Amicus Curiae Brief — Michigan Civil Civil Rights Rights Initiative Initiative Initiative Committee v. Coalition to Defend Affirmative Action (No. 07-1182)

O\ MOTION FILED

APR 17 2008

No. 07-1182

In the

Supreme Court of the United States

MICHIGAN CIVIL RIGHTS INITIATIVE

COMMITTEE and AMERICAN CIVIL RIGHTS

FOUNDATION,

Petitioners,

Vv.

COALITION TO DEFEND AFFIRMATIVE

ACTION, INTEGRATION AND IMMIGRANT

RIGHTS AND FIGHT FOR EQUALITY BY

ANY MEANS NECESSARY (BAMN), et al.,

Plaintiffs and Respondents.

and

JENNIFER GRANHOLM, et al.,

. Defendants and Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF FOR CITIZENS IN CHARGE

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS’ PETITION FOR WRIT OF

CERTIORARI

Todd P. Graves

GRAVES BARTLE & MARCUS LLC

1100 Main Street, Suite 2600

Kansas City, Missouri 64105

Telephone: (816) 256-3181

Facsimile: (816) 817-0863

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Citizens in Charge (“CIC”) hereby respectfully

moves for leave to file a brief amicus curiae in this

case in support of Petitioners, as provided under

Rule 37 of the Rules of this Court. The consent of

counsel for all parties has been timely requested and,

with the single exception of Defendant-Respondents

Regents of the University of Michigan, Board of

Trustees of Michigan State University, and Board of

Governors of Wayne State University, has been

obtained. CIC has no parent or _ publicly-held

company owning 10% or more of the corporation’s

stock.

CIC is a non-profit 501(c)(4) advocacy group

that seeks to protect and expand the initiative and

referendum rights of citizens, in Michigan and across

the country. It believes in maintaining citizen

control of government. CIC works with activists,

legislators, media, opinion leaders and voters to

protect the initiative and referendum process in

states where it is enjoyed by the people, and to

expand the process to states where voters currently

lack these rights. CIC educates the public on the

benefits of these rights and also litigates to protect

and expand them.

While CIC does not take stands on particular

ballot issues, it does assist groups who wish to

exercise their direct democracy rights. The initiative

right is often the only avenue for citizen-activists to

enact Jaws which limit government. It is crucial to

the initiative right that, after having sacrificed their

time, resources, and labor to secure popular approval

of a measure, sponsors are able to defend the

initiative from court challenges launched by the very

foes they had just vanquished at the ballot box. In

most, if not all, cases this final effort cannot be left to

state government. Indeed, citizens resort to the

initiative process precisely because the goals they

support are ignored by political elites who control

state government. CIC is dedicated to ensuring that

the people continue to have access to the initiative

right, and thus has a keen interest in the issues

posed in this litigation.

Petitioners have focused on the particular

facts of their case and this particular initiative. CIC,

as a long-time advocate of initiative rights, would

like to provide the Court with its perspective. The

attached brief contains an overview of initiative and

similar rights as they fit in the political process,

often as a last resort for ordinary citizens to have

their voices heard in a complicated political world of

big government and special interests. In particular,

many citizens advocate for political change through

the initiative process even though the laws they seek

to pass will provide them with no direct economic or

regulatory benefit. It is this political and ideological

interest, not merely the desire for material gain, that

motivates many initiative proponents to sacrifice

their labor, money, and time with their family to

pass new laws.

The brief also includes an extensive discussion

of how the courts have traditionally afforded

initiative sponsors (and others directly involved in

the passage of a law or regulation) the right to

intervene in court challenges to the laws they were

responsible for getting to the people. Finally, the

brief addresses recent developments in Sixth Circuit

case law, notably the decision in the case at hand,

which threaten to erode the important rights

available to citizens in half the states to make their

voices heard through the initiate and referendum

process. CIC believes that its proposed brief will

assist the Court in analyzing the issues presented in

this case, and hopes that the Court will agree to

consider its brief in deciding Petitioners’ Petition for

Certiorari.

CONCLUSION

For the foregoing reasons, CIC respectfully

requests that the Court grant it permission to file its

attached brief amicus curiae in this case.

Te ‘

Todd P. Graves

GRAVES BARTLE & MARCUS LLC

1100 Main Street, Suite 2600

Kansas City, Missouri 64105

Telephone: (816) 256-3181

Facsimile: (816) 817-0863

mitted,

BRIEF FOR CITIZENS IN CHARGE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS’

PETITION FOR WRIT OF CERTIORARI

TABLE OF CONTENTS

Page

py PRS) eh ogy tg) ra i

TARE OF ALTTRIORMIT ie. ...........20505.. ili

RE Pr IE 6 occ wt ee cewenenene 1

SUMMARY OF ARGUMENT .................. 1

MI hig as <a

I. The Initiative Process Allows Ordinary

Citizens To Participate in the Political

I Sib eh Ae eis ay eas 4

II. Rule 24(a) Permits Intervention of

Right Under Traditionally Liberal

IE oe ees Naor cena a We 6

Iii. Initiative Sponsors Have Historically

Been Entitled to Intervention of Right.

A. Initiative Sponsors Plainly

Have a Sufficient Interest,

Which May Otherwise Be

Impaired, to Justify

Intervention of Right....... 9

B. The interests of Initiative

Sponsors Clearly Are Not

Adequately Represented by

Government Parties ...... 12

. Initiative Sponsors Should

Enjoy a Per Se Right to

Intervene Under Rule

IV. The Sixth Circuit Departs from

Established Precedent, Holding that

Initiative Sponsors Lack Sufficient

Interest to Intervene in Support of

Legislation Enacted Through their

Efforts. .

A. Sixth Circuit Precedent on

B.

CONCLUSION .....

Intervention of Right... ... 16

The Sixth Circuit Denies

Initiative Sponsors the Right

to Intervene in Support of The

Resulting Law Merely

Because They are Not Subject

to its Regulation......... 19

TABLE OF AUTHORITIES

CASES

Alaskans for a Common Language, Inc. v. Kritz

3 P.3d 906 (Alaska 2000).......... 12, 13, 14

Bates v. Jones

137 P.ne S70 Wth Cir. 1007) ............. 11

Bates v. Jones

904 F. Supp. 1080 (N.D. Cal. 1995) ....... 15

California ex rel. Lockyer v. United States

450 F.2d 436 (9th Cir. 2006) .............. 6

Coalition of Arizona, etc. v. Department of Interior

100 F.3d 837 (10th Cir. 1996) ............ ll

Coalition to Defend Affirmative Action v. Granholm

501 F.3d 775 (6th Cir. 2007) . ... 21, 22, 23, 24

Feller v. Brock

802 F.2d 722 (4th Cir. 1986) .............. 6

Gratz v. Bollinger

183 F.R.D. 209 (E.D. Mich. 1989) ......... 19

Grutter v. Bollinger

188 F.3d 394 (6th Cir. 1999)........ 6, 18, 19

Idaho Farm Bureau Federation v. Babbitt

58 F.3d 1392 (9th Cir. 1995) ....... 11, 14, 21

ee

Michigan State AFL-CIO v. Miller

103 F.3d 1240 (6th Cir. 1997). .7, 16, 17, 18, 20

Northland Family Planning Clinic, Inc. v. Cox

487 F.3d 323 (6th Cir. 2007)....... 20, 21, 22

Prete v. Bradbury

438 F.3d 949 (9th Cir. 2006)............. 11

Providence Baptist Church v. Hillandale Committee,

Ltd.

425 F.3d 309 (6th Cir. 2005)............. 17

Sagebrush Rebellion, Inc. v. Watt

713 F.2d 525 (9th Cir. 1983)... 7, 9, 10, 12, 13

Sportsmen for 1-143 v. Montana Fifteenth Judidical

District Court, Sheridan County

40 P.3d 400 (Mont. 2002)............. 11,13

Trbovich v. United Mine Workers

ee TE kk v's Ss es ve ee 7.72

Turn Key Gaming, Inc. v. Oglala Sioux Tribe

164 F.3d 1080 (8th Cir. 1999) ............. 6

Utah Association of Counties v. Clinton

255 F.3d 1246 (10th Cir. 2001) ......... 9,13

Washington State Building & Construction Trades

Council, AFL-CIO v. Spellman

684 F.2d 627 (9th Cir. 1982) ........... 8, 21

Yniguez v. State of Arizona

939 F.2d 727 (9th Cir. 1999) .......... 14, 15

UNITED STATES CONSTITUTION

PN Sa a he os eid se oot a abe 15

RULES OF COURT

Pee Te Se ok i'n ob kaa Se ech ee passim

MISCELLANEOUS

7C Fed. Prac. & Proc. Civ.3d § 1908 (2008)........ 7

7C Fed. Prac. & Proc. Civ.3d § 1909 (2008)........ 7

CO AM, FUE. TE FORCES BOO cis nice ee knee 6

INTEREST OF AMICUS

The interest of Citizens in Charge is described

in its motion for leave to file this brief in support of

Petitioners.'

SUMMARY OF ARGUMENT

The initiative process reserves the people’s

right to enact laws directly when their elected

representatives refuse to do so. Initiative sponsors

devote considerable resources to their causes —

sometimes against all economic logic. In most cases,

the laws they advocate do not benefit them directly.

Sponsors suffer the considerable financial, emotional,

and social costs of promoting an initiative simply

because they are committed to a political principle.

The morning after the votes are counted, such

citizen-activists must explain to their long-suffering

families that their hard-fought electoral victory is

“merely” the victory of a political idea — not some

financial or legally protectable interest that will

accrue to the family.

In appreciation of this reality, many courts

have held that initiative sponsors (and others who

have been instrumental in the passage of laws) are

entitled to intervene in cases challenging the laws

they labored to pass. In circumstances such as this,

! AJl parties have consented to the filing of this brief, except for

the University Defendant-Respondents. Counsel of record for

all parties received notice at least 10 days prior to the due date

of the amicus curiae’s intention to file this brief.

This brief was prepared entirely by amicus curiae, with

no contribution of content or funds by any interested party or

their counsel.

the Federal Rules of Civil Procedure allow parties to

intervene in pending litigation, upon timely motion,

if they “claim an interest relating to the property or

transaction that is the subject of the action,” the

disposition of which “may as a practical matter

impair or impede the movant’s ability to protect its

interest,” unless “existing parties adequately

represent that interest.” Fed. R. Civ. P. 24(a)(2).

This rule is interpreted liberally to permit

intervention by as many truly interested parties as

due process and efficiency permits. (Of course,

initiative sponsors are a finite group, so allowing

their intervention does not encumber a litigation

with too many parties — only the ones with the most

at stake and the most to offer.) As to the interest

required, the courts have stressed that this need not

be a specific legal or equitable interest; the very

efforts of initiative sponsors evidence their

substantial interest in the resulting laws. Thus,

prohibiting sponsors from intervening in such

lawsuits — while the opponents of the laws are

allowed to participate — is an affront to those citizens

who have contributed their efforts to the political

process. Moreover, it deprives courts of the unique

arguments and advocacy of the very parties who

cared enough about the measure to fight entrenched

governmental and private interests for its passage.

Several courts have observed that _ initiative

advocates’ expertise weighs in favor of intervention.

Once sponsors’ unique interest in initiative

litigation is established, the other elements required

by Rule 24 flow naturally from the precedents of this

Court and the Courts of Appeal, who agree that

proposed intervenors face a minimal burden to show

possible impairment of their interests and

nN

inadequate representation by existing parties.

Indeed, while would-be intervenors need only show

that existing parties may not adequately represent

their interests, in the initiative context there is

typically an actual adversity of interests. In sum,

the realities of the initiative process demonstrate

that initiative sponsors should be entitled to

intervene as of right. Their considerable sacrifices to

pass initiatives that may not even directly benefit

them evidences a political interest which, in a

lawsuit challenging the law, may obviously be

impaired, and government defendants clearly may

not adequately represent the particularized interests

of the official proponents of a law which the

government itself failed to enact.

As the dissent below recognized, the Sixth

Circuit’s decision in this case turns traditional Rule

24(a) analysis on its head, requiring that an

initiative spoasor be directly regulated by the law it

promoted. This test second-guesses the political

goals of initiative sponsors by assigning second-class

status to those who dedicate their money, time, and

efforts to political principles whose implementation

will provide them no direct economic or regulatory

benefit. For purposes of Rule 24, which seeks to

bring together all substantial and unique interests in

a litigation, this preference of economic and

regulatory political interests over purely principled

and _ ideological political interests is wholly

inappropriate. It runs counter to the experience of

400 years of citizen activism on this continent, the

intensity and ultimate success of which has not

always depended on economic and_ regulatory

grievances.

Allowing the Sixth Circuit’s preference for

material-based activism over _ principle-based

activism to gain traction would not only discourage

citizen initiatives, it would place courts in the

dangerous and undemocratic role of deciding which

political messages and speakers deserve to be taken

seriously in the legal system and, by extension, the

public square. This Court must restore order and

right-thinking to Rule 24 jurisprudence.

ARGUMENT

I. The Initiative Process Allows

Ordinary Citizens To Px*ticipate

in the Political Process

About half the states reserve some form of

initiative or referendum right. Initiative sponsors

expend substantial time, energy and money to

ensure that their proposal is placed before the people

and that it becomes law. They are motivated not by

some academic interest in observing a plebiscite, but

by the desire to change the law of the land using

perhaps the most democratically legitimate form of

political action.

Likewise, initiative opponents work

throughout the process not to ensure that state

procedural and substantive requirements are met,

but to ensure the initiative’s defeat. As Petitioners

point out, the sponsors and opponents of this

particular initiative were involved in three separate

lawsuits in state and federal court addressing

various pre-ballot issues. Participation in such

lawsuits is, of course, in addition to the other

expensive and time-consuming work involved in

placing a proposed law before the voters, from

preparing a petition to having the petition form

approved, hiring signature gatherers, circulating the

petition for signatures, having the petition and

Signatures approved, getting the ballot language

approved, etc.

After voters approve an initiative, the process

continues — the same opponents who fought the law

throughout the pre-election phase can now challenge

the law itself in the courts, as was done here. For

many years, courts likewise permitted initiatives’

sponsors to intervene as of right under Rule 24(a) so

that they could continue to defend their proposals

against challengers’ attacks.

Recently, however, the Sixth Circuit fashioned

a new test for intervention based on the political

cause and motivation of citizen-proponents’ activism.

Unlike other Circuits, notably the Ninth, the Sixth

Circuit no longer considers more objective and

relevant intervention factors such as_ activists’

demonstrated willingness to support a measure by

acting as sponsors, or the ability of citizen-activists

to articulate a unique interest in advocacy before the

court. This has resulted in an irreconcilable split

among the Circuits.

More importantly, however, it preciudes

principle-driven initiative sponsors from supporting

a cause they have championed from the beginning,

while allowing opponents to continue their attacks.

The uncertainty created by this circuit split means

that citizen-activist-sponsors around the country who

are not motivated by any clear economic or

regulatory interest will have little incentive to

champion a cause knowing that, even if their hard

work pays off, they must forfeit their support of the

measure during the “end-game” in the courts.

II. Rule 24(a) Permits Intervention

of Right Under Traditionally

Liberal Standards

As many federal courts have observed, “Rule

24 is to be construed liberally, and doubts resolved in

favor of the proposed intervenor.” Turn Key Gaming,

Inc. v. Oglala Sioux Tribe, 164 F.3d 1080, 1081 (8th

Cir. 1999). See also California ex rel. Lockyer v.

United States, 450 F.2d 436, 440 (9th Cir. 2006)

(same); 59 Am. Jur. 2d Parties § 168 (same). Thus,

“felven if it could be said that the question raised is a

close one, ‘close cases should be resolved in favor of

recognizing an interest under Rule 24(a).” Grutter

v. Bollinger, 188 F.3d 394, 399 (6th Cir. 1999)

(citation omitted). Such “liberal intervention is

desirable to dispose of as much of a controversy

‘involving as many apparently concerned persons as

is compatible with efficiency and due process.”

Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986)

(citation omitted).

A party is entitled to intervene under Rule

24(a) if the following test is met :

(1) the applicant’s motion must be

timely; (2) the applicant must assert an

interest relating to the property or

transaction which is the subject of the

action; (3) the applicant must be so

situated that without intervention the

disposition of the action may, as a

practical matter, impair or impede his

ability to protect that interest; and (4)

the applicant's interest must be

inadequately represented by the other

parties.

Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527

(9th Cir. 1983) (citation omitted). See also Michigan

State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th

Cir. 1997) (same). This test comes from the text of

the rule itself. See Rule 24(a). These elements are

often interrelated. 7C Fed. Prac. & Proc. Civ.3d §

1908 (2008) (“{I]t is important to note that [Rule

24(a)’s requirements] often are very interrelated and

the ultimate conclusion reached as to whether

intervention is of right may reflect’ that

relationship.”).

The burden of establishing the third and

fourth elements is minimal. As to the third: “To

satisfy this element of the intervention test, a would-

be intervenor must show only that impairment of its

substantial legal interest is possible if intervention is

denied. ... This burden is minimal.” Miller, 103 F.3d

at 1247 (emphasis added). Similarly, the fourth

factor — inadequate representation by an existing

party — is easily shown. As this Court has stated, an

applicant need only show that “representation of his

interest ‘may be’ inadequate; and the burden of

making that showing should be treated as minimal.”

Trbovich v. United Mine Workers, 404 U.S. 528, 538

n.10 (1972).?

2 In fact, a 1966 amendment to the rule indicates that burden is

now on the opponent of intervention to establish adequate

representation. See 7C Fed. Prac. & Proc. Civ.3d § 1909 (2008)

7

Ill. Initiative Sponsors Have

Historically Been Entitled to

Intervention of Right

Under Rule 24(a) jurisprudence, a_ timely

motion to intervene will be granted as long as the

movant has a sufficient interest related to the subject

of the litigation, and satisfies the minimal burdens of

showing impairment and inadequate representation.

Given the liberal construction accorded the rule, and

sponsors’ obvious interest in supporting their new

law, courts have traditionally permitted sponsors to

intervene of right in cases involving the subject of

the initiative.

In the seminal case of Washington State

Building & Construction Trades Council, AFL-CIO v.

Spellman, the Ninth Circuit noted that Rule 24

“traditionally has received a liberal construction in

favor of applicants for intervention.” 684 F.2d 627,

630 (9th Cir. 1982), cert. denied, 461 U.S. 913 (1983).

Thus, it was clear to the court that the movant, “as

the public interest group that sponsored the

initiative, was entitled to intervention as a matter of

right under Rule 24(a).” 684 F.2d at 630. The Ninth

(“[I]}t seems entirely clear that the effect of this change is to

shift the burden of persuasion. Before the amendment the

intervenor had to satisfy the court that representation was or

might be inadequate. Although some courts seem to continue to

follow this approach, ... the language of the rule clearly

suggests that now the intervenor is to be allowed in, if the other

conditions of the rule are satisfied, unless the court is

persuaded that the representation is in fact adequate.”).

Circuit apparently recognized the issue to be so clear

as to warrant little discussion.

A. Initiative Sponsors Plainly

Have a Sufficient Interest,

Which May Be Impaired,

to Justify Intervention of

Right

Over the years, the Ninth Circuit (and other

courts) have allowed intervention where the movant

was directly involved in the enactment of the law

being challenged. The courts have had hittle

difficulty in finding that such parties satisfied the

second and third elements required for intervention.

For example, in Sagebrush Rebellion, the Ninth

Circuit held that it was error to deny intervention to

the National Audubon Society in a suit challenging

the government’s creation of a bird of prey

conservation area. The Society was a non-profit

organization “devoted to the protection of birds and

other animals and their habitats,” and had actively

participated in the administrative process

culminating in the establishment of the conservation

area. 718 F.2d at 526-27. The court concluded that

“there can be no serious dispute in this case

3 Like Sagebrush Rebellion, several cases of note do not

necessarily involve initiatives. Many cases have involved

administrative proceedings. See, eg., Utah Association of

Counties v. Clinton, 255 F.3d 1246, 1252 (10th Cir. 2001) ([W]e

find persuasive those opinions holding that organizations whose

purpose is the protection and conservation of wildlife and its

habitat have a protectable interest in litigation that threatens

those goals.”). In cases involving initiative sponsors, the case

for intervention is even stronger as they are in a very real and

direct way responsible for the law being challenged.

concerning either the timeliness of the motion to

intervene or of the existence of a protectable interest

on the part of the applicant which may, as a practical

matter, be impaired. An adverse decision in this suit

would impair the _ society’s interest in_ the

preservation of birds and their habitats.” Jd. at 528

(citing Spe//iman).

Other courts have easily concluded that the

official sponsors of an initiative (and others in

analogous situations) have sufficient interest to

intervene. Conservation groups dedicated to the

preservation of wildlife have been held to have a

sufficient interest:

A public interest group is entitled as a

matter of right to intervene in an action

challenging the legality of a measure it

has supported. ... ICL/CIHD have been

active in the process [the Fish and

Wildlife Service (“FWS”)] went through

to list the Springs Snail as an

endangered species. The groups even

filed a suit to compel FWS to make a

final decision on the proposed listing

rule. ICL/CIHD satisfy the interest

requirement.

Looking to the third requirement,

we conclude that disposition in_ the

present action would impair

ICL/CIHD’s ability to protect their

interest in the Springs Snail and its

habitat. The action could, and did, lead

to a decision to remove the Springs

Snail from the lhst of endangered

species.

10

Idaho Farm Bureau Federation v. Babbitt, 58 F.3d

1392, 1397-98 (9th Cir. 1995) (footnote and citations

omitted). See also Coalition of Arizona, etc. v.

Department of Interior, 100 F.3d 837, 841 (10th Cir.

1996) (“In sum, we hold that Dr. Silver’s involvement

with the Owl in the wild and his persistent record of

advocacy for its protection amounts to a direct and

substantial interest in the listing of the Owl for the

purpose of intervention as of right, even though Dr.

Silver has little economic interest in the Owl itself.

Additionally, Dr. Silver’s interest in the Owl is

legally protectable as evidenced by his successful

effort to have the Owl protected as an endangered

species under the Act.”).

The interest in these cases arose from the fact

that the proposed intervenor was the sponsor or

supporter of the initiative (or other push for

government action). The intensity - not the

economic/regulatory nature — of proponents’ interests

was the critical factor: the cases have involved

environmental protection, term limits, the use of

English only in government, and other causes. See,

e.g., Prete v. Bradbury, 438 F.3d 949, 955 (9th Cir.

2006) (“Here, Nesbitt was chief petitioner for the

measure, and the Oregon AFL-CIO was a main

supporter of the measure. Under the rule from

Sagebrush Rebellion, intervenor-defendants thus

have a ‘significant protectable interest’ related to this

action, and an adverse judgment might impede or

impair that interest.”); Bates v. Jones, 127 F.3d 870,

874 (9th Cir. 1997) (“Unlike the other intervenors on

the state’s side, [movant] was not an official sponsor

of the {term limits] initiative, and we see no reason

to grant it intervenor status.”); Sportsmen for 1-143

v. Montana Fifteenth Judicial District Court, 308

Mont. 189, 194, 40 P.3d 400, 403 (2002) (“In this

case, the Sportsmen’s Groups were the authors,

sponsors, active supporters and defenders of {the

initiative]. Accordingly, we conclude that the

Sportsmen’s Groups have a direct, substantial,

legally protectable interest in the instant action

challenging the interpretation of I-143, and, as such,

they are entitled to intervene as a matter of right.”);*

Alaskans for a Common Language, Inc. v. Kritz, 3

P.3d 906, 913 (Alaska 2000) (“If the initiative were

declared unconstitutional, its enactment would

obviously be vitiated and the efforts of [the] initiative

committee members|] to enact a law requiring the

use of English in government would be frustrated.”).

Unlike the Sixth Circuit, none of these courts second-

guessed the rationality of or economic-material basis

for the intervenors’ support of the initiatives at issue;

instead, they used an objective measure, hke

sponsorship of the measure, to determine the

intensity of the intervenors’ interest.

B. The Interests of Initiative

Sponsors Clearly Are Not

Adequately Represented by

Government Parties

The courts have followed Supreme Court

precedent that the movant’s burden to show

inadequate representation is “minimal,” requiring

only that they show such representation “may be”

inadequate. Sagebrush Rebellion, 713 F.2d at 528

(citing 7rbovich, 404 U.S. at 538 n.10). (Thus, it was

not necessary to show any collusion or other conduct

unfavorable to the intervenor’s interests; indeed, in

4 As many states’ rules follow the Federal Rules, their courts

look to federal precedent.

12

Sagebrush Rebellion, the government had “continued

professionally and diligently to defend” the actions.

Id.) The court in Sagebrush Rebellion considered

several factors in holding that this element was

satisfied, including “whether the Secretary will

undoubtedly make all of the intervenor’s arguments,

whether the Secretary is capable of and willing to

make such arguments, and whether the intervenor

offers a necessary element to the proceedings that

would be neglected.” /d. The court also cited the fact

that “[iJn addition to having expertise apart from

that of the Secretary, the intervenor offers a

perspective which differs materially from that of the

present parties to this litigation.” /d. Thus, even

where the government’s position was not adverse to

the intervenors’, the courts have permitted

intervention. See also Utah Association of Counties

v. Clinton, 255 F.3d 1246, 1256 (10th Cir. 2001)

(interests of environmental organizations were not

adequately represented by government in action to

invalidate proclamation’ establishing national

monument; even if government had _ vigorously

represented interests of intervenors in defending

creation of monument, it was not realistic to assume

that government's programs would remain

unaffected by unanticipated policy shifts); Sportsmen

for 1-143, 308 Mont. at 194-95, 40 P.3d at 403

(sponsors entitled to intervene where, inter a/ia,

government defendant was “a political appointee and

considering the ongoing’ political controversy

surrounding the game farm issue”); Kritz, 3 P.3d at

914 (“Indeed, we believe that a sponsor's direct

interest in legislation enacted through the initiative

process and the concomitant need to avoid the

appearance of adversity will ordinarily preclude

courts from denying intervention as of right to a

sponsoring group.”).

is

In this case, and many others involving

intervenors, it is beyond dispute that the

government's defense of the law at issue is in fact

inadequate. Often, the state defendants are openly

hostile to the very law they purport to defend. See,

e.g., Babbitt, 58 F.3d at 1398 (“‘FWS delayed its

decision on the [endangered species] listing proposal

for years and took action only after ICL/CIHD filed

suit to compel FWS to make a decision. ... FWS was

unlikely to argue on behalf of ICL/CIHD, the very

organizations that compelled FWS to make a final

decision by filing a lawsuit. FWS would not have

adequately represented ICL/CIHD’s §interests.”);

Kritz, 3 P.3d at 913-14 (noting that the “Attorney

General's Office questioned the constitutionality of

the initiative” and “the governor personally opposed

the measure publicly and unequivocally by stating

that it was “unnecessary, unfair and unfortunate”).

C. Initiative Sponsors Should

Enjoy a Per Se Right to

Intervene Under Rule

24(a)

Given the unique posture of initiative

sponsors, in comparison with other prospective

intervenors, they should enjoy an automatic right to

intervene under Rule 24{a). Indeed, some courts

have declared that there is a “per se” rule permitting

initiative sponsors to intervene, acknowledging that

a sponsor's right to intervene obviously flows from its

particular interest in the measure it brought to the

people for a vote. As the Ninth Circuit has stated,

“there is a virtual per se rule that the sponsors of a

ballot initiative have a sufficient interest in the

subject matter of litigation concerning that initiative

to intervene pursuant to [Rule] 24(a).”. Yniguez v.

14

State of Arizona, 939 F.2d 727, 733 (9th Cir. 1991).°

See also Bates v. Jones, 904 F. Supp. 1080, 1086

(N.D. Cal. 1995) (“The individualized interest of

official proponents of ballot initiatives in defending

the validity of the enactment they sponsored is

sufficient to support intervention as of right.”).

Indeed, the Bates court distinguished between

the interests of official sponsors and mere

“supporters” of the measure. Jd. at 1086-87 (“These

individualized interests are distinguishable from the

general interest of supporters of term limits,

however.”). It explained that the interest of the

official sponsors of the measure “in its continued

validity could obviously be impaired in _ this

litigation” and they would therefore be allowed to

intervene if their interest was not adequately

represented by other parties. The court added that

“an official sponsor of a ballot initiative may be

considered to add an element not covered by the

government in defending the validity of the initiative

in that the very act of resorting to a ballot initiative

indicates a rift between the initiative’s proponents

and voters and their elected officials on the issue

that underlies the initiative.” /d. at 1087. A per se

rule allowing intervention of right recognizes the

important interest sponsors have as the result of

5 Yniguez involved a motion to intervene made after the district

court declared the challenged law (declaring English to be the

official state language) unconstitutional. The only defendant in

the case, the Governor, who had publicly opposed the measure,

announced she would not appeal the district court's order. /d.

at 730. The sponsor sought to intervene in order to pursue the

appeal itself, which the appellate court held would require the

sponsor to satisfy Article IIT standing in addition to satisfying

Rule 24(a). /d. at 731. That issue is not presented here.

their dedication to the issue, and provides the court

the benefit of the sponsors’ expertise and

commitment.

IV. The Sixth Circuit Departs from

Established Precedent, Holding

that Initiative Sponsors Lack

Sufficient Interest to Intervene in

Support of Legislation Enacted

Through their Efforts

A. Sixth Circuit Precedent on

Intervention of Right

In 1997, the Sixth Circuit held that the

Michigan Chamber of Commerce was entitled to

intervene in a case challenging campaign finance

legislation. Michigan State AFL-CIO v. Miller, 103

F.3d 1240 (6th Cir. 1997). Although this case did not

involve an initiative, the court noted the Chamber

had been active in the process leading to the

legislation, analogizing the facts before it to those in

the Ninth Circuit’s Babbitt decision. Jd. at 1246.

Noting thai the Circuit followed “a rather expansive

notion of the interest sufficient to invoke

intervention as of right,” requiring less of a showing

than the Article III standing required to commence a

lawsuit, the court “rejectled] the notion that Rule

24(aX(2) requires a_ specific legal or equitable

interest.” Jd. at 1245. Observing that the inquiry

was “necessarily fact-specific,” id, the court

concluded that several facts supported intervention:

The evidence shows that the

Chamber was (1) a vital participant in

16

the political process that resulted in

legislative adoption of the 1994

amendments in the first place, (2) a

repeat player in Campaign Finance Act

litigation, (3) a significant party which

is adverse to the challenging union in

the political process surrounding

Michigan state government’s regulation

of practical campaign financing, and (4)

an entity also regulated by at least

three of the four statutory provisions

challenged by plaintiffs.

Id. at 1246-47. Cf Providence Baptist Church v.

Hillandale Committee, Ltd., 425 F.3d 309, 316 (6th

Cir. 2005) (“In short, there is a serious question as to

whether Hillandale Committee is, in fact, the duly

authorized committee which circulated’ the

referendum petitions. If it is not, it has no basis

from which to claim a substantial legal interest in

protecting the results of the referendum.”).

The court in Miller went on to find that the

minimal showings required for the impairment and

inadequate representation elements were met. 103

F.3d at 1247-48. Significantly, the court pointed out

that the Secretary of State had opted not to appeal a

preliminary injunction entered in the case. The

court explained:

While passively tolerating a preliminary

injunction pending a final resolution of

the merits may serve the interests of

the State of Michigan, it cannot be said

to represent the Chamber’s interests, in

view of its concern with timeliness. The

decision not to appeal certain aspects of

17

the district court's prelminary

injunction may amount to sound

litigation strategy and a _ prudent

allocation of Michigan taxpayers’

money, but this decision also further

illustrates how the interests of the state

and of the Chamber diverge.

Id. at 1248. It is important to note that in the

present case, not only did the government defendant

“passively toleratle]” a preliminary injunction, it

affirmatively agreed to it.

In 1999, the court followed Miller to permit

intervention in a case challenging a university’s race-

based admissions policy. Grutter v. Bollinger, 188

F.3d 394 (6th Cir. 1999). The district court below

had denied intervention to students and applicants

for admission to the university as well as three “pro-

affirmative action coalitions” and a_ non-profit

organization “whose stated mission is to preserve

opportunities for African-American and _ Latino/a

students in Michigan.” Jd. at 397. On appeal, the

Sixth Circuit held that the proposed intervenors all

had sufficient interest, noting that this was an

“expansive notion” that did not require a “specific

legal or equitable interest.” Jd at 398 (citations

omitted). Noting that close cases should be resolved

in favor of intervention, the court held that the

proposed intervenors had stated a sufficient interest,

“namely their interest in gaining admission to the

University[.]” Jd. at 399. (In concluding, the court

did not specifically address the coalitions’ or non-

profit group’s interests, but did hold that all proposed

intervenors could intervene.) After finding that the

intervenors also met the minimal burden of showing

a possible impairment of their interest, the court

criticized the district court’s analysis of the

inadequate representation issue, stressing that “the

proposed intervenors were required only to show that

the representation might be inadequate.” Jd. at 399-

400 (emphasis in original).’

B. The Sixth Circuit Denies

Initiative Sponsors the

Right to Intervene Merely

Because They Are Not

Directly Regulated by the

Resulting Law

The Sixth Circuit subsequently departed from

the reasoning of the foregoing precedent, announcing

a new test that creates two classes of political

advocates: those who act out of economic and

regulatory considerations, and those who act based

on political principle.

6 The district court below noted that the non-profit group

consisted of “individuals, some of whom are parents or

grandparents of prospective African-American and _ Latino

students in the State of Michigan.” Gratz v. Bollinger, 183

F.R.D. 209, 212 n.4 (E.D. Mich. 1989). The district court

therefore concluded that “it would appear that the proposed

student intervenors and the assuciation share the same

‘interest’ in the preservation of race as a factor in determining

admissions.” /d.

7 The court observed that “this circuit has declined to endorse a

higher standard for inadequacy when a government entity is

involved.” /d. As the case law makes clear, such a higher

standard is especially contraindicated where, as in this case,

the government is defending an initiative measure.

As noted above, the Miller court remarked

that, as one of four facts supporting a finding of

interest, the intervenor was itself regulated by some

of the provisions being challenged. 103 F.3d at 1247.

In Northland Family Planning Clmrc, Inc. v. Cox, the

court inexplicably exaggerated the significance of

this single factor. 487 F.3d 323 (6th Cir. 2007), cert.

denied., -- U.S. ---, 128 S. Ct. 872, 873 (2008). The

court therefore denied intervention to STTOP, the

committee formed to promote passage of the law

being challenged. The court distinguished Mriler,

stating:

Here, STTOP might share two of these

four factors with the Chamber of

Commerce, but clearly does not share

the other two. Although STTOP was

involved in the process that resulted in

the passage of the challenged

legislation, and might be adverse to the

plaintiffs in the state’s regulation of

abortion practices, it is not a repeat

player in litigation, as it was created for

only one specific ballot initiative, and is

not itself regulated by any of the

statutory provisions at issue here. This

fourth factor is particularly significant —

unlike the Chamber of Commerce in

Miller, STTOP has only an ideological

interest in the litigation, and the

lawsuit does not involve the regulation

of STTOP’s conduct in any respect.

Thus, STOPP’s case for intervention

here is much weaker than that of the

Chamber of Commerce in Miller.

487 F.3d at 344-45. The court's disproportionate

focus on this one factor is not supported in prior

precedent.* Nor does it make sense from a logical

standpoint. The court stated that the group was “not

a repeat player in litigation, as it was created for

only one specific ballot initiative.” However, the fact

that the group was actually created to, and did,

sponsor an initiative on the issue, with all the efforts

that entails, indicates that the group’s interest was

more than merely ideological. This is precisely the

type of effort which has led the Ninth Circuit and

other courts to recognize the right of initiative

sponsors to intervene in cases challenging the

resulting legislation.

In the present case, the Sixth Circuit

unaccountably elevated the Mil/er court's reference

to a single relevant fact — direct regulation by the

resulting law — to a prerequisite for intervention.

Coalition to Defend Affirmative Action v. Granholm,

501 F.3d 775 (6th Cir. 2007). Petitioners argued to

8 The court attempted to draw what it called a “useful

distinction” between cases challenging the procedure required

to pass a law (in which intervention would be appropriate) and

those challenging the government's subsequent enforcement of

the rule or law after its enactment. /d. at 345. However, most

examples cited by the court were in fact post-enactment

challenges. The courts have not drawn distinctions based on

the type of challenge to laws enacted through the initiative

process; they have simply held that in the face of such a

challenge, on whatever grounds, the sponsor or supporter may

intervene. See, e.g., Spellman, 684 F.2d at 629-30 (in action

challenging constitutionality of statute, sponsor entitled to

intervene as matter of right); Babbitt, 58 F.3d at 1397 (groups

entitled to intervene in action challenging rule on basis rule

was arbitrary and capricious because defendant committed

procedural errors).

21

the Sixth Circuit that “as groups substantially

involved in the process leading to the adoption of the

challenged amendment, they have a legal interest in

the subject matter of this lawsuit,” relying on the

court’s prior decisions in Grutter and Miller, as well

as Ninth Circuit law that the court had cited in the

past. Jd. at 780. Nonetheless, the court held that

under Northland Family Planning, which it found

dispositive, “an organization involved in the process

leading to the adoption of a challenged law does not

have a substantial legal interest in the subject

matter of a lawsuit challenging the legality of that

already-enacted law, unless the challenged law

regulates the organization or its members.” Id. at

781 (emphasis added). Although this conclusory

statement mischaracterizes the court’s prior opinion,

in which it referred to this factor as “particularly

significant,” 487 F.3d at 345, rather than a strict

precondition for intervention, it confirms that the

Sixth Circuit has fashioned a new test at odds with

that of the Ninth.

Indeed, the dissent below criticized the court’s

reliance on Northland Family Planning because that

opinion “fundamentally altered the Rule 24(a)

landscape” and ignored the basis for the prior

holdings of the Sixth and Ninth Circuits. 501 F.3d at

785 (Kennedy, J., concurring and dissenting in part);

see also id. at 785 n.1 (adding that the holding may

well be dicta). Prior case law simply did not require

that a proposed intervenor be subject to the law it

sponsored in order to support intervention. As the

dissent below noted, in the Spel/man case “I[t]he

public interest group was not regulated by the

initiative, which the majority concludes is critical

here[.]” Jd.

The dissent also stressed a reality which the

majority below ignored:

When the government has passed a law,

it can be trusted to administer it. When,

as here, however, government did not

pass the law, but rather the citizens of

the state amended their constitution in

a general election (arguably because

their elected officials would not accede

to their will), that presumption does not

arise.

Id. at 786 (emphasis in original). The dissent further

observed that, as in many cases where the people are

forced to resort to the initiative, there was an

objective basis for the intervenors’ fear that the

government could not be relied upon to defend the

law. See id. at 786 (‘[T]he Attorney General and the

Governor have already compromised with the

plaintiffs and the cross-clatmants in this case and

stipulated to an injunction that, we have previously

found, had no basis in federal law. In addition,

{before the election] the Governor opposed [the

amendment].”).

The dissent correctly concluded:

All of this reinforces concern with

entrusting the “public interest in

enforceability” of a general election,

voter-approved measure to. elected

officials. As the example of the

Governor proves, there are cases in

which the elected officials of a state will

disagree with the majority of the voting

population on a particular point of

23

public policy. Therefore, when the

voters demonstrate their preference on

that point of public policy through the

constitutional amendment process, it

follows that some representative of the

voters has a “substantial interest” in

defending that position: I agree with the

Ninth Circuit’s conclusion in Spe//man

that the sponsor of the measure should

be that representative.

Id. at 786-87.

As the dissent recognized, the majority

decision turns traditional Rule 24(a) analysis on its

head, requiring an initiative sponsor to actually be

directly regulated by the law it promoted. But as

discussed above, the majority’s new rule is grounded

in a political philosophy that prefers some types of

political advocacy over others: “legitimate” advocacy

that is based on some material or economic interest

is preferred and its proponents are welcomed in the

federal courts, while advocacy that is based on

principle, without any specific economic or regulatory

interest, is devalued. Federal courts effectively

“second-guess” the motivations of principle-based

advocates.

Such a preference is without any basis under

Rule 24(a), since both types of advocates would have

already proved the depth of their interests and their

abilities to marshal unique arguments in the courts

through months or years of prior political and legal

efforts at the state level. Thus, the Sixth Circuit’s

new test is itself a political judgment about the value

of different types of advocacy in this country. It isa

judgment which courts should not be allowed to

24

make, since (as discussed in Petitioners’ brief) it

inevitably chills political speech and association.

This Court should consider the serious issues raised

by the circuit spht induced by the Sixth Circuit’s new

test, and should ultimately reject that test as

inconsistent with the text and spirit of Rule 24.

CONCLUSION

For the foregoing reasons, amicus curiac

respectfully requests that the Court’ grant

Petitioners’ writ of certiorari.

Respectfully submitted,

lf

Tdgdd P. Graves

GRAVES BARTLE & MARCUS LLC

1100 Main Street, Suite 2600

Kansas City, Missouri 64105

Telephone: (816) 256-3181

Facsimile: (816) 817-0863