Petition for Writ of Certiorari — Baker v. Wade

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

STATE OF TEXAS,

Petitioner,

DANNY E. HILL, 47TH DISTRICT ATTORNEY

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

Executive Assistant Attorney

General for Litigation

Counsel of Record

JAVIER P. GUAJARDO

Assistant Attorney Genera!

Supreme Court Building

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512! 463-2100

21 January 1986 Attorneys for Petitioner

oe

a

QUESTIONS PRESENTED

1. Whether the Fifth Circuit's failure to recognize the At-

torney General of Texas as the exclusive representative of the

state's interest in federal litigation regarding the constitu-

tionality of a Texas penal statute violates federal law and fun-

damental notions of comity by denying the state's right to con-

trol its participation in the federal judicial process.

2. Whether the Fifth Circuit's failure to recognize the At-

torney General of Texas as the exclusive representative of the

state's interest in litigation denies Texas law which designates

the Attorney General as such a representative.

3. Whether the Fifth Circuit’s granting of a motion to in-

tervene which had not been acted upon by the district court

and, which was filed by an unnamed class member who also

improperly created the appeal was erroneous and .nisconstrued

the proper role of appellate courts in the federal judiciary.

-ii-

PARTIES TO THE PROCEEDING BELOW

The Plaintiff-Appellee below is Denald F. Baker.

The Defendant-Appellant below is Danny E. Hill, 47th District

Attorney.

The Defendant-Intervenor below is the State of Texas.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED i

PARTIES TO THE PROCEEDINGS BELOW ii

TABLE GF CONTENTS iii

TABLE OF AUTHORITIES |. iv

REFERENCE TO OPINIONS |. l

SUMAGEIC LION ............. 2

STATUTORY PROVISIONS -

STATEMENT OF THE CASE 4

REASONS FOR GRANTING THE WRIT 5

1. The Decision Below Conflicts With The

Opinions And Rules Of This Court, And With

Federal Statutory Law ....... PE Ss, wk 5

. Failure To Reverse The Fifth Circuit Will

Result In The Disruption Of A Delicate Balance

Of Federal And State Relations Established Under

The Constitutional System of Federalism Which

Insures The Protection O1 State Sovereign

ak a hw

. The Decision Below Directly Contravenes

Texas Law ......

. The Fifth Circuit Decision Allowing Hili To

Intervene Fundamentally Misconstrues The Role

Of Appellate Courts In The Federal Judiciary

CONCLUSION ........... LOMescn ere

10

12

. 19

-iv-

TABLE OF AUTHORITIES

Cases Page

Allen v. Wright, 104 S.Ct. 3315 (1984)... | 16

Raker v. Wade. 106 F.R.D. 526 (N.D. Tex. 1985) 18

Baker v. Wade, 743 F.2d 236 (5th Cir. 1984) . 5,9

Baker v. Wade, 769 F.2d 289 (5th Cir. 1985)

OS TD ooo ey es ce hase eek ee 5,6,9,16,17,18

Brady v. Brooks, 89 S.W. 1052 (Tex. 1905)... ....... 13

Bullock v. Texas Skating Ass'n, 583 S.W.2d 888

'Tex.Civ.App.--Austin 1979, writ ref'd n.r.e.) ........ 14

Bush v. Viterna, 740 F.2d 350 (5th Cir. 1984) ........ 18

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) 16

Coyle v. Smith, 221 U.S. 559 (1911) 2.2.2... eres

Garcia v. San Antonio Metro. Transit Authority,

NO TRAM. POUR TIRE eee. ae

Hill v. Mattox, No. C-1973 (Tex. April 6, 1983) ....... 1A

Hilton v. Guyot, 159 U.S. 113 11895) ................ 15

Hutto v. Finney, 437 U.S. 678 (1978) ................. 9

Lane County v. Oregon, 7 Wall. 71 (1869) ......... J

Little Rock & Ft. S. Ry. v. Worthen, 120 U.S.

RUN eh ek ae Ge ee ee eee 6,7

Marino v. Ragen, 332 U.S. 561 (1947) .......... at

McCarthy v. United States, 394 U.S. 459 (1969) ....... 9

TABLE OF AUTHORITIES, continued

Cases Page

McGee v. Estelle, 722 F.2d 1206 (5th Cir. 1983)

(en banc) NS

McKenna v. Pan American Petroleum Corp., 303 F.2d

778 (5th Cir. 1962) 17

New Orleans Public Service, Inc. v. United Gas

Pipeline Co. 732 F.2d 452 (5th Cir. 1984)

(en banc) 17,18

New York v. Uplinger, 104 S.Ct. 23382 (1984) 6,7,10

Pate v. Dade Couniy School Board, 588 F.2d 501

(5th Cir. 1985) ee ; 18

Rizzo v. Goode, 423 U.S. 362 (1976) . 15

Charles Scribner's Sons v. Marrs, 262 S.W. 722

(Tex. 1924) |. 13

Texas v. White, 7 Wall. 700 (1869) J]

Thompson v. Wainwright, 714 F.2d 1495 (11th Cir.

1983), cert. denied, 464 U.S. 988 (1984) 8

United Airlines Inc. v. McDonald. 432 U.S. 385

(1977) NE Oa har — is . 17

United States v. Texas, 680 F.2d 356 (5th Cir.

1982) ....... ae ~

Warth v. Seldin, 422 U.S. 490 (1975) 16

Younger v. Harris, 401 U.S. 37 (1971) 15

Zablocki v. Redhail, 434 U.S. 374 (1978) 16

United States Constitution

U.S. Const. art. III 16

-Vi-

TABLE OF AUTHORITIES, continued

Texas Constitution

Tex. Const. art. [V,§ 1...

Tex. Const. art. 1V,§ 22 .......... cess

Tex. Const. arnt. V, § 21 2.02...

Federal Statues

28 U.S.C. § 1254(1) (1982) ©...

Page

28 U.S.C. § 1331 (1982)...

28 U.S.C. § 1343 (1982) ........

28 U.S.C. § 2201 (1982) ........

28 U.S.C. § 2202 (1982)...

28 U.S.C. § 2403(b) (1982) 6...

42 U.S.C. § 1988 (1982) ...........

Texas Statutes

Tex. Crim. Proc. Ann. art. 2.01 (Vernon Supp.

Rio. 5 dee Se ww ek whe a eee eA EO

Tex. Crim. Proc. Ann. art. 2.02 (Vernon Supp.

a gear

Tex. Penal Code Ann. § 21.06 (Vernon 1974)

Tex. Rev. Civ. Stat. Ann. art. 326k-36a (Vernon

Supp. 1985) . ee ee -

Tex. Rev. Civ. Stat. Ann. art. 4395 (Vernon

PE isk oO ohh eke ee REESE EERO ARE OS

Rules of the Supreme Court of the United States

S. Ct. R. 28.4(e) 0... ee,

Re GM. Me. SOM ow ees

Federal Rules of Civil Procedure

Fed. R. Civ. P. 23 ........... rs

Fed. R. Civ. P. 23(d)i2) 2.00020... —

Fed. R. Civ. P. 24 ............ ae eae ewan:

Fed. R. Civ. P. 24(a)(2) ...... | Doe t

-Vil-

TABLE OF AUTHORITIES, continued

Page

Other Authority

La Pierre, The Political Safeguards of Federalism

Redux: Intergovernmental Immunity

and the States as Agents of the

Nation, 60 Wash. U.L.Q. 779

(1982) 10

i3 J. Moore, Moore's Federal Practice § 828.06

(2d ed. 1985) . 7

Newberg, Class Actions, §2830 (1977) 16

7A C. Wright & A. Miller, Federal Practice and

Procedure § 1791 (1972) 17

17 Wright, Miller & Cooper, Federal Practice and

Procedure § 4241 (1978) 15

17 Wright, Miller & Cooper, Federal Practice and

Procedure § 4251 (1978) 15

Miscellaneous

House Comm. on State Affairs, Bill Analysis,

Tex. H.B. 867, 69th Leg. (1985) 14

S. Rep. No. 204, 94th Cong., 2nd Sess. 9, reprinted

in 1976 U.S.Code Cong. & Ad. News 1988, 1997 7

Tex. Const. art. IV, § 22, interp. commentary

(Vernon 1984) 12

Tex. H.B. 867, 69th Leg. (1985) i4

aa

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

STATE OF TEXAS,

Petitioner,

ws

DANNY E. HILL, 47TH DISTRICT ATTORNEY

Respondent.

PETITION FOR WRIT OF CERTIORARI

TC THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner State of Texas, respecifully prays that a writ

of certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Fifth Circuit entered

in this proceeding on August 26, 1985.

REFERENCE TO OPINIONS

The opinion of the United States District Court for the Nor-

thern District. of Texas, Dallas Division is reported at 553

F.Supp. 1121 (1982) and is reproduced as Appendix B in the

Petition for Certiorari filed by Petitioner Donald F. Baker in

this case.

The final judgment of the United States District Court for

the Northern District of Texas, Dallas Division is unreported.

A copy of this judgment is included as Appendix C in the Peti-

tion for Certiorari filed by Petitioner Donald F. Baker in this

case.

The opinion supplementing the original opinion of the United

States District Court. for the Northern District of Texas, Dallas

Division is reported at 106 F.R.D. 526 (1985) and is reproduced

Oe ey Phe eae es

OR er ae I ee ee ee Na ee oe ee Ee

-2-

as Appendix D in the Petition for Certiorari filed by Petitioner

Donald F. Baker in this case.

The original panel opinion of the United States Court of Ap-

peals for the Fifth Circuit is reported at 743 F.2d 236 (1984)

ana is reproduced as Appendix E in the Petition for Certiorari

filed by Petitioner Donald F. Baker in this case.

The opinion of the United States Court of Appeals for the

Fifth Circuit on rehearing en banc is reported at 769 F.2d 289

(1985) and is reproduced as Appendix A in the Petition for Cer-

tiorari filed by Petitioner Donald F. Baker in this case.

The opinion of the United States Court of Appeals for the

Fifth Circuit on petition for rehearing en banc is reported at

774 F.2d 1285 (1985) and is reproduced as Appendix F in the

Petition for Certiorari filed by Petitioner Donald F. Baker in

this case.

JURISDICTION

The judgment of the Court of Appeals for the Fifth Circuit

en banc was entered on August 26, 1985. A timely petition for

rehearing was denied on October 23, 1985, and this petition

for certiorari was filed within 90 days of that date. The Court's

jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS

United States Code, Title 28:

§ 2403. Intervention by United States or a State;

constitutional question.

(b) In any action, suit, or proceeding in a court of the United

States to which a State or any agency, officer, or employee

thereof is not a party, wherein the constitutionality of any

statute of that State affecting the public interest is drawn in

question, the court shall certify such fact to the attorney general

of the State, and shall permit the State to intervene for presen-

tation of evidence, if evidence is otherwise admissible in the

case, and for argument on the question of constitutionality.

The State shail, subject to the applicable provisions of law,

-.

have all the rights of a party and be subject to ali liabilities

of a party as to court costs to the extent necessary for a pro-

per presentation of the facts and law relating to the question

of constitutionality.

Supreme Court Rule 28. Filing and service--special rule for

service where constitutionality of

Act of Congress or state statute is

in issue.

A(c) In any proceeding in this Court wherein the constitu-

tionality of any statute of a State is drawn in question, and

the State or any agency, officer, or employee thereof is not a

party, the initial pleading, motion, or paper in this Court shall

recite that 28 U.S.C. § 2403(b) may be applicabie and shall be

served upon the Attorney General of the State. In proceedings

from any court of the United States as defined by 28 U.S.C.

§ 451, the initial pleading, motion, or paper shall state whether

or not any such court, pursuant to 28 U.S.C. § 2403(b), has cer-

tified to the State Attorney General the fact that the constitu-

tionality of such statute of the State was drawn in question.

Federal Rule of Civil Procedure 23. Class Actions.

(d) Orders in Conduct of Actions. In the conduct of actions

to which this rule applies, the court may make appropriate

order:

(2) requiring, for the protection of the members of the class or

otherwise for the fair conduct of the action, that notice be given

in such manner as the court may direct to some or all of the

members of any step in the action, or of the proposed extent

of the judgment, or of the opportunity of members to signify

whether they consider the representation fair and adequate,

to intervene and present claims or defenses, or otherwise to

come into action.

Federai Rule of Civil Procedure 24. Intervention.

(a) Intervention of Right. Upon timely application anyone shall

be permitted to intervene in an action:

(2) when the applicant claims an interest relating to the pro

perty or transaction which is the subject of the action and he

<M

is so si.uated that the disposition of the action may as a prac-

tical matter impair or impede his ability to protect that interest,

unless the applicant's interest is adequately represented by ex-

isting parties.

STATEMENT OF THE CASE

Plaintiff Donald Baker filed suit on November 19, 1979 seek-

ing a declaratory judgment that Texas Penal Code Ann. § 21.06

(Vernon 1974) (Homosexual Conduct; was unconstitutional.

Thus, jurisdiction was properly based on 28 U.S.C. §§ 1331,

1343, 2201 and 2202. Plaintiff named Henry Wade, in his of-

ficial capacity as Dallas County District Attorney, and Lee

Holt, in his official capacity as Dallas City Attorney, as defen-

dants representing a class of all district and city attorneys in

the State of Texas.

Shortly after svit was filed, Defendant Holt filed a request

for certification pursuant to 28 U.S.C. § 2403(b), requesting

that the Attorney General of Texas be allowed to intervene to

represent the state's interest. On June 3, 1980, the district court

certified the case to the Attorney General and granted him leave

to intervene.

The Attorney General appeared to defend the constitutionali-

ty of § 21.06 of the Texas Penai Code on July 9, 1980. After

a trial on the merits, the district court declared § 21.06 un-

constitutional on its face and enjoined defendants from enfor-

cing it. Respondent Danny Hill, District Attorney of Potter

Counvy, was neither a named defendant nor a class

representative.

Defendants Wade and Muncy, substituted for Defendant

Holt, declined to appeal the decision of the district court. Danny

Hill filed a notice of appeal on October 28, 1982. At that time,

~ no named party had sought to appeal. The Attorney General

of Texas filed a notice of appeal on behalf of the State of Texas

on November 1, 1982. After reviewing the record which was

then prepared, the Attorney General determined that the in-

terests of the state would be best served by dismissing the ap-

peal. The state’s appeal was dismissed on March 18, 1982. On

March 28, 1983, Hill tried unsuccessfully to have the Texas

Supreme Court mandamus the Attorney General to pursue an

appeal to the Fifth Circuit.

-5-

Hill on April 12, 1983, filed a motion to intervene and to be

named class representative under Rules 23 and 24 of the Federal

Rules of Civil Procedure in the district court. While the mo-

tion was pending, Hill filed a motion to intervene and be named

class representative in the Fifth Circuit. On August 16, 1983,

a Fifth Circuit judge granted Hill’s motion. Two weeks before

oral argument the district court denied Hill’s motion.

On September 21, 1984 a panel of the Fifth Circuit held that

the Texas Attorney General was presumptively an adequate

representative of the state’s interest and the Texas Attorney

General's respresentation had been adequate in fact, and thus

the district attorney was not entitied to interevene as of right

to prosecute the appeal. See Baker v. Wade, 743 F.2d 236 (5th

Cir. 1984).

On August 26, 1985, the Fifth Circuit in an en banc decision

vacated the panel opinion of September 21, 1984, and held that

the order allowing Hill’s motion to intervene and be named class

representative for purposes of pursuing the appeal was

justified. The decision was rendered after the Attorney General

of Texas intervened to protect the state's interest. See Baker

v. Wade, 769 F.2d 289 (5th Cir. 1985) (en bance).

REASONS FOR GRANTING THE WRIT

1. The Decision Below Conflicts With The Opinions And

Rules Of This Court, And With Federal Statutory Law.

This Court in its case law and rules, and Congress through

statutory enactment, have chosen the states’ attorneys general

to speak for their respective states in federal litigation when

the constitutionality of a state statute is at issue. The people

of Texas through their Constitution and statutory enactments

have chosen the Texas Attorney General as their chief law of-

ficer and entrusted him with the authority to represent and

protect their interests in civl litigation. The Fifth Circuit in

a nine-to-seven vote has now held that, whenever one of the

1085 district, county, and city attorneys of Texas is dissatisfied

with the Attorney General's decision concerning litigation, any

one of them may appeal a district court decision ‘‘on the a prior

basis that all others are out of step and that he alone knows the

£-

state’s true interest."’ Baker v. Wade, 769 F.2d 289, 298 (5th

Cir. 1985) (en banc) (Rubin, J. joined by Goldberg, Politz, Ran-

dall, Tate, Johnson, and Williams, J.J., dissenting). The Fifth

Circuit's decision obstructs the administration of justice in the

federal judiciary and impairs a state's right to control its litiga-

tion; it is a gross aberration that cannot be, and is not, the law.

In New York v. Uplinger, 104 S.Ct. 2332 (1984), a local

district attorney defended the constitutionality of New York’s

loitering statute. After certiorari was granted, the New York

Attorney General filed a brief as amicus curiae supporting the

position that the statute was unconstitutional. Upon realizing

the ‘fundamental conflict in the positions taken by [the local

district attorney] and the New York Attorney General, a cir-

cumstance which was ‘not manifestly or fully apprehended at

the time certiorari was granted,’ the court dismissed the writ

as improvidently granted. 104 S.Ct. 2333 n. 1, 2334. Uplinger

established as a matter of federal law a priority scheme as to

whom the federal judiciary will recognize to speak for the col-

lective interests of a state: ‘{I]n addressing the constitutionality

of a statute with state-wide application we consider highly rele-

vant the views of the State’s chief law enforcement official.”

104 S.Ct. 2333 n.1.

The pronouncement in Uplinger is not a recent phenomenon.

In fact, the Court has consistently recognized and protected

a state’s right to designate under its laws a chief legal officer

who speaks for it in federal litigation.

In Marino v. Ragen, 332 U.S. 561 (1947), the concession by

the Attorney Genera! of Illinois that the procedure followed

in a criminal trial denied petitioner due process of law led the

Court to vacate the judgment and remand to the Circuit Court:

“In light of the [Attorney General’s] confession of error. . .

we conclude that petitioner was denied the dur process of law

which the Fourteenth Amendment requires.” /d. at 562.

In Little Rock & Ft. S. Ry. v. Worthen, 120 U.S. 97 (1887),

a board of railroad commissioners consisting of the goveri.or,

secretary of state and auditor of public accounts of Arkansas

acting pursuant to the advice of the Attorney General of Arkan-

sas appraised the property of railroads in contravention

a a

of a state statute. The Court, in finding that the state had not

deprived the companies of due process, recognized the impor-

tance of the state's attorney general: ‘““When, therefore, under

the advice of the attorney general, the board of railroad com-

missioners treated as invalid the direction of the statute...

it obeyed the constitution rather than the legislature. ... Here

the conflict between the constitution and the statute was ob-

vious, and the board had the advice of the highest legai officer

of the State.” Id.

Worthen and Marino implicitly recognize what Uplinger ex-

plicitly stated: only one official—a state's chief legal officer—

is vested with the authority to represent and protect a state's

interests in the federal judiciary.

The prominent position accorded to the states’ attorneys

general in the federal system is also evidenced by 28 U.S.C.

§ 2403(b) an. Supreme Court Rule 28.4(c). Underlying both

these provisio.1s is the strong resumption that the attorney

general of a state is the exclusive legal representative of a

state's interest before the federal judiciary.

Congress in 28 U.S.C. § 2403(b)' provides that “in any ac-

tion, suit, or proceeding in a court of the United States to which

aSt te...is not a party, wherein the constitutionality of any

statute of that State affecting the public interest is drawn in

question, the court shall certify such fact to the attorney general

of the State, and shall permit the State to intervene.”

Supreme Court Rule 28.4(c) augments the scope of section

2403(b) by mandating that notice be given to the Attorney

General of a state whenever the ‘‘constitutionality of any

statute of a State is drawn in question.” (emphasis added). See

13 J. Moore, Moore's Federal Practice 4 828.06 (2d ed. 1985).

1. Congress, in section 2403(b), explicitly sought to give the states con-

trol of the appellate process through their attorneys gereral. See s. Rep. No.

204, 94th Cong., 2nd Sess. 9, reprinted in 1976 U.S. Code Cong. & Ad. News

1988, 1977.

Ea pA he Re de ee ee ee eee AL ee pe? ae eee eee

te eat bane eee

tied 4) teh ts

-8-

These two provisions do not require notice or allow interven-

tion by a local district attorney to represent a state in litiga-

tion concerning the constitutionality of a state statute. Con-

gress and this Court have recognized the authority of a state’s

Attorney General to speak for that state as a matter of right

whenever the constitutionality of a state statute is at issue.

There is no evidence that Congress or this Court intended that

local prosecuting attorneys should be vested with the authori-

ty to represent a state's interest in matters of statewide con-

cern. See Supreme Court Rule 36.4 (the atiorney general of a

state files an amicus brief on behalf of the state whereas a local

district attorney only files an amicus brief on behalf of the

district ); cf, Supreme Court Rule 28.4(c) (only a state attorney

general is notified when the constitutionality of a state statute

is involved).

The various decisions by this Court, as well as section 2403(b)

and Rule 28.4({c), mandate the recognition of a state’s chief law

officer as the exclusive spokesperson on behaif of the interests

of a state where the constitutionality of a state statute is in

question. The Fifth Circuit's failure to entertain, much less con-

sider, the views of the Attorney General of Texas violates this

mandate.’

The underlying policy reasons for this mandate seek to pro-

tect both federal and state interests.

Allowing the en banc decision of the Fifth Circuit to stand

would result in unmanageable litigation in the federal judiciary.

It would allow the many thousands of city, county and district

attorneys across the United States to assert as many different

positions before this and every federal court. The result of ex-

posing the federal judiciary to such unwarranted litigation is

2. The Fifth Circuit has ignored its own authority. See McGee v. Estelle,

722 F.2d 1206, 1212 & n. 18 (5th Cir. 1983) (en banc) (quoting Thompson

v. Wainwright, 714 F.2d 1495 (11th Cir. 1983), cert. denied, 464 U.S. 988

(1984)) (‘the attorney general, as the chief legal officer of the state, is the

appropriate person to” waive the requirement that a state prisoner exhaust

his state remedies before seeking federal habeas corpus relief); see also United

States v. Texas, 680 F.2d 356, 368 n. 16 (5th Cir. 1982) (attorney general's

power to represent state agencies is exclusive).

-Q-

the loss of a significant degree of administrative control

possessed by this Court over federal litigation. See McCarthy

v. United States, 394 U.S. 459, 463-65 (1969) (the Court's broad

supervisory power over the lower federal courts includes the

authority to establish proper construction to be given federal

statutory enactments).

The wisdom of allowing a state to speek with a single voice

becomes apparent when the interests of the state are examined.

In order to mantain law favorable to the state and to pro-

tect itself, Texas speaks with one voice to establish coherent

and uniform legal policy. This state policy prevents the many

local state attorneys from taking legal positions that are either

in their self-interest or that wouid be detrimental to the state.

See Baker v. Wade, 743 F.2d at 242-243.

Because it is the State of Texas that has the ultimate finan-

cial responsibility to fund any injunctive relief or pay any

monetary judgments including attorney's fees under 42 U.S.C.

§ 1988, Hutto v. Finney, 437 U.S. 678, 699-700 (1978), the power

to decide when to settle or when to pursue litigation is logical-

ly vested in one state-wide elected official, the Attorney

General, who has an incentive to balance litigation costs with

the objectives of litigation, and who can be held responsible

for the balance he strikes:

If Hill or any of the multitude of prosecuting at-

torneys may take it on himself to appeal an adverse

ruling, the expense would not fall on Hill or on the

other Horatius at the constitutional bridge or on his

city or county but on the state.

Baker v. Wade, 769 F.2d at 298 (Rubin, J., dissenting).

The people of Texas can easily hold the Attorney General

responsible for any litigation decision but they cannot hold a

local state attorney accountable for a decision which, although

not in the best interests of the entire state, was made with the

tacit approval of his or her local constituency.

-10-

Under the Constitution of Texas, the Attorney General

represents the state and conducts its litigation. In the instant

matter, the Attorney General made the determination, after

careful consideration of the trial court record and relevant case

law, that an appeal would not serve the state’s interest. When

the people of Texas are dissatisfied, their remedy is the ballot

box.

2. Failure To Reverse The Fifth Circuit Will Result In The

Disruption Of A Delicate Balance Of Federal And State

Relations Established Under The Constitutional System

Of Federalism Which Insures The Protection Of State

Sovereign Interests.

The federal system of government created by the Constitu-

tion established a national government operating in a mutual

sphere of influence with state governments that act as indepen-

dent political communities with the authority to make decisions

of self-governance which ‘‘include the power to structure and

organize the processes of government.” La Pierre, The Political

Safeguards of Federalism Redux: Intergovenmental Immuni-

ty and the States as Agents of the Nation, 60 Wash. U.L.Q.

779, 790-92 & nn. 31-33 (1982). See Lane County v. Oregon, 7

Wall. 71, 76 (1869).

This Court has specifically identified two incidents of self-

governance which belong exclusively to the states. In Coyle

v. Smith, 221 U.S. 559, 565 (1911), the Court held that a state,

~ by virtue of “necessary attributes as an independent sovereign

government’ may determine for itself the location of the local

seat of government. Similarly, tne selection of who controls the

civil litigation of a state is solely a matter of state law. New

York v. Uplinger, 104 S.Ct. at 2333 n. 1.

Under the constitutional system ef federalism, incidents of

state sovereignty do not exist in a vacuum; without the

assistance of this Court, Texas’s designation of the Attorney

General as its legal spokesperson is meaningless.

In two decisions one hundred and sixteen years apart this

Court recognizes that the federal government must protect in-

cidents of state sovereignty.

Bt

Chief Justice Chase in Texas v. White, 7 Wall. 700 (1869),

discussed the effects of the Ordinance of Secession on the ex-

istence of Texas as a member of the Union. In concluding that

Texas did not cease to be a state, he recognized that the ‘‘preser-

vation of the States, and the maintenance of their governments,

are as much within the design and care of the Constitution as

the preservation of the Union and the maintenance of the Na-

tional Government.” 7 Wall. at 725. Texas v. White is signifi-

cant for the principle it represents; in sensitive matters of state

and federal relations this Court has the authority and the du-

ty to preserve and maintain incidents of state sovereignty.

Incidents of state political sovereignty also receive protec-

tion from the states’ participation in the Federal Government

itself. Garcia v. San Antonio Metro. Transit Authority, 105

S.Ct. 1005, 1021 (1985), neld that limits on Congressional power

under the commerce clause arise from the protection “inherent

in all congressional action—the built in restraints that our

systerr provides through state participation in federal govern-

mental action.” 105 S.Ct. at 1020. Because the states ultimately

control federal legislation, ‘laws that unduly burden the States

will not be promulgated.”’ Jd. at 1020. Thus, “‘state sovereign

interests, then, are more properly protected by procedural

safeguards inherent in the structure of the federal system than

by judicially created limitations on federal power.”’ 105 S.Ct.

at 1018.

The states are represented in the judicial branch of the federal

government by a designated chief legal officer under state law.

Further, the states through congressional action in enacting

28 U.S.C. § 2403(b) have chosen to protect an important

sovereign interest— whom they allow to control civil litigation

involving the constitutionality of one of their statutes in the

federal judiciary—through the legislative branch of the federal

government. To allow an illegitimate representative—here a

local district attorney—to speak fer a state's interests nullifies

the protection voiced in Garcia.

The Fifth Circuit by allowing Hill to take control of the civil

litigation in Texas effectively vetoes section 2403(b), disregards

Garcia, and tramples upon the sovereign right of Texas to

-1]2-

designate the Attorney General to control the civil litigation

of Texas. Only this Court can restore the proper balance of state

and federal relations the Ffith Circuit unbalances.

3. The Decision Below Directly Contravenes Texas Law.

The Fifth Circuit by its decision selects Danny Hill, a local

district attorney, to control the civil litigation of Texas—a

result directly prohibited by Texas law.

The Constitution of Texas designates the Attorney General

as the chief law officer of the state responsible for represent-

ing the state in civil litigation. Tex. Const. art. IV, § 22, in-

terp. commentary (Vernon 1984).

The Attorney General of Texas is one of six elected state-

wide constitutional officers. Tex. Const. art. IV, § 1. It is his

duty to “represent the State in all suits and pleas in the

Supreme Court of the State in which the State may be a party

... and perform such other duties as may be required by law.”

Tex. Const. art. [V, § 22. Legislative enactment further echoes

the constitutional provision by requiring the Attorney General

to ‘‘prosecute and defend all actions in the [State] Supreme

Court or she Courts of Civil Appeals in which the State may

be interested.’’ Tex. Rev. Civ. Stat. Ann. art. 4395 (Vernon

1976).

In contrast the Texas Constitution gives county and district

attorneys only the authority to “represent the State in all cases

in the District and inferior courts in their respective counties

for districts}."’ Tex. Const. art. V, § 21. (emphasis added).*

County and district attorneys also have the exclusive con-

trol of criminal prosecutions. See Tex. Code Crim. Proc.

Ann. arts. 2.01, 2.02 (Vernon Supp. 1985).

3. The Texas Constitution limits the authority of a district attorney to

his or her respective district. Pursuant to Texas legislative mandate ‘‘the

District Attorney of the 47th Judicial District of Texas [the District

represented by respondent Hill] shall only represent the State of Texas in

the counties of Potter and Armstrong.”’ Tex. Rev. Civ. Stat. Ann. art.

326k-36a (Vernon Supp. 1985). Both the Texas Constitution and the people

of Texas through their legislature have silenced Respondent Hill to speak

legally on an issue of state-wide signifcance.

-13-

The Texas Constitution thus creates a division of authority be-

tween local state attorneys and the Attorney General. The

critical distinction lies in the scope of the two offices created:

one is purely a local office; the other, a state-wide office. In a

very early case the Texas Supreme Court emphasized that the

important function of representing the state in cases where the

state is a party belongs only to the Attorney General:

Now let us ask the pointed question: Is it reasonable

to suppose that it was the purpose co intrust absolute

ly the important function of representing the state

as an attorney in al! cases in which the state should

be a party to the numerous county attorneys or to

the district attorneys, should the Legislature see fit

to create that office for certain districts, elected, as

the case might be, in their respective counties or

district, or to a general state officer, like the Attorney

reneral, elected by the people of the whole state? To

ask the question is to answer it... . Again, we can-

not lose sight of the fact that the voters, especially

in restricted localities, not infrequently are influenc-

ed by some improper motive, some sympathy for the

candidate or some popular caprice which leads them

to put incompetent men into office, a pussibility by

no means so probable in case of an important office

like that of Attorney General in whose election all the

voters of the state have the right to participate.

Brady v. Brooks, 89 S.W. 1052, 1056-57 (Tex. 1905).

By virtue of the fact that the Attorney General of the State

of Texas is the sole officer authorized by law to protect the col-

lective interests of the state in court, he is clothed with “‘broad

judgment and discreticn”’ and must remain free to exercise this

discretion in an independent manner. Charles Scribner's Sons

v. Marrs, 262 S.W. 722, 727 (Tex. 1924). This broad discre-

tionary authority extends to decisions made concerning litiga-

tion in federal courts.‘

4. During the last session of the Texas Legislature, State Representative

Bill Ceverha introduced legislation which would have restricted the authority

of the Attorney General to enter into an out-of-court settlement or consent

judgment on behalf of the state in any litigation pending in a federal court

(footnote continued on following page)

Bf.

b The cecision whether to appeal a judgment, is by necessity

within the ambit of the Attorney Generai's discretionary

authority. In Bullock v. Texas Skating Ass'n, 583 S.W.2d 888

| (Tex.Civ.App.— Austin 1979, writ ref'd n.r.e.), the court upheld

the authority of the Attorney General to appeal a judgment

, of a district court against the instructions of another state-wide

constitutional officer—the Comptroller of Public Accounts:

}

In matters of litigation the Attorney General is the

officer authorized by law to protect the interests of

the State, and .. . ‘must exercise judgment and

; discretion, which will not be controlled by other

authorities.’’ It was within the discretion of the At-

torney General, not that of the Comptroller, to decide

whether to appeal a case in which the State had ex-

perienced an adverse judgment in the trial court.

4

:

|

’

’

7

583 S.W.2d at 894 (citations omitted).

The issue of who speaks for the state in civil

litigation—the Attorney General of Texas or a local

district attorney—has been implicitly decided

by the Texas Supreme Court in the instant

(continued from previous page)

which would result in a determination that a state statute, rule, practice,

or policy is unconstitutional under state or federal law or that a state con

situtional provision is unconstitutional under federal law, unless the state

agency represented by the Attorney General! consented to the settlement

or judgment. Tex. H.B. 867, 69th Leg. (1985).

Ceverha’'s bill was defeated. Thus, ‘Texas law by direct inference grants

the Attorney General authority ‘‘to enter into an out-of-court settlement of

a suit pending before a federal court that would have the effect of... d -clar-

ing a state statute to be unconstitutional under federal law.*’ House Comm.

on State Affairs, Bill Analysis, Tex. H.B. 867, 69th Leg. (1985).

_

JT

’

case.’ After the state decided not to appeal the decision of the

district court, respondent Hill petitioned the Supreme Court

of Texas for a writ of mandamus to compel the Attorney

General to appeal. On April 6, 1983, without a written opinion,

the Texas Supreme Court denied Hill's motion for leave to file

the mandamus. Hill v. Mattox, No. C-1973 (Tex. April 6, 1983).

Significantly, in the petition to the Texas Supreme Court,

Hill himself acknowledged the Attorney General's stature as

the chief legal officer of Texas: ‘‘no other state official .. . has

the authority to represent the State of Texas.” Petition for Writ

of Mandamus at 2.

Thus the rifth Circuit, by allowing Hill to appeal this case,

grants a district attorney the authority to represent the State

of Texas—a power directly prohibited Hill by Texas law.

4. The Fifth Circuit Decision Allowing Hill To Intervene

Fundamentally Misconstrues The Role of Apvellate

Courts In The Federal Judiciary.

The Fifth Circuit decision allowing Hill to intervene was im-

proper if not dangerous. Incredible as it may seem, the Fifth

Circuit has allowed a non-party to create an appeal where he

had no right to appeal and then to intervene in that same

appeal:

Determined to uphold the constitutionality of a Texas

statute whatever obstacles bar the way, the majori-

ty opinion tramples every procedural rule it considers.

No party to the suit has pursued this appeal, but the

5. Because Hill is incapable of prosecuting this appeal under Texas law,

the Fifth Circuit's en banc decision impermissibly injects itself into the in-

ternal affairs of Texas. See Rizzo v. Goode, 423 U.S. 362, 379-383 (1976)

Under basic principles of comity and federalism this Court should protect

the sovereign interests of Texas by not allowing Hill to prosecute the ap-

peal before the Fifth Circuit and in the process nullify the effect of Texas

law. See generally Younger v. Harris, 401 U.S. 37 (1971); Hilton v. Guyot,

159 U.S. 113, 163-164 (1895); 17 Wright, Miller & Cooper, Federai Practice

and Procedure §§ 4241, 4251 (1978).

-16-

majority opinion recognizes an appeal filed by a class

member who was not a class representative at the

time he filed his appeal, permits a so-called interven-

tion to be filed in the court of appeals by the same

class member who sought to intervene only in his own

abortive-appeal. . . .

Baker, 769 F.2d at 293 (Rubin, J., dissenting).

Hill was not a party to the suit and did not have a right to

appeal the district court judgment. Mere class membership did

not accord Hill full party status. See Newberg, Class Actions,

§ 2830 (1977).

Further, Hill lacked standing to appeal on the basis that he

was not an aggrieved party. Hill was not personally aggrieved

by the judgment declaring the statute unconstitutional. Even

assuming, arguendo, that the law was capable of enforcement

before the judgment was entered, once the statute was declared

unconstitutional, Hill no longer was under an official duty to

enforce it. Hill has been aggrieved no differently than any other

attorney, judge, or local prosecuting attorney in Texas who is

bound to follow the laws. Since Hill suffered no ‘“‘demonstrable,

particularized injury’ necessary to satisfy Article III standing

requirements, Hili cannot prosecute an appeal.® See Zablocki

v. Redhail, 434 U.S. 374, 380 n. 6 (1978).

6. The standing limitations on the federal judiciary embodied in the ‘‘case”’

and “‘controversy”’ requirements of Article III require a court to consider

constitutional as well as prudential factors before it exercises judicial power.

Warth ». Seldin, 422 U.S. 490, 498 (1975).

Inherent in the prudential element of Article III standing is respect for

the operation of the other branches of government: “‘when transported into

an Article III context, [the principle that a government should be given wide

latitude in the operation of its own internal affairs], grounded as it is in the

idea of separation of powers counsels against recognizing standing in a case

brought . .. to seek a restructuring of the apparatus established hy the ex-

ecutive branch to fulfill its legal duties."’ Allen v. Wright, 104 S.Ct. 3315,

3330 (1984). See City of Los Angeles v. Lyons, 461 U.S. 95 (1983).

Thus, standing may be denied on grounds that a suit interferes with the

internal operations of an independent governmental entity. Insofar as Hill's

participation in this suit restructures the interna! organization of Texas

government, he should be denied standing to prosecute an appeal.

pe ef

-]7-

A motion to intervene filed by 2 member of a class in an ap-

pellate court which had not been acted upon by a district court

does not create appellate jurisdiction. “An intervenor by defini-

tion does not create a suit on appeal; he intervenes in an ac-

tion that has already been undertaken.” Baker, 769 F.2d at 295

(Rubin, J., dissenting). Because Hill could not, and did not have

standing to appeal at the time he filed his motion to intervene,

there was no appeal, and a fortiori intervention was impossible.

In the midst of its confusion the Fifth Circuit cast off all pro-

cedural shackles, violated the exclusive fact finding province

of the federal district courts and found that intervention was

proper under Rule 23(d)(2) and 24(a)(2) of the Federal Rules of

Civil Procedure. See 7A C. Wright & A. Miller, Federal Prac-

tice and Procedure § 1791, at 192 (1972) (Rule 23 gives the trial

court extensive power to control the conduct of class actions).

Even if consideration of Hill’s motion to intervene was pro-

perly before the Fifth Circuit, Hill did not meet the re-

quirements of Rule 24(a) for intervention.

Rule 24(a)(2) requires that the applicant for intervention

establish all of the following four elements before intervention

as of right is granted: (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 abili-

ty to protect that interest; (4) the applicant's interest must be

inadequately represented by the existing parties to the suit.

New Orleans Public Service, Inc. v. United Gas Pipeline Co.,

732 F.2d 452, 463 (5th Cir. 1984) (en banc).

Hill filed a notice of appeal; nine months later he filed a mo-

tion to intervene in that same appeal. A motion to intervene

filed in an appellate court in an existing appeal by a non-party

who was aware of the action in the district court is not timely.

See McKenna v. Pan American Petroleum Corp., 303 F.2d 778,

779 (5th Cir. 1962); see also Baker, 769 F.2d at 296 (Rubin, J.,

dissenting); cf. United Airlines Inc. v. McDonald, 432 U.S. 385,

390 (1977) (class member must timely assert his

right to intervene in trial court).

-18-

The interest to be protected must be “direct, substantial,’

and legally protectable.’’ New Orleans Public Service, Inc., 732

F.2d at 463. Hill did not have this kind of interest: he did not

face expulsion from office if he complied with the district court

judgment; he faced no monetary costs either in his personal

or official capacities; he never showed that he ever enforced

the law or was going to enforce it. Hill had no legally

recognizable interest; Hill was not entitled to intervene simp-

ly because he would have ruled differently had he been the

judge. See Pate v. Dade County Schooi Board, 588 F.2d 501,

503 (5th Cir. 1985).

The Attorney General defended the interests of the state—

the real party in interest—in the district court. Hill’s only

ground of inadequate representation is the class represen-

tatives’ failure to appeal. Failure to appeal is only a factor in

deciding whether representation has been adequate. See Baker,

769 F.2d at 297 (Rubin, J. dissenting). The core test for ade-

quate representation, which Hill cannot meet, is whether the

applicant for intervention can show “‘adversity of interest, col-

lusion, or nonfeasance.”’ Bush v. Viterna, 740 F.2d 350, 355 (5th

Cir. 1984).

Intervention was improperly granted since none of the four

requirements is met.

The Fifth Circuit’s sponsorship of Hill's appeal deviates so

substantially from accepted federal procedure that this ground

alone justifies the granting of certiorari to review the judgment

below.

7. Hill's interest was neither direct or substantial. Hill's true interest was

as an intervenor on behalf of an organization known as Dallas Doctors

Against Aids (DDAA):

Hill has not shown that he is the real party in interest in this

case. Indeed, he has not participated in it in any way—and is

being represenied by a Dallas attorney, Wm. Charles Bundren,

who was an incorporator and an attorney for DDAA. Under these

circumstances, there snould be at lease a minimal showing that

it is Potter County or the Potter County District Attorney—

and not DDAA or its attorneys—that is prosecuting these mo-

tions (and the attempt to retry this case).

Baker v. Wade, 106 F.R.D. 526 (N.D. Tex. 1985} (citations to footnotes

omitted).

-19-

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be granted.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

Executive Assistant Attorney

General for Litigation

Counsel of Record

JAVIER P. GUAJARDO

Assistant Attorney General

Supreme Court Building

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 463-2100

21 January 1986 Attorneys for Petitioner