The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JESSIE HOFFMAN, et al.
CIVIL ACTION
VERSUS
12-796-SDD-EWD
BOBBY JINDAL, et al.
RULING
This matter is before the Court on the Motion to Intervene1 filed by Jeff Landry,
Attorney General for the State of Louisiana (“Attorney General Landry,” “the Attorney
General,” or sometimes “the AG”). Plaintiff Jessie Hoffman and Intervenor-Plaintiffs
Christopher Sepulvado, Kevan Brumfield, Todd Wessinger, Daniel Irish, Shedran
Williams, Jarrell Neal, Daniel Blank, James Tyler, Bobby Hampton, and Nathaniel Code
(collectively “Plaintiffs”) filed a Response2 in opposition to the motion. For the following
reasons, the Court finds that the Motion shall be DENIED.
I. FACTUAL BACKGROUND
Plaintiff Jesse Hoffman (“Hoffman”) is incarcerated at the Louisiana State
Penitentiary in Angola, Louisiana (“Angola”).3 He is sentenced to death, but there is
currently no date set for his execution.4 In his Complaint, filed on December 20, 2012,
Hoffman alleges that the State of Louisiana’s approach to the death penalty violates
his right to due process and right to be free from cruel and unusual punishment
because the State “lacks any current written rules, procedures, or protocols by which
1 Rec. Doc. No. 232.
2 Rec. Doc. No. 248.
3 Rec. Doc. No. 1, p. 2.
4 Id.
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to execute condemned inmates.”5 Further, Hoffman contends, the State’s “lack of
oversight and properly-trained personnel unnecessarily creates a wanton risk of pain
and suffering,” and the last-known execution protocol requires the use of a drug that
“does not adequately protect Plaintiff from cruel and unusual punishment.”6
In the nine years since the filing of Hoffman’s Complaint, sixteen other
incarcerated people have intervened as Plaintiffs in this litigation. On April 16, 2013,
the Court dismissed Plaintiffs’ claims against Governor Bobby Jindal and the
Louisiana Department of Public Safety and Corrections (“DPSC”), finding that DPSC
was a state agency and not a “person” subject to suit under 42 U.S.C. § 1983, and
that the allegations against Governor Jindal were conclusory and impermissibly
premised on a theory of respondeat superior.7 Since May 7, 2014, this matter has
remained stayed upon joint motions by the parties.
II. LAW AND ANALYSIS
A. Intervention of Right
Attorney General Landry asserts that he should be permitted to intervene on behalf
of the State of Louisiana as a matter of right in this case. Intervention as a matter of right
is governed by Federal Rule of Civil Procedure 24(a).The movant bears the burden of
establishing his right to intervene, but Rule 24 is to be liberally construed; the United
States Court of Appeals for the Fifth Circuit instructs that “[f]ederal courts should allow
intervention where no one would be hurt and the greater justice could be attained.”8
5 Id. at p. 1.
6 Id. at p. 1-2.
7 Rec. Doc. No. 59, p. 11-12.
8 Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015)(quoting Sierra Club v. Espy, 18 F.3d 1202,
1205 (5th Cir.1994)).
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To intervene by right, the prospective intervenor either must be “given an
unconditional right to intervene by a federal statute,”9 or must meet each of the four
requirements of Rule 24(a)(2):
(1) the application for intervention must be timely; (2) the applicant must
have an interest relating to the property or transaction which is the subject
of the action; (3) the applicant must be so situated that the disposition of the
action may, as a practical matter, impair or impede his ability to protect that
interest; (4) the applicant's interest must be inadequately represented by
the existing parties to the suit.10
Based on its review of the parties’ briefs and the applicable law, the Court finds that
Attorney General Landry has failed to demonstrate a legally sufficient interest and has
not shown that whatever interest he may have is inadequately represented by the existing
parties. The Court will address the parties’ arguments in turn.
1. Interest
Rule 24(a)(2) requires that intervenors “claim[ ] an interest relating to the property
or transaction that is the subject of the action.”11 Although “[t]here is not any clear
definition of the nature of the interest ... that is required for intervention of right,”12 the Fifth
Circuit has previously interpreted Rule 24(a)(2) to require a “‘direct, substantial, legally
protectable interest in the proceedings.’”13 The Fifth Circuit has held that, ultimately, the
“inquiry turns on whether the intervenor has a stake in the matter that goes beyond a
generalized preference that the case come out a certain way.”14
9 Fed. R. Civ. P. 24(a)(1).
10 New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.1984)(en banc).
11 Fed. R. Civ. P. 24(a)(2).
12 7C Charles Alan Wright, et al., Federal Practice and Procedure § 1908.1 (3d ed. 2007) [Wright & Miller]
(internal quotation marks omitted).
13 Edwards v. City of Houston, 78 F.3d 983, 1004 (5th Cir. 1996).
14 Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015).
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Attorney General Landry argues that he can intervene because the Louisiana
Constitution designates him as “the chief legal officer of the state”15 and specifies that
“[a]s necessary for the assertion or protection of any right or interest of the state, the
attorney general shall have authority (1) to institute, prosecute, or intervene in any civil
action or proceeding. . .”16 Of course, these state law provisions cannot provide the
“unconditional right to intervene by a federal statute”17 that forms one possible basis for
an intervention of right. Nor do these provisions, in and of themselves, establish that the
State has an interest in this matter, only that, when the State does have an interest, the
Attorney General is theoretically empowered to intervene to assert or protect it. As
observed by the Eastern District of Louisiana, however, the designation of the AG as the
“chief legal officer” was intended by the drafters of the Louisiana Constitution “only as an
introductory expression without substantive meaning with regard to powers, functions or
duties.”18
Attorney General Landry’s articulation of the State’s interest is wanting. He
explains that his attempt to intervene is “grounded in the protection of State interests at
large,”19 a statement seemingly at odds with the doctrinal requirement that the
intervenor’s interest be more specific than merely “an undifferentiated, generalized
interest in the outcome of an ongoing action,” which is “too porous a foundation on which
to premise intervention as of right.”20 Likewise, Landry’s invocation of the State’s “interest
15 LA CONST Art. 4, § 8.
16 Id.
17 Fed. R. Civ. P. 24(a)(1) (emphasis added).
18 United States v. State of La., 751 F. Supp. 608, 619 (E.D. La. 1990).
19 Rec. Doc. No. 233, p. 6 (emphasis original).
20 Texas v. U.S., 805 F.3d 653, 658, n. 3 (5th Cir. 2015)(quoting Pub. Serv. Co. of N.H. v. Patch, 136 F.3d
197, 205 (1st Cir.1998)).
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in ensuring that its laws are faithfully carried out and in advancing the orderly
administration of justice”21 is too general to fulfill the requirement that he have a “‘direct,
substantial”22 interest in these proceedings. The Fifth Circuit in Texas v. U.S. cited with
approval the Third Circuit’s statement that “[i]ntervenors should have an interest that is
specific to them, is capable of definition, and will be directly affected in a substantially
concrete fashion by the relief sought.”23 Attorney General Landry’s interests appear to
fulfill none of these criteria. A generalized interest in seeing “laws faithfully carried out” is
not specific to him, and in fact, as Plaintiffs note, the Louisiana Supreme Court has
instructed that the Attorney General’s “constitutional ‘duty of representing the state in all
legal matters in which it has an interest’ . . . does not result in the state ‘thereby [being]
granted an interest in claims belonging to its subdivision.’”24
Further, it is not clear how being allowed to intervene in these proceedings would
concretely affect the State’s purported interest, since Attorney General Landry’s office
already represents Defendant, DPSC Secretary LeBlanc25 and, from that position, can
make whatever arguments in defense of Louisiana law that it sees fit. Moreover, the AG’s
briefs call into question whether his interest is capable of definition, since at various points
he defines it as “State interests at large,” “advancing the orderly administration of justice,”
21 Rec. Doc. No. 233, p. 7.
22 Edwards, 78 F.3d at 1004.
23 Texas v. United States, 805 F.3d 653, 658, n. 3 (5th Cir. 2015)(quoting Kleissler v. U.S. Forest Serv.,
157 F.3d 964, 972 (3d Cir.1998)).
24 State ex rel. Caldwell v. Molina Healthcare, Inc., 2018-1768 (La. 5/8/19), 283 So. 3d 472, 482. As Plaintiffs
note, the Louisiana DPSC is no longer a party to the suit because the Court found that it is not a person
subject to suit under 42 U.S.C. § 1983. Nevertheless, Plaintiffs maintain their suit against DPSC through
the Secretary, who, they argue “exercises its power to sue and be sued in his official capacity.” (Rec. Doc.
No. 248, p. 4).
25 Murrill moved to re-enroll on July 31, 2019 (Rec. Doc. No. 234) and is now listed as counsel for all
Defendants.
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“seeing the lawsuit come to a timely resolution,”26 and ensuring that the victims of crime
“see justice for their loved ones carried out.”27
Attorney General Landry gets more specific where he argues that the State has an
interest “in seeing that final convictions and State court orders arising from cases are
carried out without unnecessary delay or interference by the federal courts.”28 As Plaintiffs
correctly note, however, Heck v. Humphrey29 bars them from pursuing a § 1983 suit
where “a judgment in favor of the plaintiff would necessarily imply the invalidity of [their]
conviction or sentence.”30 Therefore, they explain, they “do not – and could not –
challenge their underlying convictions or sentences.”31 Plaintiffs do not seek to invalidate
their death sentences; instead, they take issue with “the method by which the Defendants
seek to execute the sentences of the Plaintiffs.”32
To the extent that Attorney General Landry seeks to intervene in order to defend
a particular method of carrying out death sentences, Louisiana law is clear that it is the
Secretary of Corrections, not the Attorney General, who is charged with that
responsibility. Louisiana Revised Statute §15:568 provides that “[t]he secretary of the
Department of Public Safety and Corrections, or a competent person selected by him,
shall execute the offender in conformity with the death warrant issued in the case.”
Louisiana law also prescribes that “[e]very sentence of death executed on or after
September 15, 1991, shall be by lethal injection.”33 The AG declares that his intervention
26 Rec. Doc. No. 233, p. 6, 7, 8.
27 Id. at p. 7.
28 Id.
29 512 U.S. 477 (1994).
30 Id. at 487.
31 Rec. Doc. No. 248, p. 10.
32 Id. (emphasis original).
33 La. R.S. §15:569.
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is necessary because “the objective of the Plaintiffs is to prevent the State from carrying
out lawful orders of execution.”34 This is an odd statement. The lawfulness of the policies
and procedures surrounding executions in Louisiana is the question at the heart of this
case. The desire that Louisiana law be swiftly carried out notwithstanding a pending
constitutional challenge is not a valid State interest.
Another wrinkle in Attorney General Landry’s argument is the fact that the State of
Louisiana was, at one point, a Defendant in this lawsuit (through the Department of Public
Safety and Corrections) – until it was dismissed, upon the motion of Defendants and their
counsel from the Attorney General’s office.35 In that Motion, Defendants argued that this
Court lacked subject matter jurisdiction over the State of Louisiana and the Department
of Public Safety and Corrections because “a state [and its agencies] is not a ‘person’
under 42 U.S.C. § 1983.”36 The Court agreed, and dismissed the State of Louisiana
through the DPSC from the lawsuit.37 In the Court’s view, the AG is arguably estopped
from now contending that “the State is the real party in interest”38 herein, when seven
years ago the AG’s office moved to dismiss the State on the basis that it was a legally
improper party.
Ultimately, it is clear that Attorney General Landry’s motion is premised not on
some distinct State interest but on his objection to the fact that this matter has been stayed
since 2014. He complains that the “victims of heinous crimes” have been negatively
34 Rec. Doc. No. 233, p. 6.
35 Louisiana’s Attorney General at the time was not Jeff Landry but Buddy Caldwell. However, the legal
argument advanced by the AG’s office was correct and was accepted by the Court, regardless of which
individual held the position at the time.
36 Rec. Doc. No. 40-1, p. 9.
37 Rec. Doc. No. 59, p. 11-12.
38 Rec. Doc. No. 233, p. 6 (emphasis original).
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impacted because “the continuous delays in this matter are preventing them from seeing
justice carried out.”39 The “continuous delays” in this matter are not, as Attorney General
Landry implies, the result of judicial foot-dragging; in fact, the original stay and every
extension thereto was implemented with the consent of all parties, including parties
represented by the Attorney General’s office. In fact, in 2016, Attorney General Landry’s
Solicitor General moved to extend the stay in this case.40
The procedural history is as follows: the stay was initiated via a May 7, 2014 Status
Conference minute entry reflecting that “[t]he parties requested a stay of all proceedings
which the court granted.”41 The same was memorialized in a Consent Order,
implementing a stay through November 17, 2014.42 On November 12, 2014, Defendants
filed an Unopposed Motion to Continue Status Conference and Extend Stay, seeking an
extension of the stay through June 25, 2015.43 That Motion was granted by another
Consent Order.44 Defendants again filed an unopposed motion to extend the stay, this
time through July 11, 2016.45
As noted above, it was not just “outside counsel” that sought extensions to the
ongoing stay. On May 20, 2016, Elizabeth Murrill, the Solicitor General for Louisiana (the
Attorney General’s Office chief trial attorney), moved to enroll in this matter as additional
counsel for Secretary LeBlanc46 and then filed yet another Unopposed Motion to Continue
Status Conference and Extend Stay, averring that “the facts and issues that are involved
39 Rec. Doc. No. 233, p. 7.
40 Rec. Doc. No. 196.
41 Rec. Doc. No. 174.
42 Rec. Doc. No. 178.
43 Rec. Doc. No. 181.
44 Rec. Doc. No. 184.
45 Rec. Doc. No. 188.
46 Rec. Doc. No. 193.
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in this proceeding continue to be in a fluid state, meaning that it would be a waste of
resources and time to litigate this matter at present time”47 and seeking a stay through
January 8, 2018. Notably, the Consent Order proposed by the Solicitor General and
ultimately entered by the Court explicitly stated that “this stay will not be construed as
dilatory or causing unnecessary delay by any party.”48
Come January 2018, the parties again sought to extend the stay; then, on July 11,
2018, Defendants filed another Unopposed Motion to extend the stay through July 2019.49
After that motion was granted and a stay ordered through July 2019, Solicitor General
Murrill and in-house Assistant Attorney General David G. Sanders moved to withdraw as
counsel of record, stating that they were “no longer assigned to this case.”50 Attorney
General Landry now argues that Murrill and Sanders withdrew essentially in protest,
because the stay through July 2019 was sought “without consultation with the Attorney
General, who opposed further extension of the stay.”51 The Court declines to be drawn
into what has been characterized as a divergence of opinion between outside counsel
retained by the Attorney General, the highest-ranking attorneys in the Attorney General’s
office, and Attorney General Landry himself.
The Court fails to see how the Attorney General’s view of the stay creates a direct,
substantial legal interest for the State of Louisiana, especially when the stay was granted
based upon an Unopposed Motion by all parties. Perhaps the opinion of “outside counsel”
representing Defendants and the opinions of the highest ranking attorneys in the Attorney
47 Rec. Doc No. 196, p. 3.
48 Rec. Doc. No. 197.
49 Rec. Doc. No. 226.
50 Rec. Doc. No. 228, p. 1.
51 Rec. Doc. No. 233, p. 2.
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General’s Office were not in harmony with Landry’s preference, but this internal
disagreement does not give rise to a “‘direct, substantial, legally protectable interest in
the proceedings’”52 on behalf of the State. Attorney General Landry’s desire to intervene
in order to “oppose another stay of the proceedings”53 strikes the Court as merely a
“generalized preference that the case come out a certain way.”54 His frustration with the
“considerable delays” – all of which were the result of joint motions by the parties – is not
a legally cognizable interest to support his desire to intervene.
Other courts have allowed the Attorney General to intervene based on a relatively
general articulation of the State’s interest. For example, in the 2021 case Brown v.
Jefferson Parish School Board, the Eastern District of Louisiana concluded that the
State’s asserted interest in “having its statutes and constitution correctly construed” and
in “having [the Jefferson Parish School Board] [as a political subdivision of Louisiana]
comply with Louisiana law,”55 among others, was sufficient to justify intervention of right.
A critical difference between Brown and the instant case, however, is that the Attorney
General’s interest was hardly contested in Brown because therein, the State’s
intervention was primarily premised on Federal Rule of Civil Procedure 24(a)(1), under
which a state has the right to intervene if a party to a suit challenges the constitutionality
of a state statute. Because that provision applied, the Attorney General’s other asserted
interests were made only in the alternative.56 The Attorney General has not invoked Rule
24(a)(1) here, and it does not apply.
52 Edwards, 78 F.3d at 1004.
53 Rec. Doc. No. 233, p. 8.
54 Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015).
55 Brown v. Jefferson Par. Sch. Bd., No. CV 21-40, 2021 WL 949679, at *8 (E.D. La. Mar. 12, 2021).
56 Id. at *6 (“Alternatively, the State argues that it has a right to intervene under Rule 24(a)(2)…”).
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2. Adequate Representation
Even assuming arguendo that the Attorney General carried his burden of
establishing a substantial interest in these proceedings, Landry has not shown that his
interest is inadequately represented by the existing parties. If, for purposes of this inquiry,
the Court characterizes Landry’s interest as seeing death sentences carried out according
to state law, adequate representation exists because Louisiana charges the Secretary of
Corrections with that duty, and the Secretary is already part of this suit.
The Fifth Circuit has made clear that the movant's burden of proving inadequate
representation is a “minimal” one that is met if the movant shows that “‘representation
may be inadequate.’”57 “Although the applicant's burden of showing inadequate
representation is minimal, “it cannot be treated as so minimal as to write the requirement
completely out of the rule.”58 The Fifth Circuit has held that “‘[w]hen the party seeking
intervention has the same ultimate objective as a party to the suit, a presumption arises
that its interests are adequately represented, against which the petitioner must
demonstrate adversity of interest, collusion, or nonfeasance.’”59 The Attorney General
makes no such demonstration, or at least not a clear one.
The Attorney General repeatedly contends that he does not have “the same
ultimate objective” as the existing Defendants, which is curious insofar as it implies that
the existing Defendants are content with what the AG describes as unjustified and
“continuous delays.” Attempting to explain the inadequacy of Secretary LeBlanc’s
57 Brown v. Jefferson Par. Sch. Bd., No. CV 21-40, 2021 WL 949679, at *8 (E.D. La. Mar. 12, 2021)(quoting
Sierra Club v. Espy, 18 F.3d 1202, 1207 (5th Cir. 1994)).
58 Cajun Elec. Power Co-op., Inc. v. Gulf States Utilities, Inc., 940 F.2d 117, 120 (5th Cir. 1991).
(quoting Bush v. Viterna, 740 F.2d 350, 355 (5th Cir.1984)).
59 Bush v. Viterna, 740 F.2d 350, 355 (5th Cir. 1984).
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representation of the State’s interest, the AG bafflingly avers that “[t]he Department has
is not in agreement not to extend the stay [sic].” Later, he adds the conclusory statement
that “[t]he Department and the State as a whole have different interests.”60 This is an odd
statement in light of the Attorney General’s claimed interest in seeing state laws “faithfully
carried out.” Presumably, Secretary LeBlanc shares that interest. Moreover, Attorney
General Landry informs the Court in his Motion that DPSC “has requested that the
Attorney General re-enroll in the case,”61 which, as Plaintiffs note, seems to be “evidence
of interest alignment”62 between the AG and DPSC.
Essentially, the Attorney General’s argument for inadequate representation is that
there is no current party to the lawsuit that is as opposed as he is to any further stays of
this litigation, though he admits that DPSC “also may not decide to consent to further
stays in this matter.”63 As discussed above, opposing further stays is not a legally
cognizable interest; it is a preference, which the Fifth Circuit has held to be inadequate
grounds for intervention. The Court finds Landry’s opposition to further stays akin to
similar interests that courts have deemed to be insufficient evidence of inadequate
representation, including the possibility that one party may settle64 and the possibility that
the movant “would have handled the defense of the case differently”65 than the existing
parties.
60 Rec. Doc. No. 233, p. 8.
61 Id. at p. 2.
62 Rec. Doc. No. 248, p. 12.
63 Id.
64 Bush, 740 F.2d at 356 (5th Cir. 1984) (“The mere possibility that a party may at some future time enter
into a settlement cannot alone show inadequate representation”).
65 Bumgarner v. Ute Indian Tribe of Uintah & Ouray Rsrv., 417 F.2d 1305, 1308 (10th Cir. 1969).
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Overall, the Court finds that the fact that the existing parties have, until now,
repeatedly sought stays, does not mean that a direct, substantial, legal interest of the
State of Louisiana is inadequately represented here. This is especially true since the
Solicitor General, a member of the Attorney General’s office, represents Secretary
LeBlanc and the other DPSC Defendants and can counsel against further stays from that
posture. Nor would DPSC’s potential consent to another stay indicate that AG Landry was
inadequately represented, as “the Attorney General cannot bind state officials, his clients,
to his own policy preferences.”66
Moreover, the Fifth Circuit has identified another presumption of adequate
representation that arises “when the putative representative is a governmental body or
officer charged by law with representing the interests of the [intervenor].”67 As discussed
supra, Secretary LeBlanc, the state official who represents the Attorney General’s
purported interest in this matter, is explicitly charged by Louisiana Revised Statute
§15:568 with “execut[ing] the offender[s] in conformity with the death warrant issued in
the case.” If the Court credits Landry’s argument that his interest is in seeing death
sentences carried out, it is crystal clear that his interest will be adequately represented by
Secretary LeBlanc in that regard, in addition to being literally represented by counsel from
the AG’s office.
Despite his attempts to articulate a State interest in this matter that is direct,
substantial, and legally protectable, Attorney General Landry succeeds only in making it
clear that he objects so vehemently to further stays that he will oppose them, “[w]hether
66 Saldano v. Roach, 363 F.3d 545, 554 (5th Cir. 2004)(quoting Clements, 999 F.2d at 840).
67 Texas, 805 F.3d 653, 662 (5th Cir. 2015) (internal citations omitted).
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the Department has drugs available to carry out the sentences”68 or not. The Court rejects
this interest. Attorney General Landry is, without question, described as the “chief legal
officer” of the State by the Louisiana Constitution. Such does not bestow upon him the
right to intervene in these proceedings, where it is clear that whatever interest the State
has beyond an objection to further stays is already adequately represented by Secretary
LeBlanc, the state official specifically charged with carrying out death sentences in
Louisiana. To the extent that “the lawfulness of the penalty” or “whether to enforce it”69
are at issue in this action, the Court fails to see how the Attorney General’s presence as
an Intervenor-Defendant would abet “the greater justice,”70 nor how it would accomplish
anything that he cannot otherwise accomplish via his office’s representation of Secretary
LeBlanc and the other DPSC Defendants. On this Motion, the burden belongs to the
Attorney General, and he has fallen short. Because all four elements under Rule 24(a)(2)
must be met for intervention of right and the Court finds that two of them – interest and
adequate representation – are not met, it does not reach the other two.
III. CONCLUSION
For the above reasons, Attorney General Landry’s Motion to Intervene71 is hereby
DENIED. IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on June 8, 2021.
S
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
68 Rec. Doc. No. 233, p. 7.
69 Id. at p. 6.
70 Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015).
71 Rec. Doc. No. 232.
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