Coalition to Defend v. Granholm ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0362p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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COALITION TO DEFEND AFFIRMATIVE ACTION;
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COALITION TO DEFEND AFFIRMATIVE ACTION,
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Integration and Immigrant Rights and Fight For
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Nos. 06-2653/2656
Equality By Any Means Necessary (BAMN), et al.,
,
Plaintiffs - Appellees, >
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v.
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Defendants - Appellees, -
JENNIFER GRANHOLM, et al.,
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MICHIGAN CIVIL RIGHTS INITIATIVE COMMITTEE; -
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AMERICAN CIVIL RIGHTS FOUNDATION; TOWARD A
Proposed Intervenors - Appellants. -
FAIR MICHIGAN,
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N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-15024—David M. Lawson, District Judge.
Submitted: August 14, 2007
Decided and Filed: September 6, 2007
Before: KENNEDY, MARTIN, and COLE, Circuit Judges.
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COUNSEL
ON BRIEF: Sharon L. Browne, Alan W. Foutz, PACIFIC LEGAL FOUNDATION, Sacramento,
California, Charles J. Cooper, Michael W. Kirk, COOPER & KIRK, Washington, D.C., Kerry L.
Morgan, PENTIUK, COUVREUR & KOBILJAK, Wyandotte, Michigan, Michael E. Rosman,
CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., for Appellants. Philip J. Kessler,
BUTZEL LONG, Detroit, Michigan, Leonard M. Niehoff, BUTSEL LONG, Ann Arbor, Michigan,
George B. Washington, SCHEFF & WASHINGTON, Detroit, Michigan, Michael J. Steinberg,
AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, James E.
Long, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellees.
COLE, J., delivered the opinion of the court, in which MARTIN, J., joined. KENNEDY,
J. (pp. 10-13), delivered a separate opinion concurring in part and dissenting in part.
1
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et al. v. Granholm, et al.
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OPINION
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R. GUY COLE, JR., Circuit Judge. Before us are two appeals challenging a district court’s
order denying intervention under Federal Rule of Civil Procedure 24(a) and (b) to (1) the Michigan
Civil Rights Initiative committee (the “MCRI”), (2) the American Civil Rights Foundation (the1
“ACRF”), and (3) Toward a Fair Michigan’s (“TAFM,” collectively, the “proposed intervenors”).
Each wishes to intervene in an action brought against (1) Jennifer Granholm, the Governor of
Michigan, and (2) the Regents of the University of Michigan, the Board of Trustees of Michigan
State University, and the Board of Governors of Wayne State University (collectively, the
“Universities”), seeking to invalidate and permanently enjoin from enforcement a recently enacted
amendment to Michigan’s constitution that outlaws, among other things, sex- and race-based
preferences in public education, public employment, and public contracting. Mich. Const., art. 1,
§ 26. The amendment was the result of the Michigan voters’ approval, in November 2006, of
Proposal 06-2 (“Proposal 2”), a statewide ballot initiative. For the following reasons, we AFFIRM
the district court’s denial of intervention to the proposed intervenors.
I. BACKGROUND
From approximately July 2004 through December 2004, the MCRI, with the assistance of
paid agents, solicited signatures in support of placing a statewide ballot initiative, which would later
become Proposal 2, on Michigan’s November 2006 general election ballot. Operation King’s Dream
v. Connerly, ___ F.3d ____, 2007 WL 2416815, at *1 (6th Cir. 2007). Proposal 2 has been
characterized as “anti-affirmative action,” Operation King’s Dream v. Connerly, ___ F. Supp. ____,
2006 WL 2514115, at *1 (E.D. Mich. 2006), because, if approved, it would amend Michigan’s
constitution to prohibit the state from granting “preferential treatment to, any individual or group
on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment,
public education, or public contracting.” Mich. Const., art. 1, § 26; see also, e.g., Operation King’s
Dream, 2006 WL 2514115, at *2–3. Indeed, Proposal 2’s path to the ballot was not without
controversy. Operation King’s Dream, 2007 WL 2416815, at *6 (“By all accounts, Proposal
2 found its way on the ballot through methods that undermine the integrity and
fairness of our democratic processes.”). Nonetheless, on November 7, 2006, Michigan
voters approved Proposal 2, with approximately 57.9% of voters favoring it. See State
Proposal - 06-2: Constitutional Amendment: Ban Affirmative Action Programs, at
http://miboecfr.nictusa.com/election/results/06GEN/90000002.html (last visited Aug. 11, 2007).
After its approval, Proposal 2 was scheduled to go into effect on December 23, 2006. See Mich.
Const. art. 12, § 2.
The day after the election, however, on November 8, the Coalition to Defend Affirmative
Action, Integration and Immigrant Rights, and Fight for Equality By Any Means Necessary, along
with other organizations and individuals (collectively, the “Plaintiffs”), filed suit in the Eastern
District of Michigan against Governor Granholm and the Universities, seeking a declaratory
judgment that the amendment was invalid and a permanent injunction against its enforcement. “In
their amended complaint, [P]laintiffs contended that Proposal 2 violates two federal constitutional
provisions (the First and Fourteenth Amendments), three federal civil rights statutes (Title VI, Title
1
The district court similarly denied the City of Lansing’s attempt to intervene, and the City of Lansing also
appealed. The City of Lansing, however, has since voluntarily dismissed its appeal. See Coalition to Defend Affirmative
Action v. Granholm, No. 06-2658 (6th Cir. Aug. 8, 2007) (order).
Nos. 06-2653/2656 Coalition to Defend Affirmative Action, Page 3
et al. v. Granholm, et al.
VII[,] and Title IX)[,] and one presidential order (Executive Order 11246).” Coal. to Defend
Affirmative Action v. Granholm, 473 F.3d 237, 241 (6th Cir. 2006). And on December 11, the
Universities filed a cross-claim against Governor Granholm, seeking a preliminary injunction
permitting them to continue using their existing admissions and financial-aid policies through the
end of the 2007 admissions cycle.
On December 14, three days after the Universities filed their cross-claim, the Michigan
Attorney General, Michael Cox, moved to intervene in the lawsuit. That same day, the MCRI and
the ACRF jointly moved to intervene as well. The district court ruled on only the Attorney General’s
motion, granting it that day.
On December 18, TAFM and Eric Russell, a white applicant to the University of Michigan
Law School, jointly moved to intervene in the lawsuit. That same day, before the district court issued
its ruling on the four pending intervention motions (the MCRI’s, the ACRF’s, TAFM’s, and Eric
Russell’s), the Plaintiffs in the underlying suit and the three sets of parties to the cross-claim filed
a stipulation with the district court, which read in relevant part:
It is hereby stipulated, by and between the parties that this Court may
order as follows:
(1) that the application of Const[.] 1963, art[.][1], § 26
to the current admissions and financial aid policies of
the University parties is enjoined through the end of
the current admissions and financial aid cycles and no
later than 12:01 a.m. on July 1, 2007, at which time
this Stipulated Injunction will expire;
(2) that, pursuant to Fed.R.Civ.P. 41(a)(1) and 41(c),
the Universities’ cross-claim shall be and hereby is
dismissed in its entirety, with prejudice only as to the
specific injunctive relief requested in the cross-claim
[.] . . .
Coal. to Defend Affirmative Action, 473 F.3d at 242. On December 19, the district court entered a
preliminary injunction, consistent with the parties’ stipulation, enjoining the application of Proposal
2 to the Universities’ admissions and financial-aid policies until July 1, 2007, and dismissed the
Universities’ cross-claim. Coal. to Defend Affirmative Action v. Granholm, No. 2:06-cv-15024-
DML-RSW, slip op. at 3 (E.D. Mich. Dec. 19, 2006) (order).
Having received no response to their motions to intervene, on December 21, Eric Russell and
TAFM filed a notice of appeal in this Court, and, the day after that, “they filed in this [C]ourt an
‘Emergency Motion for a Stay Pending Appeal’ of the district court’s preliminary injunction and
a Petition for a Writ of Mandamus directing the district court to grant their motion to intervene and
to vacate its preliminary injunction.” Coal. to Defend Affirmative Action, 473 F.3d at 242.
On December 27, 2006, the district court granted Eric Russell’s motion to intervene but
denied the MCRI’s, the ACRF’s, and TAFM’s motions both as of right and by permission. Coal.
to Defend Affirmative Action v. Granholm, No. 2:06-cv-15024-DML-RSW (E.D. Mich. Dec. 27,
2006) (order). The next day, Eric Russell amended his “Emergency Motion for a Stay Pending
Appeal,” and the MCRI, the ACRF, and TAFM all appealed the denials of their motions to
intervene.
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et al. v. Granholm, et al.
On December 29, 2006, based on Eric Russell’s “Emergency Motion for a Stay Pending
Appeal,” a panel of this Court stayed the district court’s preliminary injunction pending appeal,
allowing article I, section 26 of the Michigan Constitution to take immediate effect. Coal. to Defend
Affirmative Action, 473 F.3d at 253. The merits appeal of the district court’s preliminary injunction
is still pending before this Court.
II. ANALYSIS
“This is but one piece of litigation spurred by the Proposal 2 saga.” Operation King’s Dream,
2007 WL 2416815, at *1. Today, we address only the appeals of the district court’s order denying
intervention as of right and by permission to the MCRI, the ACRF, and TAFM. As discussed more
fully below, because none of the proposed intervenors have a substantial legal interest in the subject
matter of the case, the district court properly denied their motions for intervention as of right.
Further, the district court acted within its discretion when it denied them permissive intervention.
Fed. R. Civ. P. 24(b).
A. Intervention as of Right
Rule 24(a) of the Federal Rules of Civil Procedure entitles certain parties to intervene in a
lawsuit as of right:
Upon timely application anyone shall be permitted to intervene in an
action . . . when the applicant claims an interest relating to the
property or transaction which is the subject of the action and the
applicant is so situated that the disposition of the action may as a
practical matter impair or impede the applicant’s ability to protect
that interest, unless the applicant’s interest is adequately represented
by existing parties.
Fed. R. Civ. P. 24(a). We have explained that a proposed intervenor must establish four factors
before being entitled to intervene: (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. Grutter v. Bollinger,
188 F.3d 394, 397–98 (6th Cir. 1999). Acknowledging that Rule 24 should be “broadly construed
in favor of potential intervenors,” Purnell v. City of Akron, 925 F.2d 941, 950 (6th Cir. 1991), the
district court nevertheless held that none of the proposed intervenors met any of the four factors.
“We review de novo motions to intervene as of right, except for the timeliness element,
which is reviewed for an abuse of discretion.” Northland Family Planning Clinic, Inc. v. Cox, 487
F.3d 323, 244 (6th Cir. 2007) (citing Grutter, 188 F.3d at 98). A district court abuses its discretion
only when we are “left with the definite and firm conviction that the court below committed a clear
error of judgment in the conclusion it reached upon a weighing of the relevant factors or where the
trial court improperly applies the law or uses an erroneous legal standard.” Paschal v. Flagstar
Bank, 295 F.3d 565, 576 (6th Cir. 2002) (citations, alterations, and internal quotation marks
omitted).
We begin by addressing whether the proposed intervenors have a substantial legal interest
in the litigation. Because we conclude that none do, we need not address the remaining factors. See,
e.g., Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989) (“[A] failure to meet [any] one of the [four
factors] will require that the motion be denied.”).
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et al. v. Granholm, et al.
1. Substantial Legal Interest
“The proposed intervenors must show that they have a substantial interest in the subject
matter of this litigation.” Grutter, 188 F.3d at 398 (citing Jansen v. City of Cincinnati, 904 F.2d 336,
341 (6th Cir. 1990)). Although we have noted that this Circuit “has opted for a rather expansive
notion of the interest sufficient to invoke intervention of right,” Michigan State AFL-CIO v. Miller,
103 F.3d 1240, 1245 (6th Cir. 1997), this does not mean that any articulated interest will do. See,
e.g., Northland Family Planning, 487 F.3d at 244; accord Stupak-Thrall v. Glickman, 226 F.3d 467,
472 (6th Cir. 2000) (“[T]his does not mean that Rule 24 poses no barrier to intervention at all.”). Of
course, establishing a substantial legal interest “is necessarily fact-specific.” Miller, 103 F.3d at
1245.
a. The MCRI and the ACRF
According to the MCRI and the ACRF, “they were at the forefront of the protracted
campaign to adopt Proposal 2 and are committed to ensuring its constitutionality and timely
implementation.” The MCRI, headed by Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger, 539
U.S. 244 (2003), is registered with the Michigan Secretary of State as the official ballot-question
committee for Proposal 2, and was, by all accounts, the driving force behind the controversial
solicitation of signatures necessary to place Proposal 2 on the ballot. See Operation King’s Dream,
2007 WL 2416815, at *2. The ACRF is a public-interest corporation dedicated to eradicating sex
and race preferences throughout the United States. Ward Connerly, an ACRF board member, was
instrumental in the passage of Proposition 209 in California, which similarly banned “preferential
treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in
the operation of public employment, public education, or public contracting.” Coal. for Economic
Equity v. Wilson, 122 F.3d 692, 696 (9th Cir. 1997) (quoting Cal. Const. art 1, § 31(a)). Indeed, by
design, Proposal 2 tracks the language of Proposition 209. The MCRI and the ACRF worked
together, expending labor and funds, to see that Proposal 2 found its way on Michigan’s November
2006 general election ballot and to see that the Michigan voters approved Proposal 2. The district
court recognized that “[i]t would not be unreasonable to posit that [Proposal 2] would not have
reached the ballot without their efforts.” Coal. to Defend Affirmative Action, slip op. at 11.
Both the MCRI and the ACRF argue that as groups substantially involved in the process
leading to the adoption of the challenged amendment, they have a legal interest in the subject matter
of this lawsuit. They rely primarily on our decisions in Grutter and Miller, as well as several Ninth
Circuit decisions that we have cited favorably. See Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d
1392, 1397-98 (9th Cir. 1995); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 526-28 (9th Cir.
1983); State of Idaho v. Freeman, 625 F.2d 886 (9th Cir. 1980). We, however, conclude that our
precedent requires a contrary conclusion. Since the district court denied the proposed intervenors
motions back in December, we decided Northland Family Planning, which is directly on point and
controls our disposition.
In Northland Family Planning, six health-care facilities and four physicians filed suit against
various Michigan officials, seeking to invalidate and enjoin the enforcement of the Legal Birth
Definition Act, which “prohibit[ed] the practice colloquially referred to as partial-birth abortions.”
487 F.3d at 327–28. Like Proposal 2, the Legal Birth Definition Act became law after a successful
proposal by a citizen initiative petition. Id. at 327. Prior to the district court holding the Act
unconstitutional (which we affirmed), a group called “Stand Together to Oppose Partial-Birth-
Abortion” (“STTOP”) moved to intervene in the litigation under Federal Rule of Civil Procedure
24(a) and (b). Id. at 328. Similar to the MCRI and the ACRF, “STTOP is a ballot-question
committee, which was formed to promote the passage and continued viability of the Legal Birth
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et al. v. Granholm, et al.
Definition Act.” Id. at 328, 344. The district court denied STTOP’s motion to intervene, and we
affirmed. Id. at 343–46.
In affirming the denial of STTOP’s motion to intervene, we held that an organization
involved in the process leading to the adoption of a challenged law, does not have a substantial legal
interest in the subject matter of a lawsuit challenging the legality of that already-enacted law, unless
the challenged law regulates the organization or its members. Id. In so holding, we drew a distinction
between cases involving challenges “to the procedure required to pass a particular rule, as opposed
to the government’s subsequent enforcement of the rule after its enactment.” Id. at 345 (second
emphasis added). In drawing this distinction, we explained that “the public at large—including
public interest groups—has an interest in the procedure by which a given legal requirement is
enacted as a matter of democratic legislative process.” Id. “On the other hand,” we further explained,
“in a challenge to the constitutionality of an already-enacted statute, as opposed to the process by
which it is enacted, the public interest in its enforceability is entrusted for the most part to the
government, and the public’s legal interest in the legislative process becomes less relevant.” Id.;
accord Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309, 316 (6th Cir. 2005)
(affirming the denial of a motion to intervene as of right by a committee that existed to support the
passage of a local referendum to amend a zoning ordinance). Thus, had STTOP sought to intervene
in a suit challenging the legislative process by which the statute was enacted, then it likely would
have had a substantial legal interest in the lawsuit due to its involvement in the passage of the
statute. Northland Family Planning, 487 F.3d at 345–46. But, after that statute’s enactment,
STTOP’s interest in a suit challenging the enforcement of the statute became insubstantial “due to
the state’s responsibilities in enforcing and defending it as it is written.” Id. at 346.
Like STTOP’s relationship to the Legal Birth Definition Act, the MCRI was created and
continues to exist for the purpose of passing and upholding Proposal 2. See id. at 345. The ACRF’s
goals are, of course, more national, but for the purposes of this case, its relationship to Proposal 2
and interest in the underlying litigation is identical to the MCRI’s. That is, like STTOP, their “legal
interest can be said to be limited to the passage of [Proposal 2] rather than the state’s subsequent
implementation and enforcement of it.” Id. No doubt, each group was instrumental in Proposal 2’s
path to the ballot and ultimate approval. Their interest in seeing Proposal 2 enforced, however, “is
greatly diminished due to the state’s responsibilities in enforcing and defending [Proposal 2] as
written.” Id. at 346. Therefore, Northland Family Planning compels us to hold that the MCRI’s and
the ACRF’s status as organizations involved in the process leading to the adoption of Proposal 2 is
insufficient to provide them with a substantial legal interest in a lawsuit challenging the validity of
those portions of Michigan’s constitution amended by Proposal 2.
This is not to say that all organizations that advocate for the passage of a law lack a
substantial legal interest in a suit challenging the government’s subsequent enforcement of that law.
Indeed, we have held that where a group is “regulated by the new law, or, similarly, whose members
are affected by the law, may likely have an ongoing legal interest in its enforcement after it is
enacted.” Id. at 345; accord, e.g., Grutter, 188 F.3d at 401 (holding that proposed intervenors, who
were applicants to the University of Michigan, had a substantial legal interest in the school’s
admissions process); Miller, 103 F.3d at 1247 (holding that the Michigan Chamber of Commerce
had a substantial legal interest where it was regulated by at least three of the four statutory
provisions challenged by plaintiffs). Where, however, an organization has only a general ideological
interest in the lawsuit—like seeing that the government zealously enforces some piece of legislation
that the organization supports—and the lawsuit does not involve the regulation of the organization’s
conduct, without more, such an organization’s interest in the lawsuit cannot be deemed substantial.
See Northland Family Planning, 487 F.3d at 346 (explaining that an organization’s interest
pertaining only to enforceability of a statute in general is not cognizable as a substantial legal
interest without the statute also regulating the organization or its members).
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et al. v. Granholm, et al.
Here, the MCRI and the ACRF have only a general ideological interest in seeing that
Michigan enforces Proposal 2. Each group asserts that its mission to enforce civil-rights laws at all
levels of government will be impeded if not granted intervention. To be sure, neither the MCRI nor
the ACRF maintains that it or its members are specifically regulated by those portions of Michigan’s
constitution amended by Proposal 2. The most they claim is that Proposal 2 naturally affects them
because each group has at least a few members that are Michigan residents. This, however, amounts
to only a generic interest shared by the entire Michigan citizenry. An “interest so generalized will
not support a claim for intervention as of right.” Miller, 103 F.3d at 1246 (quoting and citing with
approval Athens Lumber Co. v. Federal Election Comm'n, 690 F.2d 1364 (11th Cir.1982)). Thus,
the MCRI’s and the ACRF’s cognizable legal interests extend only to suits challenging the
legislative process by which Proposal 2 was approved. At this point, the MCRI’s and the ACRF’s
interest in the underlying litigation “simply pertains to the enforceability of [Proposal 2] in general,
which we do not believe to be cognizable as a substantial legal interest sufficient to require
intervention as of right.”2 Northland Family Planning, 487 F.3d at 346. As we aptly explained in
Northland Family Planning, “[w]ithout these sorts of limitations of the legal interest required for
intervention, Rule 24 would be abused as a mechanism for the over-politicization of the judicial
process.” Id.
The MCRI and the ACRF point out, however, that in Grutter we reversed a district court’s
denial of intervention as of right to the Citizens for Affirmative Action’s Preservation (“CAAP”),
“a nonprofit organization whose stated mission was to preserve the opportunities in higher education
for African-American and Latino/a students in Michigan.” 188 F.3d at 397. In Grutter, we held that
CAAP had a substantial legal interest in a lawsuit challenging the constitutionality of the University
of Michigan’s race-conscience admissions policy. Id. at 398–99. The MCRI and the ACRF contend
that CAAP, like them, had only an ideological interest in the lawsuit, and because CAAP was
granted intervention as of right, they should be too.
The MCRI and the ACRF misidentify CAAP’s interest in Grutter. Although CAAP certainly
had a general ideological aversion to the elimination of the University of Michigan’s race-
conscience admissions policy, its members were also directly affected by the challenged policy. At
the time of the litigation, CAAP was a coalition consisting of minority students and civil-rights
groups, among others, premised on preserving affirmative action in higher education. Indeed,
consistent with the makeup of its members, the district court treated CAAP’s interests as identical
to the proposed minority-student intervenors in that lawsuit, who, like Eric Russell, no doubt had
a substantial legal interest in the litigation. See Gratz v. Bollinger, 183 F.R.D. 209, 212 n.4 (E.D.
Mich. 1998), rev’d by Grutter, 188 F.3d 394 (“[I]t would appear that the proposed student
intervenors and [CAAP] share the same interest in the preservation of race as a factor in determining
admissions. . . . [T]he Court will discuss the interests of both groups together.” (internal citation and
quotation marks omitted)). Moreover, CAAP was clear in its intervention motion that its members
would be directly affected by the outcome of the litigation. See id. (“CAAP asserts that its
membership consists of individuals, some of whom are parents or grandparents of prospective
African-American and Latino students in the State of Michigan.”). Consistent with this, in Grutter,
we held that CAAP, by virtue of its minority members, “enunciated a specific interest in the subject
2
The dissent attempts to differentiate a citizen-initiated legislative enactment from a citizen-initiated
amendment to a state’s constitution, arguing that a public interest group may have a substantial legal interest in the
latter’s enforcement. Dissent Op. at 3–4. We are not persuaded by this razor-thin distinction. Regardless how a law came
into being, the government is, for the most part, entrusted with enforcing it. Thus, as we stated in Northland Family
Planning, the public’s legal interest does not extend to suits challenging the enforceability of an already-enacted law.
487 F.3d at 345. So, where, as here, a public interest group has only an ideological stake in the litigation, it too cannot
be said to have a substantial legal interest in the law’s enforcement.
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et al. v. Granholm, et al.
matter of th[e] case, namely [its] interest in gaining admission to the University of Michigan . . . .”
188 F.3d at 399. Here, the MCRI and the ACRF have made no such specific “enunciation.”
Thus, we hold that the MCRI and the ACRF lack a substantial legal interest in the outcome
of this case and affirm the district court’s denial of their joint motion to intervene as of right.
Accordingly, as mentioned, we need not address the remaining intervention-as-of-right elements.
b. TAFM
TAFM’s contention that it is entitled to intervene as of right is even less compelling. We
have little trouble concluding that TAFM is without a substantial legal interest in the outcome of this
case. TAFM took no position in favor or against Proposal 2 before, during, or after the November
2006 election, and instead sought only to “promote an educated decision on the question by
Michigan citizens through civil and informed discourse.” By all accounts, neither TAFM nor its
members are regulated by the challenged constitutional amendment. At best, TAFM has only an
ideological interest in seeing that Proposal 2 is enforced. As discussed above, consistent with our
holding in Northland Family Planning, this alone does not constitute a substantial legal interest. See
487 F.3d at 346. Therefore, the district court also properly denied TAFM’s motion to intervene as
of right.
B. Permissive Intervention
Under Rule 24(b) of the Federal Rules of Civil Procedure, a district court may grant
intervention to certain interested parties:
Upon timely application anyone may be permitted to intervene in an
action . . . when an applicant’s claim or defense and the main action
have a question of law or fact in common. . . . In exercising its
discretion the court shall consider whether the intervention will
unduly delay or prejudice the adjudication of the rights of the original
parties.
Fed. R. Civ. P. 24(b). “The denial of permissive intervention should be reversed only for clear abuse
of discretion by the trial judge.” Purnell, 925 F.2d at 951 (citing Meyer Goldberg, Inc. v. Fisher
Foods, Inc., 823 F.2d 159, 161 (6th Cir.1987)).
In denying the proposed intervenors permissive intervention, the district court explained that,
“in cases of this importance, [the district courts] are mere way stations on the judicial road to
resolution by courts beyond,” and that granting intervention to the proposed intervenors “will
inhibit, not promote, a prompt resolution . . . .” Coal. to Defend Affirmative Action, slip op. at 16.
The district court expressed further concern that the proposed intervenors 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.” Id. This, coupled with the district court’s
conclusions that the proposed intervenors lacked a substantial legal interest in the lawsuit, and that
the proposed intervenors were adequately represented by existing parties, was a sufficient analysis
of the relevant criteria required by Rule 24(b). We cannot say that we are “left with a definite and
firm conviction,” Paschal, 295 F.3d at 576, that the district court acted outside its discretion when
it denied permissive intervention to the MCRI, the ACRF, and TAFM. Cf. Miller, 103 F.3d at 1248
(“[The district court must] provide enough of an explanation for its decision to enable this court to
conduct meaningful review. It is insufficient merely to quote the rule and to state the result.”).
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et al. v. Granholm, et al.
III. CONCLUSION
For these reasons, we AFFIRM.
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et al. v. Granholm, et al.
________________________________________________
CONCURRING IN PART, DISSENTING IN PART
________________________________________________
KENNEDY, Circuit Judge, concurring in part and dissenting in part. I concur with the
majority’s disposition with regard to appellant TAFM. I cannot, however, agree that Northland
Family Planning Clinic v. Cox, 487 F.3d 323, 346 (6th Cir. 2007), “compels us to hold that the
MCRI’s and the ACRF’s status . . . is insufficient to provide them with a substantial legal interest”
in this case. Maj. Op., ante at 6. The majority relies on that opinion to avoid clear prior holdings
from both our circuit and the Ninth Circuit (whose holdings we had previously adopted). Therefore,
because I conclude that MCRI and ACRF have a substantial legal interest (and easily meet the other
Rule 24(a) factors), I dissent.
I. Substantial Legal Interest
The majority relies almost solely on Northland Family Planning; indeed, it concludes that
case “compels” its holding here. Maj. Op. at 6. Northland Family Planning is distinguishable
because (1) the challenged state law in that case was enacted by the legislature, rather than by the
citizens through constitutional amendment as here, and (2) the groups here have raised reasons why
they cannot rely on the office of the Michigan Attorney General to vigorously advocate the
constitutionality of Proposal 2.
At the outset, however, I would note that the majority can only rely on Northland Family
Planning because that case fundamentally altered the Rule 24(a) landscape. Prior precedent was
consistent in holding that “interest” was to be construed liberally and “close cases should be
resolved in favor of recognizing an interest under Rule 24(a).” Michigan State AFL-CIO v. Miller,
103 F.3d 1240, 1245, 1247 (6th Cir. 1997). While Northland Family Planning carefully
distinguished our and some of the Ninth Circuit’s prior holdings on their facts, it ignored the basis
for those holdings.1
In Miller we cited with approval a Ninth Circuit rule that “a public interest group that is
involved in the process leading to adoption of legislation has a cognizable interest in defending that
legislation.” Id. That rule found its genesis in a case that cannot be distinguished from Northland
Family Planning. In Washington State Bldg. and Const. Trades Council, AFL-CIO v. Spellman, a
voter approved initiative “prohibit[ed] the transportation and storage within [the state] of radioactive
waste produced outside the state.” 684 F.2d 627, 629 (9th Cir. 1982). The legislature of the state
subsequently enacted legislation pursuant to the initiative. In a lawsuit against the state challenging
the constitutionality of the statute, the citizen-group sponsor of the legislation moved to intervene,
but the district court denied its motion. The Ninth Circuit reversed the district court and held that
the appellant, “as the public interest group that sponsored the initiative, was entitled to intervention
as a matter of right under Rule 24(a).” Id. at 630. The public interest group was not regulated by
1
In addition, the intervention discussion may well be dicta. The district court in Northland Family Planning
denied the State of Michigan’s motion to dismiss and ruled that the state statute was unconstitutional. In the same order,
it denied the public interest group’s motion to intervene as a defendant. We affirmed the ruling that the statute was
unconstitutional, granting summary judgment to the plaintiffs. We also noted that, “[t]he finality of the summary
judgment decision clearly has potential to render moot [the group’s] motion to intervene.” 487 F.3d at 344. Nonetheless,
we addressed the question. Because the grant of summary judgment to plaintiffs ended the case on the merits, there was
no need to determine whether the public interest group had the right to intervene. For this reason, future panels may
reject the Rule 24(a) discussion in Northland Family Planning. Indeed, without that foundation, the decided break with
prior precedent may very well convince subsequent panels to conclude that this case too is anomalous, and they need
not follow it when reflecting on the body of Rule 24(a) case law in this circuit.
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the initiative, which the majority concludes is critical here, Maj. Op. ante at 6-7, nor was it involved
in serial litigation concerning the initiative, which Northland Family Planning found was important
in Miller. 487 F.3d at 344-45. Nonetheless, and despite consistent citation with approval to the line
of Ninth Circuit cases beginning with Spellman, a panel of this court reached the opposite
conclusion in Northland Family Planning.
There are good reasons to conclude, however, that the sponsors of a constitutional
amendment, like Proposal 2 in this case, have a greater interest in defending the measure than the
group that sought to intervene in Northland Family Planning.2 There we noted that “in a challenge
to the constitutionality of an already enacted statute . . . the public interest in its enforceability is
entrusted for the most part to the government, and the public’s legal interest in the legislative
process becomes less relevant.” 487 F.3d at 345 (emphasis mine). That insight rests on a simple
presumption: When the government has passed a law, it can be trusted to administer it. When, as
here, however, government did not pass the law, but rather the citizens of the state amended their
constitution in a general election (arguably because their elected officials would not accede to their
will), that presumption does not arise.
The procedural history of this case confirms that the plaintiffs have a basis for their fear that
the office of the Attorney General cannot be relied on to defend “the public interest in [this
amendment’s] enforceability.” Id. As the majority notes, the Attorney General and the Governor
have already compromised with the plaintiffs and the cross-claimants in this case and stipulated to
an injunction that, we have previously found, had no basis in federal law. Maj. Op. ante at 3-4;
Coalition v. Granholm, 473 F.3d 237, 244-247 (6th Cir. 2006). In addition the “government” in this
case is divided; prior to the 2006 general election, the Attorney General publicly supported Proposal
2 and the Governor opposed it. Therefore, while the Attorney General takes the view in his filings
that the amendment does not violate the federal Constitution, the Governor has indicated a
possibility that she might conclude otherwise. Indeed, although she was sued in her official capacity
only, she has requested that the Attorney General put a conflict wall in place in his office to ensure
that her position is represented in federal court without the influence of the Attorney General.
Governor’s Br. at 4-5, No. 06-2656. The Governor and the Attorney General have both filed
answers in the district court and, by all appearances, intend to litigate the matter separately.
Therefore, the State of Michigan (the only appropriate defendant in an action to declare a
measure adopted in a general election unconstitutional) does not appear to be a party in this case.
Instead, Attorney General Cox and Governor Granholm are both either named defendants or, in the
case of Attorney General Cox, an intervening defendant because they have recognized potential for
conflicting views (and thus different litigation strategies) between them. It is also unclear what the
status of Governor Granholm, as a party, actually is. After Attorney General Cox intervened, she
should no longer have been in the case, yet she has continued to file briefs here in support of the
denial of intervention, as well as pleadings and briefs in the court below.
2
An elaboration of the facts of Northland Family Planning and the Michigan initiative and constitutional
amendment procedures is in order: In Michigan, a group can propose laws to the legislature through an initiative.
To invoke the initiative . . . petitions signed by a number of registered electors, not less than eight
percent . . . of the total vote cast for all candidates for governor at the last preceding general election
at which a governor was elected shall be required. . . . Any law proposed by initiative petition shall
be either enacted or rejected by the legislature without change or amendment . . .. If any law so
proposed is not enacted by the legislature within 40 days, [it] shall [be] submit[ted] to the people for
approval or rejection at the next general election.
Mich. Const. Art. II § 9. In Northland Family Planning, the proposed intervenor had proposed the challenged law to
the legislature through an initiative and the legislature had enacted the law. In contrast, in the instant case, a majority
Michigan voters approved an amendment to the Michigan Constitution in a general election pursuant to Mich. Const.
Art. 12 § 2.
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All of this reinforces concern with entrusting the “public interest in enforceability” of a
general election, voter-approved measure to elected officials. As the example of the Governor
proves, there are cases in which the elected officials of a state will disagree with the majority of the
voting population on a particular point of public policy. Therefore, when the voters demonstrate
their preference on that point of public policy through the constitutional amendment process, it
follows that some representative of the voters has a “substantial interest” in defending that position:
I agree with the Ninth Circuit’s conclusion in Spellman that the sponsor of the measure should be
that representative.
The point, therefore, is simply that measures approved by the voting public in a general
election are different from legislative acts. This point does not depend on the policy preferences of
particular elected officials. Rather, the possibility of conflict creates a substantial interest. It does
not matter in the substantial interest inquiry that the Attorney General supported Proposal 2 before
the election. That fact will be weighed in consideration of the last factor, namely whether a party
already in the case will sufficiently represent the position of the proposed intervenor. I turn to that
factor, as well as the other remaining ones, presently.
II. Remaining factors
Because it concludes that MCRI and ACRF do not have a substantial legal interest in this
case, the majority does not address the remaining factors. I would find, however, that (1) the district
court abused its discretion when it determined that the motion to intervene was not timely, (2) the
ability of MCRI and ACRF to protect its substantial legal interest may be impaired in the absence
of intervention, and (3) that the Attorney General, as well as the other parties in the case, might not
adequately represent that interest.
First, the parties’ motion to intervene was timely. While it is true that appellants must have
known about the litigation shortly after it was filed, it is equally clear that the litigation had not
progressed by the time they moved to intervene. “The absolute measure of time between the filing
of the complaint and the motion to intervene is one of the least important . . . circumstances” to
consider. Stupak-Thrall v. Glickman, 226 F.3d 467, 475 (6th Cir. 2000). The Attorney General
stated in his motion to intervene, filed the very same day as appellants’ and found to be timely, that
“intervention will in no way unduly delay or prejudice the adjudication of the rights of the original
parties since this suit is in its initial phase.” Attorney General’s Mot. Interv. ¶ 17. Appellants waited
only a week after service on the Governor and only one day after notice of that service was filed in
the district court before filing their motion. No discovery had occurred and no orders had issued.
None of the traditional hallmarks of a progressing litigation yet existed.
Second, to dispose of the present case without allowing the intervention of the MCRI and
ACRF would compromise their ability to protect their interests, as an adverse ruling would threaten
the viability of the constitutional amendment that these groups supported. To satisfy this element,
“a would-be intervenor must show only that impairment of its substantial legal interest is possible
if intervention is denied[,]” a “burden [that] is minimal.” Miller, 103 F.3d at 1247 (citing Purnell
v. City of Akron, 925 F.2d 941, 948 (6th Cir. 1991)) (emphasis mine). As such, the appellants’
showing that an adverse determination in this case has the potential to hinder their ability to protect
their interest in eliminating race-based preferences is sufficient to support intervention.
Third, the Attorney General might not adequately represent the appellants’ interest in this
matter. The threshold for this requirement is again low; appellants need not show that representation
won’t be inadequate, only that the potential exists that the Attorney General will not make all of
their arguments. Grutter v. Bollinger, 188 F.3d 394, 400 (6th Cir. 1999); Sagebrush Rebellion, Inc.
v. Watt, 713 F.2d 525, 528 (9th Cir. 1983). The procedural history of this case indicates that this
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potentiality exists. While the opponents of the motion have argued that the stipulated injunction was
merely a litigation strategy rather than a different theory of the case, the fact that this court
overturned the stipulated injunction on appeal indicates that a more zealous litigation approach could
significantly alter the enforcement and ultimately the interpretation of this constitutional
amendment. In addition, the conflict wall set up across the Attorney General’s office at the request
of the Governor further indicates that different interpretations of this provision and its interaction
with federal constitutional and statutory law are possible; the appellants’ interpretation could be
more expansive than that of the existing parties.
* * *
In order to ensure vigorous advocacy so that we do not intrude on states’ interests in the
constitutionality of their own laws, I would hold that sponsors of voter initiatives may intervene as
of right to defend the measures they sponsored. Therefore, I would reverse the district court with
regard to appellants MCRI and ACRF and remand with instructions to allow those parties to
intervene pursuant to Rule 24(a).