Opinion
Civil Action No. H-03-3411.
January 12, 2004
MEMORANDUM AND ORDER
Plaintiff Kay Staley brought this action against Harris County, Texas. pending before the court is Karen Friend, [and] William and Lisa Drout's Motion for Leave of Court to File an Intervention (Docket Entry No. 6). For the reasons set forth below, the motion will be denied.
I. Procedural History
On August 25, 2003, Staley initiated this action against Harris County, Texas, pursuant to 42 U.S.C. § 1983, alleging that Harris County's display of a King James version of the Bible in front of the Harris County Civil Courthouse violates the Constitution's First Amendment, which states that Congress shall make no law respecting an establishment of religion. On September 18, 2003, Staley amended her complaint, alleging that Harris County had acted under color of law to deprive her of constitutional rights guaranteed by the First and Fourteenth Amendments thereby violating 42 U.S.C. § 1983.
The display is reputedly part of a memorial to a philanthropist, William S. Mosher. See Motion for Leave of Court to File an Intervention, Docket Entry No. 6 at ¶¶ 6-7.
Plaintiff's Original Complaint, Docket Entry No. 1 at ¶ 13.
Plaintiff's First Amended Complaint, Docket Entry No. 4 at ¶¶ 18-21.
On September 29, 2003, Karen Friend and William and Lisa Drout, the applicants for intervention (collectively, the "Applicants") filed the pending Motion for Leave of Court to File an Intervention ("Motion for Leave," Docket Entry No. 6). On October 6, 2003, Staley filed Plaintiff's Answer to First Baptist Church Intervenors' Motion ("Plaintiff's Answer," Docket Entry No. 7), followed on October 10, 2003, by Supplements and Amendment to Paragraph 3 of Plaintiff's Answer to First Baptist Church Intervenors' Motion (Docket Entry No. 9). On November 3, 2003, the Applicants filed a Supplement to Motion for Intervention and Reply to Plaintiff's Opposition to Motion to Intervene ("Reply," Docket Entry No. 12).
II. Standard of Review
Federal Rule of Civil Procedure 24 authorizes two types of intervention: mandatory intervention (or "intervention of right") and permissive intervention. FED. R. CIV. P. 24(a) (b).
Mandatory intervention is permitted
(1) when a statute of the United States confers an unconditional right to intervene; or
(2) 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). The Applicants have not alleged that a federal statute confers on them an unconditional right to intervene in this action; therefore, Rule 24(a) (1) does not apply. To intervene as of right pursuant to Rule 24(a)(2), an applicant must satisfy the following four requirements:
(1) the application for intervention must be timely;
(2) the applicant must have an interest relating to the property or transaction that is the subject of the action;
(3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair its ability to protect that interest; and
(4) the applicant's interest must be inadequately represented by the existing parties to the suit.Ford v. City of Huntsville, 242 F.3d 235, 239 (5th Cir. 2001) (citing Taylor Communications Group, Inc. v. Southwestern Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999)).
Failure to satisfy any of these requirements precludes mandatory intervention. Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 1996) (en banc) (citing Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)); Kneeland v. Nat'l Collegiate Athletic Ass'n, 806 F.2d 1285, 1287 (5th Cir.),cert. denied, 108 S.Ct. 72 (1987). The inquiry under subdivision (a) (2) is a flexible one, "which focuses on the particular facts and circumstances surrounding each application . . . [and] must be measured by a practical rather than technical yardstick." United States v. Texas E. Transmission Corp., 923 F.2d 410, 413 (5th Cir. 1991) (concluding that, practically speaking, the disposition of the action in question was not likely to impair the interests articulated by the prospective intervenor).
Alternatively, upon timely application, a party may be entitled to permissive intervention
(1) when a statute of the United States confers a conditional right to intervene; or
(2) when an applicant's claim or defense and the main action have a question of law or fact in common.
FED. R. CIV. P. 24(b). Permissive intervention "is wholly discretionary with the [district] court . . . even though there is a common question of law or fact, or the requirements of Rule 24(b) are otherwise satisfied." New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 471 (5th Cir.) (en banc), cert. denied sub nom., Morial v. United Gas Line Co., 105 S.Ct. 434 (1984). After making the threshold determination that the proposed intervenor raises a common "question of law or fact," and before exercising its discretion, the court should consider two factors:
(1) whether other parties adequately represent the intervenors' interests; and
(2) whether intervention will unduly delay the proceedings or prejudice existing parties.Kneeland, 806 F.2d at 1289.
III. Motion for Leave to File an Intervention
A. The Applicants' Arguments
The Applicants argue that they are entitled to mandatory intervention pursuant to Rule 24(a) (2) or, alternatively, that the court should allow permissive intervention pursuant to Rule 24(b)(2).
Motion for Leave, Docket Entry No. 6 at unnumbered p. 14.
1. Mandatory Intervention
The Applicants claim that they have a strong, legally cognizable interest in this action, which they identify as "the continuation of the Mosher Monument in which [they] fought to renovate and to maintain." They argue that, in the context of intervention, the interest in question need not be a "specific legal or equitable interest."
Id. at unnumbered p. 9.
Id., relying on Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir. 1999).
The Applicants also argue that their interest could be impaired by a decision adverse to the defendant in this action. The Applicants contend that "if the Plaintiff prevails in this litigation the Mosher Monument will be altogether removed or perhaps even destroyed." The Applicants argue by analogy to Grutter, 188 F.3d at 400, where the Sixth Circuit held that because minority students' admission to the University of Michigan would most likely be impaired if the University were precluded from considering race in its admissions decision, the prospective intervenors, themselves minority students, had a right to intervene.
Id. at unnumbered p. 10.
Id. at unnumbered p. 11.
Id.
Finally, the Applicants ask for the "opportunity to advance arguments that perhaps the County would be uncomfortable making in defense of the lawsuit." The Applicants claim that because Harris County must fulfill its obligations in a neutral manner, the County may not adequately represent their interests "as Christians who support the Bible." The Applicants wish "to convince the court that the Biblical display is private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." The Applicants also suggest that no presumption that a government defendant will adequately represent the interest of a proposed intervenor operates here because the intervenors' interests do not coincide with the public interest.
Id. at unnumbered p. 6, ¶ 33.
Id.
Reply, Docket Entry No. 12 at p. 10.
Motion for Leave, Docket Entry No. 6 at unnumbered p. 13,quoting Chiglo v. City of Preston, 104 F.3d 185, 187-88 (8th Cir. 1997).
2. Permissive Intervention
The Applicants argue that they raise common questions of law and fact to those already at issue in this action. Furthermore, they assert that their intervention would not unduly delay or prejudice the adjudication of the existing parties' rights because their motion was filed before any discovery or pretrial hearings had been conducted.
Id. at unnumbered p. 15.
Id.
In their Reply, the Applicants further argue that intervention is warranted because Staley's Original Complaint referred implicitly to prospective intervenor Karen Friend by referring to the Houston First Baptist Church's involvement in fund-raising for the monument's restoration and by attaching an exhibit that identifies Karen Friend as a court reporter for state District Judge John Devine and as the organizer of the fund-raising drive to restore the Mosher Monument. The Applicants argue that Friend alone has "special knowledge" of the degree to which the First Baptist Church was involved in the Biblical display in question and can testify as to why certain pages of the Bible have been selected for display. The Applicants do not identify the interest of the other two prospective intervenors, William and Lisa Drout, other than their status "as Christians who support the Bible."
Reply, Docket Entry No. 12 at p. 2.
Id. at p. 4.
Id., Exhibit A: Answer in Intervention, "Facts Supporting Intervention" at ¶ 48.
B. Staley's Arguments
Staley contends that the Applicants' argument for mandatory intervention fails because they cannot satisfy all of the requirements of Rule 24(a)(2). Staley argues that the Applicants have no cognizable legal interest in this action. Specifically, Staley notes that the Applicants have no legal interest in a Bible that they allege was donated by a third-party or in volunteer work that one applicant, Karen Friend, alleges she performed to restore the monument; and in any event, Staley argues that she does not seek possession of theBible itself, instead, she seeks its removal from the monument currently located on Harris County property. Staley argues that the Applicants, in relying on their status as Christians for the basis of their legal interest in the outcome of this action, do not assert the type of interest countenanced by Rule 24.
Plaintiff's Answer, Docket Entry No. 7 at ¶ 5.
Id. at ¶ 14.
Id. at ¶¶ 9-15.
Alternatively, Staley argues that even if a legally cognizable interest exists, it will be adequately protected by defendant Harris County.
Id. ¶ 16, citing United States v. Union Electric, 64 F.3d 1152, 1168-69 (8th Cir. 1995) for the proposition that a presumption of adequate representation exists, especially when the government is representing the interest in question.
Staley argues that the real motivation behind this intervention is to increase her burden in litigating the action. Therefore, Staley argues that the Applicants should not be allowed to intervene permissively under Rule 24(b) because the intervention would unduly burden her by increasing the scope of the litigation and its expense.
Id. at ¶ 6.
Id. at ¶ 17.
IV. Analysis
A. Mandatory InterventionThe court concludes that the Applicants have not satisfied three of the four indispensable requirements of Rule 24(a)(2).
1. Timeliness
Staley has not challenged the timeliness of this application to intervene. Therefore, the court accepts the Applicants' contention that their motion was timely filed.
2. Interest in the Action's Subject Matter
The "interest" that is countenanced by Rule 24(a)(2) does not refer to vital philosophical interests, but rather to legal interests. An intervenor's interest in an action must be "direct, substantial, [and] legally protectable." Sierra Club, 18 F.3d at 1207 (quoting Piambino v. Bailey, 610 F.2d 1306, 1321 (5th Cir.), cert. denied, 101 S.Ct. 568 (1980)). The "interest" to which Rule 24(a) (2) refers must be "a significantly protectable interest." New Orleans Public Service, 732 F.2d at 464 (quoting Donaldson v. United States, 91 S.Ct. 534, 542 (1971)). In Sierra Club, for example, the court held that the intervenors' interest was not too speculative or generalized because they had concrete property interests in existing contracts that were directly threatened by the litigation. 18 F.3d at 1207. The asserted interest must be "something more than an economic interest;" it must be an interest that "thesubstantive law recogizes as belonging to or being owned by the party seeking intervention." New Orleans Public Service, 732 F.2d at 464 (emphasis in original). Furthermore, the applicant seeking to intervene must satisfy Federal Rule of Civil Procedure 17's "real party in interest" requirement with standing to assert the relevant claim or defense. Id. (citing 3 CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1543 and Piambino, 610 F.2d at 1321).
The Applicants suggest that their own First Amendment right to the free exercise of religion and free speech are threatened by this action, as are Karen Friend's "property rights" in the Mosher Monument arising from her fund-raising and maintenance efforts. The court will address each of these alleged interests in turn.
Reply, Docket Entry No. 12 at p. 8.
First, assertions of First Amendment violations require that complainants allege that state action has interfered with their constitutional rights. See, e.g., Marsh v. State of Alabama, 66 S.Ct. 276 (1946). The Applicants do not complain of any act of Harris County. Nor do the Applicants complain of any imminent injury that would result in irreparable harm if this action is resolved without their intervention.
Second, Karen Friend has not identified a legally cognizable property right that is threatened by the present action. She does not claim to own the Mosher Monument or the Bible it contains. In Americans United for Separation of Church and State v. City of Grand Rapids ("Americans United"), 922 F.2d 303 (6th Cir. 1990), a case upon which the Applicants seek to rely, the Court held that the prospective intervenors could intervene as a matter of right in an action seeking to prevent a municipality from permitting the temporary erection of a privately owned menorah on public property. Id. at 305. The prospective intervenor was Chabad, a Jewish organization that owned the menorah that was the subject of the action. Id. Moreover, Chabad only moved to intervene after learning that the city-defendant might not appeal the district court's decision to grant an injunction, six days before Chanukah, that prevented the city from granting a permit for the menorah's erection during Chanukah. Id. These facts distinguish that case from the present action because the Applicants do not claim to own the Mosher Monument or the Bible it contains, nor has this court issued any rulings that jeopardize the Applicants' immediate legal interests.
Motion for Leave, Docket Entry No. 6 at unnumbered p. 2, ¶ 7 claiming that "[a] personal friend of Karen Friend donated the Bible" currently on display in the Mosher Monument.
3. Interest May Be Impaired or Impeded
Because the injury identified by the Applicants is presently speculative and remote, and because any judgment that might be obtained against Harris County would not jeopardize any rights that Applicants have identified, the Applicants have not satisfied the requirement of demonstrating that the disposition of the action might impair or impede their ability to protect their interests.
4. Inadequate Representation
Applicants for mandatory intervention also have the burden of demonstrating that representation may be inadequate, which has been described as a "minimal" burden. Trbovich v. United Mine Workers, 92 S.Ct. 630, 636 (1972). However, the Fifth Circuit has clarified that "[a]lthough the burden is minimal, `it cannot be treated as so minimal as to write the requirement completely out of the rule.'" Cajun Elec. Power Co-op., Inc. v. Gulf States Utilities, Inc., 940 F.2d 117, 120 (5th Cir.) reh'g denied, 948 F.2d 173 (5th Cir. 1991) (quoting Bush v. Viterna, 740 F.2d 350, 355 (5th Cir. 1984)). Furthermore, Fifth Circuit law dictates that when the putative representative of an interest is a government entity, two presumptions of adequate representation arise. Edwards, 78 F.3d at 1005.
First, where the governmental entity is a body or officer charged by law with representing the interests of the absentee, a presumption of adequate representation arises if the prospective intervenor is a citizen or subdivision of the governmental entity. Id. Because the Applicants are citizens of Harris County, to overcome this presumption they would have to show that their interest "is in fact different from that of the [governmental entity] and that the interest will not be represented by [it.]" Hopwood v. Texas, 21 F.3d 603, 605 (5th Cir. 1994) (per curiam) (citations omitted).
The Hopwood decision cited here is distinct from the highly publicized decision ruling on the merits of that affirmative action lawsuit, which was recently abrogated byGrutter v. Bollinger, 123 S.Ct. 2325 (2003).
In Hopwood the prospective intervenors were members of minority student groups who argued that they had an interest in The University of Texas School of Law's existing admissions policy and in the elimination of the vestiges of past discrimination. 21 F.3d at 604. They argued that the state might not adequately represent their interests because the State had an obligation to balance competing goals and that the State was not in as good a position to present evidence of the present effects of past and current discrimination. Id. The Fifth Circuit rejected these arguments, holding that the prospective intervenors had not demonstrated that the State would not strongly defend its affirmative action program and that access to pertinent evidence does not bear on the question of inadequate representation because the prospective intervenors could provide this evidence to the State without becoming parties to the suit.Id. at 605.
Likewise, the Applicants here, particularly Karen Friend who claims to have "special knowledge" regarding the restoration, maintenance, and control of the Biblical display in question, could readily provide any relevant evidence to the County to aid in its defense. Should this action proceed to a resolution on the merits, the County will have to show that, in permitting the Mosher Monument with its Biblical display to stand on County property, it had a secular purpose, its principal or primary effect was neither to advance nor inhibit religion, and its actions do not foster an excessive government entanglement with religion. See Lemon v. Kurtzman, 91 S.Ct. 2105, 2111 (1971). Neither the Applicants nor the County have indicated that the County would not welcome the Applicants' assistance.
Reply, Docket Entry No. 12 at p. 4.
The second presumption of adequate representation arises when prospective intervenors have the same ultimate objective as a party to the lawsuit. Edwards, 78 F.3d at 1005. Both the County and the Applicants seek a judgment holding that the display of the Mosher Monument Bible on Harris County property does not violate Staley's constitutional rights. Therefore, to overcome this presumption of adequate representation, the Applicants "must show adversity of interest, collusion, or nonfeasance on the part of the existing party." Id. (citing United States v. Franklin Parish Sch. Bd., 47 F.3d 755, 757 (5th Cir. 1995)). The Applicants have made no such showing.
In their Reply the Applicants argue that Harris County will not be able to assert the defense of laches because it did not invest money in the refurbishment projects of 1995 and 1996. This is an inaccurate characterization of the applicability of the laches doctrine. "Laches is founded on the notion that equity aids the vigilant and not those who slumber on their rights." Nat'l Ass'n of Gov't Employees v. City Public Service Bd. of San Antonio, Tex., 40 F.3d 698, 708 (5th Cir. 1994) (quoting NAACP v. NAACP Legal Defense Educational Fund, Inc., 753 F.2d 131, 137 (D.C. Cir.), cert. denied, 105 S.Ct. 3489 (1985)). Laches provides a defense to any defendant who can prove three elements: "(1) a delay on the part of the plaintiff in instituting suit; (2) that is not excused; and (3) that results in undue prejudice to the defendant's ability to present an adequate defense." Id. (citing Geyen v. Marsh, 775 F.2d 1303, 1310 (5th Cir. 1985)). Harris County can raise this defense without the presence of the Applicants as intervenors.
Id. at p. 12.
The Applicants also contend that the County will be unable to argue that activities affecting the Mosher Monument constitute protected First Amendment activities. This too is a misapprehension of the law. Just as the County is bound by the Constitution's Establishment Clause, it is bound by a constitutional mandate not to discriminate against religious speech unless its restrictions satisfy the parameters that the Supreme Court has deemed appropriate, i.e., reasonable time, place, and manner and content-neutral restrictions. See Widmar v. Vincent, 102 S.Ct. 269, 274 (1981). The public interest, which the County is required to serve, lies in striking the appropriate balance between the First Amendment's guarantee of free speech and exercise of religion and its prohibition of any law respecting the establishment of religion. See Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458, 460 (6th Cir. 1991).
Id.
Because the Applicants have not established that they have a legally protected interest in this action, or that disposition of this action will impair or impede their ability to protect any interest, or that Harris County may not adequately represent their interests, the Applicants' request for leave to intervene as a matter of right in reliance on Rule 24(a)(2) will be denied.
B. Permissive Intervention
Of the two factors relevant to permissive intervention, the court has already considered whether another party adequately represents the Applicants' interests and has concluded that the Applicants have failed to establish that Harris County may not adequately represent their interests. Therefore, adding the Applicants to this action would needlessly increase costs and delay disposition of the litigation. See Hopwood, 21 F.3d at 606. Thus, the court declines to exercise its discretion to grant permissive intervention.
V. Conclusion and Order
For the foregoing reasons, Karen Friend and William and Lisa Drout's Motion for Leave of Court to File an Intervention (Docket Entry No. 6) is DENIED.