Motion To Intervene

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Case 2:19-cv-11661-DPH-DRG ECF No. 20 filed 07/17/19 PageID.833 Page 1 of 32
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CATHOLIC CHARITIES WEST

MICHIGAN,
Plaintiff, No. 2:19-cv-11661-DPH-DRG
v. HON. DENISE PAGE HOOD
MICHIGAN DEPARTMENT OF MAG. J. DAVID R. GRAND

HEALTH AND HUMAN SERVICES;
ROBERT GORDON, in his official MOTION TO INTERVENE
capacity as the Director of the Michigan
Department of Health and Human ORAL ARGUMENT
Services; MICHIGAN CHILDREN’S REQUESTED
SERVICES AGENCY; JOOYEUN
CHANG, in her official capacity as
Executive Director of Michigan
Children’s Services Agency; DANA
NESSEL, in her official capacity as
Attorney General of Michigan,
Defendants.
Kristy Dumont and Dana Dumont (collectively, “the Dumonts”)
respectfully move this Court under Federal Rule of Civil Procedure 24(a)(2) and
(b)(1) for leave to intervene in the above-captioned action (the “Action”) for the
reasons below and explained more fully in the brief filed in support of this motion
(the “Motion”) and the Proposed Answer, attached hereto as Exhibit A.
1. The Dumonts respectfully seek intervention as of right in this Action.
See Fed. R. Civ. P. 24(a)(2). The Dumonts satisfy the four required prongs for
intervention as of right: “(1) that the motion to intervene was timely; (2) that they
have a substantial legal interest in the subject matter of the case; (3) that their ability
to protect that interest may be impaired in the absence of intervention; and (4) that
the parties already before the court may not adequately represent their interest.”
Grutter v. Bollinger, 188 F.3d 394, 397–98 (6th Cir. 1999).
2. First, the Motion is timely because it is filed at the very early stages of
this Action, before any party has responded to the Plaintiff’s motion for a
preliminary injunction or the commencement of discovery. Second, the Dumonts
have a substantial legal interest in the subject matter of the case because the
complaint filed by Catholic Charities West Michigan (“CCWM”) directly implicates
the Dumonts’ rights under the Equal Protection and Establishment Clauses of the
United States Constitution. The Dumonts sought to vindicate these rights in Dumont
et al. v. Gordon et al., 2:17-cv-13080-PDB-EAS (E.D. Mich. 2019) (“Dumont”),
wherein the Dumonts reached a settlement agreement (the “Settlement Agreement”)
with the State of Michigan to end discrimination by state-contracted child placing
agencies (“CPAs”). The Dumonts have a substantial interest in preserving the
Settlement Agreement that in turn protects their constitutional rights and protects
them against being exposed to further discrimination as they pursue adopting a child
out of foster care. Third, the Dumonts’ interests in preserving the relief obtained
through the Settlement Agreement and avoiding further constitutional injury may be
ii
impaired in the absence of intervention because if CCWM succeeds in its claims, the
Dumonts’ Settlement Agreement would be rendered meaningless. The Dumonts
dismissed their previous claims in exchange for a settlement that provided them the
relief they sought, and would be left without recourse. And finally, no party
currently before the Court can adequately represent the Dumonts’ interests because
Defendants are unlikely to assert many of the defenses the Dumonts intend to raise.
3. Alternatively, the Dumonts respectfully ask the Court to exercise its
discretion to allow permissive intervention because the Dumonts’ defenses share
with the pending litigation “a common question of law or fact,” Fed. R. Civ. P.
24(b)(1)(B), and intervention will not “unduly delay or prejudice the adjudication of
the original parties’ rights.” Fed. R. Civ. P. 24(b)(3); Purnell v. City of Akron, 925
F.2d 941, 951 (6th Cir. 1991). Both the Plaintiff and the Dumonts raise claims or
defenses related to whether the First and Fourteenth Amendments to the United
States Constitution require the State of Michigan to permit state-contracted CPAs to
violate the contracts’ non-discrimination requirement that includes sexual
orientation. Granting the Dumonts’ motion to intervene will not result in delay or
prejudice because the case is in its very early stages, and the Dumonts are prepared
to proceed according to the schedule ordered by the Court.
4. In accordance with the Eastern District of Michigan’s Local Civil Rule
7.1(a), the Dumonts conferred with counsel for Plaintiffs and Defendants via e-mail
iii
on July 17, 2019 to determine if they would oppose the Motion to Intervene. Counsel
for Defendants the Michigan Department of Health and Human Services, Robert
Gordon, in his official capacity as the Director of the Michigan Department of Health
and Human Services, JooYeun Chang, in her official capacity as the Executive
Director of the Michigan Children’s Services Agency, and Dana Nessel, in her
official capacity as Attorney General of Michigan responded on July 17 that they
concur in the relief sought. Counsel for Plaintiff responded on July 17 that they do
not concur and will oppose the motion.
Dated: July 17, 2019 Respectfully submitted,
s/ Ann-Elizabeth Ostrager
Jay Kaplan (P38197) Leslie Cooper

Daniel S. Korobkin (P72842) American Civil Liberties Union
American Civil Liberties Union Foundation
Fund of Michigan 125 Broad Street, 18th Floor
2966 Woodward Avenue New York, NY 10004
Detroit, MI 48201 Telephone: (212) 549-2633
Telephone: (313) 578-6823 [email protected]
[email protected]
[email protected]
Garrard R. Beeney
Daniel Mach Ann-Elizabeth Ostrager
American Civil Liberties Union Leila R. Siddiky
Foundation Jason W. Schnier
915 15th Street NW Lisa M. Ebersole
Washington, DC 20005 Hannah M. Lonky
Telephone: (202) 675-2330 James G. Mandilk
[email protected] SULLIVAN & CROMWELL LLP
125 Broad Street
iv
New York, NY 10004-2498

Telephone: (212) 558-4000
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Counsel for Proposed Intervenor

Defendants
v

SOUTHERN DIVISION

MICHIGAN,

ROBERT GORDON, in his official BRIEF IN SUPPORT OF
capacity as the Director of the Michigan MOTION TO INTERVENE
Department of Health and Human
Services; MICHIGAN CHILDREN’S ORAL ARGUMENT
SERVICES AGENCY; JOOYEUN REQUESTED
CHANG, in her official capacity as
Defendants.
TABLE OF CONTENTS
Page
CONCISE STATEMENT OF ISSUES PRESENTED ............................................. v
PRELIMINARY STATEMENT ............................................................................... 1
BACKGROUND ....................................................................................................... 2
LEGAL STANDARD ................................................................................................ 7
ARGUMENT ............................................................................................................. 9
I. THE DUMONTS ARE ENTITLED TO INTERVENTION AS OF
RIGHT ............................................................................................................. 9
A. The Dumonts’ Motion Is Timely .......................................................... 9
B. The Dumonts Have a Substantial Legal Interest in the Action ........... 10

C. The Dumonts’ Interests May Be Impaired Without Intervention ....... 15
D. No Other Party Adequately Represents the Dumonts’ Interests ......... 17
II. IN THE ALTERNATIVE, THE COURT SHOULD EXERCISE ITS

DISCRETION TO ALLOW PERMISSIVE INTERVENTION .................. 19
CONCLUSION ........................................................................................................ 19
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Blount-Hill v. Bd. of Educ. of Ohio,
195 F. App’x 482 (6th Cir. 2006) ....................................................................... 12
City of St. Louis v. Velsicol Chem. Corp.,
708 F. Supp. 2d 632 (E.D. Mich. 2010) ............................................................. 11
Coal. to Defend Affirmative Action v. Granholm,
240 F.R.D. 368 (E.D. Mich. 2006) ...............................................................14, 15
Dumont v. Lyon,
341 F. Supp. 3d 706 (E.D. Mich. 2018) ...............................................3, 4, 11, 13
Fulton v. City of Philadelphia,
922 F.3d 140 (3d Cir. 2019) .........................................................................14, 17
Grutter v. Bollinger,
188 F.3d 394 (6th Cir. 1999) ..............................................................8, 14, 17, 18
Horrigan v. Thompson,
1998 WL 246008 (6th Cir. May 7, 1998) ............................................................. 8
Jansen v. City of Cincinnati,

904 F.2d 336 (6th Cir. 1990) ............................................................10, 11, 12, 16
Linton v. Comm’r of Health & Env’t., State of Tenn.,
973 F.2d 1311 (6th Cir. 1992) ........................................................................ 9, 12
Meriwether v. Trs. of Shawnee State Univ.,

2019 WL 2052110 (S.D. Ohio May 9, 2019) ..................................................... 18
Mich. State AFL-CIO v. Miller,

103 F.3d 1240 (6th Cir. 1997) ..................................................................9, 10, 15
Parkwest Dev., LLC v. Ellahi,
2018 WL 3640433 (E.D. Mich. Aug. 1, 2018) ................................................. 8, 9
Purnell v. City of Akron,

925 F.2d 941 (6th Cir. 1991) .......................................................................... 8, 19
iii
Trbovich v. United Mine Workers of Am.,

404 U.S. 528 (1972) ............................................................................................ 17
Usery v. Brandel,
87 F.R.D. 670 (W.D. Mich. 1980) ...................................................................... 14
Other Authorities
Fed. R. Civ. P. 24 ..............................................................................................passim
Fed. R. Civ. P. 41 ....................................................................................................... 1
iv
CONCISE STATEMENT OF ISSUES PRESENTED
1. Whether Kristy and Dana Dumont satisfy the requirements for intervention as
of right where Plaintiff Catholic Charities West Michigan seeks relief that
would impair the Dumonts’ rights under the Establishment and Equal
Protection Clauses, nullify the settlement agreement they executed with the
State in Dumont v. Gordon, and impose stigmatic and practical harms by
requiring them to navigate a foster care and adoption system that permits
discrimination against families like them.
2. Whether the Court should grant the Dumonts permissive intervention where
both the Dumonts and Plaintiffs will raise common questions of law regarding
whether the First and Fourteenth Amendments to the United States
Constitution require state-contracted child placing agencies to be permitted to
discriminate against prospective foster and adoptive parents.
v
CONTROLLING OR MOST APPROPRIATE AUTHORITY
Grutter v. Bollinger, 188 F.3d 394, 399 (6th Cir. 1999) (finding that prospective
minority applicants had a “direct, substantial, and compelling” legal interest to
support intervention as of right in a lawsuit brought by white applicants challenging
a university’s race-conscious admissions policy, where the proposed intervenors’
interest in gaining admission could be impacted if the university were ordered to
stop considering race as a factor in admissions); Jansen v. City of Cincinnati, 904
F.2d 336, 342 (6th Cir. 1990) (granting intervention where the “proposed intervenors
had an interest in continuing” the mandates of the consent decree); Linton v. Comm’r
of Health & Env’t., State of Tenn., 973 F.2d 1311, 1319 (6th Cir. 1992) (reversing
district court denial of motion by nursing homes to intervene as of right in suit
brought by medical patients against state agency administering Medicare program
because the district court “failed to recognize the alleged impairment of the movants’
contractual and statutory rights”); Purnell v. City of Akron, 925 F.2d 941, 950 (6th
Cir. 1991) (holding that “Rule 24(b) grants the district court discretionary power to
permit intervention if the motion is timely, and if the applicant’s claim or defense
and the main action have a question of law or fact in common.”).
vi
PRELIMINARY STATEMENT
Catholic Charities West Michigan (“CCWM” or “Plaintiff”) seeks to
force the State of Michigan to permit state-contracted, taxpayer-funded child placing
agencies (“CPAs”) to discriminate against prospective foster and adoptive families
headed by same-sex couples, in violation of the Dumonts’ constitutional rights—
rights they successfully protected in Dumont et al. v. Gordon et al., 2:17-cv-13080-
PDB-EAS (E.D. Mich. 2019) (“Dumont”). If CCWM prevails, the settlement
agreement (“Settlement Agreement”) reached in Dumont will be rendered
meaningless.
After being subjected to discrimination by two CPAs, the Dumonts
sued the State claiming that allowing state-contracted, taxpayer-funded CPAs to use
religious criteria to exclude same-sex couples violated the Establishment and Equal
Protection Clauses. The core legal issues raised in this action (the “Action”) were
also asserted in Dumont, in which another CPA, St. Vincent Catholic Charities
(“STVCC”), intervened as a defendant and raised the identical federal constitutional
arguments CCWM now raises in this case. After denial of the State’s and STVCC’s
motions to dismiss, the State ultimately settled with the Dumonts and, in so doing,
agreed to enforce the non-discrimination provisions in its CPA contracts and take
corrective action against CPAs that failed to comply with those provisions. The
Dumont court then dismissed the case “pursuant to the terms of the Settlement
Agreement.” Dumont, ECF No. 83 at PageID.1469; see also Fed. R. Civ. P. 41(a)(2)
(“[A]n action may be dismissed at the plaintiff’s request only by court order, on
terms that the court considers proper.”). That settlement meant that the Dumonts
could pursue their goal of adopting a child out of foster care in Michigan without
being denied access to the same array of CPAs that are available to heterosexual
couples and without being further subjected to the stigma of discrimination. CCWM
now threatens to render that settlement meaningless, depriving the Dumonts of the
relief procured.
Because the Dumonts meet all prongs of the Sixth Circuit’s inquiry for
intervention as of right—(1) a timely motion; (2) a substantial legal interest that will
be impaired; and (3) inadequate representation from the parties before the Court—
and, in the alternative, for permissive intervention, they should be allowed to
intervene in this Action to protect their constitutional rights and their interest in the
State’s enforcement of the non-discrimination provision in its CPA contracts.
BACKGROUND
In 2016 and 2017, Kristy and Dana Dumont contacted two state-
contracted CPAs, STVCC and Bethany Christian Services, to inquire about adopting
a child from foster care and were turned away because the agencies stated that they
“do[] not work with same-sex couples.” Dumont, ECF No. 1 at PageID.16–17. On
September 20, 2017, the Dumonts, along with Erin and Rebecca Busk-Sutton
2
(collectively the “Dumont Plaintiffs”),1 filed a complaint against Nick Lyon, in his
official capacity as the Director of the Michigan Department of Health and Human
Services (“MDHHS”), and Herman McCall, in his official capacity as the Executive
Director of the Michigan Children’s Services Agency (collectively the “Dumont
State Defendants”), in the Eastern District of Michigan. The suit challenged the
State’s apparent practice of permitting state-contracted, taxpayer-funded CPAs to
use religious criteria to exclude same-sex couples from fostering or adopting
children in State custody. See generally id. The Dumont Plaintiffs claimed that
delegating the public function of providing foster care services to a religious
organization and then authorizing the organization to exclude participants based on
religious criteria violated the Establishment Clause. Id. at PageID.1–4. The Dumont
Plaintiffs further claimed that discrimination based on sexual orientation in this
government program violated the Equal Protection Clause because it furthered no
legitimate government interest and, to the contrary, undermined the State’s interest
in finding families for children by reducing their placement options. See id. at
PageID.20–21.
1
The claims of another Plaintiff, Jennifer Ludolph, who claimed only taxpayer
standing, were dismissed. Dumont v. Lyon, 341 F. Supp. 3d 706, 714 (E.D. Mich.
2018). None of the other Dumont Plaintiffs are currently moving to intervene
alongside the Dumonts.
3
STVCC moved for leave to intervene in Dumont, which the Dumont
court granted. Dumont, ECF Nos. 18, 33 & 34. The Dumont State Defendants and
STVCC both moved to dismiss the Dumont complaint. Dumont, ECF Nos. 16 & 19.
STVCC’s motion asserted (like CCWM’s complaint here) that the court could not
constitutionally grant the relief sought by the Dumont Plaintiffs because it would
violate STVCC’s free exercise and free speech rights. See Dumont, ECF No. 19, at
PageID.3. Following oral argument, the Dumont court denied the motions to dismiss
the Dumont Plaintiffs’ claims, holding that their allegations that the State authorized
state-contracted, taxpayer-funded agencies to use religious criteria to exclude same-
sex couples stated claims under the Establishment and Equal Protection Clauses of
the United States Constitution. Dumont v. Lyon, 341 F. Supp. 3d 706, 714 (E.D.
Mich. 2018); see also id. at 740, 743 (holding that the allegations of the complaint
“surely ‘implicate’ the Establishment Clause and plausibly suggest ‘excessive
entanglement’” and that the Dumont Plaintiffs were “entitled to an opportunity to
conduct discovery to support their claim that the State’s practice of continuing to
contract with faith-based agencies that . . . turn away same-sex couples lacks a
rational basis”). The court was also “unconvinced” that STVCC could “prevail on
a claim that prohibiting the State from allowing the use of religious criteria by those
private agencies hired to do the State’s work would violate [STVCC’s] Free Exercise
or Free Speech rights.” Id. at 749.
4
Following denial of the motions to dismiss, the parties engaged in
substantial discovery. This included the exchange of written discovery and
document production (totaling over 66,600 pages produced by the parties), through
which it was revealed, inter alia, that:
 Pursuant to their contracts, MDHHS requires CPAs to provide services

including recruitment, evaluation and licensure of prospective families
(Buck et al. v. Gordon et al., 1:10-cv-00286-RJJ-PJG (W.D. Mich.
2019), ECF No. 1-7 at PageID.123–24);
 It is MDHHS’ position that CPAs under contract with MDHHS must

work with all prospective foster or adoptive parents who need or seek
such services (Buck, ECF No. 1-4 at PageID.94–95);
 MDHHS previously determined, through special investigation, that

CCWM had policies of not accepting same-sex couples, and took
corrective action against it (see Buck, ECF No. 34-3 at PageID.977–
78);
 MDHHS had initiated investigations, still in process, against STVCC

and Bethany Christian Services for alleged anti-discrimination policy
violations as a result of the allegations in the Dumont complaint (id.;
see also Buck, ECF No. 6-16 at PageID.379); and
 MDHHS was aware that certain CPAs were discriminating against

same-sex parents, but ultimately allowed this discrimination to
continue (see Dumont, ECF No. 16 at PageID.76–77).
Before depositions and the briefing of dispositive motions, the Dumont Plaintiffs
and the Dumont State Defendants began settlement discussions and jointly moved
on January 23, 2019 for a stay of the proceedings. Dumont, ECF No. 74. On January
24 and February 22, the Dumont court entered orders staying the case for a total of
60 days to facilitate settlement. Dumont, ECF Nos. 76 & 81. On March 22, 2019,
5
shortly before expiration of the stay, the Dumont Plaintiffs and Defendants Robert
Gordon, in his official capacity as Director of MDHHS, and Jennifer Wrayno, in her
official capacity as Acting Executive Director of the Michigan Children’s Agency,
entered into the Settlement Agreement to resolve the Dumont Plaintiffs’ claims.
Dumont, ECF No. 82.
Pursuant to the Settlement Agreement, the Dumont State Defendants
agreed, among other things, to continue including a provision in their CPA contracts
that prohibits discrimination “against any individual or group because of race, sex,
religion, age, national origin, color, height, weight, marital status, gender identity or
expression, sexual orientation, political beliefs, or disability,” and to enforce
compliance with the non-discrimination provision by, in the case of CPAs unwilling
to comply, terminating those contracts. Dumont, ECF No. 82 at PageID.1444–46.
The Settlement Agreement made clear that “turning away or referring to another
contracted CPA an otherwise potentially qualified LGBTQ individual or same-sex
couple that may be a suitable foster or adoptive family for any child accepted by the
CPA for services under a [state contract]” violates the non-discrimination provision.
Id. at PageID.1445. In exchange, the Dumont Plaintiffs agreed to dismiss their
claims against the Dumont State Defendants with prejudice. Upon entering into the
Settlement Agreement, the Dumont Plaintiffs and the Dumont State Defendants filed
a stipulation of voluntary dismissal pursuant to Federal Rule of Civil Procedure
6
41(a)(2). Dumont, ECF No. 82. The court dismissed the Dumont case “pursuant to
the terms of the Settlement Agreement.” Dumont, ECF No. 83 at PageID.1469.
Because of the protections afforded by the State’s representations in
executing the Settlement, the Dumonts have “resumed evaluating child placing
agencies and inquiring about fostering and adopting a child from the Michigan child
welfare system.” (Declaration of Kristy Dumont ¶ 9, attached hereto as Exhibit B;
Declaration of Dana Dumont ¶ 9, attached hereto as Exhibit C.) As they actively
pursue fostering and adopting children, they “want to have the full range of options
available to [them] that everyone else has.” (Kristy Dumont Decl. ¶ 10; Dana
Dumont Decl. ¶ 10.)
CCWM filed this Action on April 25, directly implicating the
constitutional rights that the Dumonts sought to protect, and succeeded in protecting
via the Settlement Agreement reached in Dumont. Allegations regarding Dumont,
the Dumont Settlement Agreement and the State’s actions to comply with the
Settlement Agreement form the crux of CCWM’s Complaint. ECF No. 1 at
¶¶ 125-134.
LEGAL STANDARD
Intervention should be granted as of right where a proposed intervenor
“claims an interest relating to the property or transaction that is the subject of the
action, and is so situated that disposing of the action may as a practical matter impair
7
or impede the movant’s ability to protect its interest, unless existing parties
adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). Thus, to intervene as a
matter of right, proposed intervenors must establish: “(1) that the motion to intervene
was timely; (2) that they have a substantial legal interest in the subject matter of the
case; (3) that their ability to protect that interest may be impaired in the absence of
intervention; and (4) that the parties already before the court may not adequately
represent their interest.” Grutter v. Bollinger, 188 F.3d 394, 397–98 (6th Cir. 1999).
The court may also permit a party to intervene where she “has a claim
or defense that shares with the main action a common question of law or fact.” Fed.
R. Civ. P. 24(b)(1)(B); see also Purnell v. City of Akron, 925 F.2d 941, 950 (6th Cir.
1991) (“Rule 24(b) grants the district court discretionary power to permit
intervention if the motion is timely, and if the applicant’s claim or defense and the
main action have a question of law or fact in common.”) (internal citation and
punctuation omitted). The court must also “consider whether the intervention will
unduly delay or prejudice the adjudication of the rights of the original parties.”
Purnell, 925 F.2d at 951 (internal citation omitted); see Fed. R. Civ. P. 24(b)(3).
In considering a motion to intervene, the court “‘must accept as true the
non-conclusory allegations of the motion.’” Horrigan v. Thompson, No. 96-4138,
1998 WL 246008, at *2 (6th Cir. May 7, 1998) (quoting Lake Inv’rs Dev. Grp. v.
Egidi Dev. Grp., 715 F.2d 1256, 1258 (7th Cir. 1983)); see also Parkwest Dev., LLC
8
v. Ellahi, No. 18-CV-10385, 2018 WL 3640433, at *2 (E.D. Mich. Aug. 1, 2018)
(“Rule 24 . . . does not require that the proposed intervenor conclusively establish
its claim before intervention is allowed. By its terms, the rule applies to anyone who
‘claims’ an interest in the action . . . ”).
ARGUMENT
I. THE DUMONTS ARE ENTITLED TO INTERVENTION AS OF
RIGHT.
A. The Dumonts’ Motion Is Timely.
The Motion is timely filed because this Action is in its initial stage. In
assessing timeliness under Rule 24, the court must consider:
(a) the point to which the suit has progressed; (b) the
purpose for which intervention is sought; (c) the length of
time preceding the application during which the applicant
knew or reasonably should have known of its interest in
the case; (d) prejudice to the original parties due to the
failure of the applicant to apply promptly for intervention
upon acquiring the knowledge of its interest; and (e) any
unusual circumstances of the case.
Linton v. Comm’r of Health and Env’t., State of Tenn., 973 F.2d 1311, 1317 (6th
Cir. 1992). In Michigan State AFL-CIO v. Miller, a motion to intervene was held
“timely as a matter of law” where it was filed when “the case was obviously in its
initial stage.” 103 F.3d 1240, 1245 (6th Cir. 1997). Here, the Motion was filed
before any party has responded to the motion for preliminary injunction and before
the commencement of discovery. This clearly satisfies the timeliness requirement.
9
B. The Dumonts Have a Substantial Legal Interest in the Action.

The Sixth Circuit “has opted for a rather expansive notion of the interest
sufficient to invoke intervention of right,” and has held that any “close cases should
be resolved in favor of recognizing an interest under Rule 24(a).” Miller, 103 F.3d
at 1245, 1247. CCWM seeks to force the State, in violation of its obligations under
the Settlement Agreement, to contract with organizations that discriminate in the
provision of adoption and foster care services. The Dumonts have a substantial
interest in this Action for two reasons. First, the Dumonts have an interest in
protecting the hard-fought Settlement Agreement they obtained in exchange for the
dismissal of their constitutional claims. The relief CCWM seeks would vitiate the
Dumonts’ contractual rights under the Settlement Agreement. Second, the relief
CCWM seeks would mean that the Dumonts would be subjected to unconstitutional
unequal treatment, causing further practical and stigmatic injuries by requiring the
Dumonts to pursue their desire to adopt a child from foster care in a system in which
agencies may, once again, discriminate against them.
First, a party has a substantial interest warranting intervention as of
right where, as here, the proposed intervenor is party to a court-endorsed settlement
agreement that is directly challenged in a separate litigation. See Jansen v. City of
Cincinnati, 904 F.2d 336, 342 (6th Cir. 1990) (granting motion to intervene where
“[t]he proposed intervenors . . . are parties to the consent decree challenged in this
10
action”) (emphasis in original). The Jansen v. City of Cincinnati case dealt with a
collateral challenge by a group of white firefighters to a consent decree regarding
race-based employment practices entered into by the City of Cincinnati and a group
of black firefighters. Id. at 339. The black firefighters moved to intervene in the
white firefighters’ case to defend the consent decree. Id. The Sixth Circuit held that
the black firefighters had a “significant legal interest in the subject matter of the
litigation” where they were “parties to [a] consent decree challenged in” the pending
action and where “[a]t stake in this litigation is the proposed intervenors’ interest in
continuing” the mandates of the consent decree. Id. at 341, 42; see also City of St.
Louis v. Velsicol Chem. Corp., 708 F. Supp. 2d 632, 669 (E.D. Mich. 2010) (granting
motion by United States to intervene as of right in suit brought by City of St. Louis
against trustees challenging certain trusts established pursuant to settlement
agreement to which United States was party). As in Jansen, where the white
firefighters’ lawsuit sought to undo the affirmative action program established by
the City’s consent decree, here, CCWM seeks to undo the Settlement Agreement.
Specifically, CCWM wants to prevent the State from enforcing the non-
discrimination provision in its CPA contracts. The Dumonts litigated against the
State and another CPA for over a year to achieve a commitment from the State that
discrimination against families like theirs would no longer be permitted in the State
of Michigan. However Plaintiff may characterize it, the Action seeks to completely
11
eviscerate the Settlement Agreement. The Dumonts, like the intervenors in Jansen,
have a substantial interest in protecting the relief secured through adversarial
negotiations with the State.2
The relief CCWM seeks would, if granted, infringe on the Dumonts’
existing contractual rights. The Sixth Circuit has recognized that a proposed
intervenor has a sufficient legal interest for intervention where the resolution of a
litigation would directly impair her contractual rights. See, e.g., Linton, 973 F.2d at
1319 (reversing district court denial of motion by nursing homes to intervene as of
right in suit brought by medical patients against state agency administering Medicaid
program because the district court “failed to recognize the alleged impairment of the
movants’ contractual and statutory rights”); Dumont, ECF No. 34 at PageID.783
(“[T]his action directly involves [proposed intervenors’] ability to continue to use
religious criteria when performing child welfare services for the State of Michigan”
pursuant to its contracts.); cf. Blount-Hill v. Bd. of Educ. of Ohio, 195 F. App’x 482,
486 (6th Cir. 2006) (affirming denial of motion to intervene where proposed
intervenor was “not a party to any challenged contract nor [was] it directly targeted
by plaintiffs’ complaint”). Over more than two months, and after substantial
2
The fact that the settlement in Jansen was a consent decree does not change
the analysis: the black firefighters had an interest in protecting the relief they
secured, just like the Dumonts do.
12
discovery and motion practice, the Dumonts negotiated the terms of the Settlement
Agreement, which requires that MDHHS enforce the non-discrimination provision
of their CPA contracts and provides for specific performance if MDHHS fails to
investigate or enforce alleged violations of the non-discrimination provision, up to
and including termination of such contracts. See Dumont, ECF No. 82. The
Settlement Agreement, therefore, contractually binds MDHHS to ensure its non-
discrimination provision protects the Dumonts and others similarly situated. If
CCWM succeeds in forcing Defendants to continue contracting with CCWM to
provide foster care and adoption services despite CCWM’s continued
discrimination, see Compl., ECF No. 1-2 at PageID.62–63, it will render the
Settlement Agreement a nullity and eliminate the entire benefit of the Dumonts’
bargain with the Dumont State Defendants.
Second, the relief CCWM seeks here—the right to dictate the terms of
a contract to provide public child welfare services while employing religious
eligibility criteria to exclude qualified same-sex couples—is precisely what was
challenged in Dumont. In considering the Dumonts’ allegations, the Dumont court
determined that such conduct constitutes a cognizable injury-in-fact. Dumont, 341
F. Supp. 3d at 720–22. The Dumont court recognized that the Dumonts faced a
practical barrier; because fewer agencies will work with them, “‘it [is] more difficult
for [same-sex couples to adopt] than it is for [heterosexual couples]’”) (quoting Ne.
13
Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S.
656, 666 (1993)) (second and third alterations in original). Further, the Dumont
court recognized that the stigma of “personally encounter[ing] . . . unequal treatment
. . . through that act of being turned away as prospective adoptive parents” was itself
an injury. See also Fulton v. City of Philadelphia, 922 F.3d 140, 164 (3d Cir. 2019).
(“The harm is not merely that gay foster parents will be discouraged from fostering.
It is the discrimination itself.”) Now CCWM seeks to again expose the Dumonts to
unconstitutional unequal treatment and thus further practical and stigmatic injury.
(See Kristy Dumont Decl. ¶¶ 8–10; Dana Dumont Decl. ¶¶ 8–10.)
The Dumonts’ substantial interest in avoiding the injury that would
result from the relief sought by CCWM is well-recognized. Usery v. Brandel, 87
F.R.D. 670, 676 (W.D. Mich. 1980) (“It is well-established that an applicant has ‘a
significant protectable interest’ in rights which may be affected by interpretation in
a pending case. . . .”). For example, in Grutter v. Bollinger, the Sixth Circuit found
that prospective minority applicants to the University of Michigan had a “direct,
substantial, and compelling” legal interest to support intervention as of right in a
lawsuit brought by white applicants challenging the University’s race-conscious
admissions policy, where the proposed intervenors’ chances of “gaining admission
to the University” could be impacted if the University were ordered to stop
considering race as a factor in admissions. 188 F.3d at 399–400; see also Coal. to
14
Defend Affirmative Action v. Granholm, 240 F.R.D. 368, 371, 375 (E.D. Mich. 2006)
(granting motion to intervene by white prospective applicant to University in lawsuit
challenging state constitutional amendment “bar[ring] the use of race, sex, color,
ethnicity, or national origin to promote diversity in public hiring, contracting, and
university admission decisions” because “if the present plaintiffs are successful in
obtaining a ruling that the constitutional amendment is invalid, [proposed
intervenor’s] chances of gaining admission . . . may be diminished”). Here too, the
Dumonts have a “direct, substantial, and compelling” legal interest in the resolution
of CCWM’s claims; if CCWM’s claims are successful, the protections against
discrimination that they secured in the Dumont Settlement Agreement would be
eviscerated.
C. The Dumonts’ Interests May Be Impaired Without Intervention.

The Dumonts meet the “minimal” burden to show that “impairment of
[their] substantial legal interest is possible if intervention is denied.” Miller, 103
F.3d at 1247. Here, the Dumonts’ substantial legal interests in preserving the relief
obtained through their Settlement Agreement and avoiding further constitutional
injury may be impaired without intervention because if CCWM succeeds in their
claims, the Dumonts’ Settlement Agreement would become meaningless and the
Dumonts’ constitutional rights would again be infringed. The Dumonts dismissed
15
their previous claims in exchange for a settlement that provided them the relief they
sought, and would be left without recourse.
Jansen is directly on point. There, the Sixth Circuit found that
“disposition of the present action without the proposed intervenors would indeed
impair or impede their ability to protect their rights guaranteed under the consent
decree” because the resolution of the pending litigation could leave the defendant
“with obligations to the proposed intervenors under the consent decree that are
inconsistent with its obligations to plaintiffs” and any finding about the consent
decree would bind the proposed intervenors “in any subsequent enforcement
actions.” 904 F.2d at 342. Likewise, here, adjudication of CCWM’s claims could
preclude the Dumonts from enforcing the Settlement Agreement if it prevails on its
claims that the Constitution gives it the right to obtain a government contract to
perform public child welfare services and use religious eligibility criteria when
performing those services to turn away qualified families headed by same-sex
couples. The Dumonts have a right to intervene in this case to protect the Settlement
Agreement that protects them from facing further discrimination, and defend against
an inconsistent resolution in this Court of the constitutionality of the State’s practice
with respect to its adoption and foster care contracts.
16
D. No Other Party Adequately Represents the Dumonts’ Interests.

Finally, the Dumonts are entitled to intervene as of right because no
current party adequately represents their interests. In assessing the final prong under
Rule 24(a)(2), the Sixth Circuit has explained that “proposed intervenors are ‘not
required to show that representation will in fact be inadequate.’” Grutter, 188 F.3d
at 400 (quoting Miller, 103 F.3d at 1247). Instead, a proposed intervenor need only
show that representation may be inadequate, including by showing “that the existing
party who purports to seek the same outcome will not make all of the prospective
intervenor’s arguments.” Id. The burden of showing inadequate representation
“should be treated as minimal.” Trbovich v. United Mine Workers of Am., 404 U.S.
528, 538 n.10 (1972).
While the existing Defendants may seek the same relief as the Dumonts
and may make some of the arguments that the Dumonts would make, 3 based on the
parties’ positions in the Dumont action, and their respective papers filed in
opposition to the motion for preliminary injunction in the related case of Buck et al.
3
For example, both may argue that there is nothing in the Free Exercise or Free
Speech Clauses that entitles a private organization to force the government to offer
it a contract to perform a government service even though it is unwilling to comply
with the contract’s terms. See Fulton, 922 F.3d at 158, 161 (no likelihood of success
on claim that enforcing non-discrimination policy in public foster care contracts
violates free exercise or free speech rights of agencies that have religious objection
to complying).
17
v. Gordon et al., 1:19-cv-00286-RJJ-PJG (W.D. Mich. 2019), the Dumonts
anticipate that they will assert different arguments than the Defendants in defense of
the State’s practice of enforcing the non-discrimination provision in its adoption and
foster care contracts with CPAs. For example, the Dumonts will argue that allowing
state-contracted, taxpayer-funded CPAs to exclude same-sex couples based on
religious grounds—the relief requested by CCWM—would violate the
Establishment and Equal Protection Clauses.4 When the Dumont Plaintiffs made
these very arguments in Dumont, the State Defendants did not concur; rather, they
moved to dismiss and argued against them. See Grutter, 188 F.3d at 401 (“The
proposed intervenors . . . have presented legitimate and reasonable concerns about
whether the University will present particular defenses of the contested race-
conscious admissions policies.”); Meriwether v. Trs. of Shawnee State Univ., 2019
WL 2052110, at *12 (S.D. Ohio May 9, 2019) (no adequate representation where
proposed intervenors “articulated specific and reasonable concerns that [defendant]
will not present their relevant defenses under Title IX, the Equal Protection Clause,
and other anti-discrimination laws”).
4
The Dumonts also intend to assert heightened equal protection scrutiny for
discrimination against married same-sex couples, a position the State Defendants
contested in Dumont.
18
II. IN THE ALTERNATIVE, THE COURT SHOULD EXERCISE ITS

DISCRETION TO ALLOW PERMISSIVE INTERVENTION.
Should the Court determine that the Dumonts are not entitled to
intervene as of right, the Court should exercise its discretion pursuant to Rule
24(b)(1) to grant permissive intervention. Permissive intervention is appropriate
where a prospective intervenor’s claim or defense shares with the pending litigation
“a common question of law or fact,” Fed. R. Civ. P. 24(b)(1)(B), and where
intervention will not “unduly delay or prejudice the adjudication of the rights of the
original parties.” Purnell, 925 F.2d at 951. In this case, for the reasons stated above
and in the Proposed Answer, both CCWM and the Dumonts raise claims or defenses
related to whether the First and Fourteenth Amendments to the United States
Constitution require the State to permit state-contracted CPAs to violate the
contracts’ non-discrimination requirement that includes sexual orientation. Granting
the Dumonts’ motion to intervene will not result in delay or undue prejudice because
the case is in its very early stages and proposed intervenors are prepared to proceed
according to the schedule set by the Court.
CONCLUSION
For the reasons set forth above, we respectfully ask that the Court grant
the Dumonts’ motion to intervene in this Action.
19
Dated: July 17, 2019

Respectfully submitted,
Jay Kaplan (P38197) Leslie Cooper

Daniel S. Korobkin (P72842) American Civil Liberties Union
American Civil Liberties Union Foundation
Fund of Michigan 125 Broad Street, 18th Floor
2966 Woodward Avenue New York, NY 10004
Detroit, MI 48201 Telephone: (212) 549-2633
Telephone: (313) 578-6823 [email protected]
[email protected]
[email protected]
Daniel Mach Garrard R. Beeney
American Civil Liberties Union Ann-Elizabeth Ostrager
Foundation Leila R. Siddiky
915 15th Street NW Jason W. Schnier
Washington, DC 20005 Lisa M. Ebersole
Telephone: (202) 675-2330 Hannah M. Lonky
[email protected] James G. Mandilk
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, NY 10004-2498
Telephone: (212) 558-4000
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Counsel for Proposed Intervenor

Defendants
20
CERTIFICATE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which will send notification
of such filing to all counsel of record.
This the 17th day of July, 2019.

21
Case 2:19-cv-11661-DPH-DRG ECF No. 20-1 filed 07/17/19 PageID.865 Page 1 of 1

SOUTHERN DIVISION

MICHIGAN,

ROBERT GORDON, in his official INDEX OF EXHIBITS TO
capacity as the Director of the Michigan [PROPOSED] INTERVENOR-
Department of Health and Human DEFENDANTS KRISTY
Services; MICHIGAN CHILDREN’S DUMONT AND DANA
SERVICES AGENCY; JOOYEUN DUMONT’S MOTION TO
CHANG, in her official capacity as INTERVENE
Defendants.
Exhibit A Kristy Dumont and Dana Dumont’s [Proposed] Answer And

Affirmative and Other Defenses
Exhibit B Declaration of Kristy Dumont in Support of Motion to

Intervene
Exhibit C Declaration of Dana Dumont in Support of Motion to Intervene

Exhibit B
Exhibit C

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Document Number Document Description Pages Document Error

UNITED STATES DISTRICT COURT

CATHOLIC CHARITIES WEST

Plaintiff, No. 2:19-cv-11661-DPH-DRG

v. HON. DENISE PAGE HOOD

MICHIGAN DEPARTMENT OF MAG. J. DAVID R. GRAND

Kristy Dumont and Dana Dumont (collectively, “the Dumonts”)

(the “Motion”) and the Proposed Answer, attached hereto as Exhibit A.

1. The Dumonts respectfully seek intervention as of right in this Action.

Grutter v. Bollinger, 188 F.3d 394, 397–98 (6th Cir. 1999).

preliminary injunction or the commencement of discovery. Second, the Dumonts

complaint filed by Catholic Charities West Michigan (“CCWM”) directly implicates

et al. v. Gordon et al., 2:17-cv-13080-PDB-EAS (E.D. Mich. 2019) (“Dumont”),

wherein the Dumonts reached a settlement agreement (the “Settlement Agreement”)

with the State of Michigan to end discrimination by state-contracted child placing

agencies (“CPAs”). The Dumonts have a substantial interest in preserving the

Dumonts’ Settlement Agreement would be rendered meaningless. The Dumonts

3. Alternatively, the Dumonts respectfully ask the Court to exercise its

discretion to allow permissive intervention because the Dumonts’ defenses share

States Constitution require the State of Michigan to permit state-contracted CPAs to

violate the contracts’ non-discrimination requirement that includes sexual

to proceed according to the schedule ordered by the Court.

4. In accordance with the Eastern District of Michigan’s Local Civil Rule

official capacity as Attorney General of Michigan responded on July 17 that they

not concur and will oppose the motion.

Dated: July 17, 2019 Respectfully submitted,

Jay Kaplan (P38197) Leslie Cooper

New York, NY 10004-2498

Counsel for Proposed Intervenor

UNITED STATES DISTRICT COURT

CATHOLIC CHARITIES WEST

Plaintiff, No. 2:19-cv-11661-DPH-DRG

v. HON. DENISE PAGE HOOD

MICHIGAN DEPARTMENT OF MAG. J. DAVID R. GRAND

PRELIMINARY STATEMENT ............................................................................... 1

B. The Dumonts Have a Substantial Legal Interest in the Action ........... 10

D. No Other Party Adequately Represents the Dumonts’ Interests ......... 17

II. IN THE ALTERNATIVE, THE COURT SHOULD EXERCISE ITS

Jansen v. City of Cincinnati,

Meriwether v. Trs. of Shawnee State Univ.,

Mich. State AFL-CIO v. Miller,

Purnell v. City of Akron,

Trbovich v. United Mine Workers of Am.,

Fed. R. Civ. P. 41 ....................................................................................................... 1

CONCISE STATEMENT OF ISSUES PRESENTED

CONTROLLING OR MOST APPROPRIATE AUTHORITY

minority applicants had a “direct, substantial, and compelling” legal interest to

support intervention as of right in a lawsuit brought by white applicants challenging

a university’s race-conscious admissions policy, where the proposed intervenors’

interest in gaining admission could be impacted if the university were ordered to

stop considering race as a factor in admissions); Jansen v. City of Cincinnati, 904

district court denial of motion by nursing homes to intervene as of right in suit

brought by medical patients against state agency administering Medicare program

and the main action have a question of law or fact in common.”).

force the State of Michigan to permit state-contracted, taxpayer-funded child placing

agencies (“CPAs”) to discriminate against prospective foster and adoptive families