United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
brings this four-count lawsuit claiming that defendants
wrongfully denied their request for a zoning variance with
respect to a proposed telecommunications tower. This Court
denied the defendants' motions to dismiss. The defendants
the City of University City and its Board of Adjustment
included as an affirmative defense in their answer a
challenge to the constitutionality of the Uniform Wireless
Communications Infrastructure Deployment Act, § 67.5090,
et seq. RSMo (the “Act”). Then, defendants moved
for summary judgment and included as part of their motion
that the Act violates the Missouri Constitution and thus
plaintiffs cannot be entitled to judgment under the Act.
receiving notice of the defendants' summary judgment
motion, which was filed on March 1, 2019, the State of
Missouri moved to intervene on March 25. The State of
Missouri seeks to defend the constitutionality of the Act.
Plaintiffs consent to the State's intervention.
Defendants object to the State's motion to intervene.
State's motion is based in part on Federal Rule of Civil
Procedure 24(a)(1). Rule 24(a) grants the right to intervene
when the intervener “is given an unconditional right to
intervene by a federal statute.” The State contends
that 28 U.S.C. § 2403(b) confers an unconditional right
to intervene because the suit involves a state statute's
constitutionality and plaintiffs have named no state
In any action, suit, or proceeding in a court of the United
States to which a State or any agency, officer, or employee
thereof is not a party, wherein the constitutionality of any
statute of that State affecting the public interest is drawn
in question, the court shall certify such fact to the
attorney general of the State, and shall permit the State to
intervene for presentation of evidence, if evidence is
otherwise admissible in the case, and for argument on the
question of constitutionality.
28 U.S.C. § 2403. Defendants point out, however, that
this statute refers to a state statute's
constitutionality under the United States Constitution,
whereas, here, defendants bring a challenge under the
Missouri Constitution. The parties cite no Eighth Circuit
case interpreting the statute, but defendants cite to an
out-of-circuit case that held the statute is inapplicable
where a party challenges a state statute under the state
constitution. See Gibson v. Am. Cyanamid
Co., 760 F.3d 600, 608 (7th Cir. 2014). The State argues
that Federal Rule of Civil Procedure 5.1-which addresses
intervention under 28 U.S.C. § 2403-does not distinguish
between challenges under the state and federal constitutions.
The State was following the procedure set out in Rule 5.1,
which requires that any party filing a paper drawing into
question the constitutionality of a statute must promptly
notify the proper state or federal authority.
State argues that, even if intervention as of right is not
available, it should be permitted to intervene pursuant to
Rule 24(b). “Normally, parties seeking permissive
intervention must show (1) an independent ground for
jurisdiction, (2) timeliness of the motion, and (3) that the
applicant's claim or defense and the main action have a
question of law or fact in common.” Flynt v.
Lombardi, 782 F.3d 963, 966 (8th Cir. 2015). “Rule
24 should be liberally construed with all doubts resolved in
favor of the proposed intervenor.” S. Dakota ex rel
Barnett v. U.S. Dept. of Interior, 317 F.3d 783, 785
(8th Cir. 2003).
relates to permissive intervention, defendants appear to
object only to the timeliness of the State's motion. They
state that the State should have filed its motion upon
receiving the November 2018 notification that the City's
answer included a constitutional challenge. Federal Rule of
Civil Procedure 5.1 provides that the state attorney general
may intervene within 60 days after a notice of constitutional
challenge is filed “unless the court sets a later
time.” The State thus seeks an extension of that time
to the extent the Court deems it necessary.
State filed its motion to intervene, along with its proposed
memorandum detailing its defense of the constitutionality of
the relevant statute, on March 25, 2019-that was one business
day after the parties filed their summary judgment responses.
The matter the State seeks to address is purely a legal
issue. Although the State might have intervened earlier, the
State filed its proposed memorandum promptly after learning
the defendant's constitutionality arguments, and the
delay to the parties is minimal. Indeed, the defendant does
not identify how extending summary judgment briefing would
prejudice it. The Court will permit the State to intervene,
and its memorandum in opposition to the defendant's
motion for summary judgment shall be docketed. The parties
will be allowed 28 days in which to file any additional
response to the State's memorandum.
IT IS HEREBY ORDERED that the State of
Missouri's motion to intervene (#68) is GRANTED and the
State's memorandum filed as an attachment to that motion
shall be separately docketed.
IS FURTHER ORDERED that the parties shall have 28
days in which to file any memorandum in ...