Baldus et al v. Brennan et al

Filing 49

ORDER signed by Judge J P Stadtmueller on 11/21/11 granting 32 intervenor-defendants' Motion to Intervene; granting 44 intervenor-plaintiffs' Motion to Intervene. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALVIN BALDUS, CARLENE BECHEN,
ELVIRA BUMPUS, RONALD BIENDSEIL,
LESLIE W DAVIS, III, BRETT ECKSTEIN,
GLORIA ROGERS, RICHARD KRESBACH,
ROCHELLE MOORE, AMY RISSEEUW,
JUDY ROBSON, JEANNE SANCHEZ-BELL,
CECELIA SCHLIEPP, TRAVIS THYSSEN,
and CINDY BARBERA,
Plaintiffs,

Case No. 11-CV-562
JPS-DPW-RMD

TAMMY BALDWIN, GWENDOLYNNE
MOORE, and RONALD KIND,
Intervenor-Plaintiffs,
v.
Members of the Wisconsin Government
Accountability Board, each only in his official
capacity: MICHAEL BRENNAN, DAVID
DEININGER, GERALD NICHOL, THOMAS
CANE, THOMAS BARLAND, and TIMOTHY
VOCKE, and KEVIN KENNEDY, Director and
General Counsel for the Wisconsin
Government Accountability Board,

ORDER

Defendants,
F. JAMES SENSENBRENNER, JR.,
THOMAS E. PETRI, PAUL D. RYAN, JR.,
REID J. RIBBLE, and SEAN P. DUFFY,
Intervenor-Defendants.
Before WOOD, Circuit Judge, DOW, District Judge, and STADTMUELLER,
District Judge

By its November 15, 2011 order (Docket #36), the Court requested that
the original parties to this case file briefs responding to the intervenordefendants’ motion to intervene (Docket #32). Shortly thereafter, Wisconsin’s
incumbent Democratic Congress Members filed a motion to intervene as
intervenor-plaintiffs. (Docket #44). The plaintiffs filed a brief opposing the
intervention of the Republican Congress Members, and also indicating that
they would oppose the intervention of any additional parties, including that
of the Democratic Congress Members. (Docket #41). The defendants, on the
other hand, supported the intervention of the Republican Congress
Members, but have not had an opportunity to respond to the Democratic
Congress Members’ motion to intervene. The Court does not believe that any
such response is necessary, though, as both parties’ Congress Members are
identically situated as incumbents, differing only in their support for the
defendants or plaintiffs. Thus, the Court will make its decision on both sets
of intervenors’ motions on the briefs that have been submitted to the Court.
Ultimately, the Court will grant both intervening parties’ motions, allowing
them to intervene in this case.1
Fed. R. Civ. P. 24(a)(2) allows a party to intervene as a matter of right
if the applicant can demonstrate that: “(1) the application is timely; (2) the
applicant has an ‘interest’ in the property or transaction which is the subject
of the action; (3) disposition of the action as a practical matter may impede
or impair the applicant's ability to protect that interest; and (4) no existing
party adequately represents the applicant's interest.” Security Ins. Co. of

1

Given the similarity of both intervening parties’ situations and arguments
in favor of intervention, unless the context requires otherwise, the Court will
address both parties jointly simply as the “intervenors.” The Court’s discussion of
the law and its decision apply equally to both intervenors’ motions.

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Hartford v. Schipporeit, 69 F.3d 1377, 1380 (7th Cir. 1995) (internal citations
omitted); see also Ligas v. Maram, 478 F.3d 771, 773 (7th Cir. 2007). Even if a
party is unable to intervene as a matter of right, though, the Court may still
permit that party to intervene if the intervening party “has a claim or defense
that shares with the main action a common question of law or fact,” and files
a timely motion to intervene. Fed. R. Civ. P. 24(b). Typically, this standard is
met if the motion is filed timely and the intervening party is advocating “for
the same outcome as one of the existing parties”—a much lower “interest”
standard than that required to intervene as a matter of right. Bond v. Utreras,
585 F.3d 1061, 1070 (7th Cir. 2009) (citing Horne v. Flores, 129 S. Ct. 2579, 2591
(2009)).
The plaintiffs argue that the intervenors cannot intervene as a matter
of right. (Pl.’s Resp. Mot. Int. 1–4). Essentially, the plaintiffs argue that the
intervenors do not have an adequate interest to establish a right to intervene.
(Pl.’s Resp. Mot. Int. 2). Plaintiffs make the obvious point that the intervenors
do not have a right to maintain their seat, but are rather similarly situated to
all other Wisconsin residents who would be eligible to run for a
congressional seat. (Pl.’s Resp. Mot. Int. 2).
Thus, while the Court believes that the intervenors have come very
near to establishing their ability to intervene as a matter of right, by satisfying
the remaining three factors of the analysis, the Court is ultimately unsure that
the intervenors have satisfied the interest requirement. As such, the Court
will not grant their motion to intervene as a matter of right.
Nonetheless, the Court exercises its discretion and will grant the
intervenors’ motion to permissively intervene. As discussed above, the Court
may permit parties to intervene where their motion is timely and they have
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demonstrated some alignment of interest with another party in the outcome
of the case. Fed. R. Civ. P. 24(b). The plaintiffs have stipulated that the
intervenors’ motion is timely. (Pl.’s Resp. Mot. Int. 2).
Thus, the only question remaining is whether the intervenors have
demonstrated an interest that satisfies the lower Rule 24(b) requirements.
Bond, 585 F.3d at 1070. The Court finds that each set of intervenors has such
an interest. While, in the eyes of the law, the intervenors may have no greater
interest than the average citizen-of-age in the outcome of this case, as a
matter of logic, the intervenors are much more likely to run for congressional
election and thus have a substantial interest in establishing the boundaries
of their congressional districts. In the case of the Republican intervenors, that
interest is aligned with the interest of the original defendants in the outcome
of this case, while the interest of the Democrat intervenors is aligned with
that of the original plaintiffs. In addition to their similar interests, though, the
Court also notes that both sets of intervenors have an additional interest in
focusing arguments on the issues relating to Act 44, which they do not
believe the original defendants have adequately addressed in their filings to
date. The Court finds that these interests are strong enough to permit
intervention.
The plaintiffs argue that the Court should not permit that intervention,
though, because it will open the floodgates and enable many other parties to
intervene; the Court does not believe that problem weighs against permitting
intervention in this instance. If additional parties move to intervene, their
arguments would be subject to the same scrutiny faced by the intervenors:
the need to establish an adequate interest. In addition, depending on when
they file and the nature of their interests, any additional proposed

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intervenors may face objections on the grounds of timeliness and the
adequacy of representation of those interests by the existing parties and
intervenors. Moreover, such hypothetical intervenors may also find
themselves unable to intervene as a matter of right, and would, instead, be
left to request to intervene permissively. At the same time, given the Court’s
broad discretion over whether to grant such motions, the Court will not be
required to permit intervention by those additional parties. See, e.g., Perry v.
Schwarzenegger, 630 F.3d 898, 903 (9th Cir. 2011), City of Herriman v. Bell, 590
F.3d 1176, 1184 (10th Cir. 2010), Northland Family Planning Clinic, Inc. v. Cox,
487 F.3d 323, 343–46 (6th Cir. 2007), South Dakota ex rel. Barnett v. United States
Dep’t of Interior, 317 F.3d 783, 787–88 (8th Cir. 2003).
Exercising that discretion, the Court will adequately be able to sort out
potential intervenors, allowing some to intervene and requiring that others
participate only as amicus curiae. In fact, in the prior redistricting case,
Arrington v. Elections Board, the court allowed Wisconsin’s Congress Members
and several state representatives to intervene, but required that interest
groups such as the African-American Coalition for Empowerment and the
Wisconsin Builders Association participate only as amicus curiae. (See, e.g.,
Case No. 01-CV-0121, Docket #113, #194). As the Arrington court’s decision
was ultimately successful in allowing interested parties to participate, while
still controlling the tide of potential intervenors, the Court will follow that
example.
Embarking on a similar course, the Court exercises its discretion and
will grant the intervenors’ motions to intervene permissively. Because the
Court has already issued a scheduling order setting this case for trial, it

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expects the intervenors (and any future intervening parties) to comply with
that order (Docket #35).
Accordingly,
IT IS ORDERED that the intervenor-defendants’ motion to intervene
(Docket #32) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the intervenor-plaintiffs’ motion to
intervene (Docket #44) be and the same is hereby GRANTED.
Dated at Milwaukee, Wisconsin, this 21st day of November, 2011.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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