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Court Error – Abuse of discretion

By: Derek Hawkins//December 10, 2019//

Court Error – Abuse of discretion

By: Derek Hawkins//December 10, 2019//

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7th Circuit Court of Appeals

Case Name: Planned Parenthood of Wisconsin v. Joshua L. Kaul, et al.

Case No.: 19-1835

Officials: FLAUM, SYKES, and ST. EVE, Circuit Judges.

Focus: Court Error – Abuse of discretion

A state can speak in litigation only through its agents and may select its agents without the interference of the federal courts. Typically, a state chooses to designate a singular attorney general to defend its interests, but nothing in the United States Constitution mandates this procedure, or even the existence of an attorney general position. The State of Wisconsin has chosen to have an attorney general as its representative, but it also has recently provided a mechanism by which its legislature (or either of its constitutive houses) can intervene to defend the State’s interest in the constitutionality of its statutes. Relying on this provision, the Wisconsin Legislature moved to intervene in this lawsuit in which the Wisconsin Attorney General was already defending state law. The district court denied the motion.

Though we acknowledge that federal law does not mandate that a state speak in a single voice, we conclude that Federal Rule of Civil Procedure 24 expresses a preference for it. The Legislature’s motion to intervene as of right was appropriately denied because the Legislature did not demonstrate that the Attorney General is an inadequate representative of the State’s interest absent a showing he is acting in bad faith or with gross negligence. The district court has discretion still to permit the Legislature to intervene as a second voice for the State, or even perhaps on its own behalf, but nothing in the record demonstrates an abuse of that discretion. We therefore affirm the district court’s decision in all respects.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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