When Does Government “Fairly Represent” Public Interest Groups’ Views, Thus Barring Them from Intervening?
As I like to say, the lawyer’s true superpower is to turn every question into a question about procedure. But there’s a good reason for that: Sound procedural rules are critical to a just and efficient decision on the substance. (Unsound procedural rules, of course, are also important, though in a bad way.)
One particularly important procedural rule has to do with when parties, including public interest groups, can intervene in a case—and, in particular, when they can intervene when a government party is saying “no need, we’ve got this” and the groups are saying “no you don’t.” This has come up most recently with the Foundation for Individual Rights in Education’s attempt to make important constitutional arguments in a Title IX case, but the issue comes up more broadly. Here’s how FIRE puts it in its cert. petition in FIRE v. Victim Rights Law Center, which the Court is scheduled to consider Friday:
Under Federal Rule of Civil Procedure 24(a)(2), an entity that seeks to intervene as of right must establish that none of the existing parties “adequately represent” its interests. In cases in which someone seeks to intervene on the side of a governmental entity, the First Circuit and several other courts of appeals apply a presumption that the government will adequately represent the proposed intervenor. The presumption can only be overcome by “a strong affirmative showing” that the government “is not fairly representing the applicants’ interests.”
In contrast, four Circuits do not apply a presumption in such cases. See, e.g., Crossroads Grassroots Pol’y Strategies v. FEC, 788 F.3d 312, 321 (D.C. Cir. 2015). Relying heavily on the presumption in the proceedings below, the First Circuit ruled that Petitioners could not intervene as of right to advance constitutional arguments in support of an important Department of Education rule on Title IX that none of the existing parties are willing to make.
The question presented is whether a movant who seeks to intervene as of right on the same side as a governmental litigant must overcome a presumption of adequate representation.…
The [First Circuit’s] presumption conflicts with Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972), which held that a movant who sought to intervene on the same side as a governmental litigant had only a “minimal burden” to establish inadequacy of representation. The presumption likewise lacks support in the text of Rule 24(a)(2), which employs conditional language suggesting that, where a movant is otherwise qualified to intervene, the question whether another party’s representation is “adequate” should rarely tip the scales against intervention.
Finally, the presumption obscures the frequent disconnect between the broad public interests represented by a government agency in litigation defending a law or legislative rule and the narrower interests represented by private litigants who would be adversely affected by invalidating that law or rule. As a result of the presumption, parties who otherwise qualify to intervene are left out of cases that threaten to impair or impede their interests—
Article from Latest – Reason.com