United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3211

___________ Planned Parenthood of Mid-Missouri * and Eastern Kansas, Inc., * * Appellee, * Maureen Dempsey, Director of the * Department of Health of the State of * Missouri; John Doe, 1 thru 99, * employees of the State of Missouri, * * Defendants, * *
v. * Appeal from the United States * District Court for the Western Steve E. Ehlmann, David J. Klarich, * District of Missouri. John D. Schnieder, John E. Scott, * Gary L. Burton, Pat Kelley, Bill J. * Luetkenhaus, Patrick J. O'Connor, * David D. Reynolds, Harry Wiggins, * * Appellants. *

___________ Submitted: January 14, 1998 Filed: February 25, 1998

___________ Before WOLLMAN, BRIGHT and HANSEN, Circuit Judges.

___________ BRIGHT, Circuit Judge.-2-

This case presents the question of whether the appellants, ten Missouri stat e legislato rs, can intervene in litigation defended by the Attorney General of Missour i rel ating to legislation which excludes Planned Parenthood, a Missouri not-for-profi t corporation, from continuing to obtain state appropriated funds. The legislativ e enact ment

at issue in this case excludes Planned Parenthood from all state fundin g because Planned Parenthood provides abortion services in Missouri. The ban of state funding applies to Planned Parenthood’s family planning activities, which are unrelated to Planned Parenthood’s provision of abortion services. The district court determined the legislat ion at issue in this case to be unconstitutional. The ten legislators seek t o interve ne in order to appeal the district court’s ruling because the Missouri Attorne y General d oes not intend to appeal. The district court denied intervention by the te n legislators on the ground of lack of standing. The legislators appeal. We affirm.

I. BACKGROUND

The present effort to obtain standing by the ten legislators stems from th e
unsucc essful efforts of the Missouri Attorney General to sustain the present and prio r fa milyplanning funding legislation insofar as that legislation excluded Planne d Parentho od from receiving family planning funds. We relate the background of th e legislation in question.
For several years, the Missouri Legislature has enac ted annually a program where the Missouri Department of Health ("the Department") fina nces family planning services for low income men and women. Prior to 1995, the program appropriation restricte d program recipients from using family planning funds to perform or promote abortions. Although the pre-1995 program limited the use of state funds in this manne r, the program did not prohibit entities that provided abortion services from participating in the program. In1995, the Missouri Legislature enacted House Bill 10 ("H.B. 10") which expressly limited family planning funds. The Department interpreted the-3-

lan guage to exclude Planned Parenthood because it is an entity that provides abortio n services.

Plan nedParenthood provides family planning and related medical services t o residents of twenty-six Missouricounties. Planned Parenthood also performs abortions at two of their nine clinics located in Missouri. In addition, Planned Parenthoo d
en gages in public advocacy to protect safe and legal access to abortion services fo r
women. Planned Parenthood argued that the legislation unconstitutionally excluded it fromelig ibility because it was the only entity excluded after receiving funding i n previous years and the only entity that provided abortions.

On Ma y 23, 1996, Planned Parenthood sought an injunction contending that the Department relied on an unconstitutional statute in excluding it from funding. Following
a hearing, the district court granted Planned Parenthood’s motions for preliminary and pe rmanent injunctions. On June 27, 1996, the district court entered an amended order enjoining the Department from: (1) excluding Planned Parenthood from the remaining familyplanning funds because Planned Parenthood provides abortions and engages in public advocacy of safe and legal abortions, (2) precluding Planned Parenthood fro m submitting proposals for fundin g directly or through an intermediary, and (3) evaluating Planned Parenthood's funding proposal usi ng different criteria than that used to evaluate other proposals. The Missouri Attorney General, who represented the Department, did not appeal the district court order.
On May 17, 1996, the Missouri Legislature reenacted the exact provis ions of H.B. 10 into H.B. 1010 for fiscal year 1996-97. However, the Department included Planned Parenthood in the program for fiscal year 1996-9 7 in accordance with the district court's 1996 amended order.

On May 29, 1997, the Missouri Legislature enacted H.B. 20 which set forth portions of t

he 1997-98 appropriations for the Department. Section 20.685 of H.B. 20-4-

est ablished a three-tiered alternative system for appropriating funds to the Department for family planning services. Specifically, section 20.685 provided in the first tier that the Department could pay or grant family planning funds to public, quasi-public an d private f amily planning organizations that did not provide or promote abortions. If a court determined any portion of the first tier to be unconstitutional, then the Department would administ

er the program under the second tier. The second tier provided that the Department could grant family planning funds to public and qua si-public family planning organizations but not for private organizations. Again, organizat ions could not use funds to promote or encourage abortions. If a court in validated both the first and second tiers, the Departm ent would appropriate funds under the third tier of section 20.685 whic h provided that the Department would only appropriate family planning funds to publi c organizations.

Prior to the enactment of H.B. 20, the Missouri Governor expressed opposition to a family planning funding scheme that would exclude Planned Parenthood. Unde r H.B. 20, the fa

mily planning appropriation excluded private entities providing abortion servic es such as Planned Parenthood. The Governor could have line item vetoed th e entire appropriation or he could sign H.B. 20 as enacted. On June 26, 1997, th e Governor signed H.B. 20 into law. In a statement accompanying the signing, th e Governo r acknowledged his obligation to uphold the law stating Planned Parenthoo d would not receive funds. However, the Governor also stated his intent to direct th e Missou ri Attorney General to seek clarification from the district court about th e applicability of the district court's 1996 injunction.

On June 27, 1997, the Missouri Attorney General filed a motion to clarify an d suggestions in support with the explanation that the Department and the Missour i Attorney General desired to comp ly with the district court’s permanent injunction. The ten leg islators contend that the Missouri Attorney General did not offer any arguments in support of the constitutionality of H.B. 20. The ten legislators also contend the-5-

Missouri Attorney General failed to attempt to explain the severa bility of the three-tiered system.
On June 30, 1997 the district court held a brief telephone conference with counsel to hear arguments on the Mi ssouri Attorney General's motion. Later that same day, the district court declared H.B. 20 unconstitutio nal. The Missouri Attorney General did not appeal the district court's ruling.
On July 25, 199 7, the ten legislators, Missouri senators and representatives who voted for H.B. 20, sought intervention on the side of the Department to defend th e constitution ality of H.B. 20. The ten legislators’ motion to intervene sought leave t o intervene as of right, pursuant to section 24(a) of the Federal Rules of Civil Procedure
or for leave to intervene permissibly pursuant to section 24(b) of the Federal Rules o f Civil Procedure. On July 25, 1997, the Missouri Attorney General filed a response to the motion to intervene stating he did not oppose the motion. On July 30, 1997, Planned Pare nthood filed a memorandum in opposition to the motion to intervene. On July 31, 1997, the l egislators filed a reply and later that day the district court entered an orde r denying the motion to intervene, concluding the legislators did “not have the requisite Article III standing to litigate claims . . . .” On appeal, the ten legislators argue the y should be allowed to intervene and this court shoul d rule on the constitutionality of H.B. 20.

II. DISCUSSION
This court rev iews the denial of a motion to intervene de novo. United States v. Uni on Elec. Co. , 64 F.3d 1152, 1158 (8th Cir. 1995). The legislators contend that the distri ctcourt should have allowed the legislators to intervene because they satisfy th e four factors necessary for intervention pursuant to Rule 24(a) of the Federal Rules"To intervene as of right, an applicant must (1) h ave a recognized interest in the 1 subject matter of the litigation that (2) might be impaired by the disposition of the case and t hat (3) will not be adequately protected by the existing parties.” Mausolf v

. Babbitt , 85 F.3d 1295, 1299 (8th Cir. 1996). The Supreme Court has not yet ruled whether intervention requires Article III 2 standing. The circuits have diverse views on the issue. Some circuits do not require standing for intervention. See, e.g. , United States Postal Serv. v. Brennan , 579 F.2d 188, 190 (2d Cir. 1978); Associated Builders & Contractors v . Perry , 16 F.3d 688, 690 (6th Cir. 1994); Yniguez v. State of Arizona , 939 F.2d 727, 731 (9th Cir. 1991). At least one other circu it requires standing for intervention. Building and Constr. Trades Dept., AFL-CIO v. Reich , 40 F.3d 1275, 1282 (D.C. Cir. 1994). Onecircuit has stated that Rule 24 requires more of an interest than that required by Article III analysis

. United States v. 36.96 Acres of Land , 754 F.2d 855, 859 (7th Cir. 1985). The legislators argue they have standing under this court’s decision in Chiglo 3
v. City of Preston , 104 F.3d 185 (8th Cir. 1997). However, this court in Chiglo only di scussed that the proposed intervenors did not meet all the prerequisites for Rule 24 int ervention. Id. Because the proposed intervenors in Chiglo did not meet th e requirements of Rule 24, this court di d not need to discuss the standing requirement of Mausolf

. -6- of Civil Procedure. This court in Mausolf v. Babbitt held “that t

he Constitution requires 1 that pr ospective intervenors have Article III standing to litigate their claims in federa l court.” 85 F.3d 1295, 1300 (8th Cir. 1996). Th erefore, an intervenor must satisfy both 2 the r equirements of Rule 24 and possess standing. Id. The ten legislators argue tha t 3 they p ossess Article III standing as legislators and citizens to intervene and litigate the constitutionality of H.B. 20. We disagree.

Under Lujan v. Defenders of Wildlife , 504 U.S. 555 (1992), a party must e stablish thre e elements for Article III standing: (1) the party must have suffered an "injury i n fact," consisting of an "invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent [,]" id. at 560 (internal quotation marks and citations omitted), (2) there must be a causal connection betweenSpec ifically, the ten legislators contend that the Missouri Attorney Genera l 4 colluded with Planned Parenthood by not arguing the constit utionality of H.B. 20 under Rust v. Sullivan , 500 U.S. 173 (1991), by not opposing Planne d Parenthood’s evidence presented in opposition to the motion to clarify, and by agreeing to allow Planne d Parenthood to submit additional evidence.
-7- the i njury and the conduct complained of, where the injury is fairly traceable to th e challenged action , and (3) “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’" Id. at 561 (citation omitted). The t en legislators argue they have standing as legislators for an institutiona l injury under Colema

n v. Miller , 307 U.S. 433 (1939). In Coleman , the Supreme Court decided that twenty state legislators had suffered an institution al injury and therefore had standing to challenge the State Lieutenant Governor's authority to cast a deciding vote in favor of a proposed child labor amendment to the federal constitution

. Id. at 438, 446. In Cole man , the twenty legislators had voted against the amendment and the Court concluded that the "senators have a plain, direct an d adequate interest in maintaining the effectiveness of their votes ." Id. at 438. The legislators argue in this case the Missouri executive branch similarly nullified their votes on H.B. 20 by seeking to clarify th e legislati onand by colluding with Planned Parenthood to overturn the legislation a s unconstitutional. 4

The ten legislators also attempt to distinguish Raines v. Byrd , 117 S. Ct. 231 2 (1997), a recent decision of the Supreme Court relied upon by the district court. I n Raines , six members of the United States Congress who voted against the Line Ite m Veto Act which became law filed suit challenging the constitutionality of the law. Id. at 231 5. The members contended that the Act altered the effect of their votes because the Pre sident could veto certain measures after he signed them into law. The Court rejected the members' argument that the Act nullified their votes.
The Supreme Court in Raines explained Coleman 's limited scope by stating:Jus tice Souter cautioned against courts embroiling themselves in a politica l 5 interbranch controversy between the United States Congress and the Presid ent. Raines , 117 S. Ct. at 2324 (Souter, J., concurring). Federal courts should exercise this same caution w hen, as in this case, there exists a political interbranch controversy between state legislators and a state executive branch concerning implementation of a bill. -8- [O ]ur holding in Colemanstands (at most . . . ) for the proposition tha t legisl ators whose votes would have been sufficient to defeat (or enact) a spec ific legislative act have standing to sue if that legislative action goe s into effect (or does not go into effect), on the ground that their votes have been completely nullified. It should be equally obvious that appellees' claim does no t fall within
our holding in Coleman , as thus understood. They have not alleged tha t they vote d for a specific bill, that there were sufficient votes to pass th e bill, and that the bill was nonetheless deemed defeated.

Raines 117 S. Ct. at 2319-20 (footnote omitted).

We conclude that under the language in Raines and the Coleman decisions, th e Missouri ex ecutive branch did not nullify the ten legislators’ votes on H.B. 20. Th e circumstances of this case do not amount to nullification in the Coleman s ense "that a bill [the legislators] voted for w ould have become law if their vote had not been stripped of its validity . . . ." See Raines , 117 S. Ct. at 2320 n.7 . In this case, the legislature passed H.B. 20 and the Governor signed the bill pledging to both enforce t he restrictions against Planned Parenthoo d and to seek clarification of the injunction issued by a federal court to insure his administration did not act in contempt of the court’s injunction. Thus, the Missouri executive branch did not interfere in any w ay with the legislative process. The ten legi slators’ complaint merely concerns a disagreement over litigation strateg y decisions made by the Governor an d Missouri Attorney General. See Moore v. House 5 of Representatives , 733 F.2d 946, 952 (D.C. C ir. 1984) (distinguishing between general grieva nces about governmental conduct and a distortion of the legislative process)

. Accordingly, we conclude that this case does-9-

not con cern a distortion of the legislative process and thus, the Coleman decision does not apply.

Colemanrelated to whether legislators had standing in a lawsuit where the y cont ended an allegedly illegal action of the Lieutenant Governor nullified their votes

. It do es not hold that when a court declares an act of the state legislature to b e unconstitutional, individual legislators who voted for the enactment can intervene.

We recognize, however, that legislators may obtain standing to defend th e constitutionality of a legislative enactment when authorized by state la w. See Arizonans for Official English v. Arizona , 117 S. Ct. 1055, 1068 (1997) ; Karcher v. May , 484 U.S. 72, 82 (1987). The legislators contend they have standing to intervene pursuant t o section 188.2 20 of the Missouri Revised Statutes, which allows taxpayers to bring suit to enforc e the provisions of Missouri's laws prohibiting the use of public funds t o pe rform, assist or encourage an abortion not necessary to save the mother's life. Th e legislators contend they have standing to defend the constitutionality of an appropriations bill that was p assed in compliance with the state's asserted interest as expressed by the above sta tute. We reject this argument as it distorts section 188.205 beyond its clear meaning of granting taxpayer standing to enforce in state court prohibitions agains t funding abortion-related activities with public funds.
Because the ten legislators lack standin g, we do not need to reach the legislators’ argument that they meet the requirements of Rule 24.

III. CONCLUSION
Accordingly, we affirm the district court’s denial of the motion to intervene as of right because the legislators lack standing to intervene.-10-

A true copy.

Attest:

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