Dr. Jane Doe, et al., Respondents,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1265

Dr. Jane Doe, et al.,
Respondents,

vs.

State of Minnesota, et al.,
Respondents,

Matthew Franzese,
Appellant.

Filed April 3, 2023
Affirmed
Slieter, Judge

Ramsey County District Court
File No. 62-CV-19-3868

Jessica Braverman, Christy L. Hall, Gender Justice, St. Paul, Minnesota; and

Tanya Pellegrini ( pro hac vice), Lawyering Project, San Francisco, California (for
respondents Dr. Jane Doe, Mary Moe, First Unitarian Society of Minneapolis, and Our
Justice)

Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Jennifer Olson, Assistant
Attorney General, St. Paul, Minnesota (for respondents State of Minnesota, Governor of
Minnesota, Attorney General of Minnesota, Minnesota Commissioner of Health,
Minnesota Board of Medical Practice, and Minnesota Board of Nursing)

Erick G. Kaardal, William F. Mohrman, Mohrman, Kaardal & Erickson, P.A.,
Minneapolis, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Slieter,
Judge.
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NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant challenges the district court’s denial of his postjudgment motion to
intervene as a matter of right. Because appellant has not shown that he has an interest in
the subject of the action, we affirm.
FACTS
The underlying litigation began in May 2019 when respondents Dr. Jane Doe, Mary
Moe, the First Unitarian Society of Minneapolis (FUS), and Our Justice (the Doe parties)
filed a complaint against respondents the state, governor, attorney general, commissioner
of health, board of medical practice, and board of nursing (the state parties). The complaint
sought declaratory and injunctive relief, arguing that certain statutes governing abortion
and advertising related to treatment of sexually transmitted infections violate the Minnesota
Constitution.
On July 13, 2022, the district court entered partial summary judgment ruling several
of the challenged laws unconstitutional and enjoining their enforcement. On July 29, 2022,
the remaining claims were dismissed. See Minn. R. Civ. P. 41.01(a).
3
On August 4, 2022, appellant Matthew Franzese, the Traverse County Attorney,
moved to intervene as a matter of right. 1 On September 6, 2022, the district court denied
intervention. Franzese appeals.2
DECISION
We review orders concerning intervention as a matter of right de novo. State Fund
Mut. Ins. Co. v. Mead, 691 N.W.2d 495, 499 (Minn. App. 2005).
Intervention as a matter of right is governed by rule 24.01 of the Minnesota Rules
of Civil Procedure. The rule states:
Upon timely application anyone shall be permitted to
intervene in an action when the applicant claims an interest
relating to the property or transaction which is the subject of
the action and the applicant is so situated that the disposition
of the action may as a practical matter impair or impede the
applicant’s ability to protect that interest, unless the applicant’s
interest is adequately represented by existing parties.

Minn. R. Civ. P. 24.01. Thus, to be entitled to intervention as a matter of right, the proposed
intervenor must satisfy four requirements: “(1) a timely application; (2) an interest in the
subject of the action; (3) an inability to protect that interest unless the applicant is a party

1 Franzese also moved for permissive intervention pursuant to Minn. R. Civ. P. 24.02 and
included the denial of permissive intervention in this appeal. An order denying permissive
intervention is unappealable unless it is based on a finding that the proposed intervenor
does not have a protectable interest in the litigation. State v. Deal, 740 N.W.2d 755, 760
(Minn. 2007); see also Norman v. Refsland, 383 N.W.2d 673, 675 (Minn. 1986). The
district court based its denial of permissive intervention on untimeliness, not Franzese’s
lack of an interest in the action. Therefore, the denial of permissive intervention is
unappealable.
2 Franzese appealed the summary judgment and the denial of intervention. We address his
appeal of the underlying summary judgment in a separate order released concurrently with
this opinion.
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to the action; and (4) the applicant’s interest is not adequately represented by existing
parties.” League of Women Voters Minn. v. Ritchie, 819 N.W.2d 636, 641 (Minn. 2012).
The proposed intervenor must meet all four requirements. Schroeder v. Minn. Sec’y of
State Steve Simon, 950 N.W.2d 70, 76 (Minn. App. 2020) (citing League of Women Voters,
819 N.W.2d 636 at 641).
Because we conclude that Franzese fails to claim a valid interest in the subject of
the action, and Franzese must satisfy all four requirements, that is where we begin, and
end, our analysis. Id.
To determine whether an intervenor has an interest in the subject of the action, we
examine the pleadings, accept them as true “absent sham or frivolity,” and give no
consideration to “the merits of the proposed complaint.” Id. (quoting Snyder’s Drug
Stores, Inc. v. Minn. State Bd. of Pharmacy, 221 N.W.2d 162, 164 (Minn. 1974)). A
proposed intervenor is generally not entitled to intervention as a matter of right if a
judgment will not affect his or her legal rights. Id. General, personal, or familial interests
are usually not enough to support intervention as a matter of right. Id. A proposed
intervenor must state “a direct and concrete interest that is accorded some degree of legal
protection.” Miller v. Miller, 953 N.W.2d 489, 494 (Minn. 2021) (quoting Diamond v.
Charles, 476 U.S. 54, 75 (1986)).
Franzese contends that he has an interest in the subject of the action because, as a
county attorney, he has a duty to enforce the law which is impaired by the state parties’
decision not to appeal . See Minn. Stat. § 388.051 (2022) (outlining duties of county
attorneys). He contends that the state parties’ decision not to appeal the district court’s
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order creates “confusion and doubt about said statutes [’s] enforceability throughout the
state, specifically in Traverse County ,” and this “confusion and doubt” requires appellate
review to clarify the order’s statewide enforceability.
The subject of this action, as our court explained in an earlier intervention appeal,
is abortion-related laws. See Doe v. State, No. A20-0273, 2020 WL 6011443, at *3 (Minn.
App. Oct. 12, 2020), rev. denied (Minn. Dec. 29, 2020). Regarding his purported interest
in this action to clarify the enforceability of the statutes in Traverse County, Franzese asks
for an advisory opinion to solve his prospective “legal conundrum.” Courts “do not issue
advisory opinions and . . . do not ‘decide cases merely to establish precedent.’” 3
Schowalter v. State , 822 N.W.2d 292, 298 (Minn. 2012) (quoting In re Schmidt, 443
N.W.2d 824, 826 (Minn. 1989)).
Franzese also argues that he, as a county attorney, is able to intervene to defend the
constitutionality of criminal statutes when the attorney general declines to pursue an
appeal. He relies on Baker v. Wade, 769 F.2d 289, 291 (5th Cir. 1985), overruled on other
grounds by Lawrence v. Texas , 539 U.S. 558 (2003). We have already concluded that
Franzese lacks an interest in the subject of this action, so we need not address this argument.
However, we briefly address his argument and are not persuaded.

3 Respondents argue that the order is binding in all counties but the only case they cite to
support this proposition is a nonbinding federal district court case. See Devescovi v.
Ventura, 195 F. Supp. 2d 1146, 1149 (D. Minn. 2002) (holding that Beltrami County was
bound by a Hennepin County district court injunction ruling Minnesota’s anti-sodomy law
unconstitutional). The only issue before us is Franzese’s attempted intervention, so we do
not opine on the state-wide impact of the district court’s order.
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Baker is distinguished because in that case the intervening district attorney was a
member of the defendant class and the attorney general—the named class representative —
timely appealed and later moved to withdraw the appeal. Id. “Crucial” to the holding in
Baker was the existence of “binding Supreme Court authority” indicating that the district
court ruled incorrectly. Saldano v. Roach, 363 F.3d 545, 552-53 (5th Cir. 2004). Franzese
is not a defendant in the present case, a named party did not timely appeal, and he points
to no binding precedent that the district court’s order contravened. Baker is, therefore,
unpersuasive.
Because Franzese does not have an interest in the subject of the action, we affirm
the district court’s denial of intervention.
Affirmed.