Issues
Do state legislators authorized under North Carolina law have a right to intervene to defend the constitutionality of the state’s voter-ID law, even though the Attorney General is representing the state in the litigation; and, must state legislators make a showing of inadequate representation to intervene?
This case asks the Supreme Court to determine whether state legislators have a right to intervene in a lawsuit filed against the state of North Carolina concerning the constitutionality of the state’s voter-ID law when the Attorney General is already representing the state in the matter. Petitioners Philip E. Berger, President Pro Tempore of the North Carolina Senate and Timothy K. Moore, Speaker of the North Carolina House of Representatives argue that Rule 24(a)(2) of the Federal Rules of Civil Procedure (“FRCP”) and North Carolina law grant state legislators the right to intervene on behalf of the state in judicial proceedings. Petitioners further maintain that Rule 24 only requires state agents to establish a minimum standard of inadequate representation to intervene in litigation involving their state’s interests. Respondents North Carolina State Conference of the NAACP and other North Carolina NAACP branches counter that Rule 24(a)(2) does not allow an additional party to join the case when its interests are identical to the existing party’s interests. Moreover, the Respondents argue that state legislators need to demonstrate a higher standard of inadequacy to show that the Attorney General is inadequately representing the state to join the case. The outcome of this case has important implications for the role of state governments in litigation, future parties that are or will be engaged in litigation with the states, and the judiciary.
Questions as Framed for the Court by the Parties
1. Whether a state agent authorized by state law to defend the State’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant?
2. Whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion?
3. Whether petitioners Philip Berger, the president pro tempore of the state senate, and Timothy Moore, the speaker of the state house of representatives, are entitled to intervene as of right in this litigation?
Facts
In 2018, North Carolina passed Senate Bill 824 (“the Bill”), which required voters to “present one of ten forms of authorized photographic identification” in order to vote. N. Carolina State Conf. of NAACP v. Berger, at 918. After the Bill was enacted, the North Carolina State Conference of the NAACP and other NAACP branches in North Carolina (“NAACP”) filed a motion against the act on December 20, 2018, maintaining that the Bill discriminated against and disenfranchised a significant portion of African American and Latino voters. Id. at 919. The NAACP sought declaratory relief and filed for an injunction to prevent the implementation of certain provisions of the Bill. Id.
In 2019, President Pro Tempore of the North Carolina Senate Philip E. Berger and Speaker of the North Carolina House of Representatives Timothy K. Moore (“Berger”) sought to intervene in the proceeding as of right under Federal Rule of Civil Procedure 24(a)(2) and permissively under Federal Rule of Civil Procedure 24(b). Id. The NAACP and North Carolina Attorney General (“Attorney General”) opposed Berger’s intervention. Id. In their first intervention motion, Berger argued that they represented the interests of the General Assembly and therefore were entitled to intervene on the General Assembly’s behalf whenever a North Carolina statute was challenged in court. Id. at 919–920. Berger also contended that the General Assembly’s interest was inadequately represented by the state’s current representative in the case: the Attorney General. Id. Berger further argued insufficient representation by the Attorney General, stating that he would not defend the statute to the fullest extent based on his past statements and actions in opposition to similar policies. Id. The U.S. District Court for the Middle of North Carolina (“District Court”) rejected Berger’s initial intervention motion based on the Attorney General’s vigorous defense of the Bill at the time and the General Assembly’s insufficient interest in defending the Bill. Id. at 920–921.
Berger subsequently filed a second intervention motion, which modified the first motion in the following ways: 1) Berger now claimed to represent the interests of the State of North Carolina instead of only the interests of the General Assembly; and 2) that there was new evidence indicating that the Attorney General was not vigorously defending the statute, demonstrated throughout a longer period of litigation that was not available when the first motion was made. Id. at 921. Before the District Court delivered its ruling, Berger sought a writ of mandamus in the United States Court of Appeals for the Fourth Circuit (“Court of Appeals”). Id. at 923. The Court of Appeals dismissed the appeal due to the lack of ruling by the District Court. Id. The District Court subsequently denied Berger’s second motion, finding that the Attorney General was still adequately defending and representing the state’s interests. Id. at 921–922. Berger then appealed the second ruling. Id. at 922. The Court of Appeals affirmed the District Court’s ruling, finding that the District Court did not abuse it discretion in denying the intervention motion. Id. at 927.
The United States Supreme Court granted Berger’s writ of certiorari on November 24, 2021.
Analysis
THE RIGHT OF STATE AGENTS TO INTERVENE ON BEHALF OF THE STATE IN LITIGATION UNDER RULE 24
Philip Berger (“Berger”) et al., argues North Carolina law allows state legislators (“intervenors”) to intervene to defend the state’s vote ID law, even though the Attorney General is already representing the state in the case. Brief for Petitioners, Philip E. Berger, et al. at 20, 25. Berger contends North Carolina did not give the Attorney General the sole authority to represent the state interest in judicial proceedings. Id. at 23. The lower court’s ruling, Berger argues, conflicts with North Carolina’s policy to choose the state agent that will serve as its representative and the court should interpret Rule 24(a)(2) (“Rule 24”) in such a way that is compatible with and respects North Carolina’s choice to have multiple state officials represent them. Id. at 20–21. Berger maintains that it is critical to accommodate state policy when the state’s interest in protecting and enforcing the policy is significant. Id. at 21. Plaintiffs would decide to bring claims to federal courts, Berger argues, since they could easily prevent state legislators from intervening on the state’s behalf, which would lead to forum shopping. Id. at 20–21. Berger also maintains the separation of powers doctrine ensures certain class action lawsuits involving a state’s interest allow different state agencies’ perspectives to represent the state’s interest. Id. at 23–24. Moreover, state legislators are allowed to join the case, Berger asserts, given that the Attorney General is not adequately defending the state’s voter ID law. Id. at 50–52. Berger contends that North Carolina has a multitude of interests in the litigation and state officials have a duty to intervene in the matter for two additional reasons: (1) to defend the constitutionality of North Carolina’s voter ID law and (2) to govern elections in the state. Id. at 24. Most importantly, Berger argues state legislators can intervene in lawsuits brought against the state as a right and the court traditionally have supported this view. Id. at 43, 49.
The North Carolina State Conference of the NAACP et al., (“NAACP”) disagrees, arguing Rule 24 does not allow the state legislators to intervene on the state’s behalf because they would not be intervening as third-parties, but as further state agents of the state which is already represented by the Attorney General. Brief for Respondents, NAACP, et al. at 12–13. The NAACP maintains Rule 24 only allows for third-party intervention, not intervention of a party that already exists, and the House Speaker and the President Pro tempore are not third parties but are just additions to an existing party seeking to represent the state. Id. The NAACP claims the state legislators are additional parties given that they did not seek to remove the Attorney General from the case or to challenge his authority to be the state agent. Id. The State of North Carolina et al., (“the State”) further maintains that North Carolina law on intervention should not impact a federal court’s interpretation of Rule 24. Brief for Respondents, State, et al. at 28. The State contends that the federal court has an obligation to “independently analyze Rule 24(a)(2) requirements.” Id. Additionally, the State maintains that state legislators can only intervene in legal matters involving the General Assembly, not to represent the “entire state.” Id. at 49. Moreover, the State asserts that the Attorney General is adequately defending the state’s voter ID law —the Attorney General won a judgement to have a preliminary injunction on the voter ID law repealed. Id. at 39. North Carolina contends the Petitioners’ litigation is unnecessary; their “tactical disagreements” fail to prove the Attorney General is inadequate. Id. at 40, 42.
THE PRESUMPTION OF ADEQUATE REPRESENTATION STANDARD UNDER RULE 24
Berger contends that the text of Rule 24 indicates that a party is presumptively allowed to intervene if it has demonstrated an interest in the case, and after such a demonstration, the burden is on the opposing party to show that such an interest is already sufficiently represented and therefore intervention is unnecessary. Brief for Petitioners at 26. Berger maintains that especially when it pertains to intervention by government and state officials, the Federal Rules are constructed to make intervention by such parties simpler. Id. at 27. Berger asserts that requiring the intervenors to overcome such a high presumption of adequate representation is inconsistent with Rule 24 revisions, Advisory notes, history, and application in litigations. Id. at 30–31. Additionally, case law precedent, Berger argues, indicates that the standard for adequacy of representation is a minimum threshold. Id. at 27. Berger cites the Court’s two critical precedent cases on interpreting the adequate representation standard in Rule 24: Trbovich v. United Mine Workers of America, where the court upheld a minimum burden rule to establish inadequate representation and Cascade Natural Gas Corp. v. El Paso Natural Gas Co., where the court similarly upheld a less burdensome standard that did not necessitate any presumption. Id. at 27–28. Therefore, Berger maintains that the lower court’s high adequate representation standard is inconsistent with precedent and improperly undermined state authority to determine which state officials it wants to defend its interest. Id. at 19, 20. Additionally, Berger claims the court’ presumption requirement inappropriately applied a “one-size-fits-all” legal test to a litigation that involves diverse state interest and very context-based matters. Id. at 19.
In response, the NAACP counters that Rule 24 does require a state agent to overcome a presumption of adequate representation to intervene on behalf of the state in litigation alongside an existing party. Brief for Respondents at 14–15. The NAACP asserts that Rule 24’s text, procedural posture, and history supports the notion that state agents must overcome a presumption of adequate representation to intervene on the state’s behalf when the intervenor’s interest and the existing party interests are the same. Id. The NAACP stipulates that the plain meaning of “adequately” demonstrates a burden on the individual trying to demonstrate said adequacy, and the federal courts have always upheld the plain meaning of presumption of adequate representation under Rule 24. Id. at 15. NAACP argues state agents that have identical interest to the existing party in a litigation under Rule 24 do not have an absolute right to intervene in a case to defend a state law. Id. at 17. There are rare exceptions to the general rule that an intervenor with the same interest as the existing party is permitted to join a case, the NAACP acknowledges, but the criteria for the exception of evidence of adversity of interest, collusion, or malfeasance on behalf of the exiting party is not met here. Id. at 31. Additionally, the NAACP argues federal law allows a state to have one representative to defend the constitutionality of its law in court. Id. at 23. The NAACP further claims under Rule 24(b)(2), state officials may be allowed to intervene in cases involving a state’s law or executive order, but the statute does not grant mandatory intervention. Id. at 24.
THE PROPER STANDARD FOR REVIEW OF THE PRESUMPTION OF ADEQUATE REPRESENTATION
Berger argues de novo review is the proper standard for review of the presumption of adequate representation under Rule 24 because it is a question of law. Brief for Petitioners, 35. Berger maintains that the distinction in Rule 24 itself between intervention as of right and permissive intervention, where only permissive intervention is judged under the discretion standard, demonstrates that intervention as of right should be reviewed under de novo review since it involves a question of law. Id. at 35. Rule 24(b)(3) supports de novo review of cases involving a right to intervention, Berger contends, as the text specifically only applies the abuse of discretion standard to permissive intervention. Id. at 36. Therefore, Berger argues the Court of Appeals Circuit a legal error by reviewing the district court’s decision in the case for abuse of discretion because intervention as of right, unlike permissive intervention, is a legal inquiry and therefore discretionary judgment does not apply. Id. at 37.
The State counters that court’s abuse and discretion test is the proper standard of review for the presumption of adequate representation under Rule 24. Brief of Respondents, at 30. For one reason, the State contends that the state legislators in court waived challenging the standard application in this case. Id. The State points out that the Petitioners only argued for the case to be reviewed de Novo in the appellate court. Id. at 31. The second reason is that the State maintains that the appellate court upheld the standard. Id. at 30. The NAACP further asserts that district courts are more suitable to make adequacy determinations because these matters “depend greatly on factual determinations.” Id. at 39–40. Also, the NAACP contends allowing additional parties to join a lawsuit would lead to expensive, long, and “unmanageable” lawsuits filling federal courts. Id. at 27.
Discussion
THE CONSIDERATION OF ALL MERITORIOUS ARGUMENTS
Arizona, Alabama, Louisiana, Mississippi, Montana, Nebraska, South Carolina, Texas, And Utah (“Arizona”)., in support of Berger, asserts that allowing multiple state agents to participate in the litigation would encourage raising all possible meritorious arguments during the defense of state statutes. Brief of Amici Curiae Arizona, et al., in support of Petitioners at 15. Arizona argues allowing for state agents to intervene, even when they would be additional agents to an existing party, would allow legislators to raise legal arguments that state attorney generals may fail to raise. Id. at 15–16. Lawyers Democracy Fund and Representative Rodney Davis (“Lawyers Democracy Fund”), in support of Berger, similarly maintain that allowing for such intervention would make it easier for state agents, other than the attorney generals, to step in when the state attorney generals refuse to defend statutes in part or in their entirety. Brief of Amici Curiae Lawyers Democracy Fund and Representative Rodney Davis, in support of Petitioners at 12-13, 18.
Minnesota, Wisconsin, Connecticut, Delaware, The District Of Columbia, Illinois, Maine, Maryland, Michigan, Nevada, New Jersey, New York, Oregon, Pennsylvania, And Vermont (“Minnesota”), in support of the NAACP, argues that preventing intervention of additional agents to an existing party does not preclude the state from presenting, and the court from hearing, all meritorious arguments regarding the disputed statutes. Brief of Amici Curiae Minnesota, et al., in support of Respondents at 15. Minnesota asserts that this would still occur since legislators would still be able to intervene and present arguments under the respondents’ interpretation of Rule 24(a)(2). Id. Moreover, Minnesota further contends that even if the legislators’ motions to intervene are denied under the respondents’ higher standard, the legislators would still be able to present their arguments through amicus briefs, pointing out that courts have historically taken arguments that were presented through amicus briefs into consideration. Id.
CHECKING PARTISAN ACTIVITY
The Liberty Justice Center, in support of Berger, asserts that authorizing intervention would check partisan abuses of power. Brief of Amici Curiae Liberty Justice Center, in support of Petitioners at 9–11. According to the Liberty Justice Center, some state attorney generals have increasingly litigated cases in pursuit of partisan objectives instead of non-partisan state interests, and therefore may inadequately represent the interests of the state in the defense of state laws with which they politically disagree. Id. at 9–11. The Liberty Justice Center argues that permitting the proposed intervention would allow state legislators to intervene and properly represent the state’s interests in those cases. Id. Similarly, the Lawyers Democracy Fund, in support of Berger, assert that allowing for intervention would stymie the efforts of state attorneys general to defeat the laws that they politically oppose. Brief of Lawyers Democracy Fund and Representative Rodney Davis, in support of Petitioners at 10–12, 18.
The Retired Federal Judges, in support of the NAACP, assert that allowing intervention by additional state agents would further politicize the courts because it would require the courts to adjudicate the issue of possible political disputes between state agents, rather than legal matters. Brief of Amici Curiae Retired Federal Judges, in support of Respondents at 9, 16. Retired Federal Judges contend that the petitioners’ standard would force courts to scrutinize the political views and past political expressions of the attorneys general and declare the attorneys general inadequate based on speculation that they would undermine statutes that conflict with their views. Id. at 9–11.
JUDICIAL EFFICIENCY
The Republican National Committee, in support of Berger, argues that blocking intervention would promote judicial inefficiency. Brief of Amici Curiae Republican National Committee, in support of Petitioners at 17. The Republican National Committee argues that potential intervenors would need to enter near the end of the proceedings after there was comprehensive evidence to meet the respondents’ higher standard. Id. at 18–21, 23. As a consequence of entering near the end of the proceedings, the Republican National Committee contends that intervenors would have to re-litigate matters in parallel proceedings, thereby resulting in delays, potential prejudice, and unnecessary costs. Id. at 21.
The Federal Courts Scholars, in support of the NAACP, argue that authorizing the intervention would increase judicial inefficiency. Brief of Amici Curiae Federal Courts Scholars, in support of Respondents at 22–23. Federal Courts Scholars assert that authorizing the intervention would promote inefficiency by increasing the number of cases with parties that have multiple representatives with equal authority over decision-making. Id. In such situations, the Federal Courts Scholars assert that courts would not only have to adjudicate disagreements between parties, but also within parties. Id. The Retired Federal Judges, in support of the NAACP, write that authorizing the intervention “would threaten procedural chaos.” Brief of Amici Curiae Retired Federal Judges, in support of Respondents at 9, 16. Retired Federal Judges contend that multiple representatives would flood the courts with additional intra-party disputes over discovery, court filings, scheduling and even case evaluations. Id.
Conclusion
Acknowledgments
Additional Resources
- Berger v. North Carolina State Conference of the NAACP, National Association of Attorney General (last accessed March 4, 2022).
- Berger v. North Carolina State Conference of the NAACP, Ballotpedia (last accessed March 4, 2022).