Memorandum of Law: Special Counsel for State Legislatures


Aug 1st, 2013
by Jeanette Doran

MEMORANDUM OF LAW

Special Counsel for State Legislatures

North Carolina Institute for Constitutional Law[1]

www.ncicl.org

August 1, 2013

            On July 26, the North Carolina General Assembly ratified Senate Bill 473, allowing the Speaker of the House and President Pro Tempore of the Senate acting jointly to intervene in certain legal actions on behalf of the General Assembly.  SB 473 (2013).  The relevant portion of the bill, now awaiting the governor’s signature, reads as follows:

The Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State, 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. The procedure in State court shall be that set forth in Rule 29 of the Rules of Civil Procedure.[2]

 

SB 473, Sec. 3 (to be codified at G.S. § 1-72.2). This provision, if it becomes law, would give the legislative leadership the option to defend the legislature’s interests in court, as long as the proceedings involve a state statute or a provision of the North Carolina Constitution.

            North Carolina already has a statute that allows certain state officials to employ counsel other than the Attorney General.  Under G.S. § 147-17(b), if the Attorney General finds it “impracticable . . . to render legal services,” then a department, officer, agency, institution, commission, bureau, or other organized activity of the state may employ counsel with authorization from the governor.  Additionally, that same statute states, “In any case or proceeding . . . the Governor may employ such special counsel as he may deem proper or necessary to represent the interest of the State, and may fix the compensation for their services.”  Id. § 147-17(a). The Supreme Court has twice interpreted this statute, most notably in Martin v. Thornburg, which held that the Governor has the “unrestricted right” to employ special counsel, and can do so without the advice of the Attorney General.  Martin v. Thronburg, 320 N.C. 533, 547-48 (1987). 

As an officer of the State, G.S. §147-2(3), the Speaker of the House already has authority to employ counsel with the Governor’s approval when the Attorney General finds it impracticable to render legal services.  G.S. § 147-17(a)-(b).  The newly passed bill would remove the need for gubernatorial approval of such counsel for the Speaker, allowing the Speaker instead to act jointly with the President Pro Tempore of the Senate to intervene in litigation.  See G.S. § 147-17(a)-(b); SB 473, Sec. 3 (to be codified at § 1-72.2).  It is unclear whether the President Pro Tempore already holds such authority, as that office is not listed specifically as a legislative officer.  G.S. § 147-2.  However, the “Fifty Senators” and “One hundred and twenty members of the House of Representatives” are listed as legislative officers.  Id.  It is unclear exactly how members would employ counsel under existing authority.  Whether any member alone could do so as an officer or if a majority vote is required to employ counsel is uncharted territory. 

North Carolina is not alone in seeking a mechanism for representation alternative to or in addition to the Attorney General.  A significant minority of states allow either the governor or members of the legislature to be represented in court by special counsel.  In addition to North Carolina, at least four states grant the governor the ability to employ his own counsel.  Arkansas, Colorado, and Kansas allow their respective governors to employ counsel to represent their respective states if and when their Attorneys General are unable or fail to represent state interests.  See Ark. Code Ann. § 25-16-702; Colo. Rev. Stat. § 24-31-101(e); Kan. Stat. Ann. § 75-108.  Further, Alabama grants their governor such power whenever “it is expedient or necessary” without mentioning the Attorney General.  Ala. Code § 36-13-2. 

More than ten states give either individual legislators or the legislature as a whole access to the courts.  Perhaps the most well-known instance of legislators intervening on behalf of the legislature is from the state of New Jersey.  Alan Karcher, the Speaker of the New Jersey General Assembly, and Carmen Orechio, the President of the New Jersey Senate were permitted to intervene in May v. Cooperman to defend a statute “because no other party defendant would defend it.”  May v. Cooperman, 578 F. Supp. 1308, 1310 (D.N.J. 1984).  On appeal, the Supreme Court determined that, while Karcher and Orechio properly intervened, they did not properly appeal the case.  Karcher v. May, 484 U.S. 72, 77 (1987). Since they no longer held their respective offices, the “authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded Karcher and Orechio in office.”  Id.  These cases do not reference a specific statute allowing legislative officers to intervene.

Similar to North Carolina’s bill, Oklahoma and Texas allow the Speaker and President Pro Tempore to intervene in judicial proceedings.  Oklahoma allows the Speaker and President Pro Tempore, acting individually or jointly to intervene in any action affecting the constitutionality of a statute.  See Okla. St. tit. 12, § 2024(D)(2).  On the other hand, Texas requires the Speaker and President Pro Tempore to authorize the use of legislative counsel jointly and in writing, but does not limit their efforts to constitutional matters.  Tex. Gov’t Code § 301.061. 

Texas, California, and Washington also allow their legislatures to intervene with the concurrence of both houses.  Tex. Gov’t Code § 301.061; Cal. Gov’t Code § 10246; See Wash. Rev. Code § 43.10.045.  Though apparently not authorized by statute, the Supreme Court of Minnesota recently allowed the state House and Senate to intervene, but denied motions to intervene by individual members.  League of Women Voters Minn. v. Ritchie, 819 N.W.2d 636, 641-42 (Minn. 2012). 

Yet another group of states allow their legislatures to intervene with approval by a legislative committee.  California, Georgia, Utah, and Nevada fall into this category.  Cal Gov’t Code § 10246; Ga. Code Ann. § 28-4-3(c)(4); Utah Code Ann. § 63G-7-901(3)(a); Nev. Rev. Stat. § 218F.720.  The Nevada Legislature actually intervened in a lawsuit as recently as 2012.  People’s Legislature v. Miller, 2012 U.S. Dist. LEXIS 114738, 17 (D. Nev. 2012). 

A couple of states have unique provisions included in their statutes.  For example, Idaho has created a “legal defense fund” from which the President Pro Tempore of the Senate and the Speaker of the House are allowed to use for any “necessary legal expenses of the legislature.”  Idaho Code Ann. § 67-451A.  Additionally, Arizona allows the legislator who was the “first prime sponsor” of a referendum to have standing to defend the referendum in state court.  Ariz. Rev. Stat. Ann. § 12-921B. 

Finally, while state laws may allow people other than the Attorney General to have standing in state courts, they will still have to withstand Article III scrutiny to have standing in federal court.  See Hollingsworth v. Perry, 570 U.S. ____, 16-17 (2013).  However, Hollingsworth v. Perry does not rule out the possibility that a state could be represented by someone other than its Attorney General: “[A] State must be able to designate agents to represent it in federal court . . . . That agent is typically the State’s attorney general.  But state law may provide for other officials to speak for the State in federal court . . . .”  Id. at 11.

In conclusion, while a majority of states do not explicitly allow State representation in court by someone other than the State’s Attorney General, approximately one-third of states have provided for another option if and when the need arises.  North Carolina is among a significant minority of other states in providing a vehicle for representation by counsel other than the Attorney General.  However, unlike most other states, North Carolina has provided that option to both the Governor and the leadership of the General Assembly.

 


[1] For more information, please contact Jeanette Doran at 919-838-5313 or doran@ncicl.org. This memorandum was prepared with the substantial assistance of Ashley Berger, law student intern.

[2] SB 473’s reference “Rule 29” of the Rules of Civil Procedure appears to be a typographical or scrivener’s error as Rule 29 relates to discovery while Rule 24 governs “Intervention.”