United States District Court, D. Maine
DAVID and AMY CARSON, on their own behalf and as next friends of their child, OC; ALAN and JUDITH GILLIS, on their own behalf and as next friends of their child, I.G.; and TROY and ANGELA NELSON, on their own behalf and as next friends of their children, A.N. and R.N., Plaintiffs
ROBERT G. HASSON, JR., in his official capacity as Commissioner of the Maine Department of Education, Defendant
DECISION AND ORDER ON MOTION TO INTERVENE
Brock Hornby United States District Judge.
lawsuit, the plaintiffs are three families, parents of
school-age children who live in communities that do not
operate their own public high schools. Under Maine law, these
communities instead pay tuition to a public or private
secondary school of the parents' choice, so long as the
school is nonsectarian. 20-A M.R.S.A. § 2951. These
parents want the communities to pay to send their children to
religious high schools. They have sued the State Commissioner
of Education, seeking a declaration that Maine's
statutory prohibition on paying tuition to sectarian schools
is unconstitutional. Pls.' Compl. at 1-2 (ECF No. 1).
people who live and pay taxes in those communities (two of
them retired teachers) seek to intervene in the lawsuit on
the side of the State Commissioner, wanting to uphold the
prohibition. They oppose tax dollars going to sectarian
schools and are ACLU members. They tell me that their lawyers
are from the Maine ACLU, the ACLU Program on Freedom of
Religion and Belief, and Americans United for Separation of
Church and State. Mot. to Intervene at 2-3 (ECF No. 13).
State Commissioner of Education does not object to the motion
to intervene. (Actually, he has not said so directly or
through his lawyers in any court filing, but the lawyers for
the would-be intervenors have said so and no one has
contradicted their assertion.) Id. at 3. The
plaintiffs do object, but are agreeable to the plaintiffs and
their lawyers appearing as amicus curiae, including
participating at oral argument on what the plaintiffs say
will involve motions for summary judgment that will resolve
the case one way or the other. Pls.' Response in
Opp'n to Mot. to Intervene (“Pls.'
Resp.”) at 1-2 (ECF No. 16).
motion rises or falls under Fed.R.Civ.P. 24(b), which deals
with so-called permissive intervention. That rule provides
that a “court may permit anyone to intervene who . . .
has a claim or defense that shares with the main action a
common question of law or fact.” The case law is
clear that a court's ruling on a motion to intervene is
discretionary, Daggett v. Comm'n on Governmental
Ethics & Election Practices, 172 F.3d 104, 113 (1st
Cir. 1999); Massachusetts Food Ass'n v. Massachusetts
Alcoholic Beverages Control Comm'n, 197
F.3d 560, 568 (1st Cir. 1999), and that “[i]n
exercising its discretion, the court must consider whether
the intervention will unduly delay or prejudice the
adjudication of the original parties' rights.”
the opposing parties have not given me much to go on. The
movants want to be parties ostensibly because they are ACLU
members and oppose their own, or anyone else's, taxes
going to religious education and activity. Mot. to Intervene
at 4. Equally important seems to be their desire to use their
lawyers' “extensive experience and expertise”
that they say they have in this kind of lawsuit. Id.
at 5. I have my doubts as to whether that meets the Rule
24(b) standard (it casts a pretty wide net, potentially
justifying intervention by thousands of taxpayers). But I
will assume that it does, because the cases generally
describe the requirement of “a claim or defense that
shares with the main action a common question of law or
fact” as a “low threshold, ”
Massachusetts Food Ass'n, 197 F.3d at 568, and
turn quickly to whether the court's ruling for or against
intervention abused the court's discretion. Id.
their part, the plaintiffs are concerned that allowing
intervention will delay their lawsuit (they want tuition
payments by next school year) and provoke burdensome and
prejudicial discovery (they are particularly worried about
intrusive inquiry into their religious convictions).
Pls.' Resp. at 1-2, 6. In turn, the would-be intervenors
say that none of that will occur. Reply at 1 (ECF No. 18).
turn to the exercise of my discretion. As I said many years
ago in denying permissive intervention in an election law
Every trial judge knows that where there are multiple parties
with the same interest on one side of a case, it is well-nigh
impossible to restrain the multiple lawyers from duplicative
discovery, examination and cross-examination. It is not a
matter of bad faith on the lawyers' part-it is simply
every lawyer's competitive belief that he/she can do a
better job than the colleague who just sat down, coupled with
the natural desire to show the client that the lawyer is
working hard for the fee. . . . [A] judge cannot
realistically stop the repetition. It is better-if the option
exists-simply not to create the occasion for unnecessary
repetition in the first place.
Daggett v. Webster, 190 F.R.D. 12, 14 (D. Me. 1999).
See also Wright, Miller & Kane, Federal
Practice and Procedure: Civil 3d § 1913, p. 481
(“Additional parties always take additional time that
may result in delay and that thus may support the denial of
will allow the would-be intervenors' lawyers to bring all
their civil liberties skills to bear on the case as
amicus (or amici) curiae. At the
same time, I am confident that the Maine Attorney
General's office has the ability and resources needed to
defend the Maine statute fully and expeditiously. (After all,
that office has done so successfully in the past, as I am
told by the moving parties.) Given the Maine Attorney
General's Office's capability, aided by amici
curiae, the defense will be in good hands. At the end of
the day, despite good intentions, there is a risk of added
complexity and delay in allowing intervention, and no obvious
I Deny the motion to intervene.