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Jennie Linn Mccormack, On Behalf of Herself and All Others v. Mark L. Hiedeman

June 6, 2012

JENNIE LINN MCCORMACK, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, AND IN THE INTERESTS OF THE GENERAL PUBLIC, PLAINTIFF,
v.
MARK L. HIEDEMAN, BANNOCK COUNTY PROSECUTING ATTORNEY, DEFENDANT.



The opinion of the court was delivered by: B. Lynn WinmillChief JudgeUnited States District Court

MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it a motion to intervene filed by Richard Hearn, M.D. The motion is fully briefed and at issue. For the reasons specified below, the Court will grant the motions and allow the applicant to intervene as of right under Rule 24(a)(2).

BACKGROUND

Plaintiff Jennie Linn McCormack filed a class action in this court on September 16, 2011, seeking to have the criminal sanctions in Idaho's abortion statutes (Idaho Code Title 18, Chapters 5 and 6) declared unconstitutional. She also sought an injunction prohibiting Defendant Mark L. Hiedeman from prosecuting or threatening to prosecute any woman in Bannock County seeking an abortion, or any health care provider in Idaho allegedly involved with such women, for violation of Idaho Code 18 Chapters 5 and 6. McCormack then sought a preliminary injunction on September 28 to virtually the same effect-to enjoin Hiedeman from enforcing Idaho Code §§ 18-606 and 18-608(1). The court granted this preliminary injunction on October 7, 2011.

The Court denied certification of McCormack's class on January 27, 2012. In considering the certification question, the court determined that McCormack's standing to attack these provisions of Idaho law is limited. First, the court found that McCormack does not have standing for future pregnancies because the possibility of future pregnancy is too speculative to be imminent, and is therefore too remote to provide a basis for standing. McCormack does, however, have standing for her past abortion, but not with regard to Idaho Code Title 18, Chapter 5 or § 18-605. This leaves only §§ 18-606(2), -607, -608, and -608A. However, while the Court established that McCormack lacks standing to challenge particular statutes, the court has yet to dismiss those claims.

On February 23, 2012, Richard Hearn, M.D. moved to intervene. Hearn is a licensed physician in Idaho who seeks to represent physicians like himself who may wish to perform abortions and their patients who may seek abortions in the future. Hearn also desires to prescribe FDA-approved medication to induce abortions in his patients.

LEGAL STANDARD

Rule 24(a) contains the standards for intervention as of right as follows: Upon timely application anyone shall be permitted to intervene in an action: . . . (2) 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 protect that interest, unless the applicant's interest is adequately represented by existing parties.

The Circuit has distilled this provision into a four-part test: (1) the application for intervention must be timely; (2) the applicant must have a "significantly protectable" interest relating to the property or transaction that is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect that interest; and (4) the applicant's interest must not be adequately represented by the existing parties in the lawsuit. Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). The inadequacy standard is met if representation "may be" inadequate. Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2004).

In general, the Court must construe Rule 24(a) liberally in favor of potential intervenors. Berg, 268 F.3d at 818. However, "[f]ailure to satisfy any one of the requirements is fatal to the application." Perry v. Prop. 8 Official Proponents, 587 F.3d 947, 950 (9th Cir.2009).

Where intervention as of right fails, a party may still seek permissive intervention under Rule 24(b). Under this rule, "the 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." 24(b)(1)(B). The rule also indicates that the court must consider "whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." 24(b)(3). As with Rule 24(a) intervention, the court should interpret the requirements broadly in favor of intervention. United States v. Aerojet, 606 F.3d 1142 (9th Cir. 2010)(quoting United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004)).

ANALYSIS

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