A Desire To Say “Me Too” Is Not A Basis For Intervention As Of Right

Harvard University proudly proclaims that it considers race in its admissions decisions in order to increase “student body diversity.” Students for Fair Admissions, Inc. (“SFFA”) has a different view of Harvard’s admissions policy and filed a complaint challenging that policy as racially and ethnically discriminatory in violation of both Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. There is, however, one aspect of the litigation on which SFFA and Harvard see eye-to-eye – that a group of current and prospective Harvard students benefitted by Harvard’s current admissions policy (the “Students”) should not be permitted to intervene on behalf of Harvard’s position. The dispute over the Students’ effort to intervene culminated in Wednesday’s decision by the First Circuit in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 15-1823.

The Students filed a motion under Fed.R.Civ.P. 24(a)(2) and (b) seeking to intervene both as a matter of right and by permission of the court. The District Court denied their motion, but did grant the Students leave to participate in the case as amici curiae. Wanting full party status for themselves, the Students appealed from the District Court’s denial of their motion seeking to intervene as a matter of right.

The First Circuit focused on the District Court’s finding that the Students failed to show that their interests were not adequately represented by an existing party, i.e., Harvard. Although characterizing the Student’s burden on this issue as “minimal,” the First Circuit nevertheless found the Students’ position to be wanting, noting that: (1) the Students and Harvard have the identical goal of defending Harvard’s right to consider race in its admissions decisions; (2) Harvard has plenty of resources with which to litigate; (3) the Students had offered no criticism of Harvard’s choice of counsel (a former U.S. Solicitor General); and (4) Harvard exhibited plenty of incentive to defend the case by going so far as to characterize it as a threat to its “most fundamental values.” To further drive home the point, the Court pointed out that the Students’ stated desire to highlight the effects of Harvard’s legacy policy (admissions preference given to relatives of alumni), which allegedly decreases diversity, would actually hinder, rather than help, Harvard’s defense of the case.

The takeaway: when the best you can do is agree with the arguments of an existing party fully capable of advancing them, you should reconsider filing that intervention motion.

A New Hampshire Court Cannot Vacate A Divorce Decree Simply Because The Parties Have Since Reconciled

It’s been five months since I last posted, but none of the opinions issued by the four courts that I follow – the Maine Law Court, the Massachusetts Supreme Judicial Court, the New Hampshire Supreme Court, and the First Circuit – have been striking my fancy of late. That streak ends today, courtesy of the New Hampshire Supreme Court’s decision in In the Matter of Terrie Harman and Thomas McCarron, No. 2015-0273. This decision simply presents a situation too extraordinary to pass up.

Terrie Harman and Thomas McCarron were married in 1989. Unfortunately, after 25 years the marriage deteriorated and the parties were granted an uncontested decree of divorce based on irreconcilable differences in July 2014. By March 2015, however, the parties had reconciled (apparently the differences were reconcilable after all), and they jointly filed a petition to vacate the divorce decree. The trial court denied the petition on the ground that it lacked authority to vacate the decree.

On appeal, Terrie, with Thomas’ agreement, argued that the trial court erred because New Hampshire courts have the general authority to set aside, vacate, modify, and amend their orders. The New Hampshire Supreme Court agreed that New Hampshire courts possess that general authority, and stated that it had previously held that a final divorce decree could be vacated when it had been procured by fraud, accident, or mistake. The problem for Terrie was that she had asserted none of those grounds; each of those grounds calls into question the validity of the decree, and Terrie asserted not that the divorce decree was invalid, but rather that she and Thomas had subsequently reconciled.

In affirming the trial court’s decision, the Supreme Court noted that in New Hampshire, divorce is purely statutory, and, as such, the courts have only those powers conferred upon them by statute. It concluded, therefore, that because there is no statute authorizing the trial court to vacate a final divorce decree on the ground of the parties’ subsequent reconciliation, the trial court correctly held that it had no authority to vacate the decree. The remedy for Terrie and Thomas is to re-marry.

Granted, it’s an unusual fact pattern, but Harman and McCarron is a good reminder that there are limits to what actions courts can take even when the litigants are in agreement.