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No. 96-1066
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Mrs. Binh Chiglo; J & B, Inc. *
a Minnesota corporation; Mary *
Moore, *
*
Plaintiffs - Appellees, *
*
v. * Appeal from the United States
* District Court for the
City of Preston, a municipal * District of Minnesota.
corporation; *
*
Defendant, *
*
Mike Sveen; Steve Corson; Brent *
Larson; Jeff Fleming, *
*
Movants - Appellants. *
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Submitted: July 12, 1996
Filed: January 6, 1997
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Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
Mike Sveen and three other citizens1 of Preston, Minnesota appeal
from the district court's2 order denying their motion to intervene as
defendants, so that they could appeal the judgment entered against Preston,
declaring Preston's tobacco advertising ordinance to be preempted by the
Federal Cigarette Labeling and Advertising Act. The district court ruled
that Sveen and the
1
Steve Corson, Brent Larson, and Jeff Fleming.
2
The Honorable Paul A. Magnuson, Chief Judge, United States
District Court for the District of Minnesota.
others had not shown that they had a legally protectable interest at stake
in the litigation and therefore were not entitled to intervene under
Federal Rule of Civil Procedure 24(a). Because we conclude that they have
not rebutted the presumption that the city government adequately represents
their interests as citizens, we affirm the district court's ruling.
In 1994 the City of Preston adopted Ordinance No. 213, which
regulates tobacco advertising in shops that offer tobacco products for
sale. The announced purpose of the ordinance was to protect children under
the age of eighteen from being influenced to use tobacco. The ordinance
limited shops to the use of "tombstone signs" to advertise tobacco and
imposed restrictions on the size, content, and appearance of such signs,
as well as the number of signs a merchant could display.
Binh Chiglo is a merchant who is affected by the restrictions in
Ordinance No. 213. She, her company, and her employee brought suit
challenging the ordinance on the grounds that it was preempted by federal
law and that it violated their First Amendment rights. The district court
entered summary judgment for Chiglo, holding that Ordinance No. 213 was
preempted by the Federal Cigarette Labeling and Advertising Act. The City
did not appeal the judgment.
Sveen and the others filed a motion to intervene as defendants,
stating that they had an interest in the enforcement of Ordinance No. 213,
and that the City of Preston had failed to protect their interest because
it neglected to file a timely appeal. (Sveen and the others filed a timely
protective appeal). They filed affidavits in support of their motions
stating that they were parents, and that they believed the ordinance was
desirable to protect children from the inducements of tobacco advertising.
They simply stated without elaboration that in the City Council meeting to
consider appealing the ruling, one of the proposed intervenors
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had moved to appeal the ruling, but that his motion had received no second.
The proposed intervenors did not explain why the City had failed to appeal
the ruling, though perhaps there was an implicit explanation in the
statement that there had been a City Council election between the time the
ordinance was adopted and the time of the Council meeting, in which the
Council had received two new members.
The district court denied the motion to intervene, saying that the
proposed intervenors had not proven that they had a legally protectable
interest at stake in the litigation, since the only interest they claimed
was the interest in protecting minors from tobacco advertising, which was
an interest that they shared with the rest of the public.
The proposed intervenors appeal, arguing that they have established
all the prerequisites for intervention as of right under Federal Rule of
Civil Procedure 24(a)(2).
Under Rule 24(a)(2), a person is entitled to intervene as of right
if: (1) he has a cognizable interest in the subject matter of the
litigation; (2) the interest may be impaired as a result of the litigation;
and (3) the interest is not adequately protected by the existing parties
to the litigation. See United States v. Union Elec. Co., 64 F.3d 1152,
1160 (8th Cir. 1995). The intervenor must satisfy all three parts of the
test. The motion to intervene must also be timely. See id. at 1158-59.
We review de novo the district court's determination of the three-factor
test, but the timeliness determination we review for abuse of discretion.
See id. at 1158.
The district court held that the proposed intervenors demonstrated
no cognizable interest, because their only announced aim was to serve the
public interest in avoiding tobacco use by children. The court stated,
"Merely expressing a generalized
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interest in the public benefits of the ordinance does not constitute a
legally protected interest." We consider this analysis to fit more neatly
under the rubric of adequacy of representation, but we, like the district
court, conclude that the proposed intervenors' motion must fail because
they did not show any way in which their interests diverged from the public
interest.
The intervenor bears the burden of showing that his interests are not
adequately represented by existing parties. See Union Elec., 64 F.3d at
1168. This burden is ordinarily minimal, see id., but if an existing party
to the suit is charged with the responsibility of representing the
intervenor's interests, a presumption of adequate representation arises.
See id. at 1168-69. When one of the parties is an arm or agency of the
government, acting in a matter of sovereign interest, the governmental
entity is presumed to represent the interests of its citizens as parens
patriae, or "parent of the country." See Mausolf v. Babbitt, 85 F.3d 1295,
1303 (8th Cir. 1996).
However, the government only represents the citizen to the extent his
interests coincide with the public interest. If the citizen stands to gain
or lose from the litigation in a way different from the public at large,
the parens patriae would not be expected to represent him. See Mausolf,
85 F.3d at 1303-04. For instance, in Mille Lacs Band of Indians v.
Minnesota, 989 F.2d 994, 1001 (8th Cir. 1993), certain landowners were
allowed to intervene in a case to protect fish and game in the state of
Minnesota, despite the fact that the state was already a party to the suit
and was representing the public in protecting the state's fish and game.
This court held that the landowners' interests were not represented by the
parens patriae because, in addition to the interest the public shares in
game preservation, the landowners had property whose value might be
affected by fish and game depletion. Since the landowners would be
affected by the litigation more severely than the public at large, the
state's representation of
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the public interest was not sufficient to protect the landowners'
interests. Id.
If the intervenor's only interest in the suit is shared in common
with the public, the citizen must rebut the presumption of adequate
representation by the parens patriae. The proposed intervenor may rebut
this presumption, among other ways, by showing that the parens patriae has
committed misfeasance or nonfeasance in protecting the public. In Mausolf,
an environmental group sought to intervene in litigation between the
federal government and a snowmobilers' association concerning recreational
use of snowmobiles in a national park. 85 F.3d at 1296. The environmental
group contended that the government was less than vigilant about protecting
the public's interest in conservation of the park lands. The environmental
group was able to back up its claim with evidence that the government had
waived and failed to enforce regulations against snowmobile use in the
park, and that it had disregarded a statutory mandate to make a wilderness
recommendation for the park. See id. at 1303. We held the environmental
group was not adequately represented by the government and therefore was
entitled to intervene. See id. at 1304.
Absent this sort of clear dereliction of duty, however, the proposed
intervenor cannot rebut the presumption of representation by merely
disagreeing with the litigation strategy or objectives of the party
representing him. For instance, in Jenkins v. Missouri, 78 F.3d 1270,
1275-76 (8th Cir. 1996), class members' disagreement with the class
representatives over the desirability of certain remedial programs was not
sufficient to show inadequate representation. Accord Trahan v. Lafayette
Parish Sch. Bd., 616 F. Supp. 220, 223 (W.D. La. 1985).
In this case, the proposed intervenors claim that they want to
intervene to protect children from smoking. This concern falls
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squarely within the City's interest in protecting public health,
particularly since it is illegal for minors to use tobacco in Minnesota.
Therefore, the proposed intervenors have articulated an interest that
coincides with the City's role as protector of its citizens. The
intervenors have made no effort to rebut the presumption of adequate
representation except to say that the City failed to appeal the ruling
invalidating Ordinance No. 213.
The question before us then, is whether the City's failure to appeal
the ruling is the sort of nonfeasance that would render the City's
representation of the public inadequate.
We conclude that the proposed intervenors must show something more
than mere failure to appeal. "`Even a decision not to take an appeal is
ordinarily within the discretion of the representative, though in unusual
cases this may show inadequate representation.'" Triax Co. v. TRW, Inc.,
724 F.2d 1224, 1228 (6th Cir. 1984) (quoting 7A C. Wright & A. Miller,
Federal Practice and Procedure § 1909 at 532 (1972), now found at 7C C.
Wright, A. Miller & M. K. Kane, Federal Practice and Procedure § 1909 at
344-345 (1986)). Accord Orange Environment, Inc. v. County of Orange, 817
F. Supp. 1051, 1060-62 (S.D.N.Y.), aff'd, 2 F.3d 1235 (2d Cir. 1993);
Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 396 (6th Cir. 1993); United
States v. City of Chicago, 897 F.2d 243, 244 (7th Cir. 1990). Admittedly,
failure to appeal, combined with diverging interests between the
representative and the proposed intervenor, is surely enough to warrant
intervention. See Triax, 724 F.2d at 1228. There are certainly other
situations in which failure to appeal will be a key factor in showing a
need for intervention. See, e.g., Meek v. Metropolitan Dade Cty., 985 F.2d
1471, 1478 n.2 (11th Cir. 1993); Yniguez v. Arizona, 939 F.2d 727, 730, 737
(9th Cir. 1991) (governor failed to appeal from judgment invalidating
initiative measure; governor had previously expressed political opposition
to the measure). See generally Smuck v. Hobson, 408 F.2d 175, 181 (D.C.
Cir. 1969) (en banc) ("[A] failure to appeal
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may be one factor in deciding whether representation by existing parties
is adequate."); Nuesse v. Camp, 385 F.2d 694, 704 n.10 (D.C. Cir. 1967).
We will not attempt to catalog the possible factors which could
combine with failure to appeal to effectively rebut the presumption of
adequate representation. It is sufficient to say that in this case the
proposed intervenors make absolutely no showing of any factor other than
the failure to appeal. Moreover, the City would face significant legal
obstacles in seeking a reversal of the district court's preemption ruling.
See generally 15 U.S.C. § 1334(b) (1994); Cippollone v. Liggett Group,
Inc., 505 U.S. 504 (1992); Vango Media, Inc. v. City of New York, 34 F.3d
68 (2d Cir. 1994). We conclude that the proposed intervenors have fallen
short of carrying their burden of proof.
Accordingly, we affirm the district court's denial of the motion to
intervene as of right.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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