# Petition for Writ of Certiorari — Baker v. Wade

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 1022

## Text

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.

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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

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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.

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te eat bane eee

tied 4) teh ts

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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).

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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.

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1390%3A1. Public record. Not legal advice.