Daggett v. Commission on Governmental Ethics & Election Practices

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 limited4 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, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) (internal quotation marks omitted). “[T]he language of the rule clearly suggests that now [the proposed intervenor] is *115to 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 ease 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.5 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 Chemicals 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. See generally Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); Federal Election Comm’n v. National Right To Work Comm., 459 U.S. 197, 103 S.Ct. 552, 74 L.Ed.2d 364 (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., — U.S. -, - & n. 9, 119 S.Ct. 636, 641 & n. 9, 142 L.Ed.2d 599 (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 eu-*116riam) (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, 96 S.Ct. 612 (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 other grounds, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (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, - U.S. -, 119 S.Ct. 870, 142 L.Ed.2d 771 (1999); California Prolife Council Political Action Committee v. Scully, 989 F.Supp. 1282 (E.D.Cal.1997) (declining to reconsider prior intervention by initiative proponents in light of Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (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 Missouri Government PAC 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 Missouri Government PAC, — U.S. -, 119 S.Ct. 901, 142 L.Ed.2d 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, — U.S. -, 119 S.Ct. 890, 142 L.Ed.2d 788 (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 in-tervenor has a real stake in the outcome and the intervention may well assist the court in its decision through the produc*117tion 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.

. In another context, that of altering pension schemes for public employees, the state of Maine has urged this court to recognize that it recently faced a state fiscal crisis. See Parker v. Wakelin, 123 F.3d 1, 3 (1st Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1675, 140 L.Ed.2d 813 (1998).

. To give but one example, plaintiffs say, in furtherance of their theory of unconstitutionality, that although under the Act a "publicly financed candidate may not accept private contributions and must abide by spending limits ... these spending limits are in many cases illusory.... [Further,] the practical effect of the system is to coerce participation in the ... scheme.” Brief for Daggett Plaintiffs-Appellees at 5.