Amicus Curiae Brief — Philip E. Berger, et al., Petitioners v. North Carolina State Conference of the NAACP, et al.
Supreme Court briefFeb 16, 2022
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No. 21-248
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------PHILIP E. BERGER, et al.,
Petitioners,
v.
NORTH CAROLINA STATE CONFERENCE
OF THE NAACP, et al.,
Respondents.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Fourth Circuit
---------------------------------♦--------------------------------BRIEF OF MINNESOTA, WISCONSIN,
CONNECTICUT, DELAWARE, THE DISTRICT
OF COLUMBIA, ILLINOIS, MAINE, MARYLAND,
MICHIGAN, NEVADA, NEW JERSEY,
NEW YORK, OREGON, PENNSYLVANIA,
AND VERMONT AS AMICI CURIAE
IN SUPPORT OF STATE RESPONDENTS
---------------------------------♦--------------------------------KEITH ELLISON
Attorney General
of Minnesota
LIZ KRAMER*
Solicitor General
JASON MARISAM
Assistant Attorney General
ALETHEA HUYSER
Special Assistant
Attorney General
445 Minnesota St., Ste. 1400
St. Paul, MN 55101-2131
(651) 757-1010
liz.kramer@ag.state.mn.us
JOSHUA L. KAUL
Attorney General
of Wisconsin
BRIAN P. KEENAN
ANTHONY RUSSOMANNO
Assistant Attorneys General
*Counsel of Record
[Additional Counsel Are Listed On Signature Pages]
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COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
iii
INTERESTS OF AMICI CURIAE AND SUMMARY OF ARGUMENT ...................................
1
ARGUMENT ........................................................
2
I.
II.
As a Matter of Tradition and Longstanding Practice, an Attorney General Has
Broad Powers to Manage Litigation for the
State and Represent the State Interest in
Court ..........................................................
2
A. The Attorney General’s Power to Represent Sovereign Interests Dates Back
Many Centuries ...................................
2
B. Jurisdictions throughout the Country
Recognize the Attorney General Retains Broad Powers to Manage Litigation for the State and Represent the
State Interest ......................................
4
C. Attorneys General Have a Long Tradition of Defending the State in Constitutional Challenges to State Laws ......
6
Allowing Intervenors to Represent the
State Interest as of Right Is Inconsistent
with Rule 24 and Would Diminish the Traditional Powers of the Attorney General ....
7
A. Rule 24(a) Requires a Rebuttable Presumption of Adequacy .........................
8
ii
TABLE OF CONTENTS—Continued
Page
B. While the Widely Held Presumption of
Adequate Representation by the State
Attorney General Is Consistent with
Federal Deference to State Sovereignty, Petitioners’ Proposed Standard
Would Undermine State Sovereignty ....
9
C. Intervention as of Right Based on Allegations that the Attorney General Is
Not Adequately Defending the Law
Would Undermine Attorney General
Powers ................................................. 12
III.
Allowing an Intervenor to Represent the
State Interest as of Right Is Impracticable ... 16
CONCLUSION..................................................... 22
iii
TABLE OF AUTHORITIES
Page
FEDERAL CASES
American Ass’n of People with Disabilities v.
Herrera,
257 F.R.D. 236 (D.N.M. 2008) .................................13
Berger v. United States,
295 U.S. 78 (1935) .....................................................5
Brnovich v. Democratic Nat’l Comm.,
141 S. Ct. 2321 (2021) .............................................12
Butler, Fitzgerald & Potter v. Sequa Corp.,
250 F.3d 171 (2d Cir. 2001) .......................................8
Cent. Virginia Cmty. Coll. v. Katz,
546 U.S. 356 (2006) .................................................19
Com. of Pa. v. Rizzo,
530 F.2d 501 (3d Cir. 1976) .......................................9
Del. Valley Citizens’ Council for Clean Air v.
Com. of Pa.,
674 F.2d 970 (3d Cir. 1982) ................................. 9, 10
Edwards v. City of Houston,
78 F.3d 983 (5th Cir. 1996) ........................................8
Env’t Def. Fund, Inc. v. Higginson,
631 F.2d 738 (D.C. Cir. 1979) .............................. 9, 10
Ex parte Young,
209 U.S. 123 (1908) ..................................... 18, 19, 20
Fla. ex rel. Shevin v. Exxon Corp.,
526 F.2d 266 (5th Cir. 1976) ......................................3
Gibbons v. Ogden,
22 U.S. 1 (1824) .........................................................6
iv
TABLE OF AUTHORITIES—Continued
Page
McCulloch v. Maryland,
17 U.S. 316 (1819) .....................................................6
Miracle v. Hobbs,
333 F.R.D. 151 (D. Ariz. 2019) .................................13
Ne. Ohio Coal. for Homeless v. Blackwell,
467 F.3d 999 (6th Cir. 2006) ....................................11
One Wisconsin Institute, Inc. v. Nichol,
310 F.R.D. 394 (W.D. Wis. 2015) ..............................13
People v. Miner,
2 Lans. (N.Y.) 396 (1868) ...........................................3
Planned Parenthood of Mid-Missouri &
E. Kansas, Inc. v. Ehlmann,
137 F.3d 573 (8th Cir. 1998) .............................. 13, 14
Planned Parenthood of Wisconsin, Inc. v. Kaul,
384 F. Supp. 3d 982 (W.D. Wis. 2019) ... 16, 17, 19, 20
Planned Parenthood of Wisconsin, Inc. v. Kaul,
942 F.3d 793 (7th Cir. 2019) ........................ 12, 18, 19
Stuart v. Huff,
706 F.3d 345 (4th Cir. 2013) ................................ 9, 14
United States v. Hooker Chems. & Plastics Corp.,
749 F.2d 968 (2d Cir. 1984) .....................................10
United States v. Yonkers Bd. of Educ.,
902 F.2d 213 (2d Cir. 1990) .......................................8
Virginia v. Westinghouse Elec. Corp.,
542 F.2d 214 (4th Cir. 1976) ......................................8
Wisconsin Educ. Ass’n Council v. Walker,
705 F.3d 640 (7th Cir. 2013) ....................................13
v
TABLE OF AUTHORITIES—Continued
Page
STATE CASES
Com. ex rel. Minerd v. Margiotti,
188 A. 524 (Pa. 1936) .................................................3
District of Columbia v. ExxonMobil Oil Corp.,
172 A.3d 412 (D.C. 2017)...........................................4
Doe v. State,
2020 WL 6011443 (Minn. Ct. App. Oct. 12,
2020) ........................................................................14
Hairr v. First Jud. Dist. Ct.,
368 P.3d 1198 (Nev. 2016) .......................................14
Helgeland v. Wisconsin Municipalities,
745 N.W.2d 1 (Wis. 2008) ..........................................4
N.J. Dep’t of Envtl. Prot. v. Exxon Mobile Corp.,
183 A.3d 289 (N.J. Super. 2015) ..............................15
Schroeder v. Simon,
962 N.W.2d 471 (Minn. Ct. App. 2021) .....................7
Slezak v. Ousdigian,
110 N.W.2d 1 (Minn. 1961) .......................................4
State ex rel. Cassill v. Peterson,
259 N.W. 696 (Minn. 1935) .................................... 3, 4
State ex rel. Discover Fin. Servs., Inc. v. Nibert,
744 S.E.2d 625 (W. Va. 2013) ....................................4
State ex rel. McGraw v. Burton,
569 S.E.2d 99 (W. Va. 2002) ......................................5
State v. Lead Industries, Ass’n, Inc.,
951 A.2d 428 (R.I. 2008) .................................... 4, 5, 6
vi
TABLE OF AUTHORITIES—Continued
Page
STATE STATUTES
D.C. Code § 1-301.81(a)(1) ............................................5
N.C. Gen. Stat. § 1-72.2 ..............................................11
N.C. Gen. Stat. § 120-32.6 ..........................................11
N.Y. Executive Law § 63(1)...........................................5
FEDERAL RULES
Fed. R. Civ. P. 24 .................................................. passim
OTHER AUTHORITIES
7 Am. Jur.2d Attorney General § 1 (Nov. 2021
Update) ......................................................................4
Neal Devins & Saikrishna B. Prakash, Fifty
States, Fifty Attorneys General, and Fifty
Approaches to the Duty to Defend,
124 Yale L.J. 2100 (2015) ...................................... 6, 7
William P. Marshall, Break Up the Presidency?
Governors, State Attorneys General, and
Lessons from the Divided Executive,
115 Yale L.J. 2446 (2006) ...................................... 2, 3
John Ben Shepperd, Common Law Powers and
Duties of the Attorney General,
7 Baylor L. Rev. 1 (1955) ...........................................4
Wright & Miller, 7C Fed. Prac. & Proc. Civ.
§ 1909 (3d ed.) .........................................................11
Wright & Miller, 7C Fed. Prac. & Proc. Civ.
§ 1922 (3d ed.) .........................................................17
vii
TABLE OF AUTHORITIES—Continued
Page
Gregory F. Zoeller, Duty to Defend and the
Rule of Law,
90 Ind. L.J. 513 (2015) ..............................................6
1
INTERESTS OF AMICI CURIAE
AND SUMMARY OF ARGUMENT
The States of Minnesota, Wisconsin, Connecticut,
Delaware, Illinois, Maine, Maryland, Michigan, Nevada, New Jersey, New York, Oregon, Pennsylvania,
and Vermont and the District of Columbia (the “Amici
States”) have an interest in the procedural rules governing who represents state interests in cases involving the validity of state laws. Traditionally, state
Attorneys General have had broad powers to conduct
litigation for their states. These powers include representing the state and asserting the state interest in
constitutional and other civil cases. The Amici States
have a strong interest in ensuring that the federal
rules of civil procedure on intervention are not applied
in a way that interferes with these traditional powers
or with the ability of state Attorneys General to effectively manage litigation on behalf of their states.
As the Amici States have learned through experience, district courts should retain extensive discretion
to determine that intervention as of right is not appropriate when the proposed intervenor seeks to represent a state’s interests, but that state’s Attorney
General is already adequately representing the state’s
interests. When a state Attorney General is already adequately defending a law, it would diminish the traditional powers retained by Attorneys General and
upend the district court’s ability to manage its own
docket if a non-party, represented by private counsel,
could easily intervene as of right and claim to assert
the state’s interests. This Court should not apply Rule
2
24 in a way that would diminish attorney general powers across the country and undermine the effective administration of often complex litigation.1
---------------------------------♦---------------------------------
ARGUMENT
I.
As a Matter of Tradition and Longstanding
Practice, an Attorney General Has Broad
Powers to Manage Litigation for the State
and Represent the State Interest in Court.
For centuries, Attorneys General have managed
litigation for the state and represented the state interest in court proceedings. Jurisdictions throughout the
country recognize these broad and longstanding powers for the Attorney General. These powers include
representing the state interest in defending state laws
from constitutional challenges.
A. The Attorney General’s Power to Represent Sovereign Interests Dates Back
Many Centuries.
The concept of the Attorney General dates as far
back as thirteenth century England, when the monarch appointed attorneys to represent royal interests.
See William P. Marshall, Break Up the Presidency?
Governors, State Attorneys General, and Lessons from
the Divided Executive, 115 Yale L.J. 2446, 2449–50
1
This brief focuses on the intervention issue. It takes no position on the merits of the underlying substantive claims.
3
(2006). The Attorney General became the chief legal
adviser to the crown, and, over the centuries, the powers of the Attorney General grew. Id. Throughout the
sixteenth and seventeenth centuries, the Attorney
General regularly advised the departments of state
and represented them in court. Id. In exercising these
functions, the Attorney General had considerable discretion. “As chief legal representative of the king, the
common law attorney general was clearly subject to
the wishes of the crown, but, even in those times, the
office was also a repository of power and discretion.”
Fla. ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 268
(5th Cir. 1976).
When the office of the Attorney General was introduced in the American colonies, it retained its discretionary powers and broad authority to represent the
state interest in litigation. “Most, if not all, of the colonies appointed attorney-generals, and they were understood to be clothed, with nearly all the powers, of
the attorney-generals in England.” People v. Miner, 2
Lans. (N.Y.) 396, 398 (1868). See also Com. ex rel.
Minerd v. Margiotti, 188 A. 524, 526 (Pa. 1936) (“The
office of the Attorney General is an ancient one. It came
into being as a necessary adjunct in the administration
of the common law of England and was transported to
America in the early days of the establishment of government in the colonies as part of their English derived
common law.”).
In the following centuries, state Attorneys General
carried on this traditional function of representing the
state in litigation. See, e.g., State ex rel. Cassill v.
4
Peterson, 259 N.W. 696, 698 (Minn. 1935) (“The Attorney General represents the sovereign state and the
people thereof.”).
B. Jurisdictions throughout the Country
Recognize the Attorney General Retains Broad Powers to Manage Litigation for the State and Represent the
State Interest.
State Attorneys General are the chief legal officers
for their states and are almost universally constitutional officers. See 7 Am. Jur.2d Attorney General § 1
(Nov. 2021 Update).2 Jurisdictions throughout this
country recognize that these officers retain broad powers to “control and manage all litigation on behalf of
the state.” State v. Lead Industries, Ass’n, Inc., 951 A.2d
428, 473 n. 45 (R.I. 2008).3
2
In the majority of states, the Attorney General retains common law powers inherent with the office, in addition to any constitutional and statutory powers. See State ex rel. Discover Fin.
Servs., Inc. v. Nibert, 744 S.E.2d 625, 645 n. 47 (W. Va. 2013) (collecting cases); John Ben Shepperd, Common Law Powers and
Duties of the Attorney General, 7 Baylor L. Rev. 1, 1 (1955).
3
See also, e.g., Slezak v. Ousdigian, 110 N.W.2d 1, 5 (Minn.
1961) (“the courts will not control the discretionary power of the
attorney general in conducting litigation for the state”); Helgeland v. Wisconsin Municipalities, 745 N.W.2d 1, 49 (Wis. 2008)
(“The Attorney General of Wisconsin has the duty by statute to
defend the constitutionality of state statutes.”); District of Columbia v. ExxonMobil Oil Corp., 172 A.3d 412, 428 (D.C. 2017) (“The
Attorney General for the District of Columbia . . . shall be responsible for upholding the public interest. The Attorney General shall
have the power to control litigation and appeals, as well as the
5
Vesting the power to control litigation for the state
in a single officer promotes the public interest and accountability. By having a single officer oversee the
many varieties of litigation involving the state, its
agencies, and officials, it ensures “the adoption and assertion of legal policy and positions by the State . . . is
made only after meaningful consideration of the potential effects of such legal policy and positions on the full
range of State entities and interests.” State ex rel.
McGraw v. Burton, 569 S.E.2d 99, 39-40 (W. Va. 2002).
It also promotes uniformity and consistency on questions of state law. And, it generally ensures that an accountable officer acting in the public interest is in
charge of expressing the state’s legal views. Id.
Unlike private counsel, an Attorney General has
the responsibility of a “minister of justice” who acts in
the public interest. Lead, 951 A.2d at 472. The Attorney General must “see to it ‘that justice shall be done’
not only in the context of criminal prosecutions, but
also while he or she carries out all the functions of that
high office—including engagement in litigation in the
civil arena.” Id. at 473 (quoting Berger v. United States,
295 U.S. 78, 88 (1935)).
The principle that the power over state litigation
rests with the Attorney General, and not elsewhere, is
power to intervene in legal proceedings on behalf of this public
interest.” (citing D.C. Code § 1-301.81(a)(1))); N.Y. Executive Law
§ 63(1) (Attorney General shall “[p]rosecute and defend all actions
and proceedings in which the state is interested, and have charge
and control of all the legal business of the departments and bureaus of the state”).
6
so strong that the Attorney General generally cannot
delegate control of state litigation to outside counsel,
without ensuring the counsel remains subordinate to
the Attorney General. Lead, 951 A.2d at 476. This is
because the advantage of a public officer overseeing
state litigation would be lost if lawsuits against the
state were managed by private counsel.
C. Attorneys General Have a Long Tradition of Defending the State in Constitutional Challenges to State Laws.
Attorneys General have a long tradition of defending the validity of state laws. Some of the most important early decisions by this Court involved a state
Attorney General defending the constitutionality of a
controversial state law. See Gibbons v. Ogden, 22 U.S. 1
(1824) (New York Attorney General defending the constitutionality of a state law affecting interstate commerce); McCulloch v. Maryland, 17 U.S. 316 (1819)
(Maryland Attorney General defending the constitutionality of a state law taxing the national bank).
Attorneys General take their duty to defend solemnly and mount robust defenses, unless there are
compelling circumstances that warrant nondefense,
such as the law’s patent illegality or unconstitutionality. See Gregory F. Zoeller, Duty to Defend and the Rule
of Law, 90 Ind. L.J. 513, 541 (2015) (citing statements
from past Attorneys General addressing the standards
they used for determining when not to defend a law);
see also Neal Devins & Saikrishna B. Prakash, Fifty
7
States, Fifty Attorneys General, and Fifty Approaches to
the Duty to Defend, 124 Yale L.J. 2100 (2015) (arguing
that the precise contours of the duty to defend depends
on the traditions and laws in each state).
Over the centuries, legislatures have passed controversial laws. Even when an Attorney General may
have held different preferences, they have defended
those laws. See, e.g., Schroeder v. Simon, 962 N.W.2d
471 (Minn. Ct. App. 2021) (Attorney General defended
the constitutionality of a law on felon voting rights,
even though he publicly supported legislation that
would amend the law to expand voting rights). And,
the federal courts have benefited from having a single
state officer present the state interests implicated in
the litigation.
II.
Allowing Intervenors to Represent the
State Interest as of Right Is Inconsistent
with Rule 24 and Would Diminish the Traditional Powers of the Attorney General.
Rule 24(a) provides that, on a timely motion, a
court must allow intervention by a party claiming an
interest in the subject of the action, “unless existing
parties adequately represent that interest.” Fed. R. Civ.
P. 24(a)(2). In assessing whether a party’s interest is
adequately represented, federal courts have long applied two rebuttable presumptions of adequacy: a presumption of adequate representation when parties
share the same ultimate objective as an existing party,
and a presumption of adequate representation when
8
the existing party is a government entity represented
by the state Attorney General. See, e.g., Edwards v.
City of Houston, 78 F.3d 983, 1005 (5th Cir. 1996).
When litigation involves the interests of a state,
these well-founded presumptions represent and preserve deference to state sovereignty, including the traditional role of state Attorneys General in defending
the laws of the state.
A. Rule 24(a) Requires a Rebuttable Presumption of Adequacy.
Federal courts have long recognized that, when
“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.” Virginia. v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976).
Strategic or tactical disagreements are insufficient to
demonstrate inadequacy under Rule 24. See United
States v. Yonkers Bd. of Educ., 902 F.2d 213, 218 (2d Cir.
1990).
If the rule allowed for a finding of inadequacy
based on strategic disagreements, intervention as of
right would become almost automatic, and the rule
would have no meaning. See Butler, Fitzgerald & Potter
v. Sequa Corp., 250 F.3d 171, 181 (2d Cir. 2001) (“If disagreement with an existing party over trial strategy
qualified as inadequate representation, the requirement of Rule 24 would have no meaning.”). Such
9
intervention would also risk “generating endless
squabbles at every juncture over how best to proceed.”
Stuart v. Huff, 706 F.3d 345, 354 (4th Cir. 2013).
B. While the Widely Held Presumption of
Adequate Representation by the State
Attorney General Is Consistent with
Federal Deference to State Sovereignty, Petitioners’ Proposed Standard
Would Undermine State Sovereignty.
The presumption of adequacy is particularly
strong when the existing party is a state entity or official represented by the state Attorney General, because the Attorney General is responsible for
vindicating the sovereign interests of the state and acting in the public interest. See, e.g., Env’t Def. Fund, Inc.
v. Higginson, 631 F.2d 738, 740 (D.C. Cir. 1979) (“a state
that is party to a suit involving a matter of sovereign
interest is presumed to represent the interests of all its
citizens”); Com. of Pa. v. Rizzo, 530 F.2d 501, 505 (3d
Cir. 1976) (“a presumption of adequate representation
generally arises when the representative is a governmental body or officer charged by law with representing the interests of the absentee”). The presumption
applies even when a subdivision of the state attempts
to intervene in such suits. See Del. Valley Citizens’
Council for Clean Air v. Com. of Pa., 674 F.2d 970, 97374 (3d Cir. 1982) (recognizing the interest of state legislators in defending a statutorily-created program,
but finding they had not overcome the presumption
10
that the Pennsylvania Attorney General was adequately representing the same interest).
Petitioners ask the Court to flip this long-established presumption on its head. Petitioners argue that,
if they merely assert that representation by the Attorney General may be inadequate, that should be sufficient to intervene as of right. Petitioners’ proposed
standard asks federal courts to presume, without evidence, that the state Attorney General is not adequately representing the sovereign interests. Such a
presumption would fundamentally be at odds with
state sovereignty and the states’ traditional role in
courts.
Unsurprisingly, given these federalism concerns,
federal judges have long declined to either presume inadequacy or to wade into the morass of weighing the
adequacy of the litigation strategy of state officials.
See, e.g., Del. Valley Citizens’ Council for Clean Air, 674
F.2d at 973 (concluding that legislators’ intervention
on side of Pennsylvania Attorney General was properly
denied); Higginson, 631 F.2d at 740 (affirming denial
of intervention for water districts represented by their
states); see also United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 985 (2d Cir. 1984) (“to intervene in a suit in district court in which a state is
already a party, a citizen or subdivision of that state
must overcome this presumption of adequate representation”).
The cases cited by the Arizona Amici, purportedly
in support of a presumption of inadequacy, do not hold
11
up under scrutiny. The Blackwell case they cite actually supports a deferential approach to representation
by the Attorney General. Arizona Br. 15 (citing Ne.
Ohio Coal. for Homeless v. Blackwell, 467 F.3d 999 (6th
Cir. 2006)). In that case, the Ohio Attorney General
moved to intervene, on behalf of the state, to appeal a
decision, after the secretary of state had declined to appeal an injunction. Noting the authority of the Attorney General, as the “chief law officer for the state and
all its departments,” the court found reliance on the
presumption of adequate representation “misplaced,”
because the secretary of state had indicated he would
not appeal, and the Attorney General had the authority to carry the torch for the state. Blackwell, 467 F.3d
at 1008-09.
By contrast, when a state Attorney General is representing the interests of the state and defending a
law, courts have consistently recognized a presumption
of adequate representation should apply. See, e.g.,
Wright & Miller, 7C Fed. Prac. & Proc. Civ. § 1909 (3d
ed.) (collecting cases).
In this case, Petitioners have argued that the existence of state statutes allowing Petitioners to participate in litigation on behalf of the North Carolina
General Assembly is entitled to some consideration.
See N.C. Gen. Stat. § 1-72.2, § 120-32.6. However, the
statutes do not authorize Petitioners to represent the
state as a whole, and the statutes do not empower
them to override the requirements of federal Rule 24
and automatically intervene as a matter of right. See
State Resp. Br. 28-30, 36. Even if this Court were to
12
give the statutes some weight, the statutes apply only
to motions to intervene in North Carolina and should
not affect the longstanding presumption that an Attorney General is adequately representing the state. For
the vast majority of states that do not have such unusual statutory provisions, a strong presumption of adequate representation by the Attorney General should
continue to apply and to prevent other actors from intervening to represent the state interest in lawsuits
challenging state laws. Otherwise, frequent intervention as of right by non-parties would inject delay and
enormous complications into both state Attorneys
General’s effective management of litigation on behalf
of their states and district courts’ efficient management of their own dockets. See infra Part III.
C. Intervention as of Right Based on Allegations that the Attorney General Is
Not Adequately Defending the Law
Would Undermine Attorney General
Powers.
As the Arizona Amici acknowledge, “most if not all
States vest their Attorneys General with the primary
duty to defend state law in court.” Arizona Br. 9 (citing
Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321,
2336 (2021)). An Attorney General may consider many
legitimate factors in determining how to exercise discretion in defending the state. See, e.g., Planned
Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793,
801 (7th Cir. 2019) (“Wisconsin’s interest may be a
complicated question, as a state is a fundamentally
13
corporate body that includes many competing constituencies, . . . ”). Of course, various state officials may occasionally disagree with the litigation strategy chosen
by the state Attorney General. But, if disagreement
with the litigation strategy were sufficient to allow intervention as of right to assert state interests, it would
undermine the powers long vested in the office of the
Attorney General.
Without the appropriate deference to representation by an Attorney General, in case after case, litigation over the validity of state laws would consist of
discordant voices, each claiming to speak for the state,
and each simultaneously advancing down different litigation paths.
It is not uncommon for various state officials to
disagree with litigation strategy by an Attorney General. See, e.g., Planned Parenthood of Mid-Missouri &
E. Kansas, Inc. v. Ehlmann, 137 F.3d 573, 578 (8th Cir.
1998) (state legislators); Miracle v. Hobbs, 333 F.R.D.
151, 156 (D. Ariz. 2019) (speaker of house and president of senate); One Wisconsin Institute, Inc. v. Nichol,
310 F.R.D. 394 (W.D. Wis. 2015) (state legislators);
American Ass’n of People with Disabilities v. Herrera,
257 F.R.D. 236 (D.N.M. 2008) (state legislators).
It is also not uncommon for proposed intervenors
to argue that an Attorney General is not providing adequate representation based on disagreements with
litigation strategy. See, e.g., Wisconsin Educ. Ass’n
Council v. Walker, 705 F.3d 640, 659 (7th Cir. 2013)
(attacking the adequacy of the Attorney General’s
14
representation because of a disagreement over litigation strategy); Stuart, 706 F.3d at 352 (same);
Ehlmann, 137 F.3d at 578 (same); Hairr v. First Jud.
Dist. Ct., 368 P.3d 1198, 1202 (Nev. 2016) (same); Doe
v. State, No. A20-0273, 2020 WL 6011443 (Minn. Ct.
App. Oct. 12, 2020) (same).
In addition, because of the nature of the office of
Attorney General, it is often held by public servants
who have served in office before or otherwise taken
public positions on a range of issues. Potential intervenors will often be able to point to some statement an
Attorney General made on an issue, possibly years ago,
and use it to suggest the Attorney General is not fully
supportive of the state law or policy being attacked and
thus may provide an inadequate defense, even though
the office is in fact defending the state law.
When the Attorney General is defending a law,
public statements on various policy issues and mere
disagreement with discretionary decisions on litigation strategy cannot and should not be enough to warrant intervention as of right to assert state interests
in that same litigation. State Attorneys General are
imbued with the authority and discretion to make litigation strategy decisions for the state, and they are answerable to the citizens of their respective sovereigns
through democratic processes. If disagreements on defense strategy were enough, it would become routine
for other state actors, represented by private counsel,
to intervene and insist that they were the proper voice
for the state interest, despite centuries of an Attorney
General providing that voice in court. The power of the
15
Attorney General would be diminished, as an assortment of lawyers would offer competing strategies,
while claiming to represent the same state interests.
While the Arizona Amici express concern about a
parade of horribles and suggest that adherence to the
text of Rule 24 will result in an insufficient defense of
state laws,4 history has not borne out these concerns.
Indeed, denial of intervention as of right does not even
foreclose state officials from participation in the case,
as the opportunities for permissive intervention and
participation as amicus curiae routinely let such officials present their preferred arguments. See, e.g., N.J.
Dep’t of Envtl. Prot. v. Exxon Mobile Corp., 183 A.3d
289 (N.J. Super. 2015) (where the New Jersey Department of Environmental Protection was the plaintiff,
the court denied intervention by a state senator with a
coalition of environmental groups but invited them to
participate as amicus).
The longstanding presumptions for Rule 24(a)(2)
intervention have served to adequately ensure the enforcement and defense of state laws and interests. By
contrast, the new standard advocated by Petitioners
would undermine the traditional attorney general
powers to represent the interests of the sovereign.
4
Arizona Amici also express concern that, without a “may be
inadequate” standard, state officials will resort to accusing each
other “of actual inadequacy or even sabotage.” Arizona Br. 15.
However, they provide no real-world basis for those allegations.
And, if sabotage or collusion actually were to occur, the presumption applied by the Fourth Circuit would be overcome. Furthermore, state officials must still answer publicly for their actions.
16
III. Allowing an Intervenor to Represent the
State Interest as of Right Is Impracticable.
Petitioners’ position also poses serious practical
problems, as the federal courts have recognized. Courts
faced with the issue point to delay, confusion, and disruption, unmanageable cases, and “endless squabble.”
Pet. App. 34. There are innumerable judgment calls
made during litigation, and having the state’s litigation overseen by multiple, separate sets of lawyers is
not realistic.
First, Petitioners’ approach would create untenable complications at every stage. As amici in support of
Petitioners recognize, litigation comes with “an almost
infinite” number of judgment calls. Arizona Br. 11. It
certainly does—from pleadings to scheduling, from discovery to briefing. This reality cuts strongly against
any rule that would allow multiple lawyers to simultaneously speak for a state on the countless decisions
that make up litigation.
To illustrate, in Planned Parenthood of Wisconsin,
Inc. v. Kaul, 384 F. Supp. 3d 982 (W.D. Wis. 2019), the
Wisconsin Legislature moved to intervene after career
state attorneys representing the various state defendants answered the complaint rather than moving to
dismiss. The Legislature stated as its concern that the
Attorney General’s office would not litigate the case
“ardently,” and asserted it would have moved to dismiss instead of answering. Id. at 989. The Legislature
did not, however, allege that the state’s attorneys had
failed to raise a critical affirmative defense in the
17
answer; rather, the Legislature submitted a proposed
answer that “largely mirror[ed]” what the attorneys for
the state defendants already had submitted. Id.
In other words, the alleged basis to intervene was
a disagreement about timing—one of the many judgment calls that is part of litigation and on which two
sets of attorneys may disagree. Attorneys will disagree
about whether to move quickly to have a case dismissed as a matter of law, or to hold fire until a factual
record is developed, which may be useful both for the
district-court-level decision and to provide context for
an appeal. See also, e.g., Pet. App. 44; State Resp. Br. 9
(explaining that proposed intervenor criticized state’s
attorneys for seeking dismissal of only five of the complaint’s six counts, where the sixth claim was a “factintensive claim of intentional discrimination,” and
where the applicable pleading standards meant dismissal was unlikely). Notably, both paths preserved
the state’s defenses. And, as with any other litigant,
the state’s attorney must pick one.
What Petitioners propose is incompatible with
that reality. If allowed to intervene as of right, an intervenor traditionally will have all the rights of an
original party. See Wright & Miller, 7C Fed. Prac. &
Proc. Civ. § 1922 (3d ed.). And allowing two sets of lawyers to litigate a case as “the State” on two paths is
unheard of for a reason. It leads to strategic conflicts
and would produce a series of conundrums for the
courts. For example, one set of the state’s attorneys
may want to litigate based on a bare record, while the
other set works to build a robust record for summary
18
judgment. The first approach may tend to undermine
the second and vice versa. Meanwhile, how are the
courts and parties to manage the case and their resources?
In turn, embedded in each step of litigation are
everyday judgment calls—from how to frame issues
and conduct discovery, to where to place emphasis and
basic tone. Especially where the proposed intervenor
harbors a belief that the state’s attorneys will not litigate “ardently” or with sufficient “vigor,” there is little
chance that the state’s attorneys and the proposed intervenor will be able to harmonize their professional
judgments in any given filing, much less across a case.
See Pet. App. 43. It thus is no answer that a district
court has authority to manage a case, see Arizona Br.
17, because a court cannot effectively manage what is
an “intractable procedural mess,” when a single entity
has “two independent parties simultaneously representing it.” Kaul, 942 F.3d at 801. Petitioners do not
begin to address the complications that their proposal
presents.
Second, Petitioners and supporting amici base
their arguments on incorrect assumptions about how
litigation against state officials works, both as to Ex
parte Young and as to the fact that litigation often involves both facial and as-applied challenges.
The amici supporting Petitioners suggest that
adding another set of attorneys representing a state
introduces no new complications because lawsuits often include multiple state defendants. Amici propose
19
that the “only difference in the intervention context is
that these authorized agents were not named in the
first instance.” Arizona Br. 18. But this conflates two
very different things.
It is true that a plaintiff often sues multiple state
officials when challenging state law. But it also is true
that those defendants typically are represented as a
group by career state attorneys, who serve as, for example, Assistant or Deputy Attorneys General. That
was the case in Planned Parenthood of Wisconsin v.
Kaul, and it is reflected in any number of cases
throughout the country. This is a product of the legal
fiction underlying the Ex parte Young doctrine. It often
makes little practical difference how many officials are
named as defendants, or which ones, if at least one defendant is proper for purposes of that fiction. See Cent.
Virginia Cmty. Coll. v. Katz, 546 U.S. 356, 378 n. 14
(2006) (discussing Ex parte Young as “an expedient ‘fiction’ ”); Ex parte Young, 209 U.S. 123, 157 (1908) (holding that “such officer must have some connection with
the enforcement of the act”). Thus, the multiple-statedefendants phenomenon poses none of the problems
that having multiple sets of attorneys representing the
same state interest presents.
Similarly inapt is amici’s assertion that Petitioners’ approach “will drain the incentive to sue only the
most sympathetic state official.” Arizona Br. 19. Again,
that misunderstands Ex parte Young’s role. For Ex
parte Young’s fiction to operate, what matters is that a
proper official is named in a case challenging state law.
The defense of that state law will not rise and fall on
20
that official’s private feelings; the official is named as
a defendant because of her office and its enforcement
role under state law. To the extent the state attorneys
representing that official refuse to defend the law, the
presumption of adequate representation would be
overcome.
Even further afield is the Wisconsin Legislature’s
assertion that the political identity of the Attorney
General justifies additional sets of attorneys to represent the state. Wis. Legislature Br. 6–8, 14. That misunderstands not only Ex parte Young but also state
litigation more generally. Again, when a proper state
official is named in a challenge to state law, the state’s
attorneys then appear to defend it. That duty does not
turn on the identity of a particular Attorney General.
To illustrate, in the litigation cited by the Wisconsin
Legislature, the Assistant Attorneys General representing the state officials were experienced defenseside litigators of abortion regulations who did nothing
to suggest they would not fulfill their ethical obligations. See Planned Parenthood of Wisconsin, 384
F. Supp. 3d at 989–90. Indeed, the career state attorneys went on to defend the case through trial, from
which a ruling is pending.
Further, cases involving the defense of state law
often come with additional complications, beyond the
need to speak with one voice for the state. Namely, facial challenges to state law also often challenge a particular official’s or agency’s application of that law. In
those instances, not only do the state’s attorneys defend the law facially under Ex parte Young, but they
21
also defend those officials’ particular actions or implementation of the law. For those claims, the state attorneys’ relationship with their clients is no different
than any other attorney’s relationship: it is subject to
the rules of professional conduct, including the attorney-client privilege. Petitioners do not account for this
further complication—that challenges to state law often are intertwined with the defendant officials’ conduct—and what it means given attorneys’ professional
duties. In these circumstances, the state’s counsel cannot simply coordinate with additional counsel to represent “the State.”
Third, instead of forwarding a pro-state agenda,
Petitioners’ approach threatens to undermine the
states’ interest in focusing on a defense of their
laws.
Petitioners and supporting amici suggest that
their more lenient standard to intervention would prevent acrimony by making a showing of inadequate representation easier and, their theory goes, less pointed.
But there is little reason to think that is correct. They
propose that intervention should often happen at the
outset. Pet. Br. 42; Arizona Br. 20. But, at the outset,
there would be no factual basis to believe that the
attorneys defending the case lack ardor or “vigor,” as
little would have occurred at that early stage. See Pet.
App. 43. Abstractions about “vigor” are not administrable legal standards, and they certainly are not views
that promote coordination, as the amici suggest. See
Arizona Br. 15. In effect, Petitioners’ approach would
22
act as an automatic right for the legislature to intervene if mere speculation about ardor and vigor at the
beginning of a case were sufficient.
Petitioners’ approach ultimately would work to
the detriment of the states and their role in federal
courts. If there is going to be a “squabble,” it is better
to deal with it and be done. See Pet. App. 34. Petitioners’ alternative is to make infighting a part of every
stage of the case. That is not something the states or
the federal courts will benefit from. Rather, states benefit from having their career specialists do their jobs.
In the hypothetical case where a critical defense is
abandoned, then the rule applied by the Fourth Circuit
will provide the appropriate backstop, instead of undermining the process from the start.
---------------------------------♦---------------------------------
CONCLUSION
When a state Attorney General is defending the
validity of a state law, it would diminish the traditional
powers of the Attorney General and needlessly create
administrative problems if a non-party, represented by
private counsel, could intervene as of right and claim
to assert the state interest. For this reason, and all the
23
reasons in this brief, the Amici States support the
State Respondents.
Respectfully submitted,
JOSHUA L. KAUL
KEITH ELLISON
Attorney General
Attorney General
of Minnesota
of Wisconsin
LIZ KRAMER*
BRIAN P. KEENAN
ANTHONY RUSSOMANNO
Solicitor General
JASON MARISAM
Assistant Attorneys General
Assistant Attorney General
ALETHEA HUYSER
Special Assistant
Attorney General
445 Minnesota St., Ste. 1400
St. Paul, MN 55101-2131
(651) 757-1010
liz.kramer@ag.state.mn.us
*Counsel of Record
February 16, 2022
Additional Amici States:
WILLIAM TONG
Attorney General
of Connecticut
AARON D. FORD
Attorney General
of Nevada
KATHLEEN JENNINGS
Attorney General
of Delaware
MATTHEW J. PLATKIN
Acting Attorney General
of New Jersey
KARL A. RACINE
Attorney General for the
District of Columbia
LETITIA JAMES
Attorney General
of New York
KWAME RAOUL
Attorney General
of Illinois
ELLEN F. ROSENBLUM
Attorney General
of Oregon
24
AARON M. FREY
Attorney General
of Maine
JOSH SHAPIRO
Attorney General
of Pennsylvania
BRIAN E. FROSH
Attorney General
of Maryland
THOMAS J. DONOVAN, JR.
Attorney General
of Vermont
DANA NESSEL
Attorney General
of Michigan
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.