Intervention in North Carolina

Anthony Sanders · June 25, 2022

This week’s State Con Law Case of the Week isn’t actually a state court case—but it very much is a case about state constitutional law. Amid all the other decisions flowing out of the U.S. Supreme Court last week came one that made few headlines but deserves attention in its own right, Berger v. North Carolina State Conference of the NAACP. The underlying lawsuit is a challenge to a North Carolina election law. But that’s not what was before the Court. That was the procedural question of who can “intervene” in the lawsuit to defend the law. And to answer that question the Court needed to discuss some of the most basic theoretical foundations of what makes a “state” a state.

Defendants are people too

When someone challenges the constitutionality of a state law in court they need to sue somebody. And, more importantly, whoever that somebody is will made decisions in the lawsuit that can affect how it comes out. Depending on who is sued they may decide to take certain depositions (or not). They may agree to certain terms for a settlement (or not). And they may try and appeal a loss (or not). Usually in a civil rights lawsuit in federal court the plaintiffs need to sue the official who enforces the law and they can’t (unfortunately) just sue “the state” itself. But even if they could that would just mean—as it means when you sue any entity—that the people who actually make litigation decisions (like whether to appeal) are whoever are in control of “the state.” Thus, in any kind of lawsuit about the constitutionality of state law, whoever or whatever is sued, this is an issue: Who is making decisions about how to conduct the lawsuit?

Of course, a state law affects a lot more people than just whomever is making those decisions. For example, if the plaintiffs sue the state attorney general because she enforces a law it could be that other state officials—such as a county attorney or the governor, or whoever—have an interest in the enforcement of that statute and think that the AG won’t do a good job in defending it. For example, perhaps she’s said in the past she thinks the statute is unconstitutional and they now are afraid she’ll “throw” the case. And it very well could be that private parties want to defend the law because the law being challenged directly affects their own personal interests. IJ regularly intervenes, for instance, in challenges to school choice programs, where we represent parents alongside state officials in defending the legality of the program.

The interests of private parties are pretty obviously different from the interests of the state officials—one is defending the law in the abstract while the private parties have real “skin in the game” that the outcome of the lawsuit will affect. But what about different state officials? Why should they be able to intervene to defend a state law when other state officials are already involved?

Splitting the State

In his opinion for the Court in the Berger case, Justice Gorsuch basically responded that although it may seem counterintuitive, states regularly give more than one person the responsibility for defending the state’s laws. And that’s ok. And federal courts need to respect that by allowing more than one defendant in a lawsuit.

Gorsuch’s opening paragraph beautifully sets up the issue:

Within wide constitutional bounds, States are free to structure themselves as they wish. Often, they choose to conduct their affairs through a variety of branches, agencies, and elected and appointed officials. These constituent pieces sometimes work together to achieve shared goals; other times they reach very different judgments about important policy questions and act accordingly. This diffusion of governmental powers within and across institutions may be an everyday feature of American life. But it can also pose its difficulties when a State’s laws or policies are challenged in federal court.

Berger itself concerns statutes the state legislature has passed to allow it to participate in lawsuits alongside the state attorney general (who represents various parties in lawsuits, including the election board members in this case). But more fundamentally it’s an issue of state constitutional law. Many states divide executive power into many parties, including a state’s governor, attorney general, various boards (that sometimes are independent from the governor), and even independently elected county attorneys and sheriffs. And they are all separate from the legislature, who itself may have interests in defending the laws it adopts.

The Court’s bottom line is the states’ various decisions to split their authority among various actors must be respected as the U.S. Constitution doesn’t mandate whether a state must “speak with one voice” on lawsuits or anything else. These are often decisions made in constitutional conventions when “the people” of a state structure the most basic workings of their government. And those decisions sometimes make for friction when it comes to lawsuits and who is defending the state’s laws. The Court’s answer is at once practical and helpful: If that’s what the state decides, that’s fine, and federal judges are smart enough to deal with more than one set of defense lawyers in a case.

There’s a lot more in the opinion that’s interesting and instructive. Go ahead and “read the whole thing.”

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.

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