PALLADINO et al v. CORBETT et al

Filing 39

MEMORANDUM AND/OR OPINION.SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 3/3/14. 3/4/14 ENTERED AND COPIES MAILED TO SCHNELLER, E-MAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CARA PALLADINO, et al.

:
:
:
:
:

v.
THOMAS W. CORBETT, et al.

CIVIL ACTION

NO. 13-5641

MEMORANDUM
McLaughlin, J.

March 3, 2014

The plaintiffs in this action, a same-sex couple who
were married in Massachusetts and are now residents of
Pennsylvania, seek a declaration that both 23 Pa. Cons. Stat.
§ 1704, and Section 2 of the Defense of Marriage Act, 28 U.S.C.
§ 1738C, are unconstitutional.

The plaintiffs also seek a

permanent injunction directing the defendants to recognize their
Massachusetts marriage, as well as the legal out-of-state
marriages of similarly situated same-sex couples.
The Court considers here an application for leave to
intervene filed by Mr. James D. Schneller, a resident of the
Philadelphia suburbs, representing himself and the Philadelphia
Metro Task Force (“Task Force,” and together, “movants”).

The

Task Force is a “community organization formed to support and
encourage upholding of family values and morality in
government.”

Appl. ¶ 2, ECF No. 29.

For the reasons that

follow, the Court will deny the application.

Background1

I.

A.

Procedural History
The plaintiffs filed their complaint on September 26,

2013.

A motion to dismiss by Pennsylvania Governor Thomas

Corbett was filed on November 25, 2013.

A motion to dismiss by

Pennsylvania Attorney General Kathleen Kane was filed on
December 9, 2013.

The plaintiffs’ opposition to the motions to

dismiss, and their motion for summary judgment, were filed on
January 13, 2014.

The movants filed their application for leave

to intervene on January 17, 2014.

The plaintiffs filed a

response to that motion on February 3, 2014.

B.

Application to Intervene2
The movants defend the Pennsylvania statute at issue

in this case, but oppose the motion to dismiss of Attorney
General Kane.

See Appl. ¶ 50.

The movants allege that the

1

The Court must accept as true the non-conclusory
allegations made in support of the motion to intervene. See
Olympic Sports Data Servs., Ltd. v. Maselli, No. 07-117, 2008 WL
5377626, at *2 (E.D. Pa. Dec. 22, 2008).
2

The movants attach to their application a document
entitled “Response to Motion to Dismiss Action of Respondent
Attorney General Kathleen Kane and [] Motion to Stay the
Deadline.” Appl., Ex., ECF No. 29-1. Because the Court denies
the application to intervene, it will not consider this filing
in opposition to Attorney General Kane’s motion to dismiss.
2

plaintiffs have caused Norristown, Montgomery County, and the
Philadelphia metropolitan region to endure “derogation of rights
to comfort, and basic necessities like safety and well-being,
and derogation of additional rights including rights to defend
liberty and property; causing . . . emotional distress, [and]
perception of failure of official duty.”

Id. ¶ 42.

The movants support their ability to intervene of
right by their interests in “liberty, religious expression,
freedom from seizure and confiscation, and other basic rights,
and regarding property as well.”

Furthermore, movants state

that “[r]everse discrimination” is threatened “amidst a
continual omission of religious and moral freedom.”

Id. ¶ 38.

The movants contend that this case may impair and
impede their ability to “protect their interests” and “to enjoy
constitutionally guaranteed rights.”

Id. ¶ 3.

Furthermore, the

movants’ interests differ from those of the defendants and are
not likely to be fully protected by the existing parties to this
litigation because “recent decisions . . . indicate a trend to
omit or un-prioritize health-, moral- and traditional familyrelated considerations.”

Id. ¶¶ 3, 16.

The movants claim that any decision in favor of the
plaintiffs would result in “practical impairment” of the
movants’ ability to protect their interests, “including
3

discrimination on basis of religious beliefs, on basis of moral
beliefs, and on basis of ancestry,” as well as age.

Id. ¶ 41.

The movants are concerned that they would be bound by
disposition of this case and any resulting litigation, “certain
to affect liberty, equal treatment, and free speech interests.”
Id. ¶ 43.
The movants seek to supplement the factual evidence in
the case beyond what the defendants may present.

Id. ¶¶ 5-7.

For example, the movants state that they participated in
municipal human relations commissions proceedings regarding a
new protected class based on “sexual orientation,” and so can
assist in a “balanced factual presentation” in this case.
¶ 8.

Id.

The movants’ intervention would “deeply affect the posture

and merit” of both the motion for summary judgment and the
motion to dismiss by Attorney General Kane.

Id. ¶ 15.

The movants also state that no party will be
prejudiced by their request to intervene at this stage in the
litigation because motions to dismiss are pending, the United
States may elect to intervene in this action or before March 14,
2014, and discovery has not yet begun.

Id. ¶ 13.

The movants argue that they have standing to intervene
because they are “Pennsylvania taxpayers objecting to what would
be exorbitant expenditures of commonwealth principal, . . .
4

including administrative upheaval requiring voluminous changes
to software, policy, and the justice system.”

Id. ¶ 54.

The plaintiffs argue that the movants lack standing to
intervene to defend3 and the movants’ filing does not comply with
the requirements of Federal Rule of Civil Procedure 24.4
Specifically, the plaintiffs argue that the movants have not
demonstrated that their interests are not adequately represented
3

District courts in the Third Circuit have determined that
Article III standing is not a prerequisite for intervention as a
matter of right. See Am. Farm Bureau Fed’n v. U.S. Envtl. Prot.
Agency, 278 F.R.D. 98, 111 n.6 (M.D. Pa. 2011); CSX Transp.,
Inc. v. City of Phila., No. 04-5023, 2005 WL 1677975, at *2
(E.D. Pa. July 15, 2005); see also Am. Auto. Ins. Co. v. Murray,
658 F.3d 311, 318 n.4 (3d Cir. 2011) (noting circuit split).
Because the Court addresses, and denies, the motion to intervene
on its merits, the Court does not determine whether the movants
have Article III standing.
4

All motions to intervene under Rule 24 “must state the
grounds for intervention and be accompanied by a pleading that
sets out the claim or defense for which intervention is sought.”
Fed. R. Civ. P. 24(c). The movants’ application is not
accompanied by any such pleading, nor does the motion itself set
forth with any specificity the nature of the claims or defenses
that the movants wish to assert, or against whom they would
assert them. Nor does the movants’ “Response to Motion to
Dismiss Action of Respondent Attorney General Kathleen Kane and
[] Motion to Stay the Deadline,” attached as an exhibit to the
application, set out “the claim or defense for which
intervention is sought,” as required under the Rules. Motions
to intervene have been granted by courts within the Third
Circuit, however, despite a movant’s failure to adhere precisely
to the requirements of Rule 24(c), where the purpose of
intervening was sufficiently clear. See Porter v. T.D. Bank,
N.A., No. 10-7243, 2011 WL 925734, at *2 (E.D. Pa. Mar. 14,
2011). Because Schneller is proceeding pro se, the Court
declines to deny his motion to intervene on the basis of failure
to comply with Rule 24(c).
5

by the existing parties.

The plaintiffs take no position as to

whether the movants should be allowed to participate as amicus
curiae.

II.

Pls.’ Opp’n at 2-5, ECF No. 30.

Legal Standard
Federal Rule of Civil Procedure 24 governs the two

types of intervention in pending federal actions.

Rule 24(a)

provides the basis for intervention of right, while Rule 24(b)
provides the basis for permissive intervention.
Although the application to intervene does not cite
Rule 24 and makes no explicit argument as to intervention of
right or permissive intervention, the Court analyzes the
application under Rule 24.

Cf.

Appl. ¶ 38 (including the

phrase “intervention of right”).

A.

Intervention of Right
Subsection (a) of Rule 24 provides:

On timely motion, the court must permit anyone to
intervene who: (1) is given an unconditional right to
intervene by a federal statute; or (2) claims an
interest relating to the property or transaction that
is the subject of the action, and is so situated that
disposing of the action may as a practical matter
impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent
that interest.
Fed. R. Civ. P. 24(a).
6

The Third Circuit has interpreted Rule 24(a)(2) to
require the intervenor applicant to prove the following four
elements:

(1) a timely application for leave to intervene; (2)

a sufficient interest in the litigation; (3) a threat that the
interest will be impaired or affected, as a practical matter, by
the disposition of the action; and (4) inadequate representation
of the prospective intervenor’s interest by existing parties to
the litigation.

Kleissler v. U.S. Forest Serv., 157 F.3d 964,

969 (3d Cir. 1998).
The party seeking to intervene bears the burden of
demonstrating that intervention is appropriate.

See United

States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1181 n.9 (3d Cir.
1994) (burden of proving all four elements under Rule 24(a)
“falls on the applicant”); see also Sch. Dist. of Phila. v. Pa.
Milk Mktg. Bd., 160 F.R.D. 66, 68 (E.D. Pa. 1995) (failure to
“satisfy any one of these requirements precludes an applicant
from intervening as of right”).

B.

Permissive Intervention
Pursuant to Federal Rule of Civil Procedure 24(b), a

person or an entity who is not a named party in an action may
seek to intervene in the interested litigation.
provides:

Rule 24(b)

“On timely motion, the court may permit anyone to
7

intervene who: . . . (B) 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).
A proposed intervenor must show that:

(1) its

motion is timely; (2) it has questions of law or fact in
common with the anchoring suit; and (3) intervention will
not cause undue delay or prejudice to the original parties.
If a third party can satisfy these requirements, the court
may, in its discretion, grant that third party permissive
intervention.

In re Johnson & Johnson Derivative Litig.,

900 F. Supp. 2d 467, 478 (D.N.J. 2012).

III. Discussion

A.

Intervention of Right5
The Court will deny the movants’ application to

intervene of right because the movants do not identify a
sufficient interest they might have at stake in this litigation,
nor do they demonstrate why their interests are not adequately
represented by an existing party.

5

The plaintiffs do not challenge the timeliness of the
movants’ application. Pls.’ Opp’n at 4.
8

1.

Legally Cognizable Interest

To justify intervention of right, the applicant must
have an interest “relating to the property or transaction which
is the subject of the action” that is “significantly
protectable” and is “a legal interest as distinguished from
interests of a general and indefinite character.”

Mountain Top

Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361,
366 (3d Cir. 1995) (quoting Harris v. Pernsley, 820 F.2d 592,
601 (3d Cir. 1987)).
The Third Circuit has, however, recognized that no
“‘precise and authoritative definition’ of the interest that
satisfies Rule 24(a)(2)” exists.

Kleissler, 157 F.3d at 969

(quoting Mountain Top Condo. Ass’n, 72 F.3d at 366).

Indeed,

there is no “pattern that will easily support or defeat
intervention in all circumstances.”

Id. at 970.

Instead, in

determining motions to intervene, “courts should adhere to the
‘elasticity that Rule 24 contemplates’” and “may examine
pragmatic considerations.”

Imable–Mayorga v. Labrie, No. 09–

3567, 2010 WL 3259785, at *2 (D.N.J. Aug. 17, 2010) (quoting
Kleissler, 157 F.3d at 970).
As the Court in Kleissler stated,
[T]he polestar for evaluating a claim for intervention
is always whether the proposed intervenor’s interest
is direct or remote. Due regard for efficient conduct
9

of the litigation requires that intervenors should
have an interest that is specific to them, is capable
of definition, and will be directly affected in a
substantially concrete fashion by the relief sought.
The interest may not be remote or attenuated . . . .
157 F.3d at 972.
The movants seek to intervene to protect their
interests in “liberty, religious expression, [and] freedom from
seizure and confiscation.”

Appl. ¶ 38.

Ultimately, the movants

seek to undermine the plaintiffs’ arguments, add factual context
to the record based on the movants’ “family values” perspective,
and defend the statute at issue.

These interests are

insufficiently direct or specific to movants to warrant
intervention.

See Sch. Dist. of Phila., 160 F.R.D. at 68

(holding that trade association of dairy farmers did not
demonstrate direct interest in action challenging
constitutionality of minimum milk resale prices where farmers
would be unaffected by a successful action).
The movants claim that any decision favorable to the
plaintiffs will impair their interests, resulting in
“discrimination on [the] basis of religious beliefs, . . . moral
beliefs, . . . ancestry,” and age.

Appl. ¶ 41.

The movants

would be bound by disposition of this case and any resulting
litigation, “certain to affect liberty, equal treatment, and
free speech interests.”

Id. ¶ 43.
10

Movants also fear that

“[r]everse discrimination” is threatened “amidst a continual
omission of religious and moral freedom.”

Id. ¶ 38.

These statements are conclusory at best and delineate
only a general, attenuated interest that could presumably be
raised by any other Pennsylvania citizen so inclined.
Furthermore, the movants’ application is unclear as to how any
relief requested by the plaintiffs would directly affect those
interests.

Therefore, the Court determines that the movants do

not have a sufficient interest in this litigation to intervene
of right.

2.

Inadequacy of Representation

Even if the Court were to conclude that the movants
have a sufficient interest in this litigation, they have failed
to establish that their interest is not adequately represented
by an existing party.

For this requirement, “[t]he burden,

however minimal, . . . is on the applicant for intervention to
show that his interests are not adequately represented by the
existing parties.”

Hoots v. Pennsylvania, 672 F.2d 1133, 1135

(3d Cir. 1982).
Representation will be considered inadequate on any of
the following three grounds:

(1) that although the applicant’s

interests are similar to those of a party, they diverge
11

sufficiently that the existing party cannot devote proper
attention to the applicant’s interests; (2) that there is
collusion between the representative party and the opposing
party; or (3) that the representative party is not diligently
prosecuting the suit.

Brody ex rel. Sugzdinis v. Spang, 957

F.2d 1108, 1123 (3d Cir. 1992).

A prospective intervenor need

only show that representation may be inadequate, not that it is,
in fact, inadequate.

See Trbovich v. United Mine Workers of

Am., 404 U.S. 528, 538 n.10 (1972).
In cases where the interest of the applicant is
identical to that of one of the existing parties, or one of the
existing parties is charged by law with representing the
interests of the applicant, representation will presumed
adequate unless special circumstances are shown.
Alan Wright et al., Federal Practice & Procedure:
at 394-95 (3d ed. 2007).

7C Charles
Civil § 1909,

The cases in which a member of the

public has been allowed to intervene in an action in which the
United States, or some other governmental agency, represents the
public interest are cases in which a very strong showing of
inadequate representation has been made.

Id. § 1909, at 429-30.

For example, the Third Circuit in Kleissler held that:
A government entity charged by law with representing
national policy is presumed adequate for the
task . . . particularly when the concerns of the
12

proposed intervenor, e.g., a “public interest” group,
closely parallel those of the public agency. In that
circumstance, the “would-be intervenor [must make] a
strong showing of inadequate representation.” . . .
[B]ut the presumption notwithstanding, when an
agency’s views are necessarily colored by its view of
the public welfare rather the more parochial views of
a proposed intervenor whose interest is personal to
it, the burden is comparatively light.
157 F.3d at 972 (quoting Mausolf v. Babbitt, 85 F.3d 1295, 1303
(8th Cir. 1996)).
Similarly, a state government is presumed to
adequately represent the interests of its citizens.

See 7C

Wright et al., supra, § 1909, at 418-22; see also Del. Valley
Citizens’ Council for Clean Air v. Pennsylvania, 674 F.2d 970,
972-74 (3d Cir. 1982); Coal. to Defend Affirmative Action v.
Regents of Univ. of Mich., 701 F.3d 466, 490-91 (6th Cir. 2012)
(finding that the state attorney general adequately represented
the interests of a proposed intervenor in an action challenging
a state constitutional amendment because both sought to validate
the amendment, even though the state attorney general agreed to
delay the amendment’s application, but the intervenor wanted
immediate enforcement), cert. granted, 133 S. Ct. 1633 (2013);
Gonzalez v. Arizona, 485 F.3d 1041, 1051-52 (9th Cir. 2007)
(affirming denial of motion to intervene where citizen group
failed to demonstrate that the state’s representatives would not
adequately represent the group’s interest in an action where
13

“[n]othing in the record . . . suggests that defendants are
unwilling or unable to defend [the proposition] . . . [and] they
have done so at every level of the federal courts”); Ingebretsen
ex rel. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274,
280-81 (5th Cir. 1996) (affirming denial of intervention as of
right where organization’s interest in action challenging a
state statute involving public school prayer was adequately
represented by the state attorney general who “can assert the
rights of all [state citizens] affected by the law”).
Throughout their application, the movants question
whether Attorney General Kane will adequately represent their
interests in defending the statute.

However, the movants do not

question whether Governor Corbett will defend the
constitutionality of the Pennsylvania statute at issue.
Appl. ¶¶ 21, 25.

See

The movants have not overcome the presumption

that either, or both, of the state governmental officials named
as defendants will adequately represent their interests, as
Pennsylvania citizens, in “liberty, religious expression,
freedom from seizure and confiscation, and other basic rights,
and regarding property as well.”

6

Id. ¶ 38.6

Therefore, the

The Court notes that it does not decide whether the
current defendants are the proper ones, which is at issue in the
pending motions to dismiss.
14

movants have not shown that their interests are not adequately
represented by the existing defendants.

B.

Permissive Intervention
The movants make no clear argument in support of

permissive intervention.

The movants do not point to any common

question of law or fact in their application.

Furthermore, the

movants have not demonstrated that their participation will not
“unduly delay or prejudice the adjudication of the original
parties’ rights.”

Fed. R. Civ. P. 24(b)(3).

Based on the movants’ actions thus far in this case,
the Court is concerned that the movants would “seek to file more
claims, amend pleadings even further, and inject issues that may
not lead directly to a resolution of the issues circumscribed by
the present pleadings.”

Coal. to Defend Affirmative Action v.

Granholm, 501 F.3d 775, 784 (6th Cir. 2007).

To the extent that

the movants raise “reverse discrimination” or other “family
values” issues, they could delay the action because those issues
are only tangentially related to the plaintiffs’ complaint.
Furthermore, the movants’ application evinces only a
general ideological interest in this lawsuit.

The movants have

stated ideological arguments in opposition to the plaintiffs’
complaint, but they have not raised legal arguments persuasive
15

to this Court.

The movants have also not identified how their

ideological interests would be affected by this litigation in
any concrete way.

The generalized and attenuated harm suggested

by the movants, whether as taxpayers or to their religious or
moral beliefs, does not persuade the Court that permissive
intervention is warranted here.
The Court finds persuasive the reasoning of Northland
Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir.
2007).

There, the Sixth Circuit affirmed the district court’s

denial of permissive intervention by an advocacy organization
opposing abortions in an action challenging the
constitutionality of a statute that generally restricted
physicians’ performance of abortion.

Because the organization

was openly hostile to plaintiffs and took an ideological
approach to the litigation, rather than making legal arguments,
the Court determined that the organization’s presence as an
intervenor would seriously delay the adjudication of the matter.
Id. at 346.

Similarly, the movants request for permissive

intervention here is denied.

C.

Amicus Curiae
Although the movants have not explicitly requested to

participate in this case as amicus curiae, the plaintiffs have
16

stated that they take no position as to whether the movants
should be allowed to participate as amicus curiae in this
matter.

The Court denies the movants the ability to participate

via amicus briefing.

A district court has inherent authority to

designate amici curiae to assist it in a proceeding.

Liberty

Res., Inc. v. Phila. Hous. Auth., 395 F. Supp. 2d 206, 209 (E.D.
Pa. 2005) (citing cases).
The Third Circuit has held that even when an applicant
is not entitled to intervene, it may still make its position
heard in the position of friend of the court, or as intervenor
for a limited purpose.

Harris, 820 F.2d at 603.

As the First

Circuit stated in Strasser v. Doorley, 432 F.2d 567 (1st Cir.
1970):
We recognize that the acceptance of amicus briefs
is within the sound discretion of the court, and that
by the nature of things an amicus is not normally
impartial. Furthermore, if an amicus causes the
district court to make an error of law—an amicus who
argues facts should rarely be welcomed—the error can
be corrected on appeal. Nonetheless, we believe a
district court lacking joint consent of the parties
should go slow in accepting, and even slower in
inviting, an amicus brief unless, as a party, although
short of a right to intervene, the amicus has a
special interest that justifies his having a say, or
unless the court feels that existing counsel may need
supplementing assistance.
Id. at 569 (footnotes omitted); see also Linker v. Custom-Bilt
Mach. Inc., 594 F. Supp. 894, 897-98 (E.D. Pa. 1984).
17

Here, the movants argue that they will add to the
factual context of this case and assist in “balanc[ing] the
record.”

Appl. ¶ 5.

disfavored.

Such factual assistance, however, is

There are no legal arguments made by the movants

that would assist current counsel, and the Court cannot
determine any “special interest” held by the movants that
entitles them to participate in this action.

None of the

factors noted in Strasser support permitting the movants to
appear as amicus, and the Court sees no benefit to be gained by
permitting the movants to appear as amicus curiae.

IV.

Conclusion
For the reasons stated above, the Court will deny both

the movants’ request to intervene of right and to permissively
intervene.

The Court will therefore deny the application to

intervene in its entirety.

An appropriate Order shall issue.

18