A firm team representing Planned Parenthood of Wisconsin achieved an important victory in the Seventh Circuit when the court unanimously affirmed a district court ruling that declined to permit Wisconsin’s Legislature to intervene as a party in the firm’s ongoing challenge to certain abortion access restrictions in that state.
Wisconsin’s Attorney General Joshua Kaul, a Democrat, is defending the statutes and regulations and has denied that the statutes and regulation are unconstitutional. However, during the December 2018 lame-duck session, the Wisconsin Legislature passed a statute purporting to give it the power to intervene in state and federal court in any lawsuit challenging the constitutionality of a Wisconsin statute. Arguing that Mr. Kaul was unlikely to defend the statutes as vigorously as he could, and arguing that the state statute gave it the right to intervene, the Legislature moved to intervene as a party under Federal Rule of Civil Procedure 24 as of right or, alternatively, with the court’s permission.
The district court denied the Legislature’s request to intervene, holding that the Legislature had not shown that it had a unique interest in the lawsuit beyond its interest in defending the law, which was already being adequately protected by the attorney general’s defense of the statute. The district court also held that permitting the Legislature to intervene as a duplicative party to also defend the law would complicate the litigation. The court did invite the Legislature to participate as an amicus.
The Legislature took an interlocutory appeal of the district court’s ruling. The team representing Planned Parenthood of Wisconsin, pro bono, included Partners Alison I. Stein and Susan J. Kohlmann, with Associates Jessica Martinez, Danielle Muniz and Nicole Taykhman.
The team drafted a compelling brief that dealt with complicated issues of first impression concerning the interplay of Wisconsin’s state statute, Rule 24, and the Seventh Circuit’s interpretation of that rule. Associate Andrew C. Noll argued the appeal. Paralegals Esmeralda Bako and Mary Patston provided invaluable assistance.
On November 7, 2019, the Seventh Circuit affirmed the district court in all respects, adopting the team’s arguments that the circuit’s existing precedent applied to the question of whether a second state entity could intervene in an ongoing lawsuit where the attorney general was already participating. The circuit held that the Legislature had not shown it could intervene as of right or that the district court abused its discretion in denying intervention.
The case, Planned Parenthood of Wisconsin v. Kaul, now returns to the district court, where litigation remains ongoing.