Day v. Sebelius

227 F.R.D. 668, 2005 U.S. Dist. LEXIS 7336, 2005 WL 956958
CourtDistrict Court, D. Kansas
DecidedFebruary 24, 2005
DocketNo. 04-4085-RDR
StatusPublished
Cited by7 cases

This text of 227 F.R.D. 668 (Day v. Sebelius) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Day v. Sebelius, 227 F.R.D. 668, 2005 U.S. Dist. LEXIS 7336, 2005 WL 956958 (D. Kan. 2005).

Opinion

MEMORANDUM AND ORDER

OHARA, United States Magistrate Judge.

I. Introduction and Background.

This suit challenges the legality of Kansas House Bin No. 2145 (“HB 2145”), which went into effect on July 1, 2004. Highly summarized, HB 2145 makes certain undocumented aliens in Kansas eligible for favorable instate college tuition rates.1 To qualify, the student simply must have attended an accredited Kansas high school for at least three years, received a high school diploma or general educational development certificate from [671]*671a Kansas institution, and not be a resident of another state. In addition, undocumented and documented non-citizen aliens must sign an affidavit agreeing to upgrade their immigration status as soon as they are eligible.

This suit was filed by Kristen Day, along with more than twenty other named plaintiffs, all of whom allegedly are students (or their parents who support them financially) classified as non-residents for purposes of college tuition and fees at state-funded institutions in Kansas. Plaintiffs have sued Kathleen Sebelius (the Governor of Kansas), along with various university officials who are responsible for implementing HB 2145. Plaintiffs seek declaratory and injunctive relief, specifically, to prevent defendants from discriminating between them and the undocumented aliens who have been classified as residents for the more favorable in-state tuition rates. In support of their suit, plaintiffs contend that HB 2145 violates two federal statutes, 8 U.S.C. §§ 1621 and 1623. Plaintiffs further contend that HB 2145 violates their Equal Protection rights under the Fourteenth Amendment to the United States Constitution, as well as other provisions of the Constitution.

This case is now before the court on the motion of the Kansas League of United Latin American Citizens (“Kansas LULAC”), the Hispanic American Leadership Organization (“HALO”), Kansas State [University] chapter, and three presently anonymous college students (A. Doe, J. Doe, and L. Doe), all of whom seek leave to intervene as additional defendants (doc. 11). Two of the proposed Doe defendants are enrolled at Kansas State University in Manhattan, and the third is enrolled at the University of Kansas in Lawrence; all three also have filed a separate motion for a protective order, seeking to allow them to continue to proceed anonymously in this litigation (doc. 13).

Plaintiffs have filed a consolidated response opposing both of the above-described motions (doc. 31). In addition, the court has considered the memorandum filed in support of the motion to intervene (doc. 12), the proposed intervenors’ already-filed answer to plaintiffs’ amended complaint (doc. 40), the memorandum filed in support of the motion for protective order (doc. 14), the memorandum in support of plaintiffs’ consolidated response (doc. 32), the proposed intervenors’ reply brief with regard to the motion to intervene (doc. 36), and finally, the proposed intervenors’ reply in support of the motion for protective order (doc. 37). The court is now ready to rule.

Plaintiffs, it should be noted, suggest that the above-described motions present “weighty substantive issues,” specifically: (1) whether any of the proposed intervenors has a fundamental property stake at issue in this case; (2) whether Article III standing exists for organizational entities such as Kansas LULAC and HALO to intervene; and (3) whether the court may enter any protective order that would serve to conceal the identity of undocumented aliens. Plaintiffs further suggest, but without citing any authority, that the undersigned magistrate judge should confine his involvement to “preliminary” or “procedural” issues, so as to allow the Hon. Richard D. Rogers, Senior U.S. District Judge, to decide the motions.

Plaintiffs apparently misunderstand the powers conferred to magistrate judges in this district by virtue of 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72, and D. Kan. Rule 72.1.1(c) and (d). Although the powers of a federal magistrate judge are more limited than those of a district judge, the relevant distinction is between “non-dispositive” and “dispositive” rulings, i.e., absent the consent of all parties, a magistrate judge only may make the former and may not make the latter. As a matter of law, an order granting leave to intervene is non-dispositive.2 Further, plaintiffs certainly cannot seriously suggest that a routine motion for protective order is dispositive. In any event, having been informed of plaintiffs’ record position, Judge Rogers has asked the undersigned to proceed with deciding these motions.

Regardless of whether plaintiffs’ stated concerns are well-placed, the undersigned does not presume to establish any “law of the case” as it relates to the relative merits of the parties’ positions concerning the legality of HB 2145. If Judge Rogers disagrees with [672]*672any of the undersigned’s findings in support of the non-dispositive rulings made in this order, surely Judge Rogers will feel free to make that disagreement known when he makes his dispositive rulings.3

In any event, for the reasons set forth below, the motion to intervene of Kansas LULAC, HALO, and A. Doe, J. Doe, and L. Doe, will be granted. The motion for protective order by the Doe intervenors, however, will be denied.

II. Analysis and Discussion.

A. Motion for Intervention.

As mentioned earlier, the proposed intervenors include three undocumented alien students, A., J., and L. Doe, who allegedly meet the conditions required by HB 2145 and who are benefitting from new law, i.e., they currently are enrolled in Kansas public universities and are paying in-state tuition. In addition, the proposed intervenors include Kansas LULAC and HALO, both of which allege they are membership organizations that “likely include either undocumented students or parents of undocumented students [to] join these three students.”4 Intervention is governed by Rule 24 of the Federal Rules of Civil Procedure. It provides:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) 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.
(b) Permissive Intervention.

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Bluebook (online)
227 F.R.D. 668, 2005 U.S. Dist. LEXIS 7336, 2005 WL 956958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-sebelius-ksd-2005.