adverse to one another in a
related lawsuit in state court. See ECF No. 9 at 4.1 However, the Committee has
failed to articulate what arguments it intends to make in this Court that would
otherwise be forsaken by the Secretary; in fact, both the Committee and the Secretary
are advocating for the general validity and enforcement of the Ranked-Choice Voting
Act, and it appears that both parties would have “the same approach to the conduct

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In that related suit, the Secretary of State noticed an apparent conflict in the statutes related to the RankedChoice Voting Act, alerted the Committee to that conflict, and then mounted no opposition when the Committee
moved the court to enter a temporary restraining order requiring the Secretary to continue implementing rankedchoice voting. See Comm. for Ranked-Choice Voting v. Dunlap, No. cv-18-24, Order on Plaintiffs’ Motion for
Temporary Restraining Order at 9 (Me. Super. Ct. Apr. 3, 2018).
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of the litigation.” See Trbovich v. United Mine Workers of America, 404 U.S. 528, 539
(1972). To the extent that the Committee seeks to express a divergent view from that
of the Secretary – and, again, no such divergent view is apparent from the record
before me – those views may be effectively relayed to the Court through an amicus
curiae brief. See Daggett, 172 F.3d at 112-13; see also U.S. Fish and Wildlife, 262
F.3d at 19.
In short, in this litigation the Secretary’s and the Committee’s goals are
aligned, as the Secretary is defending the validity of the Ranked-Choice Voting Act
which the Committee supports. I see no indication that the Secretary will fail to put
forth arguments in support of the Ranked-Choice Voting Act that the Committee
would otherwise make, and any divergent views the Committee holds can be
effectively presented to the Court in an amicus curiae brief. Accordingly, intervention
as of right is not warranted.
The Committee also seeks to intervene through permissive intervention as
authorized by Fed. R. Civ. P. 24(b). The rule provides that so long as the potential
intervenor “has a claim or defense that shares with the main action a common
question of law or fact” permissive intervention may be warranted. Id. In evaluating
a request for permissive intervention, the court “can consider almost any factor
rationally relevant.” Daggett, 172 F.3d at 113.
The denial of intervention as of right based on an intervenor’s failure to
overcome the presumption of adequate representation by the government cuts
against the case for permissive intervention. See Tutein v. Daley, 43 F. Supp. 2d 113,

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131 (D. Mass. 1999) (“[W]here, as here, intervention as of right is decided based on
the government’s adequate representation, the case for permissive intervention
diminishes, or disappears entirely.”) (internal citation omitted). Because I find that
the Secretary will adequately represent the Committee’s interest in defending the
Ranked-Choice Voting Act, I am not persuaded that the Committee should be granted
permissive intervention. That “the addition of still more parties would complicate a
case that badly need[s] to be expedited” further cuts against permissive intervention.
Daggett, 172 F.3d at 113. Although the Committee claims that its intervention would
not disrupt or delay the determination of the Party’s Motion for a Preliminary
Injunction, see ECF No. 15 at 7, the Court has previously established a briefing
schedule that will soon expire, see ECF No. 10. There is, therefore, the potential that
intervention by the Committee at this stage would disrupt the expedited schedule
currently in effect. If this suit proceeds beyond the preliminary injunction stage so
that time is no longer of the essence, and the Committee believes that it can
demonstrate that its position does not merely duplicate that of the Secretary, it may
reassert its request for permissive intervention.
For the preceding reasons, the Committee’s Motion for Intervention (ECF No.
9) is DENIED. The Committee is granted leave to file an amicus curaie brief by 12
p.m. on May 21, 2018.
SO ORDERED.
Dated this the 16th day of May, 2018
/s/ JON D. LEVY
U.S. DISTRICT JUDGE
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