United States Court of Appeals
For the First Circuit
No. 99-1187
BEVERLY C. DAGGETT, ET AL.,
Plaintiffs, Appellees,
v.
COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES, ET AL.,
Defendants, Appellees.
BETHEDA EDMONDS, ET AL.,
Proposed Intervenors-Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin and Lynch, Circuit Judges,
and Magill, Senior Circuit Judge.
Gillian E. Metzger with whom Glenn J. Moramarco, Brennan
Center for Justice at New York University School of Law, John R.
Brautigam and Arn H. Pearson, Maine Citizen Leadership Fund, were
on brief for appellants Betheda Edmonds, Kathleen McGee, Linda
McKee, Peggy Pendleton and Elizabeth Watson.
Mark Lopez, American Civil Liberties Union Foundation, with
whom Nat Rosenblatt and Farrell, Rosenblatt & Russell were on brief
for plaintiffs, appellees Beverly C. Daggett, Elaine Fuller,
Christopher M. Harte, Mark T. Cenci, Jeffrey I. Weinstein, Shawn
Levasseur and Libertarian Party of Maine.
James Bopp, Jr. with whom Robert J. Newmeyer, Heidi K. Meyer,
Bopp, Coleson & Bostrom, Daniel M. Snow and Pierce Atwood were on
brief for plaintiffs, appellees Rollin Stearns, Maine Right to Life
Committee Political Action Committee State Candidate Fund, and
National Right to Life Political Action Committee State Fund.
Andrew S. Hagler, Assistant Attorney General, Phyllis
Gardiner, Assistant Attorney General, Andrew Ketterer, Attorney
General, and Paul Stern, Deputy Attorney General, Chief, Litigation
Division, on brief for defendants, appellees.
April 9, 1999
BOUDIN, Circuit Judge. This appeal, by applicants whose
motion to intervene was denied, stems from Maine's enactment in
November 1996 of a set of campaign reform statutes. Adopted by
Maine voters through a ballot initiative, the statute--denominated
"An Act to Reform Campaign Finance" ("the Reform Act")--included
both public funding of state campaigns and extensive regulation of
contributions and expenditures. 1996 Me. Legis. Serv. Initiated
Bill ch. 5 (I.B.5) (L.D. 1823) (West).
The public financing provisions, called the Maine Clean
Election Act, Me. Rev. Stat. Ann. tit. 21-A, 1121 et seq., offer
participating candidates full public funding, eliminating the need
for any fund-raising by candidates after they initially qualify.
To qualify, a candidate must obtain $5 contributions from a number
of registered voters, the number depending on the office sought
(e.g., 50 contributions for a candidate for state representative).
Id. 1122(7), 1125(3). The contributions must be collected
during the first half of the year in which the election occurs.
Id. 1122(8). (The period starts slightly earlier--November 1 of
the preceding year--for gubernatorial candidates. Id..)
In addition to initial funding both for the primary and
general elections, participating candidates get extra funds--up to
a limit of 200 percent of the initial outlay--to the extent that
nonparticipating opponents (or funds spent on their behalf) exceed
the initial distribution. Me. Rev. Stat. Ann. tit. 21-A,
1125(9). The participating candidates may describe themselves as
Maine Clean Election Act candidates. Id. 1122(1), 1125(5). In
exchange for all of these benefits, the candidates agree not to
spend more than the state's contributions. Id. 1125.
For those candidates who decline to participate in the
public funding program, the Reform Act imposes new limitations.
Permissible contributions to such candidates are reduced--as to any
contributing individual or group--to $250 for legislative races and
$500 for gubernatorial races. Me. Rev. Stat. Ann. tit. 21-A,
1015(1), (2), 1056(1). Nonparticipating candidates must also
comply with expedited reporting requirements that are not
applicable to publicly funded campaigns. Id. 1017(3-B).
Independent expenditures are not limited, but the matching fund
provisions for participating candidates are triggered by
independent expenditures as well as by direct expenditures. Id.
1125(9).
In 1997, after adoption of the statute, it was promptly
challenged in lawsuits in the district court. They were dismissed
as premature, since the statute only became effective on January 1,
1999, and will apply for the first time in the November 2000
elections. However, it will now affect fund-raising that may begin
as early as the summer of 1999. Accordingly, on November 4, 1998,
a group of plaintiffs brought the Daggett lawsuit against the Maine
commission that administers the new statute, the commission's
members, the Maine Secretary of State and the Maine Attorney
General (collectively, "the state defendants"). See Daggett v.
Webster, No. 98-223-B--H (D. Me. compl. filed Nov. 4, 1998).
The Daggett plaintiffs are six individuals, including
candidates who previously ran for the state legislature, a citizen
who contributes, and the Libertarian Party of Maine. The
plaintiffs sought injunctive relief barring enforcement both of the
public funding provisions and various of the regulatory
limitations. Less than a month later, another set of plaintiffs
brought the Stearns suit against the commission members,
challenging the contribution limits and the provision for matching
distributions based on independent expenditures. See Stearns v.
Webster, No. 98-239-B-H (D. Me. compl. filed Dec. 4, 1998). The
two cases were subsequently consolidated. See Daggett v. Webster,
No. 98-223 (D. Me. order filed Jan. 4, 1999).
Within two weeks after the Daggett suit was filed, the
present five appellants moved to intervene. Appellants are current
officeholders or prospective candidates, all of whom intend to run
for election in 2000, using public funding provided for by the
Maine Clean Election Act. They sought intervention as of right
under Fed. R. Civ. P. 24(a)(2) or, in the alternative, permissive
intervention under Rule 24(b)(2). The plaintiffs in both cases
opposed the motion, while the state defendants welcomed
intervention.
On December 23, 1998, the district court set an expedited
schedule for designation of experts, discovery, a trial (or
stipulated record), and briefing of issues with final oral argument
scheduled for June 3, 1999. Thereafter, on January 19, 1999, the
district court entered the order now under review denying
intervention by the applicants. Daggett v. Webster,--F. Supp. 2d--
1999 WL 53036 (D. Me. Jan. 19, 1999). After applicants appealed,
the district court suspended the scheduling order. This court
expedited the appeal in light of the parties' representations as to
the need for an urgent resolution.
The district court's decision to deny intervention as of
right rested on the ground that, in the words of the rule, "[t]he
applicant's interest is adequately represented by existing
parties." Fed. R. Civ. P. 24(a)(2). The district court said that
the Maine Attorney General's goals were "identical to those of the
would-be intervenors" and the Attorney General was fully able to
mount "a strong defense in support of the statute." Daggett, 1999
WL 53036, at *1. The court relied directly upon this court's
decision in Moosehead Sanitary District v. S.G. Phillips Corp., 610
F.2d 49, 54 (1st Cir. 1979). See Daggett, 1999 WL 53036, at *1.
The district court also denied permissive intervention,
available in the court's discretion where the applicant's claim or
defense and the main action have "a question of law or fact in
common." Fed. R. Civ. P. 24(b). The court said that the
intervenors' interest in supporting the new campaign legislation
could be adequately satisfied by permitting them to participate as
amicus curiae (which permission the court gave), and that
additional defendants would only "complicate the proceedings
without adding any advantage." Daggett, 1999 WL 53036, at *2.
The order denying intervention is appealable now. SeePublic Serv. Co. v. Patch, 136 F.3d 197, 204 (1st Cir. 1998). The
standard of review on appeal is "abuse of discretion" circumscribed
by the specific standards set forth in the applicable rule, id.;
but, as always, abstract issues of law (such as the proper
standards for evaluating intervention motions) are reviewed de
novo. This appeal turns primarily on the applicants' claim that
the district court misconstrued and then misapplied the rule
governing intervention as of right which reads:
[1] Upon timely application anyone shall
be permitted to intervene in an action: . . .
when [2] the applicant claims an interest
relating to the property or transaction which
is the subject matter of the action and [3]
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, [4] unless
the applicant's interest is adequately
represented by existing parties.
Fed. R. Civ. P. 24(a)(2) (brackets added by us).
In this instance, the first requirement of timeliness was
easily met. The second requirement--that the applicant possess a
protectable "interest"--was not directly addressed by the district
court. However, on appeal, the Daggett plaintiffs assert that the
applicants lack a protectable interest. The Stearns plaintiffs
make a related argument that the applicants lack Article III
standing; on the latter argument the applicants say that they do
have such standing but that it is in any event unnecessary for
intervenors as of right.
Where required, standing is fundamental, see United
States v. AVX Corp., 962 F.2d 108, 113-15 (1st Cir. 1992), and we
begin with this issue. Interestingly, the circuits are divided as
to whether an intervenor as of right must possess standing under
Article III, and the Supreme Court has reserved judgment on the
point. This circuit has not taken a position on the issue nor
need we decide it here, as we believe that the applicants have a
sufficient stake in the outcome to meet the rather modest
requirements of Article III.
The case law interpreting standing requirements under
Article III is, to put it mildly, "one of the most confused areas
of the law." Chemerinsky, Federal Jurisdiction 2.3.1, at 48
(1989). Standing doctrine is multifaceted, serving several
different interests, and must cope with a great variety of factual
situations. The core requirement--buttressed by some collateral
concerns--is that the person claiming standing must have a concrete
stake in a controversy suitable for court resolution. See Valley
Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 472 (1982).
In this instance, the applicants do have a concrete stake
in the outcome. Each intends to run in the upcoming Maine election
and desires public funding; if the plaintiffs' challenge is
successful, each applicant will lose the opportunity for direct
payment by the state that would otherwise accrue. Highly
contingent interests are sometimes found to be insufficient, see,
e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992), but
the only apparent uncertainty here is whether the applicants can
qualify; given the number of modest contributions required, it
would be surprising if the applicants had much difficulty
qualifying.
The more difficult objection for the applicants, said to
be a "prudential limit[]" that Congress could override,
Chemerinsky, supra, 2.3.1, at 52, is that a party to claim
standing must have an interest distinct from that of every other
citizen or taxpayer. Valley Forge, 454 U.S. at 476-79; United
States v. Richardson, 418 U.S. 166 (1974). This rubric rests on
multiple concerns, including displeasure with claims by individuals
whose interest is infinitely diluted, rests solely on ideological
grounds, or could be replicated by an unlimited number of parties
or would-be intervenors. Cf. Richardson, 418 U.S. at 179-80.
The applicants here are not just any Maine citizens
professing an interest in good government: the applicants will
receive direct funding if the statute is upheld. The number of
persons who can plausibly claim to be in this position is far
narrower than the citizenry at large. Indeed, the applicants'
claim to standing appears as good as that of the plaintiffs insofar
as plaintiffs are attacking public funding, although not quite the
same as claims of plaintiffs who could face criminal conviction for
violating the new contribution limits.
This bring us to the related claim that the applicants
fail to meet the second and third requirements for intervention as
of right, namely, that applicants claim "an interest relating to
the property or transaction which is the subject of the action" and
that the "disposition of the action may as a practical matter
impair or impede the applicant's ability to protect that interest,"
Fed. R. Civ. P. 24(a)(2). Although the two are not identical, the
"interest" required under Rule 24(a) has some connection to the
interest that may give the party a sufficient stake in the outcome
to support standing under Article III. See Diamond, 476 U.S. at
68-69.
Read literally, the "property or transaction" reference
of Rule 24(a) might appear to require a specific piece of property
or contract, and the drafters may have intended a narrow reading.
See Wright, Miller & Kane, Federal Practice and Procedure: Civil
2d 1908, at 270-71 (1986). However, the case law has effectively
rejected the narrow reading, although clear outer boundaries have
yet to be developed. Id. 1908, at 278-300; see generallyConservation Law Found. of New England, Inc. v. Mosbacher, 966 F.2d
39, 41-42 (1st Cir. 1992). The principal Supreme Court cases in
point are few and are "heavily colored by their unusual facts."
Wright, Federal Courts 75, at 541 n.12 (5th ed. 1994).
We think it is enough that the applicants belong to a
small group, quite distinct from the ordinary run of citizens, who
could expect to receive direct payments for their campaigns if the
Reform Act is upheld but not otherwise. See New York Pub. Interest
Research Group, Inc. v. Regents of the Univ. of the State of N.Y.,
516 F.2d 350, 351-52 (2d Cir. 1975); see also Patch, 136 F.3d at
205-06. Patch itself, where we upheld the denial of intervention
by some electricity consumers in a proceeding involving New
Hampshire rate deregulation, was a very different kettle of fish;
there the customers had interests identical--except in degree--to
those of all other consumers of electricity in New Hampshire. Id.at 205.
Similarly, there can be no real dispute that the
applicants' interests would be adversely affected if the present
suit were lost by the defendants. While the applicants might not
in a strict res judicata sense be "bound" by the decision that the
Maine statute was unconstitutional, the state commission could be
subject to a federal court injunction against implementation of the
statute. The "practical" test of adverse effect that governs under
Rule 24(a) is easily satisfied here. See Atlantic Dev. Corp. v.
United States, 379 F.2d 818, 824-25 (5th Cir. 1967).
This brings us to the heart of the case: whether the
district court erred in determining that the "applicant's interest
is adequately represented by existing parties." Fed. R. Civ. P.
24(a)(2). Although the quoted language is prefaced with the word
"unless," the case law is settled that the applicant for
intervention must identify any inadequacy of representation. SeeTrbovich v. United Mine Workers, 404 U.S. 528, 538 & n.10 (1972);
Patch, 136 F.3d at 207. We need not decide if this is a shift only
in the burden of production rather than the burden of persuasion.
See Wright, Miller & Kane, supra, 1909, at 314-16.
In all events, the applicants' obligation to offer
reasons or evidence is independently established by two converging
presumptions triggered because the Attorney General is prepared to
defend the statute in its entirety. One is that adequate
representation is presumed where the goals of the applicants are
the same as those as the plaintiff or defendant, see Kneeland v.
NCAA, 806 F.2d 1285, 1288 (8th Cir. 1987); Moosehead, 610 F.2d at
54; the other is that the government in defending the validity of
the statute is presumed to be representing adequately the interests
of all citizens who support the statute. Patch, 136 F.3d at 207.
Nevertheless, such presumptions can be rebutted, and the
applicants in this case make a double-barreled attack. The first
is a claim that the district judge misapprehended the legal test of
inadequate representation. To that end, the applicants point to
the following passage in the district court's decision:
As the First Circuit stated in Moosehead
Sanitary Dist. v. S.G. Phillips Corp., 610
F.2d 49, 54 (1st Cir. 1979): "Where the party
seeking to intervene has the same ultimate
goal as a party already in the suit, courts
have applied a presumption of adequate
representation. To overcome that presumption,
petitioner ordinarily must demonstrate
adversity of interest, collusion, or
nonfeasance." No such demonstration has been
made here.
Daggett, 1999 WL 53036, at *1.
This trilogy--"adversity of interest, collusion or
nonfeasance"--may trace back to a decision by then-Judge Blackmun.
Stadin v. Union Elec. Co., 309 F.2d 912, 919 (8th Cir. 1962), cert.
denied, 373 U.S. 915 (1963). Judge Blackmun evidently did not
intend this to be an exclusive list, nor did we in Moosehead. As
Wright, Miller & Kane point out (in criticizing the courts that
have misread the statement as exclusive), "[t]he wide variety of
cases that come to the courts would make it unlikely that there are
three and only three circumstances that would make representation
inadequate." Wright, Miller & Kane, supra, 1909, at 318.
Whether the district court was misled by our earlier
Moosehead language is a different issue that we will return to
below. The issue would be irrelevant if we agreed with the
applicants' alternative attack under Rule 24(a)(2), to which we now
turn. In substance, the applicants say that however Mooseheadmight be construed, the district court was required on this record
to decide that representation by the state was not adequate. If
so, outright reversal rather than a possible remand would be
warranted. But the applicants' burden is a heavy one, since
adequacy is primarily a fact-sensitive judgment call and the
standard of review is deferential. See Patch, 136 F.3d at 204.
The applicants' arguments to show inadequacy fall
conveniently under two headings. The first is that an actual
conflict of interests exists, making it likely here that the Maine
Attorney General will not adequately represent the interests of the
applicants. Sometimes such a danger can be discerned from actions
that an existing party has already taken, see Mosbacher, 966 F.2d
at 44 (acquiescence in consent decree), and sometimes it can be
reasonably predicted. See id. at 44-45 (government has conflicting
interests in the matter); see also Dimond v. District of Columbia,
792 F.2d 179, 192-93 (D.C. Cir. 1986).
However, in this instance no such conflict has been
shown. The general notion that the Attorney General represents
"broader" interests at some abstract level is not enough. Patch,
136 F.2d at 207-08. The Attorney General is prepared to defend the
constitutionality of the Reform Act in full, and there is no
indication that he is proposing to compromise or would decline to
appeal if victory were only partial. Compare Mosbacher, 966 F.2d
at 44. If and when there is such a compromise or refusal to
appeal, the question of intervention on this ground can be
revisited. Cf. Meek v. Metropolitan Dade County, 985 F.2d 1471,
1478-79 (11th Cir. 1993).
Alternatively, applicants say that while the Attorney
General may defend the Reform Act, his arguments will differ from
their own. Of course, the use of different arguments as a matter
of litigation judgment is not inadequate representation per se.
See Stadin, 309 F.2d at 919. But one can imagine cases where--even
in the absence of any conflict of interest--a refusal to present
obvious arguments could be so extreme as to justify a finding that
representation by the existing party was inadequate.
In this case, the applicants say the Attorney General may
hesitate to justify the statute by pointing to alleged corruption
associated with the pre-reform Maine election system. The reason
for this supposed hesitation is, the applicants say, that the
Attorney General is appointed by the state legislature. However,
the Attorney General is representing the state as he is directed to
do by Maine law, see Me. Rev. Stat. Ann. tit. 5, 191, and it
would take more than speculation to show that he is likely to soft-
pedal arguments so clearly helpful to his cause--and perhaps even
essential to it, cf. Federal Election Comm'n v. National Conserv.
Political Action Comm., 470 U.S. 480, 496-97 (1985).
Admittedly, the Attorney General's memorandum supporting
applicants' intervention motion refers to discussions with
applicants and some unidentified differences in approach. However,
the applicants, who presumably could have done so, did not say
squarely to the district court that the Attorney General is
refusing to present the arguments in question to the extent that
they have a basis in fact. Thus, on this record, the district
court had no basis to conclude that representation was inadequate
on this score.
Even if the state were not prepared to stress this
corruption issue, so-called "legislative facts," which go to the
justification for a statute, usually are not proved through trial
evidence but rather by material set forth in the briefs, the
ordinary limits on judicial notice having no application to
legislative facts. See Fed. R. Evid. 201 advisory committee's
note; cf. Knight v. Dugger, 863 F.2d 705, 742 (11th Cir. 1988)
(discussing judicial notice of social facts). There may be
instances where the amicus brief would not do the job, but once
again applicants have made no showing on this point.
Passing intervention as of right, the applicants
independently argue that they should have been granted permissive
intervention under Rule 24(b)(2), which gives the judge discretion
to allow intervention "when an applicant's claim or defense and the
main action have a question of law or fact in common." Applicants
have seemingly satisfied this threshold requirement. In that
event, the district court can consider almost any factor rationally
relevant but enjoys very broad discretion in granting or denying
the motion. See, e.g., United States Postal Serv. v. Brennan, 579
F.2d 188, 191-92 (2d Cir. 1978).
The applicants argue that their intervention would not
cause delay and that the state welcomes their intervention; but
their affirmative argument for allowing permissive intervention is
their claim that their own resources, expertise and personal
experience make them a much better advocate than the Attorney
General to support the constitutionality of the statute. The fact
that the applicants may be helpful in fully developing the case is
a reasonable consideration in deciding on permissive intervention.
See Brennan, 579 F.2d at 192.
However, the district court seemed to say that the
resources of the state government were fully adequate. Although
applicants point to the length of time it allegedly took the
Attorney General to compile some data that the applicants say would
be useful, the litigation has barely commenced. And, while the
applicants say their counsel can draw on expertise from other
funding litigation, the district court could conclude that this
expertise may be effectively deployed through amicus briefs and by
providing assistance to the state.
The applicants urge that their own personal experience in
past campaigns would provide useful testimony to show why reforms
are necessary. Conceivably, such testimony is not covered by the
rubric of legislative facts. But there is no obvious reason why,
if the evidence were useful and permitted by the district court, it
would not be offered by the state, treating the applicants as
friendly witnesses. The applicants have already been listed by the
state as witnesses expected to testify.
A last factor, so far as permissive intervention is
concerned, is that the district court made clear that it thought
that the addition of still more parties would complicate a case
that badly needed to be expedited. This is plainly a permissible
consideration, see Fed. R. Civ. P. 24(b)(2), and while applicants
say with some force that there would be no disruption or delay,
this is the kind of judgment on which the district court's
expertise and authority is at its zenith. See Travelers Indem. Co.v. Dingwell, 884 F.2d 629, 641 (1st Cir. 1989).
In sum, on this record, the district court was not
required to allow either intervention as of right or permissive
intervention. All that remains is the possibility that the
district court, in making its decision as to whether intervention
as of right should be allowed, was misled by our language in
Moosehead. The fact that the district court was not required to
allow intervention does not mean that it was forbidden from doing
so. On this record, it is unclear whether the district court would
have decided the issue differently had it had the benefit of our
clarification of Moosehead above.
Despite its nomenclature, intervention "as of right"
usually turns on judgment calls and fact assessments that a
reviewing court is unlikely to disturb except for clear mistakes.
Indeed, while the four tests for intervention as of right are set
forth as separate requirements, the courts recognize that there is
some interplay between them. See Patch, 136 F.3d at 204 (endorsing
a "holistic" approach). Thus, in practice, the district court
enjoys a reasonable measure of latitude under Rule 24(a)(2) as well
as Rule 24(b)(2).
The reality is that, as courts have moved from
formalistic restrictions to a practical "interest" requirement for
intervention as of right, so tests of "inadequacy" tend to vary
depending on the strength of the interest. Courts might require
very little "inadequacy" if the would-be intervenor's home were at
stake and a great deal if the interest were thin and widely
shared. The applicants in this case fall somewhere in the middle,
and an appeals court would be unlikely under an abuse of discretion
standard to reverse the district court, whether it granted
intervention or denied it.
Accordingly, we vacate the order denying intervention and
remand to allow the district court to reconsider whether its
judgment is affected by our clarification of Moosehead. The court
is free to entertain further submissions by the parties or to
refuse them as it thinks best. The legal standard now having been
made clear, the matter is confided to the sound discretion of the
district court.
It is so ordered.
Concurrence follows.LYNCH, Circuit Judge, concurring. I join in the decision
vacating the order denying intervention and remanding to allow the
district court to reconsider. I write separately on matters which
the district court may wish to consider on remand.
Plaintiffs in this case include legislators and office
seekers who oppose the Reform Act and seek to have it declared
unconstitutional. Proposed intervenors are legislators and office
seekers who favor the Reform Act and seek to have it declared
constitutional. The personal stakes of the individuals in the two
opposing groups are largely the same and are highly concrete. The
interests of the proposed intervenors are sufficiently concrete to
meet the requirements of Article III standing. The proposed
intervenors are not simply a public-interest group with an interest
best characterized as ideological. Whether the statute is
constitutionally valid or not matters to each group of individuals
and will determine in part how those individuals mount their
election campaigns. The effect of the district court's order is
that one group participates, but not the other. And the order does
so in the face of a statement by the Attorney General of Maine,
charged with defending the statute, that he would welcome the
intervention. This no doubt reflects the Attorney General's
correct recognition that his stake in the matter is similar to but
not identical to the interests of the proposed intervenors.
It is a political reality that no state Attorney General
is likely to say that the legal representation provided by his or
her office is inadequate, or that the resources available to the
Attorney General are sufficiently limited as to place constraints
on that office's ability to litigate complex cases. While the
position of the Attorney General in favor of intervention cannot be
dispositive, it is entitled to some weight in the Rule 24 equation.
If the Attorney General felt that intervenors would burden the
defense of the statute or prolong the litigation, he could easily
say so. He has not done so here.
The Supreme Court has said that the burden of making a
showing for purposes of Rule 24(a)(2) that the representation "may
be inadequate . . . should be treated as minimal." Trbovich v.
United Mine Workers of America, 404 U.S. 528, 538 n.10 (1972)
(internal quotation marks omitted). "[T]he language of the rule
clearly suggests that now [the proposed intervenor] is to be
allowed in, if the other conditions of the rule are satisfied,
unless the court is persuaded that the representation of him is in
fact adequate." 7C Wright, Miller & Kane, Federal Practice and
Procedure Civil 2d 1909, at 314-15. The panel opinion correctly
notes that we have not directly ruled on the question of burdens
after the proposed intervenor identifies some inadequacy. There is
some tension in our case law. We have twice said that "the burden
of persuasion that representation is adequate appears to rest on
the party opposing intervention." Caterino v. Barry, 922 F.2d 37,
42 n.4 (1st Cir. 1990) (emphasis in original) (citing Flynn v.
Hubbard, 782 F.2d 1084, 1090 n.4 (1st Cir. 1986) (Coffin, J.,
concurring); but see Public Serv. Co. v. Patch, 136 F.3d 197, 207
(1st Cir. 1998).
It is true that First Circuit precedent says that the
government, in defending the constitutionality of the statute, is
presumed to be adequately representing the interests of all
citizens who support the statute. See Patch, 136 F.3d at 207. But
that principle has limited application here, where the intervenors
have concrete personal interests apart from generalized citizen
support of the statute.
The constitutional issues involved in this case are
significant and difficult. Those constitutional issues, unlike
many First Amendment cases (involving, for example, facial attacks
on statutes), may well depend heavily on the development of a
factual record. Any district court faced with such a case would
be warranted in having concerns about judicial efficiency and
keeping control of the litigation. But concerns that the case be
decided on the basis of a fully developed factual record and
briefing, or at least as full as the circumstances permit, may
carry similar weight. It is precisely in fact-intensive cases that
participation restricted to briefing of legal issues in amicus
briefs may prove to be least satisfactory. For this reason, as
Judge Friendly recognized in United States v. Hooker Chems. and
Plastics Corp., 749 F.2d 968 (2d Cir. 1984), even where
intervention is sought well after litigation had commenced (as is
plainly not the case here), some courts have offered proposed
intervenors "amicus-plus" status, or the right to call and cross-
examine witnesses as well as to submit briefs. Id. at 991-93.
Constitutional challenges to campaign-finance laws pose
exactly such fact-intensive questions. Though the standard is not
fully defined (and I do not purport to do so here), the Supreme
Court earlier said, for example, that regulation of certain
political activity will not stand unless supported by concrete
evidence of a systemic ill -- usually, corruption or its appearance
-- that the challenged statute is designed to combat. Seegenerally Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam); Federal
Election Comm'n v. National Right To Work Comm., 459 U.S. 197
(1982); Schultz, Proving Political Corruption: Documenting the
Evidence Required to Sustain Campaign Finance Reform Laws, 18 Rev.
Litig. 85 (1999). In hearing such challenges, courts take care to
review a detailed factual record. See, e.g., Buckley v. American
Constitutional Law Found., Inc., 119 S. Ct. 636, 641 & n.9 (1999)
(discussing factual record established at bench trial and by cross-
motions for summary judgment); California Prolife Council Political
Action Comm. v. Scully, 989 F. Supp. 1282, 1286 (E.D. Ca. 1998)
(partially resolving issues after two-week trial), aff'd, 164 F.3d
1189 (9th Cir. 1999); Buckley v. Valeo, 519 F.2d 817, 818 (D.C.
Cir. 1975) (en banc) (per curiam) (remanding to district court with
instructions to "[t]ake whatever may be necessary in the form of
evidence -- over and above submissions that may suitably be handled
through judicial notice"); Buckley, 424 U.S. at 9-10 (noting
district court's gathering of an augmented record on remand,
including "extensive findings of fact"). The district court may
consider whether the proposed intervenors offer evidence that is
helpful to the court and unavailable from other parties. If so,
appellants might be better intervenors than amici.
In deciding these matters, the district court may wish to
consider the long history of allowances of intervention in similar
cases. See Buckley v. Valeo, 519 F.2d 821, 834 (D.C. Cir. 1975)
(en banc) (per curiam) (discussing intervention by three
organizations and eight individuals), rev'd in part on othergrounds, 424 U.S. 1 (1976) (per curiam); Vannatta v. Keisling, 899
F. Supp. 488, 491 n.2 (D. Or. 1995) (intervention by two
organizations), aff'd, 151 F.3d 1215 (9th Cir. 1998), cert. denied,
119 S. Ct. 870 (1999); California Prolife Council Political Action
Comm. v. Scully, No. 96-1965 (E.D. Ca. filed July 9, 1997)
(declining to reconsider prior intervention by initiative
proponents in light of Arizonans for Official English v. Arizona,
520 U.S. 43 (1997)).
Legislators and candidates, whose interests are directly
implicated by campaign regulation, have often acted as intervenors.
In one challenge to contribution limits, the district court granted
summary judgment against plaintiffs challenging the law, and thus
denied as moot a state legislator's motion to intervene. Shrink
Mo. Gov't Political Action Comm. v. Adams, 5 F. Supp. 2d 734, 742-
43 (E.D. Mo.), rev'd on other grounds, 161 F.3d 519 (8th Cir.
1998), cert. granted sub nom. Nixon v. Shrink Mo. Gov't Political
Action Comm., 119 S. Ct. 901 (1999). On appeal, the Eighth Circuit
allowed the legislator to intervene. See Shrink Mo. Gov't
Political Action Comm. v. Adams, No. 98-2351 (8th Cir. Aug. 3,
1998) (order permitting intervention). In a lawsuit challenging
limits on spending by candidates for state judgeships, the court
allowed intervention by judges and judicial candidates on both
sides. See Suster v. Marshall, 149 F.3d 523, 526 (6th Cir. 1998),
cert. denied, 119 S. Ct. 890 (1999). In a challenge to a city
campaign-finance ordinance, the court allowed intervention by a
once and future candidate for city council. See Kruse v. City of
Cincinnati, No. C-1-96-252 (S.D. Ohio filed Oct. 21, 1996) (order
granting intervention). In constitutional challenges to
comprehensive state regulations of campaign finance similar to
those at issue in this case, two courts allowed intervention by
parties including legislators intending to run for re-election and
unsuccessful candidates planning to seek office again. See Vermont
Right to Life Comm., Inc. v. Sorrell, No. 2:97-286 (D. Vt. Jan. 5,
1998) (allowing, from the bench, intervention as of right or, in
the alternative, permissive intervention); Arkansas Right to Life
State Political Action Comm. v. Butler, No. 97-5064 (W.D. Ark.
Sept. 30, 1997) (order granting permissive intervention). We have
not found, and appellees did not submit, any decision denying, on
the merits, intervention by candidates and legislators in a
campaign-finance dispute.
As a leading commentator has noted, "[A] lawsuit often is
not merely a private fight and will have implications on those not
named as parties." Wright, Miller & Kane, supra, 1901, at 228.
That recognition is the conceptual underpinning for intervention
under Rule 24(a). This lawsuit is a far cry from a private fight.
The rationale for intervention may have particular force where the
subject matter of the lawsuit is of great public interest, the
intervenor has a real stake in the outcome and the intervention may
well assist the court in its decision through the production of
relevant evidence and the framing of the issues.
But these are, in the first instance, matters for the
district court. Because the district court may have been led
astray by this court's language in Moosehead Sanitary Dist. v. S.G.
Phillips Corp., 610 F.2d 49, 54 (1st Cir. 1979), I join in the
order.