                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 06-1327
STANLEY LIGAS, by his sister and
next friend Gina Foster, et al.,
                                             Plaintiffs-Appellees,
                                 v.

BARRY S. MARAM, et al.,
                                           Defendants-Appellees,
ANNE GOLDEN, by her father and
guardian, Samuel Golden, et al.,
                             Proposed Intervenors-Appellants.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
       No. 05 C 4331—James F. Holderman, Chief Judge.
                          ____________
 ARGUED OCTOBER 30, 2006—DECIDED FEBRUARY 15, 2007
                    ____________


 Before EASTERBROOK, Chief Judge, and KANNE and
WILLIAMS, Circuit Judges.
  KANNE, Circuit Judge. The appellants are the represen-
tatives of a number of developmentally disabled people
who were worried that they might have been unwilling
members of a proposed class in a lawsuit filed under the
Americans with Disabilities Act. Fearing that the remedy
being sought by the plaintiffs was contrary to their wishes,
they sought to intervene. The plaintiffs and defendants
2                                                No. 06-1327

opposed the intervention, and the district court denied the
petition. The intervenors appeal that decision, and we
affirm.


                     I. BACKGROUND
  This case arises in the context of a much larger debate
over the proper way to provide care for the developmen-
tally disabled. See generally Olmstead v. L.C. ex rel.
Zimring, 527 U.S. 581 (1999). For some, institutionalized
care is the best plan, while others are best served by
integration into the community. Id. What might other-
wise seem to be a question to be left to local health care
officials, patients, their families, and their doctors now
takes on a federal significance by operation of the Ameri-
cans with Disabilities Act (ADA), among other legisla-
tion. Id.
  Olmstead established that it is a violation of the ADA to
force developmentally disabled patients to reside in
institutionalized settings when they are able to live more
fully integrated into society at large and do not oppose
doing so. Olmstead, 527 U.S. at 597-602. But with three
dissenters and multiple concurrences, including a swing
vote that joined in only part of the opinion, Olmstead
has left the exact route to implementing this integra-
tion mandate somewhat murky.
  With this background, the current suit was brought on
behalf of a number of developmentally disabled people to
hasten the state of Illinois down the road to community-
based care. In addition to plaintiff-specific relief, the
plaintiffs sought to certify a class and to require the
state to provide community-based care for those class
members. The class would have consisted of those who
live in institutions, or are at risk of living in institutions,
and who could live in the community.
No. 06-1327                                                 3

  There were, however, some potential members of that
proposed class who did not want to live in community-
based care. Enter the proposed intervenors: representa-
tives of patients who could live in the community but do
not want to, preferring instead to remain in institu-
tional care. Worrying that they were about to become
members of a class that would be forced to live in
community-based care if the plaintiffs succeeded, the
Golden Intervenors1 sought to ensure that the disabled
would still retain a choice in where they lived.
  The Golden group petitioned the district court to grant
intervention as of right under FED. R. CIV. P. 24(a), or,
failing that, permissive intervention under FED. R. CIV. P.
24(b)(2). The plaintiffs and defendants opposed the petition
to intervene and the district court denied the petition on
December 22, 2005, a decision that the proposed
intervenors now appeal.


                       II. ANALYSIS
A. Intervention as of Right
  A party may seek intervention as of right if the party
has “an interest” and 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.” FED. R. CIV. P. 24(a)(2). This court has deter-
mined that intervention as of right is required only where
parties “establish[ ] that: (1) their motions to intervene
were timely; (2) they possess an interest related to the
subject matter of the . . . action; (3) disposition of the


1
   There were originally three groups of proposed intervenors.
The only group that appeals the decision of the district court
is the Golden group, named after one of the individuals.
4                                                    No. 06-1327

action threatens to impair that interest; and (4) the
[parties] fail to represent adequately their interest.”
United States v. BDO Seidman, 337 F.3d 802, 808 (7th Cir.
2003). A failure to establish any of these elements is
grounds to deny the petition. Id. With the exception of
timeliness, which is reviewed for abuse of discretion, the
elements are reviewed de novo on appeal. Id.
  Much of this dispute now centers on whether the Golden
group met its burden of proof on the third and fourth
elements. The parties do not dispute that the petition
was timely. We will assume without deciding that the
Golden group has an interest related to the subject mat-
ter of the action.2 The questions, then, are whether the
action threatens to impair that interest and whether the
parties fail to represent those interests adequately. We
conclude, as did the district court, that Golden has not
met its burden with respect to the third or fourth ele-
ments.
   The appellants argued in the district court that the
impairment to their interests stems from the proposed
relief that the plaintiffs sought: a permanent injunction
“requiring Defendants promptly to provide eligible Plain-
tiffs and class members with appropriate services suffi-
cient to allow them to live in the most integrated setting
appropriate to their needs.” Compl. for Decl. and Inj.
Relief. at 29; Appellee’s Br. at 17. The intervenors’ argu-
ment below was that this language would leave them no



2
  The appellees make a cursory and fragmented argument that
the Golden group has no legally recognizable interest in the
right to live in institutional settings, citing a decision from the
Western District of Pennsylvania. See Richard C. ex rel. Kathy B.
v. Houston, 196 F.R.D. 288 (W.D. Pa. 1999), aff ’d sub nom.
Richard C. v. Snider, 229 F.3d 1139 (3d Cir. 2000) (unpublished
order).
No. 06-1327                                                5

ability to choose to remain in institutional care if they
were eligible for community-based care. The district court
considered this argument in light of the language of the
complaint and concluded that this interest could not be
impaired by the relief sought by the complaint. We agree.
   As the district court correctly noted, the complaint is
“replete with language on choice.” Nothing in the com-
plaint, either on its face or as correctly construed by
the district court, would require the state to force those
who desire institutional care to move out. For example, the
complaint alleges that the law requires the state to “offer
persons . . . a choice between institutional and com-
munity services.” Compl. for Decl. and Inj. Relief ¶ 7. It
alleges that the state “defendants do not provide plain-
tiffs or class members the choice between institutional or
community settings.” Id. ¶ 115. If the plaintiffs succeed
in class certification and win on the merits, the relief that
they seek would only require that Illinois provide that
which (they allege) it does not currently provide: the
existence of appropriate services tailored to the needs of
the individual.
  The district court also considered the question of
whether the existing parties were able to adequately
represent the Golden intervenors’ interests. Finding that
the inadequacy was “at best speculative, and at worst
conclusory,” the court held that the fourth element of the
test for intervention as of right was not met. We agree.
  A party seeking intervention as of right must only make
a showing that the representation “may be” inadequate
and “the burden of making that showing should be
treated as minimal.” Trbovich v. United Mine Workers of
Am., 404 U.S. 528, 538 n.10 (1972). However, when the
representative party is a governmental body charged by
law with protecting the interests of the proposed in-
tervenors, the representative is presumed to adequately
6                                               No. 06-1327

represent their interests unless there is a showing of
gross negligence or bad faith. United States v. South
Bend Cmty. Sch. Corp., 692 F.2d 623, 627 (7th Cir. 1982);
United States v. Bd. of Sch. Comm’rs of Indianapolis, 466
F.2d 573, 575-76 (7th Cir. 1972).
   The defendants are the Director of the Illinois Depart-
ment of Health and Family Services and the Secretary of
the Illinois Department of Human Services in their offi-
cial capacities. Compl. ¶ 12-15. Both the defendants and
the proposed intervenors admitted in their pleadings that
the defendants are responsible for administering the
Illinois Medicaid and developmental disabilities pro-
grams. The intervenors have made no effort to show
gross negligence or bad faith on the part of the state
defendants, and have therefore not overcome the pre-
sumption that the defendants, as governmental bodies
charged with protecting the interests of the proposed
intervenors, will provide adequate representation.
   Nevertheless, the district court recognized that the
proposed class could be narrowed somewhat to avoid the
perception that the intervenors would be pulled along
with the plaintiffs down the road to community-based
care. The court had previously dismissed the plaintiff ’s
motion for class certification until the intervention ques-
tion had been properly aired. In its denial of the petition to
intervene, the district court encouraged the plaintiffs
(if they were to seek renewed class certification) to more
narrowly tailor their proposed class to “those who desire
to be placed in community settings.” Between the denial
of the petition to intervene and the filing of this appeal,
the plaintiffs renewed their motion for class certification.
The language of the new proposed class was changed to
those “who would not oppose community placement.”
  On this appeal, the Golden group makes much ado
about the distinction between those who would “desire”
No. 06-1327                                                  7

and those would “not oppose.” We believe that this is a
distinction without a difference, at least as it relates to the
Golden intervenors under the facts of this case. The
language in the new proposed class is taken verbatim from
the Supreme Court’s controlling precedent. See Olmstead,
527 U.S. at 587 (transfer appropriate where it “is not
opposed by the affected individual”); id. at 603, (“neither
woman opposed such treatment”); id. at 607 (“the affected
persons do not oppose such treatment”). Either formulation
of the class would require an inquiry into the mental state
of the proposed class members, the appropriateness of
which we will not judge here because it is beyond the scope
of this appeal. Yet we believe that in this case, where the
plaintiff seeks only that the class members be given a
choice in living conditions, the distinction does not raise
any new concerns about the impairment of the intervenors’
interests or the adequacy of the state’s representation of
their interests that was not already addressed by the
district court or in our analysis above.


B. Permissive Intervention
  The Golden group also sought permissive intervention
under FED. R. CIV. P. 24(b). Permissive intervention is
within the discretion of the district court where the ap-
plicant’s claim and the main action share common issues
of law or fact and where there is independent jurisdiction.
Sec. Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377,
1381 (7th Cir. 1995). The Golden group devoted little more
than a paragraph to this argument in the district court,
noting three areas of common fact or law. The district
court acknowledged that the groups sought both permis-
sive intervention and intervention as of right, but in rul-
ing to deny intervention the district court did not sepa-
rately analyze the requests under FED. R. CIV. P. 24(a) and
24(b), it simply denied the various intervening groups’
petitions to intervene.
8                                               No. 06-1327

  We review a district court’s denial of leave to intervene
under FED. R. CIV. P. 24(b) for abuse of discretion.
Sokaogan Chippewa Cmty. v. Babbitt, 214 F.3d 941, 949
(7th Cir. 2000). In arguing for permissive intervention, the
Golden group raised three areas of common fact or law.
Two were related to the class action: “whether class action
treatment is appropriate [and] and whether community
care is desirable for all of the class members.” Golden
Memo at 10. They also questioned “whether the state’s
system of providing care for the developmentally disabled
should be overhauled to favor community care at the
expense of ICF-DDs[Intermediate Care Facilities for the
Developmentally Disabled].” Id. In light of the district
court’s dismissal of the proposed class certification, and
its instructions to the plaintiffs to ensure that parties
such as the Golden group not be included in a future
request to certify a class, the first two claimed areas of
common law or fact were not relevant to the district
court’s analysis.
  The district court’s extensive consideration of the
issues of impairment and adequate representation puts
the other common question of fact or law to rest as well.
The court clearly indicated that the main action involved
giving each disabled person in Illinois the integration
options mandated by Olmstead, not any effort to “favor
community care at the expense of ICF-DDs.” Although the
district court did not explicitly break out its reasoning
on the rule 24(b)(2) and rule 24(a) motions, the decision
shows a thorough consideration of the interests of all the
parties and concludes by denying the intervenors’ mo-
tions in toto. This does not rise to the level of an abuse of
discretion. See, e.g., United States v. Perry County Bd. of
Educ., 567 F.2d 277, 280 (5th Cir. 1978) (finding no
abuse of discretion in the context of a denial of permis-
sive intervention where the district court issued a one-
No. 06-1327                                                9

sentence order, held no evidentiary hearing, and made
no finding of facts).


C. Conditional Intervention
  The Golden group also asks this court to “allow” the
Golden intervenors conditional intervention subject to
a future showing that the state defendants are not ade-
quately representing their interests. See Solid Waste
Agency of N. Cook County v. U.S. Army Corps of Eng’rs,
101 F.3d 503, 508-09 (7th Cir. 1996). Because the dis-
trict court was never given an opportunity to consider
this argument, it is forfeited on this appeal. See Andy’s
Rest. & Lounge, Inc. v. City of Gary, 466 F.3d 550, 556-57
(7th Cir. 2006).


                    III. CONCLUSION
  Accordingly, the decision of the district court denying the
petition to intervene is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—2-15-07
