Curry v. Regents of the University of Minnesota

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 98-3284
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Matthew Curry; Jessie Roos; Amber *
Harpel; Aaron Fagerness; Grant Buse; *
*
Plaintiffs - Appellees, *
*
v. *
*
Regents of the University of *
Minnesota; William E. Hogan, II; *
Patricia B. Spence; Robert S. *
Bergland; Julie A. Bleyhl; Warren C. *
Larson; David R. Metzen; H. Bryan *
Neel, III; Michael O'Keefe; William R. * Appeal from the United States
Peterson; Jessica J. Phillips; Thomas R. * District Court for the
Reagan; Maureen K. Reed, all in their * District of Minnesota
official capacities as members of the *
University of Minnesota Board of *
Regents; *
*
Defendants, *
*
Queer Student Cultural Center; La Raza *
Student Cultural Center; University *
Young Women; *
*
Movants - Appellants. *
___________

Submitted: November 20, 1998
Filed: February 1, 1999
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Before BOWMAN, Chief Judge, LOKEN, Circuit Judge, and HAND,1 District Judge.
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BOWMAN, Chief Judge.

The Queer Student Cultural Center (QSCC), La Raza Student Cultural Center
(La Raza), and University Young Women (U-YW) appeal the denial of their motion
for intervention of right or permissive intervention. We affirm.

On February 3, 1998, five students filed a complaint against the Regents of the
University of Minnesota alleging violations of their constitutional rights to the extent
that their Student Services Fees are used to fund campus organizations engaging in
ideological or political advocacy with which the plaintiffs disagree. The complaint
listed three organizations that the plaintiffs specifically objected to funding through
this mandatory fee system: QSCC, La Raza, and U-YW. The defendants filed an
answer on April 6, 1998. On April 21, 1998, QSCC, La Raza, and U-YW (the
Movants) jointly moved to intervene in the action either of right or permissively under
Federal Rule of Civil Procedure 24. The Movants assert that this action directly
threatens their "First Amendment rights of free speech and association as well as their
related right to undiminished funding." Appellants' Br. at 8.

Only the plaintiffs have opposed the motion to intervene. After a hearing on the
intervention motion, the Magistrate Judge2 to whom the motion had been referred for
ruling denied intervention of right concluding that the Movants had not shown they
possess a legally protectable interest in the action's subject matter and that, in any

1
The Honorable William Brevard Hand, United States District Judge for the
Southern District of Alabama, sitting by designation.
2
The Honorable Jonathan Lebedoff, United States Magistrate Judge for the
District of Minnesota, sitting to hear this pretrial matter by designation of the District
Court pursuant to 28 U.S.C. § 636(b)(1)(A) (1994).

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event, they had not shown that the University would not adequately represent their
interests. Finding that the Movants had not raised a question of law or fact common
both to their interests and to the issues raised by the existing action and that the
Movants would interject collateral issues into the litigation, the Magistrate Judge also
denied permissive intervention but ruled that the Movants could participate as amici
curiae. The District Court3 affirmed the denial of the Movants' motion for intervention.
The Movants appeal.

We review de novo the denial of intervention of right, and we review the denial
of permissive intervention for abuse of discretion. See Standard Heating & Air
Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 570, 573 (8th Cir. 1998).
Although not discussed by the plaintiffs or the District Court, "Article III standing is
a prerequisite for intervention in a federal lawsuit." Id. at 570. Constitutional standing
requires a showing of: (1) an injury in fact, which is an invasion of a legally protected
interest that is concrete, particularized, and either actual or imminent; (2) causation;
and (3) redressability. See Mausolf v. Babbitt, 85 F.3d 1295, 1301 (8th Cir. 1996)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 561 (1992)).

The Movants allege injury to their interests in free expression; non-
discriminatory, viewpoint-neutral funding; and undiminished funding. See Appellants'
Br. at 8, 18 n.4. This action, however, focuses only on the collection of the mandatory
fees used to support the activities of campus organizations, not on the distribution of
such funds to campus organizations.4 The Movants' interests in receiving viewpoint-

3
The Honorable Paul A. Magnuson, Chief Judge, United States District Court
for the District of Minnesota.
4
The nondiscriminatory distribution by the University of funds available for the
support of student organizations as required by Rosenberger v. Rector & Visitors of
University of Virginia, 515 U.S. 819 (1995), is not at issue in this action because the
University's system for distributing the fees collected has not been challenged by the
plaintiffs. Rather, the plaintiffs challenge only the right of the University to compel

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neutral funding from the mandatory fee system and participating in expressive activities
are not threatened by the plaintiffs' complaint. If the plaintiffs are successful in their
action, the potential harm to the Movants is only the possibility that their funding from
the mandatory fee system will be less than it would be otherwise, which might thereby
lessen their financial ability to support their expressive activities. But the Movants have
no constitutional or legal right to compel unwilling students to provide financial support
for their activities, so the potential harm to the Movants is not a legally cognizable
injury in fact. Cf. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of
Boston, 515 U.S. 557, 566 (1995) (stating that the free speech guarantee guards only
against government intrusion and not merely private conduct); Gay & Lesbian Students
Ass'n v. Gohn, 850 F.2d 361, 366 (8th Cir. 1988) (stating that student organizations
have no right to require a university to provide a funding mechanism for their
activities). For these reasons, we find the Movants do not have standing to intervene.

Even if standing were found, the Movants have not shown that intervention is
warranted. Upon timely application, a party seeking intervention of right must establish
that it: "(1) ha[s] a recognized interest in the subject matter of the litigation that (2)
might be impaired by the disposition of the case and that (3) will not be adequately
protected by the existing parties." See Standard Heating, 137 F.3d at 571 (quoting
Mausolf, 85 F.3d at 1299); Chiglo v. City of Preston, 104 F.3d 185, 187 (8th Cir.
1997).5 Although the Movants' motion was timely, they have not established that they

them to pay fees for the support of advocacy groups they do not wish to support. Cf.
id. at 840 ("[W]e do not have before us the question whether an objecting student has
the First Amendment right to demand a pro rata return to the extent the fee is expended
for speech to which he or she does not subscribe.").
5
Under Federal Rule of Civil Procedure 24(a)(2), intervention of right is
permitted "when the applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that the disposition
of the action may as a practical matter impair or impede the applicant's ability to

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possess a recognized interest in this action's subject matter. The Movants merely have
asserted an economic interest, maintaining the quantum of their funding, in the outcome
of this litigation. The Movants' economic interest in upholding the current fee system
simply does not rise to the level of a legally protectable interest necessary for
mandatory intervention. See Standard Heating, 137 F.3d at 571 (stating that the would-
be intervenors' economic interests in the existing action were too speculative to be
deemed "direct, substantial, and legally protectable" interests); Green v. United States,
996 F.2d 973, 976 (9th Cir. 1993) (stating that an economic stake in the outcome of an
action is not sufficient to demonstrate a "significantly protectable interest").

The Movants also have not met their "minimal burden" of showing that the
University will inadequately represent their interests. Mausolf, 85 F.3d at 1303. The
Movants characterize their interest as a concern that they will lose funding, which in
turn may lessen their expressive activities, while characterizing the University as
merely interested in upholding the current fee system. The Movants potentially may
lose funding, however, only if the fee system is not upheld. Thus, although the
Movants' motives may be distinguishable from the University's, the Movants' and the
University's interests are the same: both want the current fee system upheld.

Our conclusion is further bolstered by the doctrine of parens patriae, which posits
that, when a government entity is a party and the case concerns a matter of sovereign
interest, the government is presumed adequately to represent the interests of the public.
See id.; Chiglo, 104 F.3d at 187. This presumption may be rebutted by a strong
showing of inadequate representation, as, for example, by showing that the interest of
the would-be intervenor cannot be subsumed within the public interest represented by
the government entity. See Mausolf, 85 F.3d at 1303. Although the Movants assert
that the University does not share their speech and economic interests,

protect that interest, unless the applicant's interest is adequately represented by existing
parties."

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the University's interest in defending the mandatory student fee system that has been
created to support student organizations encompasses the Movants' asserted interests.
Therefore, the Movants have not made the strong showing of inadequate representation
necessary to rebut the parens patriae presumption.

Permissive intervention similarly would be denied even if the Movants were
found to have standing.6 The Magistrate Judge found that the Movants had not raised
a question of law or fact common to the questions presented by the existing action, and
that the Movants' presence in the case would interject collateral issues. We do not
discern any abuse of discretion in the denial of the motion for permissive intervention.

"While Rule 24 promotes judicial economy by facilitating, where constitutionally
permissible, the participation of interested parties in others' lawsuits, the fact remains
that a federal case is a limited affair, and not everyone with an opinion is invited to
attend." Mausolf, 85 F.3d at 1301. The Movants have failed to establish that they have
Article III standing to be parties to this case. Even if standing were found, they have
failed to make a case for intervention either as of right or as a matter of discretion. The
District Court's order denying the Movants' motion for intervention is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

6
Under Federal Rule of Civil Procedure 24(b)(2), permissive intervention is
permitted "when an applicant's claim or defense and the main action have a question
of law or fact in common. . . . In exercising its discretion the court shall consider
whether the intervention will unduly delay or prejudice the adjudication of the rights
of the original parties."

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