In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1327

STANLEY LIGAS, by his sister and

next friend Gina Foster, et al.,

Plaintiffs-Appellees,

v.

BARRY S. MARAM, et al.,

Defendants-Appellees,

ANNE GOLDEN, by her father and

guardian, Samuel Golden, et al.,

Proposed Intervenors-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 4331—James F. Holderman, Chief Judge.

____________

ARGUED OCTOBER 30, 2006—DECIDED FEBRUARY 15, 2007

____________

Before EASTERBROOK, Chief Judge, and KANNE and

WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. The appellants are the representatives of a number of developmentally disabled people

who were worried that they might have been unwilling

members of a proposed class in a lawsuit filed under the

Americans with Disabilities Act. Fearing that the remedy

being sought by the plaintiffs was contrary to their wishes,

they sought to intervene. The plaintiffs and defendants
2 No. 06-1327

opposed the intervention, and the district court denied the

petition. The intervenors appeal that decision, and we

affirm.

I. BACKGROUND

This case arises in the context of a much larger debate

over the proper way to provide care for the developmentally disabled. See generally Olmstead v. L.C. ex rel.

Zimring, 527 U.S. 581 (1999). For some, institutionalized

care is the best plan, while others are best served by

integration into the community. Id. What might otherwise seem to be a question to be left to local health care

officials, patients, their families, and their doctors now

takes on a federal significance by operation of the Americans with Disabilities Act (ADA), among other legislation. Id.

Olmstead established that it is a violation of the ADA to

force developmentally disabled patients to reside in

institutionalized settings when they are able to live more

fully integrated into society at large and do not oppose

doing so. Olmstead, 527 U.S. at 597-602. But with three

dissenters and multiple concurrences, including a swing

vote that joined in only part of the opinion, Olmstead

has left the exact route to implementing this integration mandate somewhat murky.

With this background, the current suit was brought on

behalf of a number of developmentally disabled people to

hasten the state of Illinois down the road to communitybased care. In addition to plaintiff-specific relief, the

plaintiffs sought to certify a class and to require the

state to provide community-based care for those class

members. The class would have consisted of those who

live in institutions, or are at risk of living in institutions,

and who could live in the community.
No. 06-1327 3

1 There were originally three groups of proposed intervenors.

The only group that appeals the decision of the district court

is the Golden group, named after one of the individuals.

There were, however, some potential members of that

proposed class who did not want to live in communitybased care. Enter the proposed intervenors: representatives of patients who could live in the community but do

not want to, preferring instead to remain in institutional care. Worrying that they were about to become

members of a class that would be forced to live in

community-based care if the plaintiffs succeeded, the

Golden Intervenors1

 sought to ensure that the disabled

would still retain a choice in where they lived.

The Golden group petitioned the district court to grant

intervention as of right under FED. R. CIV. P. 24(a), or,

failing that, permissive intervention under FED. R. CIV. P.

24(b)(2). The plaintiffs and defendants opposed the petition

to intervene and the district court denied the petition on

December 22, 2005, a decision that the proposed

intervenors now appeal.

II. ANALYSIS

A. Intervention as of Right

A party may seek intervention as of right if the party

has “an interest” and 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.” FED. R. CIV. P. 24(a)(2). This court has determined that intervention as of right is required only where

parties “establish[ ] that: (1) their motions to intervene

were timely; (2) they possess an interest related to the

subject matter of the . . . action; (3) disposition of the
4 No. 06-1327

2 The appellees make a cursory and fragmented argument that

the Golden group has no legally recognizable interest in the

right to live in institutional settings, citing a decision from the

Western District of Pennsylvania. See Richard C. ex rel. Kathy B.

v. Houston, 196 F.R.D. 288 (W.D. Pa. 1999), aff’d sub nom.

Richard C. v. Snider, 229 F.3d 1139 (3d Cir. 2000) (unpublished

order).

action threatens to impair that interest; and (4) the

[parties] fail to represent adequately their interest.”

United States v. BDO Seidman, 337 F.3d 802, 808 (7th Cir.

2003). A failure to establish any of these elements is

grounds to deny the petition. Id. With the exception of

timeliness, which is reviewed for abuse of discretion, the

elements are reviewed de novo on appeal. Id.

Much of this dispute now centers on whether the Golden

group met its burden of proof on the third and fourth

elements. The parties do not dispute that the petition

was timely. We will assume without deciding that the

Golden group has an interest related to the subject matter of the action.2

 The questions, then, are whether the

action threatens to impair that interest and whether the

parties fail to represent those interests adequately. We

conclude, as did the district court, that Golden has not

met its burden with respect to the third or fourth elements.

The appellants argued in the district court that the

impairment to their interests stems from the proposed

relief that the plaintiffs sought: a permanent injunction

“requiring Defendants promptly to provide eligible Plaintiffs and class members with appropriate services sufficient to allow them to live in the most integrated setting

appropriate to their needs.” Compl. for Decl. and Inj.

Relief. at 29; Appellee’s Br. at 17. The intervenors’ argument below was that this language would leave them no
No. 06-1327 5

ability to choose to remain in institutional care if they

were eligible for community-based care. The district court

considered this argument in light of the language of the

complaint and concluded that this interest could not be

impaired by the relief sought by the complaint. We agree.

As the district court correctly noted, the complaint is

“replete with language on choice.” Nothing in the complaint, either on its face or as correctly construed by

the district court, would require the state to force those

who desire institutional care to move out. For example, the

complaint alleges that the law requires the state to “offer

persons . . . a choice between institutional and community services.” Compl. for Decl. and Inj. Relief ¶ 7. It

alleges that the state “defendants do not provide plaintiffs or class members the choice between institutional or

community settings.” Id. ¶ 115. If the plaintiffs succeed

in class certification and win on the merits, the relief that

they seek would only require that Illinois provide that

which (they allege) it does not currently provide: the

existence of appropriate services tailored to the needs of

the individual.

The district court also considered the question of

whether the existing parties were able to adequately

represent the Golden intervenors’ interests. Finding that

the inadequacy was “at best speculative, and at worst

conclusory,” the court held that the fourth element of the

test for intervention as of right was not met. We agree.

A party seeking intervention as of right must only make

a showing that the representation “may be” inadequate

and “the burden of making that showing should be

treated as minimal.” Trbovich v. United Mine Workers of

Am., 404 U.S. 528, 538 n.10 (1972). However, when the

representative party is a governmental body charged by

law with protecting the interests of the proposed intervenors, the representative is presumed to adequately
6 No. 06-1327

represent their interests unless there is a showing of

gross negligence or bad faith. United States v. South

Bend Cmty. Sch. Corp., 692 F.2d 623, 627 (7th Cir. 1982);

United States v. Bd. of Sch. Comm’rs of Indianapolis, 466

F.2d 573, 575-76 (7th Cir. 1972).

The defendants are the Director of the Illinois Department of Health and Family Services and the Secretary of

the Illinois Department of Human Services in their official capacities. Compl. ¶ 12-15. Both the defendants and

the proposed intervenors admitted in their pleadings that

the defendants are responsible for administering the

Illinois Medicaid and developmental disabilities programs. The intervenors have made no effort to show

gross negligence or bad faith on the part of the state

defendants, and have therefore not overcome the presumption that the defendants, as governmental bodies

charged with protecting the interests of the proposed

intervenors, will provide adequate representation.

Nevertheless, the district court recognized that the

proposed class could be narrowed somewhat to avoid the

perception that the intervenors would be pulled along

with the plaintiffs down the road to community-based

care. The court had previously dismissed the plaintiff’s

motion for class certification until the intervention question had been properly aired. In its denial of the petition to

intervene, the district court encouraged the plaintiffs

(if they were to seek renewed class certification) to more

narrowly tailor their proposed class to “those who desire

to be placed in community settings.” Between the denial

of the petition to intervene and the filing of this appeal,

the plaintiffs renewed their motion for class certification.

The language of the new proposed class was changed to

those “who would not oppose community placement.”

On this appeal, the Golden group makes much ado

about the distinction between those who would “desire”
No. 06-1327 7

and those would “not oppose.” We believe that this is a

distinction without a difference, at least as it relates to the

Golden intervenors under the facts of this case. The

language in the new proposed class is taken verbatim from

the Supreme Court’s controlling precedent. See Olmstead,

527 U.S. at 587 (transfer appropriate where it “is not

opposed by the affected individual”); id. at 603, (“neither

woman opposed such treatment”); id. at 607 (“the affected

persons do not oppose such treatment”). Either formulation

of the class would require an inquiry into the mental state

of the proposed class members, the appropriateness of

which we will not judge here because it is beyond the scope

of this appeal. Yet we believe that in this case, where the

plaintiff seeks only that the class members be given a

choice in living conditions, the distinction does not raise

any new concerns about the impairment of the intervenors’

interests or the adequacy of the state’s representation of

their interests that was not already addressed by the

district court or in our analysis above.

B. Permissive Intervention

The Golden group also sought permissive intervention

under FED. R. CIV. P. 24(b). Permissive intervention is

within the discretion of the district court where the applicant’s claim and the main action share common issues

of law or fact and where there is independent jurisdiction.

Sec. Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377,

1381 (7th Cir. 1995). The Golden group devoted little more

than a paragraph to this argument in the district court,

noting three areas of common fact or law. The district

court acknowledged that the groups sought both permissive intervention and intervention as of right, but in ruling to deny intervention the district court did not separately analyze the requests under FED. R. CIV. P. 24(a) and

24(b), it simply denied the various intervening groups’

petitions to intervene.
8 No. 06-1327

We review a district court’s denial of leave to intervene

under FED. R. CIV. P. 24(b) for abuse of discretion.

Sokaogan Chippewa Cmty. v. Babbitt, 214 F.3d 941, 949

(7th Cir. 2000). In arguing for permissive intervention, the

Golden group raised three areas of common fact or law.

Two were related to the class action: “whether class action

treatment is appropriate [and] and whether community

care is desirable for all of the class members.” Golden

Memo at 10. They also questioned “whether the state’s

system of providing care for the developmentally disabled

should be overhauled to favor community care at the

expense of ICF-DDs[Intermediate Care Facilities for the

Developmentally Disabled].” Id. In light of the district

court’s dismissal of the proposed class certification, and

its instructions to the plaintiffs to ensure that parties

such as the Golden group not be included in a future

request to certify a class, the first two claimed areas of

common law or fact were not relevant to the district

court’s analysis.

The district court’s extensive consideration of the

issues of impairment and adequate representation puts

the other common question of fact or law to rest as well.

The court clearly indicated that the main action involved

giving each disabled person in Illinois the integration

options mandated by Olmstead, not any effort to “favor

community care at the expense of ICF-DDs.” Although the

district court did not explicitly break out its reasoning

on the rule 24(b)(2) and rule 24(a) motions, the decision

shows a thorough consideration of the interests of all the

parties and concludes by denying the intervenors’ motions in toto. This does not rise to the level of an abuse of

discretion. See, e.g., United States v. Perry County Bd. of

Educ., 567 F.2d 277, 280 (5th Cir. 1978) (finding no

abuse of discretion in the context of a denial of permissive intervention where the district court issued a one-
No. 06-1327 9

sentence order, held no evidentiary hearing, and made

no finding of facts).

C. Conditional Intervention

The Golden group also asks this court to “allow” the

Golden intervenors conditional intervention subject to

a future showing that the state defendants are not adequately representing their interests. See Solid Waste

Agency of N. Cook County v. U.S. Army Corps of Eng’rs,

101 F.3d 503, 508-09 (7th Cir. 1996). Because the district court was never given an opportunity to consider

this argument, it is forfeited on this appeal. See Andy’s

Rest. & Lounge, Inc. v. City of Gary, 466 F.3d 550, 556-57

(7th Cir. 2006).

III. CONCLUSION

Accordingly, the decision of the district court denying the

petition to intervene is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-15-07