Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on March 3, 4, and 7 2022 (Part I); and cases granted review on February 28, 2022 (Part II).
Opinion: Cameron v. EMW Women’s Surgical Center, 20-601
Cameron v. EMW Women’s Surgical Center, 20-601. In an 8-1 decision, the Court held that the Kentucky Attorney General should have been allowed to intervene to seek further review of a Sixth Circuit decision invalidating a Kentucky abortion statute once the state official who had been defending the law opted not to seek further review. This case arises in the midst of litigation over a 2018 Kentucky abortion statute and a shifting partisan divide in Kentucky’s government. In 2018, the Kentucky legislature passed a law regulating an “abortion procedure known as dilation and excavation.” At that time, Kentucky’s governor was a Republican and its attorney general was a Democrat (Andrew Beshear). EMW Women’s Surgical Center sued to enjoin enforcement of the statute, naming as defendants both the attorney general, “a ‘constitutional State officer’ who is independently elected,” and the secretary for health and family services, who “is appointed by the Governor and serves at his pleasure.” EMW agreed to dismissal (without prejudice) of the claims against the attorney general, though “the attorney general reserved ‘all rights, claims, and defenses that [might] be available to him’ and ‘specifically reserve[d] all rights, claims, and defenses relating to whether he is a proper party in this action and in any appeals arising out of this action.’ It was also stipulated ‘that any final judgment in this action concerning the constitutionality of HB 454 [would] be binding on the Office of the Attorney General, subject to any modification, reversal or vacation of the judgment on appeal.’” The secretary continued defending the law and then pursued an appeal after the district court enjoined enforcement of it. While the appeal was pending, Kentucky held its 2019 election, which resulted in the election of Governor Beshear (D) and Attorney General Daniel Cameron (R). Governor Beshear appointed a new secretary, who continued pursuing the appeal in the Sixth Circuit, represented by the attorney general’s office. A few months later, the Sixth Circuit affirmed the district court’s judgment in a 2-1 opinion.
Within a week of the decision, the secretary promptly “informed the attorney general’s office that he would not file a petition for rehearing en banc or a petition for a writ of certiorari, but the secretary agreed not to oppose the attorney general if he moved to intervene for the purpose of seeking further review.” Over the following week, Attorney General Cameron filed a motion to intervene as a party to seek further review and tendered a petition for rehearing en banc. EMW opposed intervention, but the secretary did not. The Sixth Circuit panel denied the attorney general’s motion by a 2-1 vote, ruling that it was untimely, that the attorney general did not have a substantial legal interest at stake because he was seeking extraordinary review, and that allowing intervention would prejudice EMW because the petition for rehearing en banc raised a third-party standing argument that had not previously been raised. The Court reversed the Sixth Circuit in an opinion written by Justice Alito.
First, the Court determined that it had jurisdiction to review the attorney general’s motion to intervene. The Court rejected the notion that the attorney general’s motion to intervene was jurisdictionally barred merely because the attorney general had agreed to be bound by the judgment as a nonparty. Respondents had urged that because the attorney general was bound by the judgment, he could have filed a notice of appeal to challenge the judgment, and that because he failed to do so, allowing him to intervene would effectively allow him to circumvent the jurisdictional timeline for appealing. The Court concluded that “[t]his argument fails for the simple reason that no provision of law limits the jurisdiction of the courts of appeals in the way respondents suggest.” Respondents, the Court observed, “cite[d] no provision of law that deprives a court of appeals of jurisdiction to entertain a motion for intervention that is filed by a non-party who is bound by the judgment that is appealed.” The Court also declined to recognize a categorical “mandatory claims-processing rule” to that effect because to do so would disregard the terms under which a non-party may agree to be bound by the judgment. Here, for instance, “the attorney general specifically ‘reserved all rights, claims, and defenses . . . in any appeals arising out of this action,’ and this language easily covers the right to seek rehearing en banc and the right to file a petition for a writ of certiorari.” Moreover, the attorney general agreed to be bound only by “the judgment that emerged after all appellate review concluded.”
On the merits of intervention, the Court held that the Sixth Circuit abused its discretion in denying the attorney general’s motion to intervene. The Court noted at the outset that “[n]o statute or rule provides a general standard to apply in deciding whether intervention on appeal should be allowed,” but that “the ‘policies underlying intervention’ in the district courts” provide guidance, and those policies focus on “the legal ‘interest’ that a party seeks to ‘protect’ through intervention on appeal.” With respect to that interest, the Court explained that in defending state law “the attorney general asserts a substantial legal interest that sounds in deeper, constitutional considerations.” Because states retain “sovereign . . . power to enact and enforce any laws that do not interfere with federal law” and “clearly” have “a legitimate interest in the continued enforceability of [their] own statutes,” federal courts “should not . . . lightly cut off” “a State’s opportunity to defend its laws.” And respecting state sovereignty includes respecting “the authority of a State to structure its executive branch in a way that empowers multiple officials to defend its sovereign interests in federal court.” Indeed, the Court observed that Congress itself has recognized “[t]he importance of ensuring that States have a fair opportunity to defend their laws in federal court.” See 28 U.S.C. §2403(b). Although that statute was not applicable, it “reflects the weighty interest that a State has in protecting its own laws”; the manner “in which Kentucky divides executive authority and the unusual course that this litigation took should not obscure the important constitution consideration at stake.” Because the Sixth Circuit “failed to account for the strength of the Kentucky attorney general’s interest” in defending state law once the secretary “elected to acquiesce,” the Court held that the Sixth Circuit had based its decision denying intervention “on an erroneous view of the law” and thus had abused its discretion.
Moreover, the Sixth Circuit also abused its discretion in deeming the attorney general’s motion to be untimely because the attorney general moved to intervene promptly once it became clear that the secretary would no longer defend state law. The Court rejected the suggestion that the attorney general’s motion was untimely because it was filed years into the litigation or long after Governor Beshear won election because up until the point when the panel issued its decision the secretary had been defending the law. Lastly, the Court concluded that allowing intervention would not prejudice respondents.
Justice Thomas wrote a concurring opinion addressing what he viewed as the fundamental problem with respondents’ jurisdictional argument: Insofar as the attorney general was a non-party, he could not have filed a notice of appeal because Federal Rules of Appellate Procedure 3 and 4 allow only parties to notice an appeal. And because the attorney general “could not notice an appeal, he could not possibly have been obligated to do so, rather than pursue intervention.” Justice Thomas acknowledged that respondents’ suggestion that a non-party could appeal has support in Devlin v. Scardelletti, 536 U.S. 1 (2002), which allowed “a nonnamed member of a certified class action . . . [to] appeal the approval of a settlement to which he objected.” But Justice Thomas maintains that Devlin was and remains “‘contrary’ to . . . ‘well-established law.’” And in any event, Justice Thomas explained, the Court has limited Devlin to the “class-action context,” so it does not apply here.
Justice Kagan, joined by Justice Breyer, wrote an opinion concurring in the judgment, largely agreeing with the majority on both the jurisdictional and intervention issues but deviating some from the Court’s analysis. With regard to the jurisdictional issue, Justice Kagan agreed that “[n]o jurisdictional rule . . . directly bars the attorney general’s intervention here.” But she viewed the Court’s use of the claims-processing-rule terminology as “misplaced and distracting.” Instead, she explained, EMW’s argument “rests on the idea that litigants should not be allowed to use intervention procedures to end-run jurisdictional rules.” Yet she concluded that “the anti-circumvention rationale for denying intervention does not sensibly apply here because of the change in circumstances between the time to appeal and the time of the motion to intervene.” Rather than “an attempt to escape the consequences of failing to adhere to appellate deadlines,” the attorney general’s “motion was instead a response to a major shift in the litigation, creating a new demand for the attorney general’s participation.” With regard to intervention, Justice Kagan “agree[d] with much of what the Court says” but would not “cast the analysis, even partially, in constitutional terms.” In her view, once the secretary stopped defending the law, “the attorney general had a strong reason for intervening” owing to a state’s “significant interest in enforcing its own laws.” So practically, “the attorney general belonged in the suit, absent some good cause to exclude him,” and “no such cause was present.”
Justice Sotomayor dissented, agreeing there was no jurisdictional bar to intervention but disagreeing with the other eight Justices’ resolution of the attorney general’s motion to intervene. In her view, because “[t]he attorney general’s motion . . . was based on arguments he had eschewed below and was filed only after judgments had been rendered by both the District Court and the Court of Appeals,” the Court should have affirmed the Sixth Circuit’s decision.
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]