Tuesday, August 26, 2008

Recently the court issued two orders, or rather an order and a notice. The court sent a notice to the Indiana Attorney General that he could intervene, to which I respond below. The court also set a schedule for motions for preliminary injunction, which is what I've been working on in longhand this past week at work in Evansville away from a computer. The court did not simply dismiss my complaint out of hand, but I won't count any victories until I see the ruling on the prelim.
(I fixed a few typos - will repost the new version later. right now i'm working on the prelim.)
update 9/13/08 - I didn't file this. The AG moved to intervene and the court granted the untimely intervention. I did a little research in the federal rules digest, while at the Mizzou law library where I used to work, and it seems, as one might expect, that it is within the discretion of the court.
I didn't find anything specifically on whether removal restarts the clock for intervention by the state.

Draft only do not file

Robbin Stewart
vs. 1:08-cv-586-LJM-TAB
Marion County, Beth White


This case was filed in April in state court. A copy of the complaint was served on the Indiana Attorney General, who had thirty days to timely intervene as of right under the Indiana Rules. The Attorney General waived his right to intervene, and has not been a party.
The county removed the case to federal district court, which on 08/06/2008 issued a notice and certification pursuant to 28 USC 2403 (b), citing Fed.R.Civ.P 24 (c).
Neither 28 USC 2403, Fed R Civ.P. 24, nor Scholes v. Lehmann discuss the timeliness of a state’s motion to intervene following removal, after the time for the state to intervene has already run according to the applicable state rules.
This concern will be moot if the state continues to choose not to participate, but if it does seek to intervene by 9/6/2008, there will be a concern as to whether such motion is timely.
28 USC 2403 (b): In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.
Rule 24. Intervention
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:(1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.(b) Permissive Intervention.(1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. (2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on: (A) a statute or executive order administered by the officer or agency; or (B) any regulation, order, requirement, or agreement issued or made under the statute or executive order. (3) Delay or Prejudice.In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.(c) Notice and Pleading Required.A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.
Federal courts are, or at least ought to be, especially reluctant to invalidate statutes on constitutional grounds by the use of procedural shortcuts, which in this case would involve not only skipping the district court but also denying the Attorney General of Illinois his statutory right to defend the Illinois statute. A district court is required in the case of a challenge to the constitutionality of a state or federal statute to certify the challenge to the state or federal attorney general, respectively, and allow that official an opportunity to intervene and defend the statute. That was not done here, because the constitutional issue was not raised in the district court. We shall not consider it. Scholes v Lehmann, 56 F.3d 750 (7th Cir. 1995), http://www.projectposner.org/case/1995/56F3d750/.
Here, where the Attorney General had notice and an opportunity to defend in April, and waived that right by the end of May, the better view is that a motion to intervene would be considered untimely, and should be addressed under the rules for untimely motions. The court allowed defendants to file their answer out of time, and it is likely that the court would welcome intervention by the state even where as here laches applies and the deadline had long run. I wanted to bring this issue to the court’s attention and note the issue, and state an objection for the record to preserve the matter for review.
My main concern is that time is of the essence, and it is important that a late attempt intervention by the state, if that happens, not be an excuse for delay or to interject procedural obstacles to a prompt resolution of the merits, because public confidence in the election process depends in part of these issues being determined, rather than continuing in limbo. If the court grants preliminary injunctive relief, so that Plaintiff (and perhaps others) can vote in the November election, that will take off some of the time pressure.
Respectfully submitted,
Robbin Stewart
Certifications go here

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