tv Justices Hear Case on Effort to Revive Kentucky Abortion Law CSPAN October 12, 2021 10:01am-11:18am EDT
all persons having business before the honorable, the supreme court of the united states, are admonished to draw near and give their attention, for the court is now sitting. god save the united states and this honorable court. >> the orders of the court have been certified and filed with the clerk. the argument first this morning in case 2601, cameron v. emw women's surgical center . >> today's after of official stopped defending kentucky's house --, so the common wealth could -- the six circuit cap the attorney general out-of-court inmate three fundamental errors
in doing so. they simply sought to pick up where the secretary had left off in this litigation. the attorney general on half of the commonwealth nearly excepted a handoff from another state official to exhaust all appeals. second, the panel refused to consider kentucky's sovereign interest in enforcing and defending its law. to be clear, the panel affirmatively treated kentucky's sovereign interests as irrelevant to that inquiry. third, the panel expected the attorney general to have preemptively intervene while the secretary was vigorously defending house bill 454, with the attorney general's office as his counsel. that is contrary to what this court said and mcdonald and accepted more broadly it would lead to a flood of productive motions to intervene. before discussing the issue
further, that we address the jurisdictional argument that has been raised. this overlooks that the attorney general is here in court today on behalf of the commonwealth. this court case law instructs that acting for a state is a distinct capacity, because everyone agrees that the attorney general did not participate in that capacity in district court. he is not jurisdictionally barred from doing so now. even still, the attorney general cannot have appealed the district court's judgment. he had been dismissed without prejudice and was not named in the court's judgment and preserved his ability to participate and to benefit from any favorable results on appeal. i welcome the court's questions. justice thomas: there isn't much law for appellate intervention. so what do we rely on? do we rely on rule 24 which does not really apply?
what would be your strongest case that we should have a basis for this intervention that is not in the rules of our appellate procedure. >> the best case is the scofield case discussed in the briefing and scofield says even though rule 24 is not technically applicable in appellate courts it serves as essentially a helpful analogy. rule 24 is perhaps the starting point of what we are looking at. our position is not that interventions under rule 24 is always the same as intervention in appellate court. our point is that when we have a handoff from one state official to another, only to exhaust all appeals, it doesn't make sense to draw a firm line between district court elevation -- intervention and appellate court intervention. there is a strong analogy to
mcdonald she intervened as soon she learned her interests were unprotected. this course of this was timely, even though it was post judgment. justice thomas: we did a standard and a basis. i think we are reviewing this on abuse of discretion standards. we need a basis for saying the sixth circuit abused its discretion, and i simply want to know if it -- if rule 24 does not apply on its own terms, what does apply to give us the authority to find abuse of discretion. mr. kuhn: i think it is a general, equitable standard. i don't take my friend on the other side to argue that we are categorically prohibited from of -- intervening in an appellate court there is an equable standard as we pointed out on page 27 of the brief. this court, on occasion, allows
intervention on its own docket and it does so in circumstances that are very similar to what we have here, where another party had been representing the party and interests up to that point. the party that had been in court declined and this court has on occasion granted a motion to intervene on this docket to allow the filing of a petition. justice thomas: thank you. >> you noted that the attorney general intervened on behalf of of the commonwealth of kentucky. i don't quite understand if that's different than simply representing the commonwealth of kentucky as its counsel or if the attorney general is intervening in its own capacity as distinct from the commonwealth. mr. chief justice -- mr. kuhn:
mr. chief justice, we say the state has to have the power to act through its agent. our position is we are here as the agent of kentucky. it is consistent with how hollingsworth talked to the state has the power to act only through it agent. upholding this court to its ruling that and attorney general of arizona came for the state and the court pointed out that the arizona attorney general "sit the bill -- fits the bill of someone who can stand in the state and it is consistent with with what the said house of delegates do not have the authority we had here but the court talked about as standing in for the state. that is what we are seeing here. i read the thune hill that if we are here on behalf of the state
that is distinct and separate and apart from whatever institutional interest the attorney general may have. chief justice roberts, do they be have of the department of social services or whatever it is or is there no separate designation for that? mr. kuhn: i think it is different if we are retained as counsel, as we were by the secretary for the six circuit. when kentucky's attorney general comes into court for the commonwealth, we know -- note that it is through an attorney general action. if you look at the cases we cited on pages four and five, they are attorney general on behalf of the commonwealth.
so when appearing for another state official, which is counsel. from a kentucky law perspective, that makes sense because the attorney general is not just a lawyer for the commonwealth. kentucky law tells us he is the chief law for the commonwealth. for that reason there is a state reason and federal reason why we came in. >> counsel, i understand that virginia law permits the attorney general to step in but doesn't require it to an permit state agencies to hire its own attorneys or higher the attorney general. in this case i understand that four of the lawyers that are part of the attorney general's office were working for the department of state but not as part of the attorney general's office. the secretary had hired his or
her own attorneys, correct? mr. kuhn: that is correct justice sotomayor. justice sotomayor: what so when you were soon you pursued as the attorney general, correct? mr. kuhn: that is correct. justice sotomayor: you signed a stipulation dismissing yourself and saying that you would abide by the decision of the secretary of state, it's litigation, and abide by whatever judgment was entered in this case. would be bound by in-home final judgment in the action sun is that correct -- action, is that correct? mr. kuhn: yes, generally. justice sotomayor: why would we call it an abuse of discretion for a court of appeals after it
rendered its judgment to say, we don't really care what has happened in the political arena. we don't want to be dragged into it. you agreed to be bound by this judgment. you didn't appeal, even though you are a party. are you telling me you are now willing to waive the sovereign unity of the state, because that's what it sounds like, because if you're coming in as yourself, you were here and left, you agreed to be bound by whatever the secretary of state did. under what theory of law would we the able to say that the sixth circuit abused its discretion in just respecting the very stipulation you signed? mr. kuhn: let me start with the
stipulation and then i want to talk about the sovereignty. with respect to the stipulation, it was entered into our capacity as someone could enforce house bill 454. we were soon on an expert take theory -- an ex parte. that acknowledgment overcomes the stipulation. justice sotomayor: it couldn't have been before the district court. the state has seven immunity, correct and the state -- sovereign immunity, correct, and the state -- unless it is going to waive sovereignty, and you haven't told me if you are or aren't or have or haven't. i don't think you put that before the sixth circuit. so how do we say it abused its discretion in saying that an individual party who had an
opportunity to be in the litigation and shows to get out and chose to bind itself to the decisions of the secretary of state, how can we say it abused -- the sixth circuit abused its discretion in honoring that commitment by the attorney general? mr. kuhn: justice sotomayor, we don't think the commonwealth is a party to the stipulation, because they had not been brought by the court. they tried to sue the commonwealth and at that point we would have been able to invoke sovereign immunity but we never got that chance. justice sotomayor: it would've been almost actionable for them to have sued the state, wouldn't it? it would have been in bad faith. everyone knows you can't sue a state you can serve the officers who enforce the law.
you said you had no authority or duty to enforce the provision as an active, but now you come back and give a contrary representation that you can enforce the provisions by defending them, correct? mr. kuhn: that's correct. justice sotomayor: so why would that be judicial -- mr. kuhn: one of the key elements is the court has to accept your argument. the previous attorney general took the position that he did not have the authority to enforce house bill 454. the district court did not rule on the issue. if you look at the stipulation, it notes we agreed not to enforce house bill 454. the stipulation overcomes any suggestion that the district court ruled on the issue. if i can point you to two
particular provisions of the stipulation, even if the court were to say the commonwealth is bound, i think it protects exactly what we are doing here. we reserve all rights to participate in this action and any appeals arising out of this action. we preserved our ability to benefit from any favorable results on appeal. those work together that if the attorney general -- justice sotomayor but you didn't appeal. mr. kuhn: that's correct, but only a party or who becomes a party can file an appeal. justice sotomayor: you could have filed one if you wanted, but you reserve the right. mr. kuhn: we reserved our rights, claims and defenses. justice sotomayor: but you did not file a notice of appeal on time. mr. kuhn: we had been dismissed from the case without prejudice. we were not mentioned in the judgment. >> can i ask you the stipulation
concerning being bound by a final judgment. what do you understand final judgment to mean? seems to me the number of things , the district court ruling as a final judgment for purposes of appeal. on the other hand, there are subsequent proceedings that could take place. an appeal and so on that would undermine the fidelity of the judgment. when you signed that stipulation to be bound by final judgment, what are you being bound by? mr. kuhn: the language is we are bound by the final judgment in this matter disposing of all claims in the exhaustion of any and all appeals that may arise in this action. we did the benefit of any favorable action on appeal. the notion would be yes, we are agreeing to be bound but we are preserving our right to come back in. although we disagree with what the sixth circuit did, if you
look at joint appendix 229, the sixth circuit appears to agree with what i am saying, with a noted we had preserved our claims and rights relating to whether we can participate on appeal. i think that's one thing weeding did the stipulation that the sixth circuit in fact -- reading the stipulation that the six the facts right. it should respect how estate state structures its self when defending its laws. kentucky has put together a system as justice sotomayor are mentioned, states often times by the frontline defense of state laws. this makes sense because they have particular expertise in enforcing the laws. but kentucky said it is not good enough for the state that one official gets to make all litigation for the state. but what we as kentuckians want is a failsafe that if a state
official who enforce a state law says i'm not going to appeal any further, kentucky's attorney general can come in for the commonwealth and say no, the commonwealth wants to go further. this envisions a system of state officials working together to defend kentucky's law. justice sotomayor: could i assume that the attorney general's office could have appealed? just assume with me that it could have because it was bound by the judgment, because of the stipulation, because of the combination of the two, because of any number of things. assume with me that the attorney general's office could have appealed. in that case, with the petitioner's jurisdictional argument be correct? mr. kuhn: no, justice kagan, i don't get would. let's assume that instead of putting the power to defend kentucky on the attorney general, the general assembly of kentucky had given it to itself.
if that had happened and everything stated in your hypothetical, this court would not be having a jurisdictional discussion, because everyone would understand the attorney general in his enforcement cassidy which in your -- informant capacity which in your hypothetical went on the commonwealth. justice kagan: i am not sure i understand the answer so let me reframe the question. to take our decision in torres, which is the case where we made clear that the notice of appeal requirement is jurisdictional and impose a very harsh rule, saying that if you don't appeal, even if it is not your fault, you are out of luck, ok. do you think if torres had gone further and mr. torres had filed a motion to intervene that we would have said, oh, sure, go ahead and intervene? would the court has said that? mr. kuhn: our position is that
we do not think a notice of appeal for a party -- i'm sorry for a party who could have appealed failed to do so, we don't think a motion to intervene in the ensuing appeal that the party failed to take, we don't think that would be proper because of how this court talked about jurisdiction in torres. my point is, had separated the power to represent the state from the attorney general, no one would think there is a jurisdictional problem. the only reason we are having a jurisdictional discussion is two hats were put on the same official, the language this court used in but then he'll. they told -- in the thune hill. justice kagan that is just contesting the promise that the attorney general could have appealed. if i understand, he could have
appeal because he was doing so in a different capacity than he had taken in the first place. mr. kuhn: my position is because of the way the stipulation was written, the attorney general could have appealed because it is consistent with him reserving his right and claims of right to participate in a subsequent appeal and benefit from a favorable rule. justice kagan: i apologize for pressing and i'm just not understanding. if you agree that in a torres type case where the person could have appealed and didn't appeal, if you agree it would then be improper to grant intervention rights, which i take you to agree, so that's a very simple case. it seems to me the petitioners would say, that exactly what happened here, because the ag
could have appealed, didn't, and is now seeking intervention. if we assume the point that the ag could have appeals, why the same result follow? mr. kuhn: because this court has told us that different opacities -- this court's are in bethune hill, the fact that they defended the institutional interest didn't mean that it also brought any power it had to appeal on behalf of the state. the court set the record was silenced about that issue in the record is silent participating as an agent of the state and -- could you have intervened that that would've waived the sovereign unity that we would be having this discussion if you intervened on behalf of
kentucky and you being the lawyer. could you have done that? mr. kuhn: i think that is officially what we did. the reason we came in by the commonwealth, they told us in hollandsworth that states had to act as agents. we identified ourselves as the agent of kentucky and came in on behalf of the commonwealth. this court noted that in hollandsworth state attorneys general are typically the people who are taxed to defend the sovereign you need to speak for the people of kentucky. i would agree that we could have come in as the commonwealth, which is essentially what we have done by identifying ourselves as the agent of kentucky. >> are you answering yes? mr. kuhn: so i don't think this court has ever said that when we participate as an agent of the
commonwealth or of the state that that is in fact a waiver of sovereign immunity. >> if you're not a party, you can't be the agent of anybody. mr. kuhn: i agree that we are an agent of the party and to the extent that does create a waiver of sovereign immunity, it is related to whether house bill 454 is constitutional. it is not unprecedented for states to come in and defend their laws in maine versus taylor. justice sotomayor: would you have been defending this law? what other capacity would you have served if you had stayed in the litigation when you are sued? you are being sued as an agent of the state, correct? mr. kuhn: no, we were being sued because we can enforce house bill 454 ex parte. everybody agreed that kentucky
was not there in district court pages already the and 41 of the brief, that concession being it cannot be the case that kentucky is jurisdictionally debited from coming in. the only visit we are having this discussion is because the attorney general wears to have. just like the hats that were discussed in bender, this is not a novel thing. we follow the course direction in bethune-hill to bring us here. if i could just out that after reading the six circuit's decision i think one would be forgiven for not understanding sovereign interest. with had a discussion about state sovereignty and that fact went unmentioned in the court of appeals ruling. it wasn't mentioned anywhere. footnote four said they wouldn't consider the general defending
the state. we think that was irrelevant after that the court of deals should have considered. keep in mind that we had been representing terry before six circuit -- representing the secretary before circuit we argued in defense of house for 54. the secretary informed the attorney general's -- house bill 454. separated from the attorney general's office he would not appeal further. we filed a motion to intervene on behalf of of the commonwealth. that is how we titled it in the intro and conclusion and said it more than a dozen times in the motion. that went unrepresented. the only way we can understand the six circuit's -- sixth circuit's decision is to bring us a new, beastly unrepresented interest. we -- bring us a new, unrepresented interest. when we stepped forward, we
sought to defend the same interest as the party but the secretary had been defending all along. under those circumstances, it was a handoff of litigation authority. the secretary did not oppose our motion to intervene. the secretary said i am not going to go further and i am not going to oppose you going further. this is an example of kentucky's unique system of defendant at sovereign interest in working as it was intended. state officials working together. we commit for the commonwealth and say we want to go the distance. >> justice thomas? justice thomas: not for me. justice kagan: if i understand your argument correctly, it really does all come down to this to. .
is this correct? mr. kuhn: i -- down to these two hats. is this correct? mr. kuhn: even if you disagree with us on two hats the attorney general cannot have appealed. justice kagan: if you assume the attorney general could have appealed that it comes down to the two hats. ? mr. kuhn: that's correct -- the two hats. ? mr. kuhn: that's correct. justice kagan: it seems to me the secretary's role in this entire litigation pretty much proves that the two hats theory does not work, because your theory was that the attorney general was stepping in for the secretary who was representing the state's interest. but the secretary was sued in his capacity as a state official who could enforce state law doesn't it come down to the same
thing, the secretary was sued because he could enforce state law and interest you're nobody else was doing that. so the two seem completely intertwined and the secretary's role in litigation prior to the attorney general's motion approves that, doesn't it? no, -- mr. kuhn: no, it doesn't they can defend when challenged. so the fact that he can take actions consistent with kentucky's interest in defending its law does not mean that he has the power to stand in as the agent of kentucky. only the attorney general has that power. i think the distinction to be drawn is yes, the secretary took actions consistent with kentucky's interest by defending kentucky law when he said no
further. that is one we stepped in and that is what we think mcdonald did in this court decision with mcdonald. justice gorsuch: the thing that -- mr. kuhn: this court is not ruled. we have not contested that went because of what the court said naacp versus new york and the position is that rule 24 is a helpful analogy in that circumstance. we think this is an obvious abuse of discretion because we were not treated -- justice gorsuch: you rest heavily on state sovereignty interests in have been citing bethune-hill to us a lot.
when improper for a court of appeals under a abuse of discretion to deny intervention by state entity? mr. kuhn: if we had sought rehearing but file it after the deadline, i think that a court of appeals would be within its discretion to say no, you are delaying this litigation. if we had come in and said court of appeals, please remand this to the district court to let us put more fact, i think the court would be within its discretion to deny made our point is were removed to intervene and did not delay this case by even a day where we merely sought pickup for the secretary left off and to exhaust all appeals. in that circumstance would feel that is an abuse of discretion. justice kavanaugh: does the same kind of rule apply in private negation? suppose a -- private negation? suppose a private defendant
argues that the state tort law is unconstitutional and the court appealed rules that tort law is unconstitutional and state -- the private plaintiff chooses not to search, can estate ag intervene in the private active has chosen not to seek or cert to argue that the state tort law is in fact constitutional. mr. kuhn: i think this court told us in hollingsworth that a private already defending state law is just a different matter than a state official who has sworn an oath to defend kentucky's constitution was popularly elected. i think the state in that circumstance. justice kavanaugh the state tort law would be declared unconstitutional by saying it is
different you are saying the state ag in that case could not seek even though the state tort law had been the word unconstitutional. mr. kuhn: it is not that he could not do so without -- but would not be as easy of an argument in that circumstance. it matters that we have a handoff from one state official to another, both of whom are sworn to defend kentucky law. what i'm saying today consistent with the hypothetical i am talking about, but i believe we are a half step beyond that in this is a much easier case than the one you prophesies. >> justice thomas asked you where we get the authority to impose these standards on the courts of appeal and i think we treated it as the lower court having inherent authority and i heard you saying that we have the authority to make sure that
the rules that the court is about to apply are not abuses of their discretion. that would be to whether we were talking about prejudgment or postjudgment. our question about how we should think about that relationship in the context of a post judgment motion because we have also asserted that we have inherent supervisory authority over the courts of appeal and the post judgment intervention context, we might also have some concern that wouldn't be present in prejudgment context about the court of appeals trying to invade our appeal. how, if at all, should we think about factoring that into the analysis. it is more than equity to the litigants. does that play a role at all? mr. kuhn: i think it does, and if it wants to look at the night circuit that dealt with that, that is when hawaii came in and they had come in later and would've had a private litigant.
the court talked about its discomfort was saying a sovereign state could not sink relief and could not seek certiorari law. justice coney barrett: my question was a little bit different because it is one that might apply in the context of private parties as justice kavanaugh was saying. mr. kuhn: as you think about the private parties issue, 16 of mcdonald opinion talks about how it's analysis would apply outside the representational context as mcdonald was named by the members. the court gave two examples of cases that would apply postjudgment and the representational context but cited further cases and said outside of the context, we think post judgment intervention could be allowed and cited two cases and said the cattle decision --
said the mcdonald decision is consistent with the other cases to the extent they moved to intervene before appellate deadlines had run. an insulating a decision from further review for a sovereign state is something that matters quite a bit to the analysis we hope the court adopts. >> thank you, counsel. >> thank you mr. chief justice and may it please the court. the attorney general agreed to be bound by judgment and chose to not appeal it. because he was bound by the judgment he had set by statute. he cannot avoid his failure seeking to intervene instead. the attorney general does not dispute that is bound by judgment and cannot intervene
but offers two responses, both in suspicion. the argosy is exempt from jurisdictional rules because he is wearing a different hat on appeal that he wore when he appeared to be bound the attorney general is sued and wound in his capacity and the fact that a party has more than job responsibility does not allow it to evade the jurisdictional bar. the attorney general argues by reserving all rights, claims and defenses to whether he is the proper party he reserves the right to participate in the field but you can only reserve the rights that are available to you and there is no right to join an appeal after failing to satisfy the jurisdictional rules for doing so. however, even if not jurisdictionally barred, the court of appeal should be affirmed. intervention is not a revolving door that allows a party to agree to be bound, procure their dismissal, failed to appeal, and gain reentry to the suit after the court of appeals has ruled.
moreover, where the attorney general was on notice and preserving the third-party standing arguments nearly a year before the court of appeals ruled and did nothing about it, the court did not abuse its discretion in denying postjudgment intervention when it was based merely on that argument -- based primarily on the argument. it is not disrespectful to the attorney general and kentucky sovereign interest to hold the attorney general to his decision not to appeal, particularly when he can make the same arguments he made through rule 60 be -- 60 b. >> in your introduction -- introductory comments, you did not refer to eisenstein and how you would work around eisenstein if you think the attorney general was a party. ms. kolbi-maolinas: i don't
think eisenstein changes the attorney general's ability to appeal. what this court held in dublin and the three cases it cited was that when a person participates in proceedings before the district court in a manner that results in them being bound, then they have a right to appeal. in eisenstein, you're talking -- the court was talking specifically about the false claims where there was a statute that says the united states can't participate unless it first intervenes. this court in eisenstein upheld that the united states was a party even though it had not done what congress had required it to do to become a party, and that would've been underlining -- undermining the statutory process. it is context specific and here you have the attorney general who moved for and obtained a
court order expressly binding him to the final judgment. that final judgment was then entered by the same district court that originally bound him to it. justice thomas: what was the effect of the audit? was the attorney general retained as a party or dismissed? ms. kolbi-maolinas: the attorney general was dismissed as a named defendant but not completely dismissed because one summit is completely dismissed and they have no more relation -- justice thomas: we you give another example of where party was dismissed but also remained a party? ms. kolbi-maolinas: this -- i know it is routine and the court of appeals for people who are bound by judgment even if they are not currently named pendants to be able to appeal, but i do not think there is a court case. justice thomas: you know in court cases outside of class action? ms. kolbi-maolinas: yes, leah cited cases in the brief and
courts had decided decisions from courts of appeal were people who are expressly bound by the judgment but not named as defendants have a right to appeal. justice thomas: and the sixth circuit seemed to rely primarily not on the jurisdictional issue but on intervention that the reason it would not grant intervention was because of prejudice. and it based that prejudice to you on an argument, a third-party standing argument that the attorney general was raising. can you give me an example of a case where a party wants to intervene is prevented from doing so based on prejudice because that party wanted to raise a jurisdictional argument? ms. kolbi-maolinas: your honor,
at that time under the sixth circuit that argument was not jurisdictional. but i am not aware of any case in which someone has been denied intervention to raise a jurisdictional argument, that wasn't the argument. justice thomas: so what is the prejudice? ms. kolbi-maolinas: that the argument had been waived. the secretary had not made the argument about third-party standing on appeal. it had been part of it but the secretary chose not to appeal it. that was clear as of july 2019, nearly a year before the court appears -- appeals ruled. throughout this time, the attorney general did nothing to try to intervene and make the argument. he was on notice as of july 2019 that of someone else didn't make the third-party standing
argument before the sixth circuit ruled it would be waived. even when he entered an appearance on behalf of the secretary, he entered after briefing had been completed. he didn't request supplemental briefing on the stir party standing and didn't file about the grant, he didn't ask the sixth circuit to stay proceedings so there could be supplemental briefing. he was aware that the argument had been waived and did nothing to try to raise it before the court of appeals ruled. it was not an abuse of discretion for the sixth circuit to hold on a party based virtually the entire intervention motion on an argument that they could have moved to intervene and made before hand didn't was not an abuse of discretion in that context was untimely and prejudicial. >> merv to the jurisdictional
argument -- moving to the jurisdictional argument -- >> as i understand this, and you better correct me please, there have been a lot of party changes. first the republicans and than the democrats and they have different views on the abortion statute. first of all, the clinics sued to say the statute is unconstitutional. it was defended and the secretary of state says i can't enforce this, and that is it. eventually when they get around to deciding it, the lower court said it is unconstitutional. in the court of appeals said it is unconstitutional. at that point, for the first time, we have an attorney general who thinks it is a good statute and wants to defend it. so two days after he learns that nobody is going to defendant, he
comes in and say let's defend it -- is going to defend it, he comes in and says let's defend it. if there is not any prejudice, webkit he just come in and -- why can't he just come in and defendant -- and defend it. he may lose on both those, and he may lose for the reasons that you say, but i don't think why he can't if kentucky law allows him to make the argument, why can't he make the argument? ms. kolbi-maolinas: well, your, that would be the case if we were talking about a true stranger or outsider to the case. there were four defendants sued in this case, the attorney general, rather than defend or take a backseat, move for and obtained a court order expressly binding him to the judgment.
the secretary did defend. justice breyer: on the grounds that it is the wrong person? ms. kolbi-maolinas: he defended the sioux all the way up defendant on the constitutionality -- he defended suit all the way up to defending on constitutionality. the secretary was vigorously defended. the attorney general, it is well-settled in this court, stands in the shoes of his president -- predecessors. a successor in office is bound by the stipulation made by and judgment against their predecessors. it doesn't matter that has been a political party change. we are not talking about a run-of-the-mill intervention case with the attorney general had not been involved in someone act out. justice breyer: there is still something to do. the sixth circuit said this is
unconstitutional and somebody could have filed, a defendant, a motion for rehearing and they could have tried to come here. but the secretary of state said, i'm not going to do that because it had been a political party change. so that point, the attorney general said two days ago nobody is going to defend it, so i better. am i totally wrong? ms. kolbi-maolinas: the secretary made the decision not to continue. justice breyer: was i correct in my statement? did you take it in or shall i repeat it again. ms. kolbi-maolinas: i believe it is correct that the secretary decided not to appeal and the attorney general moved to intervene. the point is that the attorney general is a former named defendant in the suit. he is already bound by the judgment. justice breyer: i read the thing
he signed and he said he would be bound by a final judgment of what? ms. kolbi-maolinas: of the district court. justice breyer: you need final judgment, a lot of appeals and occasionally the district court is reversed and occasionally, but even a court of appeals sometimes is reversed. so is it a final judgment if there are still appeals? ms. kolbi-maolinas: it is, the term final judgment refers to final and appealable. it is only if you talk about a judgment that is not final until all appeals have been exhausted. justice breyer: so if he goes to ask them to read. , the court would just write what you said?
no, denied. ms. kolbi-maolinas: i would assume the court would tonight for being jurisdictionally barred, they are jurisdictionally barred from along him to intervene. justice breyer: i thought your friend read additional information said subject to rights to appeal and so on and so forth. ms. kolbi-maolinas: he read two different positions. threeb is not the pair got that binds them to final judgment. that is a separate agreement not to enforce until all appeals were exhausted. paragraph 3b says that judgment on appeal means he wasn't being bound by the final judgment and even if it was later changed he would remain bound by the original judgment.
justice breyer: i can look at the language again it like he is bound by the final judgment unless it is reversed suggests that it is a final judgment in the way you have to have a final judgment to appeal, but not necessarily the last word. ms. kolbi-maolinas: i think he is bound by the final judgment and if it no longer exists than they can't be bound by it. there are other defendants in the suit. the local prosecutor was a defendant in the suit who stayed in the case to the district court and became bound by final judgment but opted not to appeal. if the final judgment is vacated on appeal, even though he never appealed, he would no longer be bound by it but that doesn't mean he wasn't bound by the final judgment and therefore didn't have an obligation to appeal it and it didn't mean he didn't lose his right to appeal once he failed to do so. >> can i take you back to the original justice breyer
question, which does have to do with a change in party, and i understand your answer that the attorney general remains the attorney general and we have a lot of law saying that even though the attorney general, the person has changed and even the party has changed, it is still the same legal entity. i don't take kentucky to disagree with it. no place to talk about the fact that once there was a democrat and now he was a republican and he thinks differently. there is a real-world way in which that matters. that creates the problem which is there is no problem left defending the state's law. i think what justice breyer was saying is, that would be an extremely harsh restriction oh rule or counterintuitive if it ended up in a place where nobody was there to defend kentucky's law, even though there are significant parts of kentucky's government that still wants it slug defended. ms. kolbi-maolinas: first of
all, harsh results don't change whether or not a jurisdictional lot is imposed. this court has repeatedly recognized jurisdictional rules often result in harsh results imposed by congress. there does not mean there could be an exception to the jurisdictional rule. second, under kentucky law, the attorney general has the authority to decline to defend a statute that kentucky print court has held up and that is exactly what happened when the attorney general originally in this case declined to defend the statute. it is not a violation of kentucky sovereign authority to hold onto that authority. this court recognized in bethune-hill , it is just as much as a sovereign authority as it is to appeal. it would not mean a subsequent attorney general was to say, i would have made a different decision, that doesn't mean this court was violating virginia's
sovereign authority when it how they had the authority to make the decision not to appeal. the fact that to exercise that sovereign authority differently calls for this court to be neutral in the face of that differential exercise of sovereign authority. what separates this case is the fact that if the attorney general had never exercise that sovereign authority to decline to defend and enter into a court ordered stipulation and dismissal binding him to the judgment, then i think we'd be more in the case of what justice breyer was describing, a case where the sovereign had never been given the chance perhaps to exercise or defend the statute and now it was being taken away from it. but here, the attorney general exercise the 30 he had not to defend and to agree to be bound -- the authority he had and not to defend and to agree to be bound.
none of that is a violation of kentucky sovereign interest year that is what i think sets this case apart and why even if this court is concerned about the harsh results, this is not that case because this is a case in which the jurisdictional rules are being applied neutrally between appropriate exercise of sovereign authority. it just happens to be that a different political party and a different attorney general and political party after an election would exercise that authority differently, but that is always the case. >> putting aside stipulation order, assuming the attorney general had been involved initially, would it have been proper for the attorney general to that appeal to this after?
ms. kolbi-maolinas: would not have been jurisdictionally barred. there is a timeliness issue but not a jurisdictional issue if he had not been bound. justice gorsuch cord should this court give way to the fact that we are dealing -- justice gorsuch: should this court give way to the fact that we are dealing with -- should that bear consideration? ms. kolbi-maolinas: it is certainly one of the considerations. i think the d.c. circuit judge struck the bounds appropriately where it said it would be an abuse of discretion not to consider the fact that sovereign purpose. justice gorsuch: with respect to conditions of dismissal, as i read it, the attorney general
specifically reserved rights relating to whether it is proper party in this action and any appeals arising out of this action. the attorney general that includes the argument that he can later seek intervention. that was expressly reserved for what you do about that? ms. kolbi-maolinas: he can only reserve the rights available to him and we believe he had the right to appeal. justice gorsuch: let me just intervene there. i think we agree that absent stipulation of one of the rights the attorney general had to seek intervention on appeal, so i wasn't that one of the reserved rights? ms. kolbi-maolinas: your honor, we do not leave that is what it contemplates because there is no right to intervene on appeal. justice gorsuch: but the right to seek appeal that the attorney -- the attorney general had and may be particularly powerful as
sovereign good why didn't this adequately reserved those rights? ms. kolbi-maolinas: but if he was bound by the judgment that he had to appeal and if you didn't he couldn't come back to the suit. he wouldn't have needed a reservation of rights to resume -- reserve the right to seek intervention. that is not something you need to reserve because any stranger or outsider could move to intervene that was not the context it was entered. >> can i ask you about the jurisdictional argument altogether good i am struggling to see why it is the right way to think about this, because it doesn't seem to me that intervention necessarily overlaps with 2107. he is seeking to intervene. it might be the fact that he
signed the stipulation before might be an equitable reason or one of the considerations in this calculation the role 24 analog for why the court might not let him do that. the court might say, you had your chance and you sign it away and we are not letting you come at this late date. i don't understand why it is jurisdictional, because this seems a different way of getting before the suit. are you aware of any other cases where court of appeals has treated a motion to intervene as them 2107 at all? the language says unless notice of appeal is filed within 30 days. presumably, even if you came in as a stranger to the suit, someone not in the attorney general's position here, would anyone invoke 2107? what they say, even though you did not have the right to
appeal, that 30 days has run. >> three responses. the point you to three cases, the 10th circuit in hutchison did say intervention cannot be used as an end run or substitute to the ordinary will of appellate procedure, and the person who is seeking intervention there could have appealed. they didn't cite section 21 07, so i don't want to suggest that intervention could not be used as a substitution or and run around the rules of ordinary appellate procedure. the fifth court held in torres, when barred from achieving something directly is equally jurisdictionally barred from achieving it indirectly. the reason this court gave in torres for why the jurisdiction or was regionally barred from rejoining his suit was to have been, in the terms the court use, would have been the equivalent of allowing him to file an untimely notice of appeal.
because the court did not have the authority to allow him to do this, it could not have allowed him to achieve the result any other way. to do so would render jurisdictional rules meaningless. >> we didn't talk about intervention in torres, correct? >> he was asking for an equitable exception to rejoin his suit. >> mr. coons said he would not have been allowed to intervene, but maybe he was wrong about that. maybe it is just to allow people who don't file their notices of appeal on time, to come back and say, you should allow me to intervene. >> i disagree, your honor, because the crux of the holding in torres was that anything that amounts to the equivalent of filing an untimely notice of appeal is jurisdictionally barred. it does not matter if he was asking for interventional
jurisdiction on the suit or the appeal. both of those are around the untimely filing of the appeal. the fact that intervention itself requires some sort of threshold showing does not change the fact that it would be granting an exception to someone who could have and did not file their notice of appeal, and yet letting them appeal anyway. in the end, this anticircumvention principle. if you are jurisdictionally barred from achieving something directly, you cannot achieve it through any other means, regardless of what those means are. otherwise, the jurisdictional rule, as the court held in torres, would be meaningless. >> if the attorney general had filed a notice of appeal within 30 days, you would not have contested his right to do so? >> i don't see under what grounds we could have, your honor? >> now i am confused. i am trying to find the brief
where we make this jurisdictional argument. on page 15, or rather 8, 5, you say what it is. you agreed, the attorney general, that any final judgment about the constitutionality will be binding on the attorney general subject to any modification, reversal, or vacation of a judgment on appeal. that's what we are talking about, right? >> yes. >> later, i see they dismissed it on a different ground, that it was untimely. i don't see much argument about that point, that it bars him forever. did i miss something? where is is -- where is that argued that that is a promise? i will not intervene, i am out of it. that's what you are saying, i think. >> if you fail to appeal, you are out. that's the jurisdictional rule. >> ok, i got the argument right. where did they discuss it in the brief? >> the brief?
it's the first argument. >> ok, i know the first argument. ok. but they did not reach that at the ground, did they? because of this added language, and so forth, what are you think of saying, look, you did it on a timeliness basis, but the argument here is that they are barred euros sticks really -- jurisdictionally because of this promise not to do that. please consider that. >> it would be appropriate to allow the sixth circuit to consider the jurisdictional argument, because they did not consider it. i wanted to address the point about sovereignty and the way -- waiver of sovereign immunity that had been raised before. it is clear that we are dealing with the attorney general who was the party who was intervening here. first, one only need look at pages 45 to 46 of the blue brief to see the attorney general has cited his institutional
interests. he cited that he has institutional authority under this, that he is bound by the judgment as a basis for intervening. but every attorney general knows the difference between moving for intervention on behalf of himself and moving to intervene for the state. in the state intervenes, it waives sovereign immunity, which is significant and irreversible. there is no such thing as essentially waving sovereign immunity. it must be unambiguously and expressly waived. in the court has held that voluntary intervention is such a waiver. that's why it is not a mere technicality or formality that this case is the intervener, it is cameron bmw. the intervener here is the attorney general. it's not the state of kentucky. this should not be construed as
the commonwealth of kentucky, because that would be any reversible waiver of kentucky's sovereign immunity, and the parties in this case have not brief the circumstances under which the attorney general in kentucky can waive the commonwealth's immunity. it's clear that what we are dealing with here is the same party that was sued is the party that is moving to intervene. the party who is bound is moving to intervene, and it is not the commonwealth of kentucky moving to intervene here. that's why the jurisdictional issue cannot be ignored. >> i thought he said it could be construed as a limited waiver of sovereign immunity. >> under this court's precedent in a voluntary intervention is a waiver of sovereign immunity, not a limited waiver of sovereign immunity. i don't know what that limited waiver is that he is discussing, but the commonwealth of kentucky is intervening here, it has
waived its sovereign immunity irreversibly. i also want to go to this hat point, your honor, because it makes a hash of jurisdictional rules. we sued the attorney general's because, in his official capacity, there are only two official capacities, official capacity and personal capacity. it would make a hash of ex parte young if the attorney general could say come with my left hand, i am defending the constitutionality of state law so that with my right hand, i can enforce that same law and claim he is two separate legal personas, one immune, one not. that would render both ex parte young and jurisdictional rules meaningless. >> thank you. one more question. in the litigation, your client oppose the attorney general
intervening prior to a panel opinion on the basis that the secretary adequately represented the commonwealth. in your papers, you said that you criticized the attorney general's concern about the hearing as speculative. here, you are opposing the intervention prior to the panel opinion. i know it is highly alternative, but i'm wondering if that puts him in a catch 22. if it's prior to the opinion, the secretary will do it. if it is after the opinion, he has waited too long. which is it? >> first of all, three responses. we did lose adequate representation in that case, he was permitted to intervene before. second, that case was different because there was not the previous -- the attorney general had never been involved in that suit and never sought their dismissal in that suit, so the
question of adequate representation was slightly different in that suit. that at the end of the day, that doesn't ever relieve the attorney general from moving to intervene timely, and the fact that we would not have >> -- you should not use one of those, whether it is this one or that one. i wonder why it doesn't make more sense, when the secretary is representing the state. you don't want the state speaking through two different voices. once the secretary is out of it, kentucky ought to be there in some form, and the attorney general is the one who wants to intervene. >> your honor, i think intervention lawson --
late in the game. >> late in the game, yes, but we refiled a petition for hearing on the same day that the secretary have -- would have been doing the case, so it seems -- to argue they are delaying the proceedings. >> part of docket control is ensuring that you have all parties who are going to be in the suit in as early as possible. >> that's true, but as justice breyer pointed out, the situation changes a bit when the state representations are shuffled, the deck is shuffled after an election. the question is whether you want to preclude the state from participating in the litigation that is still ongoing, in a way that doesn't delay it, to deny the state any representation. if you had one party's position being pressed in the case and there were another election, the
state still stuck with what the people chose before the election. >> i don't think it was an abuse to hold that under the circumstances, he waited too long to intervene. but that the attorney general had the opportunity to enter the case and shape the decision before the court of appeals ruled. i do not think it was an abuse of discretion for the court of appeals to say that waiting after judgment is entered to try and make your arguments and to make a new argument is waiting too long. a different panel may have seen it differently, but under the abuse of discretion standard, i don't think there was an argument there. >> thank you. justice breyer? >> i have a question from counsel. assuming there is no jurisdictional arguments, meaning that they didn't have to file a notice of appeal, justice breyer and justice corsets and
-- justice gorsuch and justice barrett have concerns about never having given the state of kentucky adequately opportunity to defend this law. the secretary of state blocks away from it. how do you address that concern? >> your honor, i don't think it's fair to characterize this case as if there was some sort of default judgment or abdication by the secretary. the secretary was the sole defendant who saw the case through to district court judgment and then saw it all the way through on appeal, and defended it vigorously on appeal. it is not as if the state was denied its opportunity to defend the law. the secretary defended it until the court of appeals and then decided, based on the decision, not to see -- seek appeal. they still had the opportunity
to defend earlier, had an opportunity to intervene earlier. don't think it's disrespectful for kentucky's sovereign interests to hold that the case has gone on too long and is too late for someone else to join. >> justice kagan? justice gorsuch? thank you, counsel. do you have rebuttal? >> thank you. two quick points. i want to start with justice breyer's question, what the chief justice referred to as the deck being reshuffled. the elections of 2019 and the reversal of positions with various state officials, we saw the wisdom of the way kentucky had structured its system of government in defending its sovereignty. it took two people, two separately elected officials to agree not to appeal further.
the governor's administration said no further, but kentucky created that failsafe. the effect of the sixth circuit's ruling is to say to a stop in state -- sovereign state that you cannot structure your government that way. i think that is directly contrary to what the court said, that we respect how states structure their government. the second and final point i want to make is to respond to some of the questions that justice for such and the chief justice asked about the terms of the stipulation. this court has told us that a party is bound, that agrees to be -- a nonparty that agrees to be bound by a judgment is bound in a ordinance with the term of his or her claimant. that taylor versus turtle. you have to look very closely at what the attorney general agreed to in his enforcement capacity. as the questions have pointed out, we preserved our right to benefit from any result on appeal. edison section in response to
the chief justice pose the question, and we reserved our right to participate in any appeal. we reserved all claims and rights related to whether we are a proper party. by reserving that, that can only be understood to respond to the justices question, as to preserve our ability to need to intervene if circumstances changed, which they did. i think we are bound in accordance with the terms of our agreement. i think we have the ability to come in and protect kentucky's interests when it became unrepresented. >> no further questions. i appreciate the courts time. >> thank you, counsel. the case is submitted. >> you can watch a supreme court oral argument on the kentucky abortion law again tonight at 8:00 p.m. eastern on c-span two. online at c-span.org, or use the new c-span now app.
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download the app today for free. here's a look at our live coverage today here on c-span. coming up at 11:30 eastern, house speaker nancy pelosi holds her weekly news conference on the democrat legislative agenda, including the house vote to increase the debt ceiling. at 7: -- at later at 3:00, the u.s. house returns to debate on the debt ceiling bill. listen live on c-span, c-span.org, or with the c-span now app. host: the senior political columnist is back with the national journal. his against the grain column. it was last weekend against the grain where you dug