United States District Court, D. Vermont
VERMONT ALLIANCE FOR ETHICAL HEALTHCARE, INC., CHRISTIAN MEDICAL & DENTAL ASSOCIATIONS, INC., Plaintiffs,
WILLIAM K. HOSER, in his official capacity as Chair of the Vermont Board of Medical Practice, MICHAEL A. DREW, M.D., ALLEN EVANS, FAISAL GILL, ROBERT G. HAYWARD, M.D., PATRICIA HUNTER, DAVID A. JENKINS, RICHARD CLATTENBURG, M.D., LEO LECOURS, SARAH McCLAIN, CHRISTINE PAYNE, M.D., JOSHUA A. PLAVIN, M.D., HARVEY S. REICH, M.D., GARY BRENT BURGEE, M.D., MARGA S. SPROUL, M.D., RICHARD BERNSTEIN, M.D., DAVID LIEBOW, D.P.M., in their official capacities as Members of the Vermont Board of Medical Practice, JAMES C. CONDOS, in his official capacity as Secretary of the State of Vermont, and COLIN R. BENJAMIN, in his official capacity as Director of the Office of Professional Regulation, Defendants.
DECISION ON MOTION TO INTERVENE (DOC. 42)
Geoffrey W. Crawford, Judge United States District
lawsuit is filed by physicians and other health providers who
seek to enjoin the state, including the Vermont Board of
Medical Practice and the Office of Professional Regulation,
from taking any action against them arising from the
provisions of Act 39 (18 V.S.A. §§ 5281-5293),
Vermont's informed consent statute (18 V.S.A. §
1909), and the Vermont Patients' Bill of Rights (18
V.S.A. § 1871). Act 39 was enacted in 2013. It affords
terminally ill Vermonters, who meet certain conditions and
wish to end their lives, with access to medicine intended for
that purpose. Plaintiffs allege that their religious beliefs
do not permit them to counsel patients concerning their right
to seek life-ending medication. They seek protection from
professional disciplinary action (or civil or criminal
proceedings) based upon charges that their refusal to treat
or counsel patients who may qualify for physician assisted
suicide violates the law. (See Doc. 1.)
intervenors include two Vermont residents who suffer from
terminal illnesses and may seek to acquire life-ending
medication. Two advocacy groups active on behalf of patients
who may seek the option of ending their own lives also seek
to intervene. The two individuals and two organizations seek
to intervene as of right under Fed.R.Civ.P. 24(a)(2), or with
permission under Fed.R.Civ.P. 24(b)(2). (Doc. 42.)
motion to dismiss (Doc. 31) and Plaintiffs' motion for a
preliminary injunction (Doc. 32) are pending before the
court. Intervenors do not seek to delay the court's
resolution of these two motions and seek intervention
following court action on the pending motions.
legal standard for intervention under Fed.R.Civ.P. 24 has two
aspects. Intervention as of right is available to a party who
"claims an interest relating to the . . . transaction
that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or
impede the movant's ability to protects its interest,
unless existing parties adequately represent that
interest." Permissive intervention is available in the
court's discretion for an party who "has a claim or
defense that shares with the main action a common question of
law or fact."
court will not grant the intervener's motion as of right.
This is an exacting standard intended for parties who have a
direct, substantial and legally protectable interest in the
lawsuit. Diamond v. Charles, 476 U.S. 54, 68 (1986).
With respect to the individual interveners, it is not clear
whether they have had any contact or received counseling or
care from Plaintiffs' members. The entire question
proceeds at a level of unreality. Plaintiffs have not
disclosed the identity of their members except through the
declarations filed in support of the motion for preliminary
declarations reveal that the president of Plaintiff Vermont
Alliance for Ethical Healthcare, Inc. ("VAEH") is
Professor Ed Mahoney of the Religious Studies Department at
St. Michael's College. (Doc. 32-9.) He is unlikely to be
consulted by the individual interveners about issues related
to their health care. The declarations also reveal that David
Stevens, M.D. serves as CEO of Plaintiff Christian Medical
& Dental Associations, which is a national organization
of Christian healthcare professionals, including "dozens
of members in Vermont." (Doc. 32-10 at 2.) Closer to
home, Plaintiffs Brian Kilpatrick, M.D., Rachel DiSanto,
M.D., and Lynne Caulfield, R.N. are Vermont physicians and,
in Ms. Caulfield's case, a nurse who are members of VAEH
and oppose physician-assisted suicide. (Docs. 32-11, 32-12,
court lists these parties to make it clear that at least on
the present record, it is highly unlikely that members of the
two Plaintiff organizations and the two individual
intervenors will ever come into contact with one another.
Certainly the intervenors are on notice that these providers
are not people who are open to a discussion of
conditioning intervention as of right, Rule 24 requires a
genuine connection between the parties which threatens to
impair the moving parties' rights. A concern in the
abstract that some unidentified physician (or the three
providers who have stepped forward through their
declarations) might turn away an otherwise
legally-permissible request for medical information is
insufficient to meet this standard. See Wash. Elec.
Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d
92, 96-97 (2d Cir. 1990) (an interest in the subject matter
which is contingent upon a future event insufficient to
support intervention as of right).
to the issue of permissive intervention, the court grants the
motion on that basis. The legal requirements are relaxed. A
party need show only 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). Four factors guide court in making
a discretionary decision about permitting the intervention.
These are timely filing; an interest in the action; a showing
that the interest may be impaired by the court's
disposition; and a showing that the interest is not protected
adequately by the parties to the action. See In reBankof
N.Y. Derivative Litig., 320 F.3d 291, 300 & n.5 (2d
Cir. 2003); Corren v. Sorrell, 151 F.Supp.3d 479,
495 (D. Vt. 2015).
this lawsuit was recently filed (July 2016), the motion to
intervene is timely. All intervenors have an interest in the
action. As people potentially eligible for consideration
under Act 39, both individual intervenors have strong
personal reasons for resisting the type of silence or boycott
which Plaintiffs seek to preserve for themselves on an issue
of patient choice. The intervenors' claim that they are
entitled to medical counseling is far from theoretical. It is
as strongly felt and experienced as Plaintiffs'
members' belief that such counseling would violate their
religious convictions. Similarly, while it is difficult to
measure the likelihood that the individual Defendants will
encounter a member of Plaintiffs' organizations, it
cannot be ruled out. Both Plaintiffs and intervenors have a
genuine stake in the outcome of this particular controversy.
interest of the two association intervenors is obvious. Like
the two Plaintiffs, both organizations have strong interests
in the ways in which Act 39 and related legislation are
enforced in Vermont. Like Plaintiffs, the intervenor
organizations appear to have considerable experience in the
field. The court welcomes their advice and expertise in
exactly the same manner that it welcomes the expertise of the
two Plaintiff organizations.
injunction sought by Plaintiffs has the potential to weaken
the protection afforded by Act 39 to terminally ill patients.
All four intervenors have interests which could be impaired
if Plaintiffs prevailed.
respect to the issue of adequate protection, the state's
interest in enforcing Act 39 is roughly congruent with the
patients' and advocacy groups' interest. But the
court cannot rule out the possibility at the outset of the
case that the intervenors and the state defendants ...