response to motion to intervene
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lIN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUITIN AND FOR MIAMI-DADE COUNTY, FLORIDA
CATHERINA PARETO and KARLA CASE NO. 2014-1661-CA-01ARGUELLO; JUAN CARLOS RODRIGUEZ andDAVID PRICE; VANESSA ALENIER andMELANIE ALENIER; TODD DELMAY andJEFFREY DELMAY; SUMMER GREENE andPAMELA FAERBER; DON PRICE JOHNSTONand JORGE DIAZ; and EQUALITY FLORIDAINSTITUTE, INC.,
Plaintiffs,
v.
HARVEY RUVIN, as Clerk of the Courts ofMiami-Dade County, Florida, in his officialcapacity,
Defendant.
PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION TO INTERVENE
Plaintiffs, by their undersigned counsel, hereby respond in opposition to the Motion to
Intervene filed on February 25, 2014 by Florida Family Action, Inc., Florida Democratic League,
Inc., and People United To Lead The Struggle For Equality, Inc. (collectively, "Movants"),
seeking to intervene in this matter as Party-Defendants.
Movants do not satisfy the standard for intervention as they do not have "an interest of
such a direct and immediate character that [they] will either gain or lose by the direct legal
operation and effect of the judgment." Union Central Life Insurance Company v. Carlisle, 593
So.2d 505, 507 (Fla. 1992).
Indeed, a week ago, in similar litigation challenging Florida's marriage ban, a motion to
intervene filed by one of the Movants here -- Florida Family Action, Inc. ("FFA") -- was denied
Filing # 13484702 Electronically Filed 05/09/2014 12:32:38 PM
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even under the more liberal federal intervention rule, because FFA has only a "generalized
interest in opposing same-sex marriage [that] does not entitle FFA to intervene." Brenner et. al v.
Rick Scott, U.S. District Court for the Northern District of Florida, Case No. 4:14-cv-00107-RH-
CAS (Copy attached as Ex. A). That is exactly the case here as well.
I. INTRODUCTION
Plaintiffs seek an injunction of the enforcement of the Florida laws barring same-sex
couples from marriage, thereby requiring Defendant to issue marriage licenses to Plaintiffs and
all otherwise qualified same-sex couples who apply for marriage licenses. The relief they seek
will not affect opposite-sex couples' eligibility to obtain marriage licenses, require Movants or
their members to take or refrain from taking any action, or affect Movants' legal rights and
obligations in any way. On February 25, 2014, Movants filed a Motion to Intervene. They allege
they are three non-profit organizations who have worked in Florida to "preserve and protect
marriage as a foundational social institution" and to support the passage by public referendum of
Amendment 2, the Florida Constitutional provision excluding same-sex couples from the
freedom to marry. Their Motion fails to meet the legal standard for intervention under Florida
law.
Movants cannot establish the direct and immediate interest required for intervention, as a
judgment in this case will not have any legal impact on them. Movants have not cited any
authority that authorizes a supporter of a citizen initiative to intervene in a suit challenging the
validity of the law passed by such initiative, nor that authorizes a private citizen or organization
to intervene in an action challenging the constitutionality of a state law of general application.
As shown herein, Florida law is squarely to the contrary.
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In addition, the purely governmental interests at stake in the defense of this matter are
adequately represented by the existing Defendant - an agent of the State, with able counsel -who
has appeared and filed defenses, and Movants improperly seek to insert collateral issues into this
case. The motion should be denied.
II. LEGAL STANDARD FOR INTERVENTION
Florida Rule of Civil Procedure 1.230 provides that "[a]nyone claiming an interest in
pending litigation may at any time be permitted to assert his right by intervention, but the
intervention shall be in subordination to, and in recognition of, the propriety of the main
proceeding, unless otherwise ordered by the court in its discretion."
In Carlisle, the Florida Supreme Court held that in evaluating a motion to intervene, a
court must first "determine that the interest asserted is appropriate to support intervention." 593
So.2d at 507. Thus, an "appropriate interest" must be established before the court is permitted to
exercise discretion as to any other factors and considerations. Id. As the Court explained, the
"asserted interest must both (a) already be at issue in the proceeding, and (b) be of a kind the
would-be intervener is a proper party to raise, i.e., either a necessary or proper party to the suit."
Id.
An "appropriate interest" is "an interest of such a direct and immediate character that the
intervener will either gain or lose by the direct legal operation and effect of the judgment." Id.
(emphasis supplied). It must be created by "a claim to the demand in suit or some part thereof, ar
a claim to, or lien upon, the property or some part thereof, which is the subject of litigation." Id.
A showing of "indirect, inconsequential or contingent interests is wholly inadequate." Faircloth
v. Mr. Boston Distiller Corp., 245 So.2d 240, 244 (Fla. 1970); Kissoon v. Araujo, 849 So.2d 426,
429 (Fla. l s` DCA 2003). Moreover, intervention should be denied where the petition raises
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issues collateral to those under consideration in the lawsuit. See Holley v. Adams, 238 So.2d 401
(Fla. 1970).
As we now show, the Movants do not have any direct interest in the outcome of this
litigation. They have only general political interests in the subject matter of this case, which are
not judicially cognizable and are insufficient to justify intervention.
IIL MOVANTS DO NOT HAVE A DIRECT AND IMMEDIATE INTEREST IN THEOUTCOME OF THIS SUIT
A. A Judgment Would Not Impact Movants' Voting Rights
The entry of a judgment that Plaintiffs seek here will have no "direct legal operation and
effect" on the Movants. Movants supported the enactment of Amendment 2, as was their right.
Movants' individual members freely exercised their right to vote on Amendment 2. But, that
amendment is now Article I section 27 of the Florida Constitution. Movants have no special
relationship to section 27; instead, they have only the same generalized interest in the law that
other like-minded citizens of Florida possess.
The United States Supreme Court's recent decision in Hollingsworth v. Perry, 133 S. Ct.
2562 (U.S. 2013), is instructive. In Perry, the Court held that private advocacy groups supporting
Proposition 8 (the California citizen initiative that banned same-sex marriage) lacked standing to
appeal a district court decision holding Proposition 8 to be unconstitutional, because they
"suffered no concrete and particularized injury" as a result of the decision invalidating Prop 8.
133 S. Ct. at 2659. Just as in this case, "[t]hese proponents had not been ordered to do or refrain
from doing anything in the challenged judgment." Id. at 2662. Rather, "[t]heir only interest was
to vindicate the constitutionality validity of a generally applicable California law, which is
insufficient to confer standing." Id. In short:
29959667.1 4
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Once Prop 8 was approved by the voters, the measure became a "duly enactedconstitutional amendment or statute." Petitioners have no role special orotherwise -- in enforcement of Proposition 8. They therefore have no "personalstake" in defending its enforcement that is distinguishable from the generalinterest of every citizen of California. No matter how deeply committedpetitioners may be to upholding Proposition 8 or how "zealous [their] advocacy,"that is not a "particularized" interest sufficient to create a case or controversyunder Article III.
Id. at 2663.
The Court further concluded that the proponents were not authorized to assert the State's
interest on the State's behalf. Id. As the Court put it, the proponents sought "an unelected
appointment for an unspecified period of time as defenders of the initiative, however and to
whatever extent they choose to defend it," but intervention is "not a vehicle for the vindication of
value interests." Id. The Court also pointed out that it had never identified initiative proponents
as qualified defenders of the measures they advocated. Id.
All of this is true here, as well. Movants' argument would grant standing to every person
who voted for an amendment to the Florida Constitution to intervene in actions challenging the
legality of that amendment. There is no legal precedent for that proposition and Movants have
cited none.
The one "voting" case that Movants cite, Dubose v. Kelly, 181 So. 11 (Fla. 1938), in no
way supports their intervention in this case. Movants assert that in Dubose, "the Supreme Court
long ago affirmed the right of citizens to intervene in litigation that threatens to undue (sic) their
votes on a public issue." As shown by even a cursory reading, it does no such thing.
Dubose involved a suit by a City Commissioner seeking to enjoin the City Clerk from
implementing an election to recall the Commissioner. The successful intervener there was a
citizen who had signed the recall petition in accordance with the provisions of the City Charter.
29959667.1 5
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The intervener sought to oppose injunction of the election in order to preserve his right to vote in
the scheduled recall election.
This case is entirely different. The intervener in Dubose was seeking to preserve his right
to vote prospectively in an election. An injunction of the election would prevent him from
exercising his right to vote on the recall petition. Here, Movants will not be prevented from
voting on anything.
It bears emphasizing that permitting any citizen to intervene in litigation challenging the
constitutionality of laws would render meaningless the legal standard for intervention, and would
open the floodgates to all other groups and individuals on both sides of the issue that have a
view about whether same-sex couples should be permitted to marry in Flarida. As the U.S.
Supreme Court recognized in PerYy, intervention is not a vehicle for the vindication of value
interests.
B. A Judgment Would Not Impact Movants' Advocacy Rights or Their Rightsto Speech or Religion
Movants' right to publicly advocate their political views on marriage does not include a
right to intervene in court cases where, as here, their own legal interests are not directly affected.
Plaintiffs can find no Florida case finding that a political position, no matter how deeply or
sincerely held, has been deemed to be a legally sufficient "interest" supporting intervention.
Movants cite to only one such purported case, National Wildlife Federation Inc. v.
Glisson, 531 So.2d 996 (Fla. 1St DCA 1988). That case does not support their motion. To the
contrary, it highlights why intervention is not permissible here.
In Glisson, Alachua County amended its land use plan, curtailing development in the
Cross Creek Village area and preserving the natural habitat of the area's wildlife. Individuals
who lived in that area filed suit challenging the validity of the amendment. Two environmental
29959667.1
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groups sought to intervene to support the amendment, on behalf of several members who
submitted affidavits indicating that they were residents and real property owners and/or business
owners and operators in the Cross Creek area. The affiants testified as to their actual use of the
area in question, as well as the potential impact on their lives and businesses should plaintiffs
prevail in their suit against Alachua County.
Intervention was proper in Glisson because the advocacy groups represented individuals
who lived in, or owned businesses in, the affected area, and who accordingly would experience
direct and immediate impact from the new land use plan. As such, the Glisson interveners
represented individuals who would "gain or lose the quality of use of their land at issue" as a
result of the disputed zoning judgment. Kissoon, 849 So.2d at 430.
That is not the case here. Movants will not lose any rights or be subjected to any new
obligations or constraints as was the case with the interveners in Glisson.
In an analogous California case, Socialist Workers 1974 California Campaign Committee
v. Brown, 53 Cal. App. 3d 879 (1975), the court denied intervention in a case involving a
challenge to the constitutionality of a California statute where the would-be intervener was an
advocacy organization whose very purpose was advocacy on the underlying issues in the
litigation. The court there noted that an interest in the legal precedent that might be created by
the lawsuit did not constitute a "direct and immediate" interest in the case.
The same is true here. Whatever the outcome in this case, it will have no "direct and
immediate" effect on Movants or their members. They will retain the right to marry, to obtain
marriage licenses, to enjoy the benefits associated with marriage, and to advocate their views
regarding marriage.
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Movants have cited no legal authority to support their position that having strongly-held
political views is a ground for intervention and the Plaintiffs have found none. The only cases
they cite (not previously discussed) involve interveners with concrete, legally cognizable
interests in the underlying litigation, such that the outcome of the case would directly alter the
intervener's legal rights or obligations:
Insurance companies with explicit contractual subrogation rights to recover paid medicalexpenses were permitted to intervene in suits by their insureds against tortfeasars.(Abelove; Carlisle)
A condominium association, authorized as the condominium manager by Florida statute,was permitted to intervene in a suit by condominium unit owners against engineers fordamages caused by a defective plumbing system. The unit owners were asserting claimsfor damages to their condominium units whereas the association was asserting a claim fordamages to the common areas. (I3ay Park Towers)
Two community associations claiming a right to use recreation areas owned by a thirdcommunity association were allowed to intervene in a suit between the developer and thethird community association regarding the sale and transfer of the recreation areas.(Sweetwater)
No such concrete, legally cognizable interests are at issue here, where Movants have only
a generalized political interest in the challenged law. In fact, Movants' allegedinterests in this
case are far more indirect than in many cases where intervention has been denied by Florida
courts.
For example, Faircloth v. Mr. Boston Distiller Corp., 245 So.2d 240, involved a
constitutional challenge to a state law on equal protection grounds, as in this case, where a bottler
of alcoholic beverages sought to invalidate a state excise tax on the manufacture of certain
alcoholic beverages. Another bottler sought to intervene, to advocate a position beneficial to its
proposed prospective products (and financial interests), and was denied. The Florida Supreme
Court held that the excise tax rate applicable to the movant's current products was not at issue,
29959667.1
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thus the case did not involve adjudication of any matter in which the movant had a direct and
immediate interest justifying its intervention.
Similarly, in Kissoon v. Araujo, 849 So.2d 426, the estate of a deceased patient brought a
medical malpractice claim against three physicians alleging they were responsible for a patient's
death. The defendants attempted to establish that another physician, Dr. Kissoon, was
responsible for the patient's death. Dr. Kissoon sought to intervene, alleging that a verdict in
favor of the defendants would have a devastating effect on his reputation, subject him to
professional investigation by the Florida Board of Medicine, and hinder his practice of medicine.
His intervention was denied because "none of these alleged consequences are a direct legal effect
of a judgment in this case." See also Fasig v. Florida Society of Pathologists, 769 So.2d 1151
(Fla. 5~~' DCA 2000)(denying patients' motion to intervene in an action brought by a group of
doctors seeking a declaratory judgment against an insurance company allowing them to bill
patients directly for "professional component" fees, because a ruling in the case would not have
imposed any direct liability on patients ar prevented patients from contesting fees in the future).
In this case, Movants' alleged "interests" which do not constitute any legally
cognizable interest whatsoever are far more indirect, remote and contingent than in these
illustrative cases, and are clearly insufficient to justify the requested intervention. Indeed, as
explained above, no matter how the case is decided, Movants' rights and obligations will not be
altered or affected in any way.
IV. MOVANTS' SUGGESTION THAT THE DEFENDANT WILL NOTADEQUATELY DEFEND THE CHALLENGED LAWS DOES NOT PROVIDEMOVANTS WITH A PROTECTED INTEREST
Movants suggest that the Defendant will not "adequately" defend the constitutionality of
Florida's marriage laws denying marriage to same-sex couples and, thus, they should be allowed
z99s966~.~ 9
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to intervene for this reason alone. Before that could even be a consideration for the Court,
however, Movants must first establish their requisite interest in this case, and then must also
establish inadequate representation by the Defendant. Southland Life Insurance Co. v. Abelove,
556 So.2d 805, 806 (Fla. St" DCA 1990); Fasig, 769 So.2d at 1154. They have not done so and
cannot da so.
Furthermore, Movants cannot establish inadequate representation by the Defendant,
based on their conjecture as to how "well" the Defendant may defend Plaintiffs' claims. If that
were so, any person or group seeking to intervene always could claim that the existing parties
will not zealously represent their perspective on the issues. The fact that Movants might bring
another set of viewpoints to the litigation is an insufficient basis to call into question the
adequacy of the existing parties' representation.
Thus, mere differences in strategy are not enough to justify intervention. U.S. v. Los
Angeles, 288 F.3d 391, 402 (9r~ Cir. 2002). "The fact that Movants would have been less prone
to agree to the facts and would have taken a different view of the applicable law does not mean
that the existing parties did not adequately represent their interests in the litigation." U.S. v.
Philadelphia, 798 F.2d 81, 90 (3d Cir. 1986). A prospective intervener cannot rebut the
presumption of adequate representation by merely disagreeing with the existing parties' litigation
strategy. Chiglo v. Preston, 104 F.3d 185, 188 (8t" Cir. 1997).
As noted, this matter involves purely governmental interests, and a governmental
representative is defending the lawsuit. Plaintiffs have sued a proper governmental party (the
Clerk who implements and enforces the subject marriage laws), who has appeared and filed an
Answer and Defenses. Movants may not like the manner in which the Clerk is defending the
suit, but the Clerk is defending the suit.
29959667.1 1 ~
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Moreover, pursuant to 86.091, Florida Statutes, Plaintiffs provided notice of this
constitutional challenge of Florida's marriage laws to the Attorney General, a governmental
representative, who has the statutory right to intervene. As to the singular legal issue before this
Court whether the state of Florida can establish a legitimate governmental interest served by
the challenged laws the State's interests are adequately represented.
V. CONCLUSION
Movants do not gain the right to intervene in Plaintiffs' case merely because of their
strongly held political views about marriage or the laws challenged in this case. This case, like
many others, raises important and often politically contentious issues, but that does not relieve
persons seeking to become parties of the obligation to satisfy the long-established legal standards
for intervention. To the contrary, the fact that certain segments of the public at large hold strong
opinions both pro and con about the issue of marriage for same-sex couples argues strongly
against allowing intervention unless the would-be intervener can demonstrate the required
"direct and immediate" interest inthe case. Opening this case to interested members of the
general public would multiply the number of parties and greatly increase the burden on the Court
and the existing parties.
a99s966~.i 11
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Movants cannot establish any such "direct and immediate" legal interest. Their asserted
interests are an effort to cause undue delay and prejudice to Plaintiffs, who suffer every day that
they are denied the right to marry. The interests at stake are governmental, and a governmental
defendant is the appropriate party to represent those interests.
Plaintiffs respectfully request that the Motion to Intervene be DENIED.
DATED: May 9, 2014 Respectfully submitted,
Shannon P. MinterChristopher F. StollDavid C. CodellAsaf OrrNATIONAL CENTER FORLESBIAN RIGHTS870 Market Street, Suite 370San Francisco, CA 94102Telephone: (415) 365-1335Facsimile: (415) 392-8442E-mail:sminter@nclrights.org
cstoll@nclrights.orgdcc~dell~a~nclrights.or~aorr@nclrights.org
Elizabeth Schwartz (Fla. Bar No.114855)ELIZABETH F. SCHWARTZ, PA690 Lincoln Road, Suite 304Miami Beach, FL 33139Telephone: (305) 674-9222Facsimile: (305) 674-9002E-mail: eschwartz@sobelaw.com
Mary B. Meeks (Fla. Bar No. 769533)MARY MEEKS, P.A.P.O. Box 536758Orlando, Florida 32853Telephone: (407) 362-7879Facsimile:Email: marybmeeks@aol.com
s/Nancy .I. FaggianelliSylvia H. Walbolt (Fla. Bar No. 33604)Luis Prats (Fla. Bar No. 329096)Nancy J. Faggianelli (Fla. Bar No. 347590)CARLTON FIELDS JORDEN BURT, P.A.4221 W. Boy Scout Blvd., Ste. 1000Tampa, FL 33601Telephone: (813) 223-7000Facsimile: (813) 229-4133Email: swalbolt@cfjblaw.com
1prats@cfjblaw.comnfaggianelli@cfjblaw.com
Jeffrey Michael Cohen (Fla. Bar. No. 91495)Cristina Alonso (Fla. Bar. No. 327580)CARLTON FIELDS JORDEN BURT, P.A.Miami Tower100 Southeast 2nd StreetSuite 4200Miami, Florida 33131Telephone: (305) 530-0050Facsimile: (305) 530-0055Email: jmcohen@cfjblaw.com
calonso@cfjblaw.com
Counsel for Plaintiffs
29959667.1 I Z
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
filed with the Clerk of Court through the Florida Courts eFiling Portal to be served this 9t" day of
May 2014, on counsel of record listed below to:
SYLVIA H. WALBOLTE-mail: swalbolt@CFJBIaw.comSec. E-mail: rosborne@CFJBIaw.comSec. E-mail: tpaecf@cfdom.netLUIS PRATSE-mail: 1prats@CFJBIaw.comSec. E-mail: lcoffey@,CFJBIaw.comNANCY J. FAGGIANELLIE-mail: nfaggianelli@CFJBIaw.comSec. E-mail: pparrey@CFJBIaw.comCARLTON FIELDS JORDEN BURT, P.A.Corporate Center Threeat International Plaza4221 W. Boy Scout BoulevardTampa, Florida 33607-5780Telephone: (813) 223-7000Facsimile: (813) 229-4133
JEFFREY MICHAEL COHENE-mail: jmcohen@CFJBIaw.comSec. E-mail: pwatson@CFJBIaw.comSec. E-mail: miaecf@cfdom.netCRISTINA ALONSOE-mail: calonso@CFJBIaw.comSec. E-mail: cschmidle@CFJBIaw.comCARLTON FIELDS JORDEN BURT, P.A.Miami Tower100 Southeast Second StreetSuite 4200Miami, Florida 33131Telephone (305) 530-0050Facsimile (305) 530-0055
Shannon P. MinterChristopher F. StollDavid C. Codell
Luis G. MontaldoP.O. Box 13267Miami, FL 33101E-mail: cocgencounsel@miamidade.govSec. &mail: larruza@miamidade.gov
Eileen Ball MehtaBILZIN SUMBERG BAENA PRICE &AXELRODLLP1450 Brickell AvenueSuite 2300Miami, FL 33131E-mail: emehta@bilzin.comSec. E-mail: eservice@bilzin.com
Counsel for Defendant
Horatio G. MihetLIBERTY COUNSELPost Office Box 540774Orlando, FL 32854-0774E-mail: 1lmihet~a~libert.~eduSec. E-mail: court~lc~or~
Counsel for Intervenors
29959667.1 13
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Asaf OrrNATIONAL CENTER FOR LESBIANRIGHTS870 Market Street, Suite 370
San Francisco, CA 94102E-mail: sminter@nclrights.orgE-mail: cstoll@nclrights.orgE-mail: dcodell@nclrights.orgE-mail: aorr@nclrights.org
Elizabeth F. SchwartzELIZABETH F. SCHWARTZ, P.A.690 Lincoln Road, Suite 304Miami Beach, FL 33139E-mail: eschwartz@sobelaw.com
Mary B. MeeksMARY MEEKS, P.A.P.O. Box 536758Orlando, FL 32853E-mail: marybmeeks@aoLcom
Counsel for Plaintiffs
s/Nancy J Faggianelli
29959667. I 14
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Case 4:14-cv-00107-RH-CAS Document 40 Filed 04/24/14 Page 1 of 5Page 1 of 5
IN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
JAMES DOMER BRENNER et al.,
Plaintiffs,CONSOLIDATED
v. CASE NO. 4:14cv107-RH/CAS
RICK SCOTT, etc., et al.,
Defendants.
ORDER DENYING LEAVE FOR FLORIDAFAMILY ACTION TO INTERVENE BUT
ALLOWING IT TO PARTICIPATE AS AMICUS
In these consolidated actions, the plaintiffs challenge provisions of the
Florida Constitution and Florida Statutes on same-sex marriage. The defendants
include Florida's Governor and Attorney General, both of whom disagree with the
plaintiffs on the merits. Florida Family Action, Inc. ("FFA"), a "cultural action
organization" that opposes same-sex marriage, has moved to intervene in each
consolidated action as a defendant. This order denies the motions but allows FFA
to file a timely amicus memorandum on any legal issue submitted by the parties.
Consolidated Case No. 4:14cv107-RH/CAS
EXHIBIT A
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Case 4:14-cv-00107-RH-CAS Document 40 Filed 04/24/14 Page 2 of 5Page 2 of 5
Federal Rule of Civil Procedure 24(a) entitles a person to intervene as of
right if (1) a federal statute gives the person an unconditional right to intervene, or
(2) the person "claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may as a
practical matter impair or impede the movant's ability to protect its interest, unless
the existing parties adequately represent that interest."
No federal statute gives FFA an unconditional right to intervene in an action
of this kind. So Rule 24(a)(1) does not entitle FFA to intervene.
Under Rule 24(a)(2), the "interest" that a proposed intervenor claims
must be a particularized interest rather than a general grievance. SeeHoward v. McLucas, 782 F.2d 956, 959 (11th Cir.1986) (usingstanding cases to determine that intervenors with only generalizedgrievance could not intervene); Athens Lumber Co., Inc. v. FederalElection Commission, 690 F.2d 1364, 1366 (11th Cir.1982) (citingstanding cases to determine that intervenor's claimed interest thatunions would be financially overwhelmed in federal elections toogeneralized to support claim for intervention of right).
Chiles v. Thornburgh, 865 F.2d 1197, 1212-13 (l lth Cir. 1989).
FFA "claims an interest" in the same-sex-marriage issue, but it is a
generalized interest, not a particularized interest in anything directly affecting FFA
or its members. No FFA member seeks to enter asame-sex-marriage or will be
directly affected if others enter same-sex marriages. FFA's generalized interest in
opposing same-sex marriage does not entitle FFA to intervene. See Hollingsworth
Consolidated Case No. 4:14cv107-RH/CAS
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Case 4:14-cv-00107-RH-CAS Document 40 Filed 04/24/14 Page 3 of 5Page 3 of 5
v. Perry, 133 S. Ct. 2652, 2663 (2013) (holdingon the issue of standingthat a
similar advocacy organization had no role in the enforcement of a same-sex-
marriage constitutional amendment after its passage and therefore lacked a
"personal stake" in the litigation "that [wa]s distinguishable from the general
interest of every citizen"); see also Chiles, 865 F.2d at 1213 ("[S]tanding cases .. .
are relevant to help define the type of interest that the intervenor must assert.").
Another ground also supports this result. The existing defendants, especially
the Governor and Attorney General, can be relied upon to adequatelyindeed,
zealouslydefend these actions on the merits. Under the plain language of Rule
24(a)(2), a person is not entitled to intervene when an existing party already
adequately represents the interest claimed by the proposed intervenor.
II
Federal Rule of Civil Procedure 24(b) gives a district court discretion to
allow a person to intervene on a "timely motion" if (1) a federal statute gives the
person a conditional right to intervene, or (2) the person "has a claim or defense
that shares with the main action a common question of law or fact."
No federal statute gives FFA a conditional right to intervene in an action of
this kind. But FFA asserts a defense that shares with the main actions common
questions of law. FFA's motion to intervene was timely. The. court has discretion
Consolidated Case No. 4:14cv107-RH/CAS
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Case 4:14-cv-00107-RH-CAS Document 40 Filed 04/24/14 Page 4 of 5Page 4 of 5
to allowor disallowintervention. That FFA lacks standing to bring its own
action does not preclude intervention. Chiles, 865 F.2d at 1213.
The better course here is to deny intervention but to allow FFA to be fully
heard as an amicus. Factors that support this conclusion include the meager if not
nonexistent benefit that would flow from allowing FFA to intervene as opposed to
just allowing FFA to participate as an amicus, the unnecessary procedural
complexity that intervention would entail, and the likelihood that allowing FFA to
intervene would bring forth other proposed intervenors who would assert only
generalized political interests and whose participation probably would generate
more heat than light. FFA's views as amicus will be welcome, but FFA's
intervention would bring little additional value.
III
For these reasons,
IT IS ORDERED:
1. FFA's motions to intervene, ECF No. 22 in Case No. 4:14cv107 and
ECF No. 13 in Case No. 4:14cv138, are DENIED.
2. FFA may file a memorandum as amicus curiae on any motion. The
deadline for FFA to do so is the corresponding deadline for the memorandum of
the party whose position FFA supports. But when FFA supports the moving party,
the deadline for FFA's amicus memorandum in support of the motion is the earlier
Consolidated Case No. 4:14cv107-RH/CAS
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Case 4:14-cv-00107-RH-CAS Document 40 Filed 04/24/14 Page 5 of 5Page 5 of 5
of (a) the deadline for filing the motion, if there is a deadline, or (b) seven days
after the filing of the motion, without athree-day extension based on electronic
service of the motion.
3. The page limit for an amicus memorandum is 25 pages.
4. Each amicus memorandum must include the information listed in
Federal Rule of Appellate Procedure 29(c)(5).
The clerk must add FFA to the docket as an amicus so that its
attorneys receive electronic notices of filings.
SO ORDERED on Apri124, 2014.
s/Robert L. HinkleUnited States District Judge
Consolidated Case No. 4:14cv 107-RH/CAS
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