Fact: Motions to Intervene Are Decided by Federal Judges Inherent Bias and Political Views

Two N.D. Georgia Lower Court Judges Decide Essentially the Same Facts Differently Based On One Being a Democrat and the Other a Republican. And One Appellate Court Deciding in Favor of Govt Agency and Non-Bank Based on Inherent Bias (Ochlocracy).

Below we compare the two lower court opinions, which cite the appeals court (11th Cir.) intervenor opinion in Burke v CFPB/Ocwen (Nov. 2020). That ‘glossed and unpublished’ opinion is well documented separately by LIT and is ongoing, with a renewed motion to intervene also continuing.

INTERVENTION: ADEQUATELY REPRESENTED

NOV ’20
CFPB v Ocwen
11th Circuit, Georgia
Citizens [Burkes] have no rights

JAN ’22
US v Georgia
Public Int. Legal Fdn
Republican Fed. Judge
You cannot intervene

APR ’22
Marjory Greene v Raffensperger
Citizens
Dem. Fed. Judge
HELL, YEAH!

— lawsinusa (@lawsinusa) April 29, 2022

Judge: Georgia voters can challenge Greene’s reelection run

APR 19, 2022 | REPUBLISHED BY LIT: APR 30, 2022

The amendment says no one can serve in Congress “who, having previously taken an oath, as a member of Congress . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” Ratified shortly after the Civil War, it was meant in part to keep representatives who had fought for the Confederacy from returning to Congress.

Greene, 47, filed a lawsuit earlier this month asking a judge to declare that the law that the voters are using to challenge her eligibility is itself unconstitutional and to prohibit state officials from enforcing it.

Judge Amy Totenberg, in a 73-page ruling, denied Greene’s request for a preliminary injunction and temporary restraining order.

Totenberg, who was appointed to the U.S. District Court for the Northern District of Georgia by President Barack Obama, wrote that Greene had failed to meet the “burden of persuasion” in her request for injunctive relief.

Georgia law says any voter who is eligible to vote for a candidate may challenge that candidate’s qualifications by filing a written complaint within two weeks after the deadline for qualifying. The secretary of state must then notify the candidate of the challenge and request a hearing before an administrative law judge. After holding a hearing, the administrative law judge presents findings to the secretary of state, who then must determine whether the candidate is qualified.

Free Speech for People, a national election and campaign finance reform group, filed the challenge March 24 on behalf of the group of voters.

Greene said in her lawsuit that she “vigorously denies that she ‘aided and engaged in insurrection to obstruct the peaceful transfer of presidential power.”

Greene v. Raffensperger

(1:22-cv-01294)

District Court, N.D. Georgia

APR 1, 2022 | REPUBLISHED BY LIT: APR 30, 2022

DAVID ROWAN, DONALD GUYATT, ROBERT RASBURY, RUTH DEMETER, AND DANIEL COOPER’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO INTERVENE AS DEFENDANTS

C. Disposition of This Action Could Impede and Impair Intervenors’ Interests

Greene’s effort to foreclose Petitioners from litigating their Challenge could directly impair Intervenors’ substantial interests.

To establish that the resolution of the instant action will “impede or impair” Intervenors’ interests, they need only show that they will be “practically disadvantaged by [their] exclusion from the proceedings.”

Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278, 1295 (11th Cir. 2017)

(quoting Huff v. Comm’r of IRS, 743 F.3d 790, 800 (11th Cir. 2014));

see also Chiles, 865 F.2d at 1214

(granting motion to intervene where “the lawsuit will, as a practical matter, impair [proposed intervenors’] ability to protect their interests”).

Similarly, establishing that this action will “adversely impact” the Challenge proceeding is sufficient to create a right to intervene.

See Georgia v. U.S. Army Corps of Engineers, 302 F.3d 1242, 1258 (11th Cir. 2002)

(finding a right to intervene where a “final ruling in this case [would] adversely impact” another proceeding).

Here, Greene seeks to preclude Intervenors from exercising their rights under Georgia law to challenge Greene’s candidacy in time to disqualify her from appearing on the ballot for the upcoming May 24 primary.

See supra Section I.B.

The threat is particularly grave because the requested relief includes both facial and as-applied challenges to the Georgia Challenge Statute, including a claim that Section 3 of the 14th Amendment cannot be used to challenge Greene’s candidacy.

See Compl. Counts I & III

(facial constitutional challenges, 54-59, 66-71)

& Count II

(as-applied 14th Amendment due process challenge to Intervenors’ reliance on Section 3 in the Challenge proceeding, 60-65)

& Count IV

(as- applied statutory challenge to the application of Section 3 of the 14th Amendment to Greene, 72-77).

Through her facial challenges, Greene is asking this Court to strike down the entirety of Georgia’s candidacy challenge regime, necessarily ending Intervenors’ Challenge proceeding.

Through her as-applied challenges, Greene requests that the Court enjoin Intervenors’ Challenge proceeding specifically.

And through her 14th Amendment argument, Greene asks the Court to rule that the basis for Intervenors’ Challenge proceeding is legally deficient.

Intervenors’ “ability to litigate [Greene’s qualifications for office] in a separate lawsuit” would likely be an “exercise in futility if the instant lawsuit was decided in favor of [Greene].”

Chiles, 865 F.2d at 1214. Cf. Worlds, 929 F.2d at 594-95 (finding no impairment only because there was the opportunity to litigate interest in a separate suit);

Burke v. Ocwen Fin. Corp., 833 F. App’x 288, 292–93 (11th Cir. 2020) (no impairment because proposed intervenors could “separately litigate” their interests).

Greene seeks not only to “practically disadvantage” and “adversely impact” Intervenors’ Challenge proceeding, she seeks to stop it entirely. This substantial threat to Intervenors’ interests establishes their right to intervene.

ORDER BY FEDERAL JUDGE AMY TOTENBERG (DEMOCRAT)

This matter is before the Court on David Rowan, Donald Guyatt, Robert Rasbury, Ruth Demeter1, and Daniel Cooper’s (“Proposed Intervenors”) Motion to Intervene as Defendants [Doc. 13].

For the reasons that follow, Proposed Intervenors’ Motion is GRANTED.

Although Proposed Intervenors acknowledge that Defendants presumably have an interest in defending the constitutionality of the Challenge Statute, they add that Defendants do not share Proposed Intervenors’ ultimate objective of ensuring that the underlying challenge is successful.

This point is illustrated by the fact that Defendants have not presented substantive arguments in opposition to Count IV of the Complaint, whereas Proposed Intervenors have so argued in their response brief.

As the Eleventh Circuit has held, the fact that Defendants’ and Proposed Intervenors’ interests “are similar” does not necessarily mean that their “approaches to litigation will be the same.”

Chiles, 5 F.2d at 1214.

And even if Defendants’ objectives were the same as those of Proposed Intervenors, the presumption of adequate representation is only that — a presumption. “[L]ike the great majority of presumptions, at most it merely requires the presumed result unless some evidence is placed before the court tending to rebut it.”

Meek v. Metro. Dade Cnty., 985 F.2d 1471, 1477 (11th Cir. 1993) (emphasis in original), abrogated on other grounds by Dillard v. Chilton Cnty. Comm’n, 495 F.3d 1324 (11th Cir. 2007).

“When such evidence exists, resort to the presumption is inappropriate, and a court is obligated to make its own determination of whether the requirements of the rule are met.” Id.

As Proposed Intervenors emphasize, Defendants “represent broader public and institutional interests, not shared by Intervenors, that will factor into how they respond to this action,” and Defendants also “have no particular interest in ensuring Intervenors are able to pursue their particular challenge.”

(Mot., Doc. 13 at 13.)

On this point, the Eleventh Circuit has held that intervention should be permitted in similar circumstances.

For example, in Meek v. Metropolitan Dade County, 985 F.2d 1471 (11th Cir. 1993), the Eleventh Circuit granted intervention as of right when the proposed intervenors sought to challenge an at-large voting system for electing county commissioners.

As the Meek Court observed there, “the County Commissioners had to consider the overall fairness of the election system to be employed in the future, the expense of litigation to defend the existing system, and the social and political divisiveness of the election issue.”

Id. at 1478.

Under the circumstances, the court found that the County Commissioners “were likely to be influenced by their own desires to remain politically popular and effective leaders” and that “[t]hese divergent interests created a risk that Dade County might not adequately represent the applicants” even though the County shared the proposed intervenors’ objective of upholding the at-large voting system at issue. Id.

There is a similar “divergence of interests” between Defendants and Proposed Intervenors in this case.

Further, under binding case law in this Circuit, any doubts concerning the propriety of intervention should be resolved in favor of the proposed intervenors.

Meek, 985 F.2d at 1478 (quoting FSLIC v. Falls Chase Special Taxing Dist., 983 F.2d 211, 215, 216 (11th Cir.1993)).

Accordingly, the Court finds that Proposed Intervenors have met their minimal burden to show that the existing Defendants’ representation of their interests, at the very least, may be inadequate in that their interests may diverge from Proposed Intervenors’ interests to some extent.

The Court therefore GRANTS Proposed Intervenors’ motion to intervene as of right.

Judge Rejects Legal Group’s Bid To Defend Ga. Voting Law

JAN 6, 2022 | REPUBLISHED BY LIT: APR 30, 2022

United States v. The State of Georgia

(1:21-cv-02575)

District Court, N.D. Georgia

JUN 25, 2021 | REPUBLISHED BY LIT: APR 30, 2022

PUBLIC INTEREST LEGAL FOUNDATION’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO INTERVENE

ORDER BY FEDERAL JUDGE J.P. BOULEE (REPUBLICAN, TRUMP APPOINTEE)

As common with Trump nominees for federal judicial positions, they now refuse to endorse the voter fraud and January 6 events.

As here, Boulee is using his position to reject far right attempts to intervene.

Despite the claims judges are supposed to be non-partisan and rely upon the law, the decision-making defies that ethical requirement.

The Eleventh Circuit Court of Appeals presumes adequate representation of a proposed intervenor’s asserted interests “when an existing party seeks the same objectives” as the proposed intervenors.

Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 910 (11th Cir. 2007).

When the existing party is a government entity, a court will also “‘presume that the government entity adequately represents the public’” and will “‘require the party seeking to intervene to make a strong showing of inadequate representation.’” [LIT COMMENT; A homestead under wrongful foreclosure is not STRONG enough per 11th Circuit].

Burke v. Ocwen Fin. Corp., 833 F. App’x 288, 293 (11th Cir. 2020) (citation omitted) (emphasis added).

Here, the Court is not persuaded that Proposed Intervenor has shown the requisite direct and substantial interest in this proceeding.

Proposed Intervenor states that it “exists to assist states and others to aid the cause of election integrity and fight against lawlessness in American elections.”

Proposed Intervenors’ Reply Br. 6, ECF No. 41.

In a nutshell, its proffered interest in this case is to assist the State of Georgia defend the state’s “prerogative” to run its elections in the way it deems appropriate.

Proposed Intervenor also contends that it would assert certain defenses that the state would “feel restrained” to assert and that it would bring “particular experience to this case that will allow the issues to be more thoroughly developed.”

Proposed Intervenors’ Mot. 3, 8, ECF No. 11-1.

However, none of these reasons demonstrates that Proposed Intervenor, itself, has a specific interest so situated that disposing of the action without Proposed Intervenor’s participation would impair its ability to protect that interest.

At best, Proposed Intervenor asserts a generalized interest in orderly elections that is widely shared by members of the voting public.

Therefore, Proposed Intervenor has not demonstrated the specific interest necessary to entitle it to intervention as of right.

But even if Proposed Intervenor had demonstrated the requisite interest, it has not shown that the State of Georgia is inadequately representing that interest.