We find artifacts of our current partisan age in all sorts of places these days. That includes a recent U.S. Court of Appeals for the Seventh Circuit decision regarding intervention under Federal Rule of Civil Procedure 24. The decision—Planned Parenthood of Wisconsin v. Kaul, No. 19-1835 (7th Cir. Nov. 7, 2019)—arose from the intersection of two trends in today’s partisan battles. In one trend, the election or appointment of a new attorney general from a different political party than his predecessor has resulted in changes in the government’s litigation positions. In the other trend, legislatures controlled by one political party have enacted laws limiting or eliminating certain powers exercised by executive officers following elections that installed executive officers from a different political party.
Kaul addressed whether the Wisconsin Legislature (controlled by Republicans) should be able to intervene in a suit against the Wisconsin attorney general (a Democrat) and other state officers challenging the constitutionality of certain abortion regulations. The Legislature invoked a recently enacted Wisconsin law that allows the Legislature to intervene in actions challenging the constitutionality of a state statute. The Legislature wanted to intervene in Kaul in order to pursue a motion to dismiss after the attorney general had simply answered the complaint with a denial that the regulations were unconstitutional. The Kaul panel ultimately affirmed the district court’s denial of intervention because the attorney general adequately represented the Legislature’s interests in defending the abortion regulations. But in reaching that conclusion, the panel clarified several aspects of Rule 24 law, flagged other issues for future resolution and divided over one potentially important question of legal standards.
