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Nov. 2 — States are frequent players at the U.S. Supreme Court, and are typically represented by their own attorneys general.
But this term states are primed to turn to private attorneys more often, Joe Jacquot of Foley & Lardner LLP, Washington, told Bloomberg BNA.
The profile of state AGs' cases has significantly expanded in the last five years, Jacquot—who served as Florida's Deputy Attorney General and whose current practice focuses on the AG community—said.
As these cases take on more of a national significance, states are more likely to hire a Supreme Court specialist, he said.
But Dan Schweitzer, the director of the National Association of Attorneys General's Center for Supreme Court Advocacy, Washington, predicted that the incidents of states being represented by private attorneys will actually decrease.
The creation of more state solicitor general positions will alleviate the need to hire private attorneys, he told Bloomberg BNA.
Generally, states are parties in about 18-20 cases at the Supreme Court each term, Schweitzer said. They submit amicus curiae briefs in about 40 to 50 cases too, he said.
But states typically turn to private attorneys to argue on their behalf in only about one to two cases each term, Schweitzer said.
One notable example occurred last term in the same-sex marriage cases, Obergefell v. Hodges,2015 BL 204553 (U.S. June 26, 2015).
The four states whose same-sex marriage bans were ultimately struck down—Michigan, Ohio, Kentucky and Tennessee—were represented at oral argument by private attorney John J. Bursch of Warner Norcross & Judd LLP, Grand Rapids, Mich. Joseph F. Whalen, Tennessee's associate solicitor general, also argued for the states during the two-and-a-half-hour argument.
Bursch had a proven track record both before the Supreme Court—the argument was his ninth in front of the justices—and with the state of Michigan. Bursch served as the state's solicitor general from 2011–2013. He was temporarily deputized as Special Assistant Attorney General for the same-sex marriage arguments.
Although technically about only four states' bans, the fate of dozens of state bans hinged on that decision. No state can ban same-sex marriage following the ruling in Obergefell.
The national implications of a particular case may be one reason why states might hire outside counsel, Jacquot said. He pointed to the initial challenge to the Affordable Care Act as an example.
There, Florida hired former Solicitor General Paul Clement to represent the state in its constitutional challenge to President Barack Obama's signature piece of legislation, Nat'l Fed'n of Indep. Bus. v. Sebelius, 80 U.S.L.W. 4579, 2012 BL 160004 (U.S. June 28, 2012).
Jacquot noted, however, that when states turn to a Supreme Court specialist, they lose an AG's unique federalism prospective.
Nevertheless, Schweitzer agreed that states tend to turn to private attorneys more often in these blockbuster cases—where there is a lot on the line.
In another similarity to Michigan's John J. Bursch, S. Kyle Duncan helped his old employer defend itself in same-sex marriage litigation.
State bans on same-sex marriage faced an onslaught of legal challenges following the Supreme Court's decision in United States v. Windsor, 2013 BL 169620 (U.S. June 26, 2013), which struck down the federal Defense of Marriage Act.
Lower courts interpreting Windsor almost unanimously found that state same-sex marriage bans ran afoul of the Constitution.
But Duncan represented Louisiana in the first federal court victory for states defending their same-sex marriage ban in Windsor‘s wake.
Of course that decision—Robicheaux v. Caldwell, 2014 BL 243893 (E.D. La. 2014)—was ultimately overturned following the Supreme Court's Obergefell decision finding such bans unconstitutional.
Hiring a private attorney in criminal cases—what he called state AGs' “bread and butter”—is very rare, Schweitzer said.
But Jacquot said this might happen whenever a criminal case relies heavily on federal law.
He pointed to Fourth Amendment cases—which the court hears almost every term—as an example.
Most states' Fourth Amendment jurisprudence mirrors federal law, Jacquot explained. So the state may want someone who has both significant experience with that federal law and an appreciation for how the outcome might affect other states, he said.
For example, Jacquot noted that former U.S. Solicitor General Gregory Garre represented Florida in a 2013 Fourth Amendment case involving dog-sniffs, Florida v. Jardines, 2013 BL 79684 (U.S. March 26, 2013).
In contrast, states might be more inclined to stick with their own AG when dealing with Eighth Amendment cases, which often turn on policy arguments, Jacquot said.
He pointed to the “slew” of Eighth Amendment cases that the court has agreed to hear this term. For example, in Kansas v. Gleason, No. 14-452, Kansas v. Carr, No. 14-449 and Kansas v. Carr, No. 14-450—all capital cases implicating the Eighth Amendment—the state was represented at oral argument by the state's attorney general and solicitor general.
When the main arguments focus on policy, states are more likely to keep the case in-house, Jacquot said, pulling from his own experience arguing before the Supreme Court on behalf of his state in a case about Miranda warnings, Florida v. Powell, 559 U.S. 50 (2010).
But when a criminal case is more technical—like Fourth Amendment cases tend to be—the inclination may be to turn to outside counsel, Jacquot said.
Jacquot's prediction seemed to bear itself out earlier this term in Montgomery v. Louisiana, No. 14-280, argued 10/13/15.
The case—about the application of an earlier criminal case prohibiting mandatory life without parole for juvenile offenders—centers on highly technical federal retroactivity law.
In Montgomery, Louisiana was represented by S. Kyle Duncan of Duncan PLLC, Washington.
Like Michgan's Bursch, Duncan previously served as the state's solicitor general. Jacquot said that when this happens, it's probably due to some level of comfort with working with someone the state already knows.
Regardless of why states turn to private attorneys, Schweitzer predicted that the practice would decrease now that more states are creating state solicitor general positions.
State solicitors general are typically the state's top appellate advocate, representing the state in the highest profile cases.
He noted that Wisconsin just appointed its first solicitor general in October. An Oct. 8 statement from the Wisconsin Attorney General's office touts the new SG's experience as a former clerk to Justice Anthony M. Kennedy, and said that the state now joins “the vast majority of states with a Solicitor General.”
Schweitzer said that number is now at 37. He added that the District of Columbia, the U.S. Virgin Islands and Puerto Rico have SGs too.
Schweitzer noted, however, that despite having a solicitor general of its own, Puerto Rico is likely to be represented by a Supreme Court practitioner from a private firm when the state is before the high court this term in Puerto Rico v. Valle, review granted, (U.S. Oct. 1, 2015) No. 15-108.
The case asks whether the territory is distinct from the federal government for double jeopardy purposes.
Although Puerto Rican Solicitor General Margarita Mercado Echegaray appears on the cert. petition, two-time Supreme Court clerk Christopher Landau, of Kirkland & Ellis LLP, is listed as the counsel of record.
Jacquot said he's not entirely sure why Puerto Rico turned to Landau in this case.
But he noted one other factor that may be driving states' decisions to hire outside counsel: resources.
It isn't clear how much states pay for private attorneys to represent them at the Supreme Court, or whether they pay at all, Jacquot said.
It would be pretty hard for a state to turn down the opportunity to be represented pro bono by a seasoned Supreme Court practitioner rather than spending its own time and resources, he said.
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Cases this term in which a state or similar entity may be represented by a private attorney include:
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