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Wisconsin GOP blocked from intervening in abortion case

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By Joe Kelly

Courthouse News

CHICAGO (CN) – The Republican-led Wisconsin Legislature is not allowed to intervene in a Planned Parenthood challenge to state abortion laws, the Seventh Circuit ruled, finding the Democratic attorney general is capable of representing the state’s interests.

Thursday’s decision leaves Attorney General Josh Kaul, a Democrat, to defend the state in court against Planned Parenthood. It marks a rare setback for the GOP-controlled Legislature, which tried to use lame-duck laws it passed last year restricting the attorney general’s powers to intervene in the lawsuit because it did not trust Kaul to defend the abortion laws.

The underlying lawsuit brought by Planned Parenthood against Kaul in January challenges Wisconsin laws allowing only doctors to perform abortions and requiring women seeking abortion-causing drugs to see the same doctor on two separate visits.

The Legislature filed its petition to intervene in March, four months after Kaul was elected by a slim margin over incumbent Republican Brad Schimel in midterm elections that saw Wisconsin liberals take every statewide office. Weeks after that election, the Legislature passed multiple lame-duck laws in a hasty, surprise extraordinary session restricting the powers of Kaul and new Democratic Governor Tony Evers and handing over more powers to lawmakers.

One of the provisions in those bills endowed the Legislature with broad oversight powers which include the right to intervene in the state’s lawsuits as it sees fit.

U.S. District Judge William Conley denied the Legislature’s petition to intervene in April, writing that “to allow intervention would likely infuse additional politics into an already politically divisive area of the law and needlessly complicate this case.”

Thursday’s ruling from a three-judge panel of the Seventh Circuit ultimately sided with the lower court.

U.S. Circuit Judge Amy St. Eve, an appointee of President Donald Trump, wrote that “the Legislature’s motion to intervene as of right was appropriately denied because the Legislature did not demonstrate that the attorney general is an inadequate representative of the state’s interest absent a showing he is acting in bad faith or with gross negligence.”

St. Eve was joined in her opinion by U.S. Circuit Judge Joel Flaum, a Ronald Reagan appointee.

U.S. Circuit Judge Diane Sykes, a George W. Bush appointee, concurred but disagreed regarding the high standard the majority considered necessary for intervention, which in her mind could theoretically restrict the Legislature from flexing the intervention powers it gave itself.

St. Eve found that the Legislature did not satisfy the fourth prong of Federal Rule of Civil Procedure 24, which requires that an intervenor prove the existing representation in a given case is inadequate. The judge was not convinced by the Legislature’s mistrust of Kaul in defending the state’s interests in court based on the fact that he is a Democrat.

“Here, the attorney general and the Legislature have the same objective—ensuring the validity of Wisconsin law—even if the Legislature might desire a more aggressive litigation position,” she wrote.

St. Eve said that while a state like Wisconsin has complicated interests borne out of competing constituencies, “merely showing some conflict among those constituencies is not enough to justify this extraordinary finding, even with deference to Wisconsin law.”

The judge posited that allowing the Legislature to intervene in the case would create an “intractable procedural mess” and feared that the Legislature’s understanding of its own powers “has no limiting principle we can see…we are concerned that a state could use this same logic to overwhelm a district court,” whose hands would be tied by the Legislature’s interpretation of federal rules.

The Chicago-based appeals court’s ruling is somewhat surprising considering the fact that the three-judge panel seemed fairly receptive to the Legislature’s rationale during oral arguments in September. Sykes seemed particularly concerned at the time about violating Wisconsin’s sovereignty as a state to determine representation in its lawsuits.

The lame-duck laws on which the Legislature based its intervention bid and the process that brought the laws about have been the subject of five lawsuits in the past 10 months, and the laws have been upheld by the courts at nearly every turn.

The only lame-duck provisions to be struck down thus far are one limiting early-voting and another involving rules over certification of administrative guidance documents, which helps businesses comply with state agency rules.

Republican leadership with the Wisconsin Legislature could not be reached for comment Friday afternoon.

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