Different Interests, Different Representation

Anthony Sanders · February 22, 2021

Do you have the same interests as the government? Seems like a silly question, right? Whatever you think about what the government—be it a city, a state, or even the United States—is up to, it has all kinds of things to worry about, and prioritizes those things in many different ways. For example, it might use its resources to fight street crime and not environmental protection, or vice versa, even though it is charged with regulating and enforcing both. In contrast, you as a private citizen have your own personal interests, whether they be your family, your property, your job, or anything else. And you might be very interested in one particular thing the government does—such as how it funds your local school or how it collects the trash—but not so much most of the rest of its capacious responsibilities.

This pretty basic distinction is unfortunately lost on many judges. And it’s creating a dangerous possibility that Americans won’t be able to protect their own priorities when their government lets them down. This possibility arises when there’s a “motion to intervene” in a lawsuit challenging a law. And too many times judges have swatted these motions away without considering just how different the government and its citizens really are.

Last week the U.S. Court of Appeals for the First Circuit provided one of the worst examples of this. In Victim Rights Law Center v. Rosenfelt, the court considered whether a coalition of free speech organizations should be allowed to intervene as defendants. The case itself is a challenge to new federal regulations, issued by the Trump Administration’s Department of Education in 2020, setting the standard for sexual harassment under “Title IX,” the law which forbids sexual discrimination by federally funded colleges and universities. The new regulations were a response to campus procedures, partly guided by the Obama Administration, that its critics claim violated the First Amendment rights of public university students, violated the Title IX rights of students at all schools, and violated due process in various ways.

Critics of the new rules challenged them in federal court by suing the federal government, and the free speech groups tried to intervene. As is not at all uncommon in a public interest case like this, the free speech groups wanted to protect a law they like. This is completely normal. Countless famous cases have included intervening defendants, including many that we at the Institute for Justice have litigated, trying to help protect a law from challenge.

Why do people intervene in these cases? Because although the government—the party anyone would sue when trying to have a law thrown out—normally defends a law, sometimes it actually doesn’t; or sometimes it doesn’t in a way that’s very helpful. Just like private lawyers, government lawyers have different levels of zealous advocacy, expertise, or even resources. Furthermore, sometimes the government gives up and settles, either when it thinks the relevant legal principles are against it, or when those in power secretly (or not so secretly) don’t like a law and wouldn’t mind if it were invalidated. Others who would be directly impacted by the law’s invalidation are going to be much more interested in protecting the law, and will have different priorities in how it is defended.

These real possibilities should allow for parties to intervene in most cases. There’s other factors that go into intervention that we don’t need to run through here (such as the timing of the request, and if there are too many parties in the lawsuit already), but, everything else being equal, just because the government is the government shouldn’t mean that it meets the relevant standard—that it provide “adequate representation.” Just because you’re the government doesn’t mean you’re “adequate.”

Yet that’s what the First Circuit said. It affirmed the district court’s decision to keep the free speech groups out. It stated there’s a presumption that a government defendant provides adequate representation, and therefore someone who wants to intervene has to demonstrate otherwise. How that might work isn’t clear, and it’s not a realistic view of how public interest litigation actually works.

The First Circuit argued this isn’t a big worry because someone can always file an amicus brief to make its position known. But an amicus brief can’t prevent a settlement. An intervenor-defendant, however, can, having the rights of a party and other mechanisms, such as discovery, to guide the litigation.

In addition to the First Circuit, a few other courts have made similar rulings over the years. The issue has not made its way to the Supreme Court, but if it does it will be imperative for the Court to protect the right of private citizens to police their governments’ behavior in the courtroom, and make sure one set of interests doesn’t scuttle the other.

Anthony Sanders is the Director of IJ’s Center for Judicial Engagement.