League of Women Voters of Michigan et al v. Benson

Filing 144

ORDER DENYING the Legislative Intervenors' Renewed #136 Motion to Intervene. Signed by Circuit Judge Eric L. Clay on behalf of the Panel. (Attachments: #1 Dissent by Judge Quist) (Marion, Diane)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LEAGUE OF WOMEN VOTERS
OF MICHIGAN, et al.,

)
)
)
Plaintiffs,
)
)
v.
)
)
RUTH JOHNSON, in her official
)
capacity as Michigan Secretary of
)
State,
)
)
Defendant.
)
__________________________________________)

No. 2:17-cv-14148

ORDER DENYING THE LEGISLATIVE INTERVENORS’ RENEWED MOTION TO
INTERVENE (ECF. No. 136)
Before the Court is the Legislative Intervenors’ Renewed Motion to Intervene (“Motion”)
(ECF. No. 136). The Court previously denied the Legislative Intervenors’ first Motion to
Intervene (“Original Motion”) (see ECF. No. 91). The Legislative Intervenors’ appealed that
decision to the Sixth Circuit, which remanded to allow this Court to “evaluate the Legislative
Intervenors’ now-unopposed motion in light of the standards articulated in League of Women
Voters I.” (Appellate R. 32.) See League of Women Voters of Michigan v. Johnson, 902 F.3d 572
(6th Cir. 2018) (“League of Women Voters I”).
The Legislative Intervenors move to intervene as a matter of right under Rule 24(a). (See
ECF No. 136 at 4-20.) As this Court has explained, to have a right to intervene, the party seeking
intervention must establish four elements:
(1) the motion to intervene is timely; (2) the proposed intervenor has a substantial
legal interest in the subject matter of the case; (3) the proposed intervenor’s
ability to protect their interest may be impaired in the absence of intervention; and
(4) the parties already before the court cannot adequately protect the proposed
intervenor’s interest.
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Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir. 2007) (citing
Grutter v. Bollinger, 188 F.3d 394, 397–98 (6th Cir. 1999)).
The Legislative Intervenors’ Motion is not timely, even if this Court construes it as
having been filed on the date when the Legislative Intervenors filed their Original Motion. The
Legislative Intervenors filed their Original Motion on July 12, 2018 (see ECF. No. 70), nearly
two months after the Court decided the motion to dismiss (see ECF. No. 54) and approximately
four-and-a-half months after the Congressional Intervenors filed their motion to intervene. (See
ECF. No. 21.)
The Legislative Intervenors also fail to satisfy the other three elements for intervention as
of right, as this Court previously articulated in denying the Legislative Intervenors’ Original
Motion. (See ECF. No. 91.) First, the Legislative Intervenors’ claimed interest in the litigation
“is a component of the state’s overall interest and is exclusively represented by the executive.”
(Id. at PageID #2060.) Second, the Legislative Intervenors’ Motion is premature, because they
merely “speculate about the ‘possibility’ that the executive branch will end its participation in
this matter.” (Id. at PageID #2061.) Third, the Legislative Intervenors “have no official interest
in maintaining their elected offices.” (Id. at PageID #2062.) Fourth, any purported interest in
maintaining their or their successors’ chances of re-election is “grounded in either partisanship,
notions of elective office as property, or both” and is therefore not cognizable. (Id.) Fifth, to the
extent that the Legislative Intervenors possess “any legitimate official interest in this litigation . .
. such interest belongs to the state and is adequately represented by the executive.” (Id. at PageID
#2063.) All of these reasons apply as strongly today as they did when we denied the Original
Motion. The Legislative Intervenors have still not established a legally cognizable interest in

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these proceedings or that the existing parties do not adequately protect any hypothetical interest
that they may possess.1
The Legislative Intervenors also move to intervene as permissive intervenors under Rule
24(b). As this Court has held, “a proposed [permissive] intervenor must establish that the motion
for intervention is timely and alleges at least one common question of law or fact.” United States
v. Michigan, 424 F.3d 438, 445 (6th Cir. 2005) (internal citation omitted). If the proposed
intervenor satisfies these two elements, “the district court must then balance undue delay and
prejudice to the original parties, if any, and any other relevant factors to determine whether, in
the court’s discretion, intervention should be allowed.” (internal citation omitted). “The denial of
permissive intervention should be reversed only for clear abuse of discretion by the trial judge.”
Granholm, 501 F.3d at 784 (internal quotation and citation marks omitted).
The Legislative Intervenors argue that the Court should allow them to permissively
intervene because they will not cause any delay or prejudice due to the fact that Plaintiffs do not
oppose their Motion. (See Br., ECF No. 136 at 21.) But the Court’s previous decision to deny
Legislative Intervenors’ Original Motion was not predicated on the Plaintiffs’ opposition. Rather,
the Court determined that the Legislative Intervenors lacked a legally cognizable interest in the
litigation and that any interest they did possess was already represented by the executive. (See
ECF. No. 91.) Furthermore, Legislative Intervenors’ Original Motion was untimely, and

1

In their brief in support of their Motion, the Legislative Intervenors assert two interests
that they did not explicitly allege in their Original Motion: (1) a “Federal Constitutional Interest”
and (2) an interest because Plaintiffs’ lawsuit challenges the “Regulation of Official Conduct.”
(Br. in Sup. of Renewed M. to Intervene, ECF No. 136 at p. 10–13.) Neither of these arguments
persuades the Court. Furthermore, the Legislative Intervenors raised the latter argument in their
Original Motion. (See Br. in Sup. of M. to Intervene, ECF No. 70 at 7–9) (arguing that the
Legislative Intervenors “would be required to play an integral part in drawing and enacting the
remedial plans required to comply with any order of this Court”). The Court rejects this
repackaged argument for the same reasons it previously articulated.
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therefore would prejudice the existing parties. See Blount-Hill v. Zelman, 636 F.3d 278, 287 (6th
Cir. 2011) (“[B]ecause we find that proposed Intervenors' application was untimely—and would
thus cause undue delay and prejudice to the existing parties as discussed above—the district
court did not abuse its discretion in denying their application for permissive intervention.”)
Given that the Legislative Intervenors moved to intervene two months after the Court had
decided the motion to dismiss, and fail to articulate a cognizable legal interest in the proceedings,
the Court will not exercise its discretion to allow them to join as permissive intervenors.
After further consideration and review of the factual background of the case, the Court’s
denial of the Original Motion, and the Motion currently before the Court, the Court finds that its
previous decision did not violate the standards articulated in League of Women Voters I.
Because the same reasons for denying the Original Motion apply with equal force to their current
Motion, the Legislative Intervenors’ Renewed Motion to Intervene (ECF. No. 136) is DENIED.2
Additionally, because the Sixth Circuit has now rendered its decision on appeal, the
Legislative Intervenors’ Motion to Stay Pending Appeal to the Sixth Circuit (ECF. No. 98) is
DENIED AS MOOT.
IT IS SO ORDERED.

We appreciate our colleague’s dissent. However, the dissent offers only musings about
the changing political landscape and prognostications about what may or may not occur after the
incoming Michigan Secretary of State takes office in January 2019. Conspicuously missing from
our colleague’s dissent is any finding that, or explanation of why, the Legislative Intervenors
possess a cognizable legal interest in this action. Furthermore, our colleague’s fears about the
case being delayed are unfounded. Regardless of whether or not the incoming Secretary of State
continues with the lawsuit, the Congressional Intervenors will remain as parties. They are more
than capable of proceeding without the Secretary of State’s participation. Accordingly, the case
will proceed uninterrupted regardless of what action is taken by the incoming Secretary of State.
2

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/s/ Eric L. Clay
Signed for and on behalf of the panel:
HONORABLE ERIC L. CLAY
United States Circuit Judge
HONORABLE DENISE PAGE HOOD
United States District Judge

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
on November 30, 2018, by electronic and/or ordinary mail.
S/Diane R. Marion
Administrative Manager

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