NORTH CAROLINA STATE CONFERENCE OF THE NAACP; CHAPEL HILL-CARRBORO NAACP; GREENSBORO NAACP; HIGH POINT NAACP; MOORE COUNTY NAACP; STOKES COUNTY BRANCH OF THE NAACP; WINSTON SALEM-FORSYTH COUNTY NAACP, Plaintiffs - Appellees, v. PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; TIMOTHY K. MOORE, in his official capacity as Speaker of the North Carolina House of Representatives, Appellants, KEN RAYMOND, in his official capacity as a member of the North Carolina State Board of Elections; STELLA ANDERSON, in her official capacity as Secretary of the North Carolina State Board of Elections; DAMON CIRCOSTA, in his official capacity as Chair of the North Carolina State Board of Elections; JEFFERSON CARMON, in his official capacity as a member of the North Carolina State Board of Elections; DAVID C. BLACK, in his official capacity as a member of the North Carolina State Board of Elections, Defendants - Appellees.
No. 19-2273
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: August 14, 2020
Argued: May 27, 2020
PUBLISHED
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:18-cv-01034-LCB)
Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Vacated and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Richardson joined. Judge Harris wrote a dissent.
ARGUED: David Henry Thompson, COOPER & KIRK PLLC, Washington, D.C., for Appellants. Stephen K. Wirth, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C.; Paul Mason Cox, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Peter A. Patterson, Nicole J. Moss, Haley N. Proctor, Nicole Frazer Reaves, COOPER & KIRK PLLC, Washington, D.C.; Nathan A. Huff, PHELPS DUNBAR LLP, Raleigh, North Carolina, for Appellants. Joshua H. Stein, Attorney General, Olga E. Vyotskaya de Brito, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for State Board Appellees. Irving Joyner, Cary, North Carolina; Penda D. Hair, Washington, D.C., Caitlin A. Swain, FORWARD JUSTICE, Durham, North Carolina; John C. Ulin, Los Angeles, California, James W. Cooper, Jeremy C. Karpatkin, Andrew T. Tutt, Jacob Zionce, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellees North Carolina State Conference of the NAACP, Chapel Hill-Carrboro NAACP, Greensboro NAACP, High Point NAACP, Moore County NAACP, Stokes County Branch of the NAACP, and Winston Salem-Forsyth County NAACP.
Philip E. Berger, President Pro Tempore of the North Carolina Senate, and Timothy K. Moore, Speaker of the North Carolina House of Representatives, appeal the district court‘s denial of their renewed motion to intervene in an action brought by North Carolina State Conference of the NAACP, Chapel Hill-Carrboro NAACP, Greensboro NAACP, High Point NAACP, Moore County NAACP, Stokes County Branch of the NAACP and the Winston Salem-Forsyth County NAACP (collectively, the “NAACP“). For the reasons set forth below, we vacate the district court‘s order denying the motion and remand for further consideration consistent with this opinion.
I.
On December 6, 2018, after being referred to several committees and going through amendments and readings in both the House and Senate, the North Carolina General Assembly ratified Senate Bill 824, titled “An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote” (“S.B. 824“), which established, inter alia, photographic voter identification requirements for elections in North Carolina. The bill was presented to Governor Roy Asberry Cooper, III, that same day. On December 14, 2018, Governor Cooper vetoed the bill. On December 18, 2018, the Senate voted to override the veto, and the next day, the House voted similarly. Thus, on December 19, 2018, S.B. 824 was enacted as North Carolina Session Law 2018-144.
On December 20, 2018, the NAACP sued Governor Cooper; the Chair of the North Carolina Board of Elections; the Secretary of the North Carolina State Board of Elections; and seven other members of the North Carolina State Board of Elections1 (the “State Defendants“) challenging the validity of S.B. 824. In its complaint, the NAACP contends that S.B. 824 has a disparate impact on African American and Latino citizens of North Carolina in violation of Section 2 of the Voting Rights Act of 1965,
Relevant here, in challenging S.B. 824, the NAACP sued the Governor (who publicly opposed the bill) and the State Board (which is composed of members appointed by the Governor). The NAACP did not sue the North Carolina General Assembly, any of its general members, or any other proponents of the bill. As a result, the parties defending the bill were parties with an historical opposition to the bill or entities under the indirect control of such parties. Further, the Attorney General tasked to represent those defendants has a similar history of opposing the bill under challenge.
On January 14, 2019, Berger and Moore (the “Proposed Intervenors“) moved under
On June 3, 2019, the district court denied the motion to intervene, largely concluding that the State Defendants were required by provisions of the North Carolina Constitution and other North Carolina statutes to defend the State, that the State Defendants had not abdicated their responsibility to defend S.B. 824, and that, accordingly, the Proposed Intervenors failed to demonstrate the requisite “strong showing of inadequacy” to overcome the presumption of adequate representation by the State Defendants. The district court‘s denial was without prejudice to the motion being renewed if the Proposed Intervenors could show that the State Defendants no longer intended to defend the lawsuit and the requirements for intervention were otherwise satisfied. While denying the motion to intervene, the district court allowed the Proposed Intervenors to participate in the action by filing amicus curiae briefs.
On July 19, 2019, the Proposed Intervenors filed a renewed motion to intervene, arguing that it was apparent that the State Defendants would not fully defend S.B. 824. On September 17, 2019, after the State Defendants filed opposition papers, the Proposed Intervenors moved to ascertain the status of their renewed motion, noting that they had not been a part of discovery and initial planning of the S.B. 824 litigation, and informing the district court that, if their renewed motion was not ruled on by September 23, 2019, they planned to appeal the “de facto denial” of their motion and/or file a mandamus petition with the Fourth Circuit. (J.A. 778.)
On September 23, 2019, the Proposed Intervenors, having received no ruling from the court, noticed the appeal seeking review of a “de facto” denial of their renewed motion to intervene (No. 19-2048) and petitioned for a writ of mandamus directing the district court to permit intervention (No. 19-2056). The NAACP moved to dismiss the appeal. On October 8, 2019, we denied the mandamus petition and granted the motion to dismiss the interlocutory appeal, concluding that we lacked appellate jurisdiction based on the record at the time.
On November 7, 2019, the district court denied the renewed motion. The court concluded that its previous
On November 11, 2019, the Proposed Intervenors filed a notice of appeal from the order denying their renewed motion to intervene. (J.A. 3248.)
Before we address the merits of the appeal, we must first consider several threshold matters.
A.
The NAACP argues that the Proposed Intervenors’ failure to appeal the denial of their initial motion to intervene divests us of appellate jurisdiction to consider this appeal. In response, the Proposed Intervenors argue we have jurisdiction to review the denial of the renewed motion to intervene which merged with the order denying their initial motion to intervene.
We may exercise jurisdiction only over final orders and certain interlocutory and collateral orders. See
Thus, we must determine whether the district court‘s June 3, 2019 order, which denied the initial motion to intervene without prejudice and indicated that the Proposed Intervenors would be able to renew their motion if the circumstances changed, should be regarded as an appealable final order.
In this inquiry, we are guided by the Supreme Court‘s decision in Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987). There, the district court denied a nonprofit‘s motion to intervene as of right but granted the motion for permissive intervention subject to conditions. Stringfellow, 480 U.S. at 373. After the nonprofit appealed challenging the conditions of the permissive intervention, the Supreme Court addressed the question of “whether a district court order granting permissive intervention but denying intervention as of right is immediately appealable.” Id. at 372. The Supreme Court held that a grant of intervention was not an immediately appealable collateral order because the district court did not outright deny the motion to intervene. See id. at 375-376. Thus, the intervenor retained the power to appeal any final judgment and, as a result, could then challenge the conditions of the permissive intervention imposed by the lower court. Id. Therefore, the Supreme Court held that it could not “conclude that [the proposed intervenor‘s] interests will be ‘irretrievably lost in the absence of an immediate appeal.‘” Stringfellow, 480 U.S. at 376 (quoting Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431 (1985)).
Stringfellow, while different from this case in that it involved granting intervention with conditions, nevertheless teaches that we should examine the orders here to see if they outright denied the motion and if the Proposed Intervenors’ interests will be irretrievably lost absent an immediate appeal. Looking first at the June 3, 2019 order, we first note the district court denied the motion to intervene without prejudice. Not every denial of a motion to intervene “without prejudice” necessarily lacks sufficient conclusiveness to warrant immediate review. See Rhode Island v. U.S. E.P.A., 378 F.3d 19, 26 (1st Cir. 2004); see also Bing v. Brivo Systems, LLC, 959 F.3d 605, 611 (4th Cir. 2020) (considering the district court‘s opinion in light of the entire record in determining that an order dismissing a complaint without prejudice is a final, appealable order). But, in addition to being without prejudice, the order here invited a renewed motion upon changed circumstances. Because of these provisions, the June 3 order did not outright deny the motion to intervene and lacked the conclusiveness needed to trigger immediate review. Accordingly, the June 3 order was not a final appealable order.
In contrast, the November 7, 2019 order was an outright denial of the motion to intervene. Unlike the June 3 order, it was with prejudice. And in denying the renewed motion to intervene, the district court referred to its analysis from the June 3 order indicating that it remained in effect. It then addressed and rejected additional arguments from the Proposed Intervenors arising from what they claimed to be new facts and circumstances. These terms make clear the November 7 order, including its analysis from the June 3 order, was sufficiently conclusive for appellate review. See Hodgson v. United Mine Workers of Am., 473 F.2d 118, 126–27 (D.C. Cir. 1972) (“We are satisfied that the June 20 order...constituted a fresh evaluation of the intervention application, well within the discretionary power of the District Court to make, and amenable to review on the merits by this court.“). Accordingly, we have jurisdiction under
B.
Next, as it did before the district court, the NAACP argues the Proposed Intervenors lack Article III standing to intervene. The NAACP maintains that invalidating S.B. 824 would not cause the General Assembly any cognizable injury. It further alleges that a state statute, in this case
An Article III court must have jurisdiction to reach the merits of a case. “One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). A litigant must prove that he has (1) suffered a concrete and particularized injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable decision. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992)). While most standing questions consider whether a plaintiff has satisfied the requirement in initially filing suit, Article III requires that an “actual controversy’ persist throughout all stages of litigation.” Hollingsworth, 570 U.S. at 705 (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 90–91 (2013)). The standing requirement therefore “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997); see also Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1950–51 (2019).3
Critical to the
To be sure, neither this nor any other state statute automatically establishes Article III standing. That is an issue for the federal courts to decide. But by the same token, the statute must inform our understanding and analysis of the standing issue presented here. That is particularly true given the Supreme Court‘s consistent instructions that a state has standing to defend constitutional challenges to its laws and to select its agents for doing so.
In Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), the Supreme Court addressed whether the Virginia House of Delegates and its Speaker had, as intervenors, standing to appeal to defend Virginia‘s redistricting plan after the Commonwealth of Virginia conveyed it would not file an appeal to the Supreme Court.4 The Commonwealth moved to dismiss the House‘s appeal for lack of standing. The Supreme Court granted that motion and dismissed the appeal. The Court held that the “House, as a single chamber of a bicameral legislature, has no standing to appeal the invalidation of the redistricting plan separately from the State of which it is a part.” Bethune-Hill, 139 S. Ct. at 1950. But while holding that the House lacked standing there, Bethune-Hill also emphasized “a State has standing to defend the constitutionality of its statute.” Id. at 1951 (citation omitted). And “a State must be able to designate agents to represent it in federal court” and “if the State had designated [a legislative branch] to
represent its interests . . . the [legislative branch] could stand in for the State.” Id. (citation omitted).
The Supreme Court‘s guidance in Bethune-Hill is consistent with its earlier decision in Hollingsworth. There, the
Further, the Proposed Intervenors represent the entirety of the bicameral legislative branch in North Carolina which makes this matter comparable to Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015). In that case, the Court recognized the Arizona legislature‘s standing to challenge a ballot initiative threatening its authority over redistricting. See also Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997) (“We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State‘s interests.“).
Our colleague in dissent points out that in Bethune-Hill, Hollingsworth and Arizonans for Official English, the state representative was no longer defending the state or declined to appeal an adverse ruling. That distinction, to the dissent, means those decisions have little bearing here. But while those decisions emphasized the principle that a state must be able to designate its agents to represent it in federal court, none limited that principle to situations where the initial agent no longer was participating in the defense or declined to appeal an adverse ruling. More specifically, Justice Ginsburg, in Bethune-Hill, reiterated the Court‘s earlier holding that a state must be able to designate agents for representation in federal court and wrote “if the State had designated [a legislative branch] to represent its interests... the [legislative branch] could stand in for the State.” Bethune-Hill, 139 S. Ct. at 1951. But in so stating, the Court did not limit intervention to such scenarios where a state representative was no longer a part of the lawsuit. We decline to impose a limitation to these Supreme Court decisions not imposed by the Court.
Based on
C.
Next, while the State Defendants take no position on whether the Legislative Intervenors should be allowed to intervene before the district court, they assert
Having considered the arguments, we agree with the Proposed Intervenors. Of course, “[t]he legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.”
III.
With these threshold matters addressed, we turn to the merits of the district court‘s denial of the Proposed Intervenors’ motion to intervene. We review the denial of a motion for intervention for abuse of discretion. In re Sierra Club, 945 F.2d 776, 779 (4th Cir. 1991). But while our appellate review of district court rulings on the intervention is deferential, part of our responsibility is to ensure intervention decisions not based on incorrect legal principles. See Stuart v. Huff, 706 F.3d 345, 349–50 (4th Cir. 2013); see also Feller v. Brock, 802 F.2d 722, 729-30 (4th Cir. 1986) (finding that denial of intervention as of right to apple pickers was reversible error and admitting intervenors as parties-defendant); Hill v. W. Elec. Co. Inc., 672 F.2d 381, 385–86, 392 (4th Cir. 1982) (remanding action for proper consideration of the motion for permissive intervention because the district court did not properly apply legal standards).
Using that standard, we address the requirements for intervention. Intervention in a federal action is governed by
A.
1.
Starting with the first requirement,6 a party seeking to intervene must have “an interest relating to the property or transaction that is the subject of the action. . . .”
In support of this proposition, the district court cited several district court decisions holding individual legislators do not have a sufficient protectable interest to intervene in litigation over statutes for which they voted. But that is not what we have here. The Proposed Intervenors rely not only on their general position as legislators, but on
and (3) “why the movant was tardy in filing its motion.” Alt. v. U.S. E.P.A., 758 F.3d 588, 591 (4th Cir. 2014). The Proposed Intervenors did not delay in filing the renewed motion to intervene after their initial motion was denied, and it was filed relatively early in the case. From the arguments, this issue is not in dispute on appeal and we see no need to further address it here.
North Carolina Constitution.”
Importantly, these statutes do not limit the role of the General Assembly to instances where the executive branch declines to defend or participate in the action. Of course, as the district court noted, § 1-72.2 only requests that a federal court allow the legislative branch to participate. The requirements of
The presence of these statutes distinguishes this case from those cited by the district court. And we see no requirement elsewhere that the Attorney General must decline to defend the lawsuit in order to trigger a protectable interest on the part of the Proposed Intervenors. Thus, the district court‘s decision to that effect was in error.
In determining that the Proposed Intervenors lacked a sufficient interest in the S.B. 824 litigation, the district court also found the Proposed Intervenors’ reliance on the Supreme Court case Karcher v. May, 484 U.S. 72 (1987), misplaced. The district court reasoned that the issue before the Supreme Court there was whether public officials, who participated as intervenors in their official capacities, could continue to appeal an adverse judgment after leaving office—an issue, the district court indicated, that is not present here. Respectfully, the district court reads Karcher too narrowly. Karcher also confirmed that “[t]he authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded [the legislators] in office.” Id. at 77. Although the issues presented here may not be identical to those presented there, Karcher reiterates the role that active legislators play in defending a lawsuit depending on a particular state‘s law, which is an issue relevant to the interests asserted by the Proposed Intervenors.
Further, Bethune-Hill, while primarily a standing case, informs our analysis of whether the Proposed Intervenors have a sufficient interest under
Karcher and Bethune-Hill, along with Hollingsworth and Arizona State Legislature,7 indicate that the determination of the sufficiency of the interests of the Proposed
only discussion of it in relation to the question of the Proposed Intervenors’ interests was mentioning how the statute only requested that a federal court allow intervention. We remand the case to the district court to more fully consider the North Carolina statute in the analysis of the Proposed Intervenors’ interest in the litigation—with particular attention to the Supreme Court‘s instructions that the state may choose its agents to defend its statutes in federal court and the North Carolina statutes seeming to do so here.
2.
Next, the district court briefly addressed
If, on remand, the Proposed Intervenors have presented a significantly protectable interest, the district court must then determine whether the movant “is so situated that disposing of the action may as a practical matter impair or impede the movant‘s ability to protect its interest. . . .”
Prior to the 1966 amendment of
Rule 24 , the rule was that a party could not intervene under24(a) unless it might be bound by the judgment in the pending action. The term bound was interpreted to mean bound in the res judicata sense. The Rule now requires only that the “disposition of the action may as a practical matter impair or impede his (the applicant‘s) ability to protect that interest.” This was designed to liberalize the right to intervene in federal actions.
Francis, 481 F.2d at 195 n.8; see also
The Proposed Intervenors argue the time-sensitive nature of the case; the adequacy of the State Defendants’ defense of the constitutionality of S.B. 824; and their interest in engaging in discovery, presenting experts and participating in motions practice, all evidence risks to the protection of their interests. The district court did not consider these issues because it determined that the Proposed Intervenors lacked a sufficient interest under
3.
Finally, we turn to the adequate representation requirement for intervention as of right. Beginning with the standard for assessing the adequacy of the existing parties to protect the movant‘s interests, the district court initially acknowledged that a would-be intervenor generally bears a minimal burden of showing inadequacy of representation by an existing party citing Trbovich v. United Mine Workers, 404 U.S. 528 (1971). But the district court also applied a presumption of adequacy from Commonwealth of Virginia v. Westinghouse 542 F.2d 214, 216 (4th Cir. 1976) that arises when a party seeking intervention has the same ultimate objective as a party to the suit. Under that presumption, the proposed intervenor must establish one of three factors—adversity of interest, collusion or nonfeasance—to overcome this presumption and meet the inadequacy requirement. The district court identified those three factors and attempted to apply them in its order.
Yet the court concluded its adequacy analysis by holding “Proposed Intervenors have failed to sustain their burden of demonstrating the requisite ‘strong showing of inadequacy’ to overcome the presumption of adequate representation by State Defendants and their counsel, the Attorney General.” J.A. 386 (emphasis added). In using the phrase “strong showing of inadequacy,” the district court added a heightened burden to overcome the Westinghouse presumption. In imposing that heightened burden, it cited our decision in Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013), which requires intervenors to “mount a strong showing of inadequacy” where defendants are represented by a government agency. Stuart, 706 F.3d at 352.
Although it was appropriate for the district court to apply the Westinghouse presumption since the Proposed Intervenors and the State Defendants appear to seek the same ultimate objective—the defense of S.B. 8248—the district court erred in
In Stuart, abortion-services providers sued state officials over a North Carolina statute restricting abortions. A group of pro-life medical professionals and others sought to intervene claiming the state defendants would not adequately protect their interests. Thus, we addressed whether “to permit private persons and entities to intervene in the government‘s defense of a statute. . . .” Stuart, 706 F.3d at 351. We held that, in such a situation, “the putative intervenor must mount a strong showing of inadequacy” in the context of those private persons and entities on the basis of government entities’ duty to represent the people in public litigation matters. Id. at 352.
Importantly, we explained two primary reasons for requiring a “strong showing” of inadequacy. First, we noted that “[i]t is after all the government that, through the democratic process, gains familiarity with the matters of public concern that lead to the statute‘s passage in the first place.” Id. at 351. And second, we noted that “to permit private persons and entities to intervene in the government‘s defense of a statute upon only a nominal showing would greatly complicate the government‘s job.” Id. These reasons make clear the strong showing standard imposed by Stuart was for situations where private litigants seek to intervene in the government‘s defense.
Of course, this is not a case where a member of the public is seeking to intervene in the government‘s defense. The Proposed Intervenors here, like the State Defendants, are representatives of the State of North Carolina. In fact, they have been designated by that State as its agents for purposes of defending the constitutionality of North Carolina‘s laws. As such, the reasons set forth in Stuart for requiring a strong showing of inadequacy are not present. Thus, we conclude the Stuart presumption does not apply where another governmental branch, at least where authorized to do so by state statute, seeks intervention. And for that reason, we remand the case to the district court to determine, pursuant to Westinghouse, whether the Proposed Intervenors are able to rebut the presumption of adequacy by establishing either adversity of interest,9 collusion or nonfeasance. They are not required, however, to meet Stuart‘s heightened standard of a “strong showing” to rebut the presumption.
The dissent, in concluding a heightened burden should apply, relies heavily on the Seventh Circuit‘s decision in Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (7th Cir. 2019). And Kaul does, in
But if the Proposed Intervenors need not satisfy the heightened standard of a strong showing, what is the proper standard? To answer that question, we return to Westinghouse. There, we indicated the standard for establishing inadequacy generally was the “minimal burden” set forth by the Supreme Court in Trbovich. As already noted, we then indicated that if the proposed intervenor seeks the same ultimate relief as an existing party, the proposed intervenor must show either adversity of interest, collusion or malfeasance. But while our Westinghouse decision indicates that a proposed intervenor seeking the same ultimate relief as an existing party must show one of those three factors, it does not hold or even suggest any change from the minimal burden of establishing those factors. Thus, on remand, the district court should evaluate whether the Proposed Intervenors have established adversity of interest, collusion or malfeasance using the “minimal burden” standard of Trbovich. Trbovich, 404 U.S. at 538, n. 10 (noting that the requirement of
Finally, the Proposed Intervenors point to certain facts and evidence to support their contention that the State Defendants may not adequately represent the Proposed Intervenors’ interests. Particularly, they point to the State Defendants’ defense of this suit and litigation decisions, as well as the State Defendants’ actions in a parallel case in the state court—Holmes v. Moore, No 18-cv-15292 (N.C. Super. Ct.), and the history predating the litigation such as Governor and Attorney General‘s opposition to voter ID. We are careful to note that the district court is afforded discretion in the
The dissent concludes the North Carolina statutes should not be considered in the adequacy analysis. While we respect that differing opinion, we disagree with the view that the state law and policy cannot be considered as part of both the adequacy and interest elements of
Moreover, the dissent‘s analysis on the relevance of the North Carolina statutes to the adequacy analysis suggests that we have held that the statutes require that the Proposed Intervenors’ motion be granted. Dissenting Op. at 50 (“[I]f an aspiring legislative intervenor can meet both the interest element and the adequacy element whenever state law announces a policy preference for multiple representatives, then a district court may be subjected routinely to the ‘intractable procedural mess that would result from the extraordinary step of allowing a single entity, even a state, to have two independent parties simultaneously representing it.‘“) To be clear, these statutes should not and do not automatically satisfy the
B.
Last, the district court also denied the Proposed Intervenors’ alternative request for permissive intervention. “Permissive Intervention” contemplates intervention upon timely application “when an applicant‘s claim or defense and the main action have a question of law or fact in common.” See Newport News Shipbuilding & Drydock Co., 646 F.2d 117, 119 n.1. “If intervention of right is not warranted, a court may still allow an applicant to intervene permissively under
Of note, the district court expressed concern with the potential for delays which could result with the addition of Proposed Intervenors as parties to the action, and that inclusion of the Proposed Intervenors would place additional burdens on the court and cause the NAACP prejudice. We do not disregard these concerns, and we acknowledge that our appellate review is deferential because ”
In denying permissive intervention, the district court did not address
IV.
For the above-stated reasons, the district court‘s order denying the Proposed Intervenors’ motion for intervention under
VACATED AND REMANDED.
PAMELA HARRIS, Circuit Judge, dissenting:
North Carolina‘s Attorney General is charged by statute with representing the interests of the State of North Carolina in cases that challenge the validity and enforcement of state law. Consistent with that statutory duty, the Attorney General currently is in court—two courts, state and federal—defending the constitutionality of S.B. 824. Indeed, our own court soon will hear the Attorney General‘s appeal from the district court‘s decision to preliminarily enjoin the enforcement of S.B. 824.
Notwithstanding the Attorney General‘s persistent efforts, the Proposed Intervenors—out of respect for their positions in the General Assembly, I will refer to them as the Leaders—seek to intervene in ongoing district court proceedings. If the Leaders have standing to intervene in that litigation, it is, as the majority explains, as agents of the State of North Carolina, designated by state law to represent the State‘s interest in the validity and enforcement of state law. But another designated agent of the State—the Attorney General—already is representing precisely that interest.
It follows that the Leaders have a right to intervene under
I.
A.
In my view, this is a straightforward case—or, at least, it should be. To understand why, it may be helpful to clarify up front what this case is and is not about.
Crucially, this is not a case like those to which the majority looks for guidance— Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), Hollingsworth v. Perry, 570 U.S. 693 (2013), and Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)—in which a state representative, typically an attorney general, is no longer defending state law or has declined to appeal an adverse ruling. As the majority explains, those circumstances present difficult questions about the standing of other entities to intervene and continue a case in the state attorney general‘s stead. See Maj. Op. at 10–13. But at bottom, the issue in those cases is whether any state representative will be permitted to defend a state‘s interest in the validity of its laws when that state‘s “default representative” has declined to do so. Kaul, 942 F.3d at 800 (describing the mine run of cases where a legislature seeks to intervene “once the governmental defendant‘s default representative ha[s] dropped out of the case“).
Here, by contrast, the State‘s “default representative“—the Attorney General—has not “dropped out of the case.” Id. The Attorney General is charged, by North Carolina statute, with representing the State‘s interests in cases involving challenges to state law. See
The Leaders argue—and the majority agrees, see Maj. Op. at 11–14—that they have standing to intervene because state law has designated them, along with the Attorney General, to represent the interests of the State in federal court. See Reply Br. of Appellants at 10; see also Bethune-Hill, 139 S. Ct. at 1951 (where state law designates a legislative entity to “represent [the State‘s] interests,” that entity may “stand in for the State“). But those are exactly the interests already represented by the Attorney General in this case. So, the unusual question presented here is whether a federal district court must allow not one but “two state entities . . . to speak on behalf of the State at the same time.” Kaul, 942 F.3d at 800 (first emphasis added).
The answer to that question, all agree, is governed not by state law but by federal law: specifically,
So this is what we are left with: Proposed legislative intervenors who seek to represent the interests of a client—the State of North Carolina—already represented by the Attorney General, and so must face the “unenviable task of convincing a court that the Attorney General inadequately represents [the State], despite his statutory duty.” Kaul, 942 F.3d at 801. That would be, as the Seventh Circuit has
B.
1.
Although there is a decided paucity of case law supporting the Leaders’ efforts to intervene in this case, we do have one very relevant precedent that weighs heavily against the Leaders’ position: Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (2019), a recent Seventh Circuit decision that explains why a state legislative entity is not entitled to intervene in the circumstances presented here. Kaul issued on the same day that the district court denied intervention, and so the court did not have the benefit of the Seventh Circuit‘s reasoning when it ruled. But as it turns out, Kaul provides substantial support for the district court‘s findings.
In Kaul, Planned Parenthood of Wisconsin and a number of its employees sued Wisconsin‘s Attorney General and other state officials in federal court, seeking to enjoin the enforcement of certain state abortion regulations. See id. at 796. Rather than move to dismiss the complaint, the Wisconsin Attorney General filed an answer on behalf of the state defendants, denying the plaintiffs’ allegation that the abortion regulations violated the Constitution. See id. Shortly after, the Wisconsin Legislature moved to intervene, hoping to have the complaint dismissed at the pleadings stage for failure to state a claim. See id. The district court in Wisconsin denied the motion. See id.
On appeal, in evaluating whether the Wisconsin Legislature was entitled to intervene as of right, the Seventh Circuit assumed that the Legislature had standing to intervene on the same theory that the Leaders advance here: as an agent of the State of Wisconsin, designated by state statute to represent Wisconsin‘s interest in the validity and enforcement of its laws. See id. at 798. The court questioned whether, as the majority suggests here, see Maj. Op. at 19–20, the Wisconsin Legislature could invoke that same state interest to satisfy the “interest” element of
That was because the outcome in Kaul turned, as it does in this case, on whether the proposed legislative intervenors could satisfy the “adequacy” element of
Key to the Kaul court‘s “adequacy” analysis was a well-established presumption: that the Wisconsin Attorney General—having been charged by law with protecting the state‘s interest in the validity and enforcement of its abortion regulations, and having appeared in court to do so—was providing adequate representation. See id. at 799–801. Just how strong that presumption should be was the subject of some debate: The Kaul majority held that it could be rebutted only by a showing of “bad faith or gross negligence,” id. at 801, while Judge Sykes, concurring, would have set the bar somewhat lower, “start[ing] from a presumption of adequate representation and put[ting] the intervenor to a heightened burden to show a concrete, substantive conflict or an actual divergence of interests to overcome it,” id. at 810.
But for our purposes, what the Kaul court agreed upon is more important than what divided it: A substantial presumption would govern, not the default rule applied in Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n.10 (1972), under which showing inadequacy is described as a “minimal” burden. See Kaul, 942 F.3d at 799 (majority); id. at 810 (Sykes, J., concurring). And whatever the precise calibration of that presumption, it was strong enough, all agreed, that it could not be overcome by the Wisconsin Legislature‘s “political and policy differences with the Attorney General over abortion regulations,” or by “disagreements about litigation strategy.” Id. at 810 (Sykes, J., concurring); see also id. at 801 (majority opinion stating the same).
2.
Kaul is particularly instructive here because the Seventh Circuit‘s analysis aligns so substantially with our own approach to adequacy under
The majority here emphasizes that the proposed intervenor in Stuart was a private party and not a state legislative entity.
That, as the majority acknowledges, is precisely the situation here: The Leaders and the Attorney General share the objective of upholding the legality of S.B. 824. See Maj. Op. at 23. So under Stuart, as well as under Kaul, Trbovich‘s “minimal” burden standard cannot apply. Rather, we must start our adequacy inquiry with the presumption that the Attorney General is providing adequate representation for the State‘s interests. And, just as in Kaul, whatever the precise weight of that presumption, it cannot be rebutted by a showing of “stronger, more specific interests” on the part of the Leaders, or by a “disagreement over how to approach the conduct of the litigation.” Stuart, 706 F.3d at 353.
“Nor could it be any other way,” as we explained in Stuart. Id. at 354. Absent a meaningful presumption of adequacy, federal courts would be required under
C.
In this case, the district court recognized that our precedent required it to presume that the Attorney General was an adequate representative of the State‘s interests in the validity and enforcement of S.B. 824. Having applied that presumption, the court found that the Leaders were not entitled to intervene under
At this point, it is important to acknowledge our “necessarily limited” role in this appeal. Stuart, 706 F.3d at 350. We are not to decide whether, in our best view, the Leaders were entitled to intervene as a matter of right. That, our court has stressed, is an inquiry committed rightly to the broad discretion of the district courts. See id. 349-50. Instead, we may determine only whether the district court abused its discretion when it found that the Leaders were not so entitled. Previously, we have justified this deferential standard of review in light of the district court‘s “superior vantage point” for evaluating the conduct of the parties and the “profound implications” that intervention can have for trial-court proceedings. Id. at 350. With that deference to the district court‘s “on the scene” judgment layered atop the district court‘s thorough analysis, id., it is apparent to me that there are no
As the district court made clear at the outset of its opinion - and as I have emphasized already - this is a case in which the State‘s interests already are being defended by the Attorney General, who is charged under North Carolina law with the duty to defend state law in federal court. And it was apparent, in the district court‘s view, that the Attorney General was taking active steps to defend the lawsuit: The State Board, represented by the Attorney General, had “consistently denied all substantive allegations of unconstitutionality,” moved to stay the suit on federalism grounds, and - at the time that the district court was writing - “recently filed an expansive brief opposing [the NAACP‘s] motion for preliminary injunction on the merits.” N.C. State Conf. of the NAACP v. Cooper, No. 1:18CV1034, 2019 WL 5840845, at *3 (M.D.N.C. Nov. 7, 2019). In short, there was “nothing in the record to suggest that the Attorney General had “abdicated” his statutory duty to defend the State‘s interests in this case. N.C. State Conf. of the NAACP v. Cooper, 332 F.R.D. 161, 170 (M.D.N.C. 2019).
In arguing that the Attorney General is an inadequate representative of the State‘s interests in this case, the Leaders consistently have advanced two central arguments. First, they object to the way in which the Attorney General has chosen to defend S.B. 824, especially in a parallel state-court challenge, Holmes v. Moore, No. 18-cv-15292 (N.C. Super. Ct.). According to the Leaders, the Attorney General‘s conduct in this case and in Holmes demonstrates an “unwillingness to robustly defend S.B. 824,” Cooper, 2019 WL 5840845, at *2, that amounts to “nonfeasance” sufficient to rebut the presumption of adequacy we first recognized in Westinghouse. In response to the Leaders’ claims, the district court undertook a careful review of the Attorney General‘s litigation conduct in both cases, but found that the Attorney General simply had made reasonable litigation decisions with which the Leaders disagreed. See Cooper, 2019 WL 5840845, at *2-4; cf. Stuart, 706 F.3d at 355 (same). In view of our precedents, I can find no abuse of discretion in that judgment. Indeed, I believe it is entirely correct.
As the district court noted, the Leaders identified only the kind of garden-variety disagreements over litigation strategy that we and other courts consistently have found insufficient to rebut the presumption of adequacy, no matter that presumption‘s precise strength. See Stuart, 706 F.3d at 349; see also Kaul, 942 F.3d at 810-11 (Sykes, J., concurring). Illustrative is the Leaders’ objection to the Attorney General‘s decision to move for the dismissal of only five of the six counts leveled against S.B. 824 in Holmes and to reserve a dispositive challenge to the remaining intentional-discrimination claim for a later point in the proceedings. The district court found the Leaders’ objection wanting, in part because the Attorney General‘s decision ultimately was vindicated by the state court‘s ruling, which dismissed all five claims challenged by the Attorney General but denied the Leaders’ separate motion to dismiss the intentional-discrimination claim.2 See Stuart, 706 F.3d at 354 (reasonableness of attorney general‘s litigation choices was shown in part by their success). If it had had the benefit of Kaul at
Similarly, the Leaders have purported to identify deficiencies in the Attorney General‘s approach to discovery in Holmes and his opposition to the NAACP‘s preliminary-injunction motion in this case. Again, in their view, an adequate advocate would have assumed a more aggressive posture. But in making their case for nonfeasance, the Leaders again mistake differences over trial tactics for inadequacy. Cf. Stuart, 706 F.3d at 353 (intensity of proposed intervenor‘s interest in litigation does not establish inadequacy). And, in any case, as the district court explained, the Attorney General‘s brief in opposition to the NAACP‘s motion for a preliminary injunction was “expansive,” Cooper, 2019 WL 5840845, at *3, and a ramped-up approach to discovery in Holmes would have been duplicative of the Leaders’ own efforts in that case, where they are named as defendants.
As I have emphasized, and as the majority recognizes, we owe substantial deference to the district court‘s factual determinations here. But even if I were to review this record de novo, I would come to the same conclusion as the district court. I cannot view the record in this case - a record that reflects that the Attorney General has successfully moved to dismiss the Governor as a party, vigorously opposed a preliminary injunction, and filed appeals in state and federal court - and come away crediting the Leaders’ claims of nonfeasance.
That brings us to the Leaders’ second argument, and the central theme of their briefing: the suggestion that the Attorney General is not mounting a sufficiently vigorous defense of S.B. 824 because he is opposed to voter-ID laws as a matter of public policy. According to the Leaders, as a state senator, the current Attorney General opposed passage of a prior voter-ID law, arguing that it curtailed the right of North Carolina citizens to vote. And after he became Attorney General, the Leaders emphasize, he moved to dismiss a petition for certiorari review of a decision by this court holding that same voter-ID law unconstitutional, acting on behalf of the incoming Governor. See North Carolina v. N.C. State Conf. of the NAACP, 137 S. Ct. 1399 (2017). Whether framed as an argument for collusion or for adversity of interests, cf. Stuart, 706 F.3d at 349 (presumption of adequacy may be rebutted by showing of collusion or adversity of interest, as well as nonfeasance), the import of the Leaders’ claim is the same: The Attorney General cannot be trusted to defend S.B. 824.
This is a startling accusation. The Attorney General has a statutory duty to represent and defend the State and its interests in this litigation.
In any event, the district court found that there was no evidence in the record to support the Leaders’ “conclusory speculation” that the Attorney General‘s policy preferences have left him without the proper “level of interest” or “incentive” to robustly litigate in defense of S.B. 824. Cooper, 332 F.R.D. at 170. Again, I find no abuse of the district court‘s broad discretion in that judgment. As we have explained, and as the district court recognized, a proposed intervenor may have a “stronger” or more “intense” interest in the validity of a law than an existing party, but that will not rebut the presumption of adequacy that arises from a shared objective. Id. at 171 (quoting Stuart, 706 F.3d at 353). And the Attorney General‘s failure to seek certiorari review as to a different voter-ID law, without more, does not indicate nonfeasance, let alone collusion. See Stuart, 706 F.3d at 353 (even with respect to same law, government official‘s decision not to appeal adverse decision does not demonstrate “inadequacy” of representation); see also Saldano v. Roach, 363 F.3d 545, 555 (5th Cir. 2004) (same).
In short, our precedent is clear: A proposed intervenor‘s intensity of conviction, armchair quarterbacking, and political bluster do not warrant what the Seventh Circuit rightly called the “extraordinary finding” that a state attorney general has failed to adequately represent his state‘s interests, notwithstanding a statutory duty to do so. Kaul, 942 F.3d at 801; see also Stuart, 706 F.3d at 353. The Leaders have failed to show anything more on this record, so no matter the ultimate effect of a state law that purports to designate them as additional representatives of the State‘s interests in federal court - a question the majority does not resolve - the Leaders have not established a right to intervene. Accordingly, I would affirm the district court‘s exercise of its discretion to deny intervention under Rule 24(a)(2).
D.
My colleagues in the majority, of course, see this case differently. When it comes to the “adequacy” element of Rule 24(a)(2), the majority identifies two purported deficiencies in the district court‘s analysis that, in its view, necessitate a remand for the district court to consider anew whether the Attorney General is adequately representing
First, though the majority acknowledges that the Attorney General is entitled to a presumption of adequacy - and that the Leaders can overcome that presumption only by a showing of adversity of interest, collusion, or nonfeasance - it finds that the district court erred when, citing our decision in Stuart, it required the Leaders to make a “strong showing” of inadequacy. See Cooper, 332 F.R.D. at 169. In Stuart, we held that “a more exacting showing of inadequacy should be required where the proposed intervenor shares the same objective as a government party,” like the Attorney General here, as opposed to a private litigant. 706 F.3d at 351. But the Leaders argue, and the majority agrees, that Stuart‘s “strong showing” rule should govern only where, as in Stuart, the proposed intervenor is a private party and not, as here, a legislative entity seeking to provide additional representation of the State‘s interests.
The Seventh Circuit considered that very argument in Kaul and roundly rejected it. There, the Wisconsin Legislature, like the Leaders here, acknowledged that the Seventh Circuit‘s prior cases had granted a heightened presumption of adequacy when a government party shared the same objective as a would-be intervenor, but it pointed out that those cases only involved private would-be intervenors. See Kaul, 942 F.3d at 799. Again like the Leaders here, the Wisconsin Legislature argued that because it was a government intervenor seeking to represent the state‘s interests pursuant to state law, it should not be put to a heightened showing in order to rebut the presumption of adequacy. See id.
The Seventh Circuit disagreed. If anything, the Kaul court explained, the Wisconsin Legislature‘s identity as a government party cut the other way, justifying an especially strong presumption of adequacy. See id. at 801. A private party seeking to intervene can argue that, although it seeks the same objective as the state‘s existing representative, the state‘s interests - informed, as they must be, by the concerns of the general public - are not perfectly aligned with his or her more individualized interests. See id. But the legislature in Kaul - like the Leaders here - could not make that argument, because it was a governmental entity seeking to represent precisely the same state interest as the state attorney general already in the case: “The Legislature [went] further than sharing a goal with the Attorney General . . . and intend[ed] to represent the same client - the State of Wisconsin.” Id. Under those circumstances, the Wisconsin Legislature would have a right to intervene only if the Wisconsin Attorney General - charged by state law with representing the same state interest the Legislature sought to advance - was inadequately representing his own state. Requiring a heightened showing of inadequacy to justify such an “extraordinary finding,” the Kaul court concluded, was entirely appropriate. Id.
I agree. When the interest invoked by a proposed intervenor is represented already by a state executive-branch official designated for that purpose under state law, then it makes perfect sense to bring to bear an especially strong presumption of adequacy, putting the intervenor to a “heightened burden.” See id. at 810 (Sykes, J., concurring). In all other contexts, we presume, under the longstanding and well-established presumption of regularity, that government officials properly discharge their official duties. See United States v. Chem. Found., 272 U.S. 1, 14-15 (1926). Any would-be intervenor, even a state legislature, asking a federal court to find that a state
Second, the majority faults the district court for failing to consider in its adequacy analysis the state‘s public-policy judgment, reflected in
at 20. But I cannot agree that the state‘s policy judgment should be double-counted and put toward satisfaction of
Again, the Kaul court considered and rejected precisely this approach. The problem, as the Seventh Circuit explained, is largely practical: Intervention under
I agree with the Seventh Circuit that we cannot allow our “respect [for] a state‘s autonomy as a sovereign” to render district courts “powerless to control litigation involving states.” Id. To be clear, I do not question or otherwise diminish a sovereign state‘s authority to designate its preferred legal representative: If the General Assembly, in its considered judgment, believes that the Attorney General is not adequately representing the State in a given
II.
For the reasons I have given, I would affirm the district court‘s denial of intervention as of right under
The majority, of course, takes a different approach. And in order to reach its contrary conclusion, it must address and resolve several additional issues. I will address only two of the most difficult issues here.
A.
First is the question of the Leaders’ Article III standing to intervene as of right.6 Because I would affirm the district court‘s denial of intervention in any event, I may assume that the majority is correct, and that the Leaders have in fact established Article III standing. Even if they had not, in other words, I believe we still would be required to affirm the district court‘s denial of intervention, though on alternative grounds. Still, I have some doubts about the majority‘s analysis.
The majority‘s standing analysis turns on
Most important, while I have no doubt that state law reflects North Carolina‘s preference that both its executive and legislative branches be permitted to participate in certain federal-court litigation, I am less certain that
B.
I turn next to the majority‘s treatment of a second issue: the nature of the Leaders’ interest under
But because it is a matter of our jurisdiction, I feel compelled to note that I have serious doubts about whether the interest question - along with some others addressed by the majority - is properly before us at all. The district court considered the nature of the Leaders’ interest under
The Leaders argue, and the majority agrees, that because the district court‘s first order denying intervention was “without prejudice” - allowing for renewal of
III.
That leaves the Leaders’ request for permissive intervention pursuant to
The district court‘s decision to deny permissive intervention - while allowing the Leaders to participate as amici - turned on two findings regarding the proceedings before it. First, the district court found that the addition of the Leaders as parties would result in unnecessary complications and delay, both in pretrial proceedings and at trial itself, jeopardizing the court‘s ability to reach final judgment in a timely manner. Second, the court concluded that intervention by the Leaders was likely to
Moreover, those findings are all that is required to justify a denial of permissive intervention under
Acting under statutory command, the Attorney General of North Carolina has represented the members of the State Board of Elections and defended their authority to enforce S.B. 824 from the outset of this case: He has moved to dismiss certain of the plaintiffs’ claims, sought to stay federal-court proceedings, and opposed a preliminary injunction. Even as we considered this appeal, district court proceedings have continued, and the district court docket reflects the Attorney General‘s clear intent to defend S.B. 824‘s constitutionality up to and including a post-election bench trial. And a quick review of our own docket shows that the Attorney General actively is defending the law‘s constitutionality on appeal before us.
To resolve the issue at the core of this case, we need only decide whether the district court abused its discretion when it determined - twice - that the Attorney General and the non-partisan attorneys of the North Carolina Department of Justice are discharging their statutory duty to defend the State of North Carolina‘s interest in the validity and enforcement of its laws. I see no abuse of discretion in that judgment; indeed, I agree with the district court that the Attorney General has not abdicated his statutory duties and continues to present a reasonable defense of S.B. 824. With respect for the majority‘s contrary view, I must dissent.
60
Notes
(a) It is the public policy of the State of North Carolina that in any action in any North Carolina State court in which the validity or constitutionality of an act of the General Assembly or a provision of the North Carolina Constitution is challenged, the General Assembly, jointly through the Speaker of the House of Representatives and the President Pro Tempore of the Senate, constitutes the legislative branch of the State of North Carolina and the Governor constitutes the executive branch of the State of North Carolina, and when the State of North Carolina is named as a defendant in such cases, both the General Assembly and the Governor constitute the State of North Carolina. It is the public policy of the State of North Carolina that in any action in any federal court in which the validity or constitutionality of an act of the General Assembly or a provision of the North Carolina Constitution is challenged, the General Assembly, jointly through the Speaker of the House of Representatives and the President Pro Tempore of the Senate, constitutes the legislative branch of the State of North Carolina; the Governor constitutes the executive branch of the State of North Carolina; that, when the State of North Carolina is named as a defendant in such cases, both the General Assembly and the Governor constitute the State of North Carolina; and that a federal court presiding over any such action where the State of North Carolina is a named party is requested to allow both the legislative branch and the executive branch of the State of North Carolina to participate in any such action as a party.
(b) The Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State, by and through counsel of their choice, including private counsel, shall jointly have standing to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution. Intervention pursuant to this section shall be effected upon the filing of a notice of intervention of right in the trial or appellate court in which the matter is pending regardless of the stage of the proceeding. Notwithstanding any other provision of law to the contrary, the participation of the Speaker of the House of Representatives and the President Pro Tempore of the Senate in any action, State or federal, as a party or otherwise, shall not constitute a waiver of legislative immunity or legislative privilege of any individual legislator or legislative officer or staff of the General Assembly.
Despite what I view as a decided lack of clarity as to the purported “designation” in
Exactly the opposite happened here. The district court denied intervention outright, while acknowledging that circumstances might later change and provide support for a renewed motion to intervene. Had the Leaders filed an appeal from that order, we surely would have concluded that the district court was “finished” with the question of intervention on the record before it and proceeded to consider their arguments on the merits. Given that they failed to do so, however, I do not think we can reach those arguments now.