Michigan Civil Rights Initiative Committee v. Coalition to Defend Affirmative Action Brief in Opposition

    No. 07-1182

In the

Supreme Court of tfje Wniteb States?
Michigan Civil Rights Initiative Committee and 

American Civil Rights Foundation, 
Petitioners, 

v.
Coalition To Defend Affirmative Action, Integration 
A nd Immigrant Rights And To Fight For Equality By 

Any Means Necessary, et al.,
Plaintiffs and Respondents, 

and
Jennifer Granholm, et al.,

Defendants and Respondents.

On Petition for Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

Mark D. Rosenbaum 
ACLU Foundation of 
Southern California 
1313 W. 8th St 
Los Angeles, CA 90017 
(213) 977-9500 
Counsel o f Record

Karin A. DeMasi 
Cravath, Swaine & Moore llp 
825 Eighth Ave 
New York, NY 10019 
(212) 474-1000

Laurence H. Tribe 
Hauser Hall 420 
1575 Massachusetts 
Avenue
Cambridge, MA 02138 
(617) 495-4621

Melvin Butch Hollowell, Jr . 
Detroit Branch NAACP 
Allen Brothers pllc 
400 Monroe St., Suite 220 
Detroit, MI 48226 
(313) 962-7777

Counsel for the Cantrell Plaintiffs 
Additional Counsel Listed On Inside Cover 
June 11, 2008



Kary L. Moss 
Michael J, Steinberg 
Mark P. Fancher 
American Civtl 
Liberties Union Fund 
of M ichigan 
60 W. Hancock Street 
Detroit, MI 48201 
(313) 578-6814

John Payton 
Jacqueline A. Berrien 
Victor Bolden 
A nurima Bhargava 
NAACP Legal Defense 
& Educational Fund 
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 965-2200

Jerome R. Watson 
Miller, Canfield, 
Paddock and Stone, 
P.L.C.
150 West Jefferson 
Suite 2500 
Detroit, MI 48226 
(313) 963-6420

Dennis Parker 
Steven R. Shapiro 
American Civil Liberties 
Union Foundation 
125 Broad Street 
New York, N.Y. 10004 
(212) 549-2500

Erwin Chemerinsky 
Duke University School of 
Law
Science Drive & Towerview Rd. 
Durham, NC 27708 
(919) 613-7173

Daniel P. Tokaji 
The Ohio State University 
Moritz College of Law 
55 W. 12th Ave.
Columbus, OH 43206 
(614) 292-6566

Counsel For the Cantrell Plaintiffs



1

COUNTERSTATEM ENT OF THE QUESTION  
PRESENTED

Should the Court abandon the settled four- 
element inquiry under Rule 24(a)(2) of the Federal 
Rules of Civil Procedure, substituting a per se rule 
that ballot-initiative sponsors always have a right to 
intervene in litigation challenging measures enacted 
with their support because state governments, as a 
matter of law, are categorically disqualified from 
mounting an adequate defense of such measures?



TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF THE QUESTION
PRESENTED........................................................... i

TABLE OF AUTHORITIES......................................... in

BRIEF IN OPPOSITION.......................................   1

COUNTERSTATEMENT OF THE CASE...................2

REASONS FOR DENYING THE PETITION'........... 3

I. The Decision Below Is Consistent With Well-
Settled Law and Reflects the Sound Policy 
Judgments Embodied in Rule 24(a)(2)................. 4

II. Petitioners’ Proposed Per Se Rule Would
Conflate the Elements of the Rule 24(a)(2) 
Analysis, Ignore the Reality that State 
Governments Can Competently Defend 
Their Own Laws, and Eviscerate the 
Discretion of the District Courts........................... 7

III. The “Direct and Dramatic” Inter-Circuit 
Conflict Petitioners Claim to Identify Does
Not Exist........................................................   12

CONCLUSION 15



Ill

TABLE OF AUTH ORITIES

Page(s)
Cases

Arizonans for Official English u. Arizona,
520 U.S. 43 (1997).....................................................5

Coalition to Defend Affirmative Action v.
Granholm, 240 F.R.D. 368 (E.D. Mich.
2006)...................................................................... 2, 12

Coalition to Defend Affirmative Action v.
Granholm, 501 F.3d 775 (6th Cir. 2007)..... passim

Coalition to Defend Affirmative Action v.
Granholm, 539 F. Supp. 2d 924 (2008).................. 9

Diamond v. Charles, 476 U.S. 54 (1986)...................... 6

FM  Properties Operating Co. v. City of 
Austin, 71 F.3d 879, 1995 WL 727288 
(5th Cir. 1995)..............................................................4

Forest Conservation Council v. U.S. Forest
Serv., 66 F.3d 1489 (9th Cir. 1995)................  13, 14

Idaho v. Freeman, 625 F.2d 886 (9th Cir.
1980)..........................................................................  14

Izumi Seimitsu Kogyo Kabushiki Kaisha v.
U.S. Philips Corp., 510 U.S. 27 (1993).......... 1, 7, 8

Jenkins v. Missouri, 78 F.3d 1270 (8th Cir.
1996) 9



IV

Page(s)

Keith u. Daley, 764 F.2d 1265 (7th Cir.
1985).................................... ....................................4, 5

League of Latin American Citizens v.
Wilson, 131 F.3d 1297 (9th Cir. 1997)...........  11, 14

Mich. State AFL-CIO v. Miller, 103 F.3d
1240 (6th Cir. 1997)................................................  12

Mo.-Kan. Pipe Line Co. v. Utiited States,
312U.S. 502 (1941)..................................................1

Northland Family Planning Clinic, Inc. v.
Cox, 487 F.3d 323 (6th Cir. 2007)................  4, 6, 12

Northwest Forest Resource Council v.
Glickman, 82 F.3d 825 (9th Cir. 1996)........... .......9

Prete v. Bradbury, 438 F.3d 949 (9th Cir.
2006)...................................................................... 4, 14

Providence Baptist Church v. Hillandale 
Comm., Ltd., 425 F.3d 309 (6th Cir.
2005)............................        6

Sagebrush Rebellion, Inc. v. Watt, 713 F.2d
525 (9th Cir. 1983)................................... . 10, 11, 13

Standing Together to Oppose Partial- 
Birth-Abortion v. Northland Family 
Planning Clinic, Inc., 128 S. Ct. 872 
(2008)............................... ......................................... . 6

United States v. Michigan, 424 F.3d 438
(6th Cir. 2005)...........     4



V

Page(s)

Washington State Building & Construction 
Trades Council v. Spellman, 684 F.2d 
627 (9th Cir. 1982)..................................................  13

Wisniewski v. United States, 353 U.S. 901
(1957)........................................................................  14

Statutes & R ules

Fed. R. Civ. P. 24(a)(2)........................................ passim

Fed. R. Civ. P. 59 ........................................................... 3

Mich. Comp. Laws § 14.28............................................. 8

Other A uthorities

7A C. Wright & A. Miller, Federal Practice
and Procedure § 1904 (1972).................................  13

Mich. Const. Art. 2, § 9 .................................................11



1

BRIEF IN OPPOSITION

The petition seeks review of a decision that is 
consistent with settled law, supported by robust 
policy considerations, and of a sort this Court has 
long recognized to be rarely appropriate for 
discretionary review.1 See Mo.-Kan. Pipe Line Co. v. 
United States, 312 U.S. 502, 506 (1941) (!t[T]he 
circumstances under which interested outsiders 
should be allowed to become participants in a 
litigation [are], barring very special circumstances, a 
matter for the [trial] court”); Izumi Seimitsu Kogyo 
Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 
33-34 (1993) (per curiam) (noting that “ [w]hile the 
decision on any particular motion to intervene may 
be a difficult one, it is always to some extent bound 
up in the facts of the particular case” and that 
“addressing a relatively factbound issue . . . does not 
meet the standards that guide the exercise of our 
certiorari jurisdiction”).

For these reasons, set forth more fully below, 
Respondents Chase Cantrell, et al. (the “Cantrell 
Plaintiffs”) request that the Court deny the petition 
for a writ of certiorari to review the opinion of the 
Court of Appeals for the Sixth Circuit reported at 
501 F.3d 775.

1 The Cantrell Plaintiffs file this brief at the Court’s 
request; believing the petition to he without merit, they initially 
waived then’ right to file an opposition brief.



2

COUNTERSTATEM ENT OF THE CASE

The underlying litigation is a constitutional 
challenge to Michigan’s ban on affirmative action 
(“Proposal 2”), enacted in November 2006 through 
the state’s ballot initiative process. Plaintiffs are 
two, separate putative classes that include students, 
prospective students and faculty at Michigan’s public 
universities.2 The original named defendants were 
the Governor of Michigan and each of Michigan’s 
three public universities.

Shortly after the complaint was filed, Michigan 
Attorney General Michael A. Cox was granted leave 
to intervene as a defendant in light of his statutory 
duty to defend the state’s laws from constitutional 
challenge and his strong support for Proposal 2. See 
Coalition to Defend Affirmative Action v. Granholm, 
240 F.R.D. 368, 371 (E.D. Mich. 2006). The district 
court also permitted the intervention of a white male 
Michigan resident who sought to protect his interest 
in having his then-pending law school application 
decided with Proposal 2 in effect. The district court 
denied motions to intervene by the ballot-question 
committee that sponsored Proposal 2 (the Michigan 
Civil Rights Initiative Committee (“MCRIC”)), and 
two other political organizations (the American Civil 
Rights Foundation (“ACRF’) and Toward a Fair 
Michigan (“TAFM”)). Id. On September 6, 2007, the 
Court of Appeals affirmed the district court’s denial 
of intervention with respect to each of those

2 These two groups, represented by separate counsel, are 
referred to as the “Coalition Plaintiffs” and the “Cantrell 
Plaintiffs”.



3

organizations, holding that they “lackjed] a 
substantial legal interest in the outcome of this 
case.” Coalition to Defend Affirmative Action v. 
Granholm, 501 F.3d 775, 783 (6th Cir. 2007). 
MCRIC and ACRF (“Petitioners”) unsuccessfully 
sought en banc review, and now petition this Court 
for a writ of certiorari.

Governor Granholm was dismissed from this 
action on September 5, 2007. The remaining parties 
have conducted thorough discovery, followed by 
dispositive motion practice. On March 18, 2008, the 
district court granted Attorney General Cox’s motion 
for summary judgment and dismissed both the 
Cantrell and Coalition Plaintiffs’ claims. A motion 
by the Cantrell Plaintiffs to alter or amend the 
judgment pursuant to Rule 59 of the Federal Rules of 
Civil Procedure was timely filed with the District 
Coui’t on April 1, 2008, and is currently pending.

REASONS FOR DENYING THE PETITION

The petition should be denied because the 
decision below reflects the proper application of well- 
settled law. Moreover, the petition seeks the 
wholesale replacement of the intervention inquiry 
under Rule 24(a)(2) of the Federal Rules of Civil 
Procedure and invites this Court to create an 
unnecessary and counterproductive per se rule -  that 
states can never adequately defend ballot-enacted 
legislation -  which is repulsive to both the dignity of 
state governments and the sound discretion of the 
district courts.



4

I. The Decision Below Is Consistent W ith
W ell-Settled Law and Reflects the Sound
Policy Judgm ents Em bodied in Rule
24(a)(2).

The rule in every circuit -  as Petitioners do not 
dispute -  is that a proposed intervenor must 
establish four conditions in order to obtain 
intervention as of right under Rule 24(a)(2): (1) that 
the motion to intervene is timely; (2) that the 
proposed intervenor has a substantial legal interest 
in the subject matter of the case; (3) that the 
proposed intervenor’s ability to protect that interest 
may be impaired in the absence of intervention; and 
(4) that the parties already before the court may not 
adequately represent the proposed intervenor s 
interest. United States v. Michigan, 424 F.3d 438, 
443 (6th Cir. 2005); see also, e.g., Prete v. Bradbury, 
438 F.3d 949, 954 (9th Cir. 2006); Keith v. Daley, 764 
F.2d 1265, 1268 (7th Cir. 1985).

Courts have held repeatedly that an advocacy 
group that employs an initiative process to secure 
enactment of a new law lacks a cognizable interest 
entitling it to intervene as of right in subsequent 
litigation challenging such an enactment’s validity -  
unless the group itself is regulated by the law. 
Coalition, 501 F.3d 775; Northland Family Planning 
Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir. 2007); see 
also FM  Properties Operating Co. v. City of Austin, 
71 F.3d 879, 1995 WL 727288, at *2 (5th Cir. 1995) 
(unpublished table disposition) (affirming denial of 
intervention by conservation organization 
notwithstanding its argument “that as the 
representative of the sponsor of the ballot initiative 
[whose application was at issue], it had a per se right



5

to intervene”); Keith, 764 F.2d at 1270 (affirming 
denial of intervention by pro-life advocacy group, 
explaining that such a group was not entitled “to 
forever defend statutes it helped enact”).3

The opinion below is firmly grounded in that 
precedent. It is also consistent with this Court’s 
skepticism respecting ballot initiative sponsors’ 
purported “quasi-legislative interest in defending the 
constitutionality of the measure they successfully 
sponsored.” Arizonans for Official English u. 
Arizona, 520 U.S. 43, 65-66 (1997) (vacating 
judgment appealed from on other grounds, but 
adverting to “grave doubts” as to whether ballot 
initiative sponsors had standing to pursue an appeal 
in view of the fact that “this Court has [njever 
identified initiative proponents as Article-III- 
qualified defenders of the measures they advocated”).

Specifically the Sixth Circuit in the instant case 
explained that Petitioners “have only a general 
ideological interest in seeing that Michigan enforces 
Proposal 2”, noted that “neither the MCRI[C] nor the 
ACRF maintains that it or its members are 
specifically regulated by those portions of Michigan’s 
constitution amended by Proposal 2” and held that 
“ [a]n interest so generalized will not support a claim

3 As discussed more fully infra at Section III, the “direct 
and dramatic” circuit split Petitioners claim to identify with 
respect to this issue (Pet. at 17) rests entirely on a single 
paragraph, arguably dicta, in one case from the Ninth Circuit.



6

for intervention as of right.” 501 F.3d at 782 
(internal quotation marks omitted).4

This settled rule is supported by sound policy. 
There are compelling reasons not to enact a 
presumptive right for ballot sponsors to intervene in 
litigation challenging measures whose enactment 
they supported. Most fundamentally, our political 
system allocates to the state primary responsibility 
for defense and enforcement of the law. Northland, 
487 F.3d at 345 (“ [T]he public interest in [an enacted 
measure’s] enforceability is entrusted for the most 
part to the government.”); Diamond v. Charles, 476 
U.S. 54, 65 (1986) (explaining that “the power to 
create and enforce a legal code, both civil and 
criminal[,] is one of the quintessential functions of a 
State” and that only the State has a “direct stake . . . 
in defending the standards embodied in that code”) 
(internal citations and quotation marks omitted). 
See also Providence Baptist Church v. Hillandale 
Comm., Ltd., 425 F.3d 309, 317 (6th Cir. 2005). 
Moreover, as discussed more fully below, Rule 
24(a)(2) is designed to give the district courts

4 The Sixth Circuit also noted that another panel of that 
Court had recently reached the same conclusion in a nearly 
identical case. See Northland, 487 F.3d at 345 (affirming denial 
of intervention to the sponsor of a citizen-initiative process 
resulting in enactment of Michigan’s Legal Birth Definition Act, 
holding that the organization’s “legal interest can be said to be 
limited to the passage of the Act rather than the state’s 
subsequent implementation and enforcement of it.”) This Court 
denied a petition for certiorari by the proposed intervenor in 
that case on January 7, 2008. Standing Together to Oppose 
Partial-Birth-Abortion v. Northland Family Planning Clinic, 
Inc., 128 S. Ct. 872 (2008).



flexibility and discretion in addressing the 
“factbound” question of which persons or entities are 
appropriately situated to participate in any 
particular litigation. See Izurni, 510 U.S. at 34. That 
question is as germane to a constitutional challenge 
to a ballot-enacted measure as it is to any other form 
of litigation.

II. Petitioners’ Proposed Per Se Rule W ould  
Conflate the Elem ents o f the Rule 24(a)(2) 
Analysis, Ignore the Reality that State 
Governm ents Can Com petently Defend  
Their Own Laws, and Eviscerate the 
D iscretion of the District Courts.

As Petitioners openly concede, their theory for 
why this Court should grant review rests upon a 
conflation of at least two of the four well-established 
elements of the intervention analysis under Rule 
24(a)(2). See Pet. at 24 (insisting that “the adequacy 
with which Petitioners' interests will be represented 
effectively determines the substantiality of those 
interests”). As noted above, a movant must establish 
four elements to intervene as of right: (1) timeliness; 
(2) cognizable legal interest; (3) potential impairment 
of that interest; and (4) inadequacy of representation 
by those already parties. See infra Part I.

Petitioners, however, contend that ballot 
initiative sponsors always have a legally cognizable 
interest in litigation challenging enactments they 
have supported because the government can never be 
trusted to enforce and defend such laws itself. Thus, 
by conflating the “interest” and “adequacy” elements 
of the intervention analysis, Petitioners’ rule would 
eliminate the “factbound” inquiry contemplated by



8

Rule 24(a)(2).5 See Izumi, 510 U.S. at 33-34. This 
represents both a radical and unsupported departure 
from the Federal Rules of Civil Procedure and a 
disparagement of public servants who. like Attorney 
General Cox, competently and zealously defend the 
laws as they are sworn to do.

The Attorney General intervened in this 
litigation with the express purpose of ensuring a 
“vigorous defense” of Proposal 2. Cox Mot. to 
Intervene, at 5, 7, l l . 6 As “the state’s chief law 
enforcement officer”, the Attorney General “has not 
only a duty to ensure that the laws of the State are 
followed, but also a duty to defend those laws as 
enacted . . .  by the People of Michigan themselves, 
when those laws are challenged” . Id. at 13-14. See 
also Mich. Comp. Laws § 14.28.

And Attorney General Cox has steadfastly 
fulfilled that role. From his first appearance in this 
litigation, the Attorney General has actively 
defended Proposal 2. He contested nearly 90% of 
Plaintiffs’ Joint Proposed Stipulation Of Facts,

5 Petitioners’ amicus Mountain States Legal Foundation 
would apparently have the Court abrogate the four-factor test 
(and hence Rule 24(a)(2)) altogether, in favor of a “bright line 
rule that an initiative’s sponsors may, as a matter of right, 
intervene in litigation challenging the constitutionality of their 
[sic] enactment”. Amicus Curiae Brief of Mountain States 
Legal Foundation In Support of Petitioners at 10. That self- 
serving suggestion, of course, could not be implemented without 
amending Federal Rule 24 and overturning decades of well- 
reasoned precedent.

6 A copy of the Attorney General’s Motion to Intervene is 
appended hereto.



9

opposed both the Cantrell and Coalition Plaintiffs’ 
motions for class certification, and actively 
participated in discovery. Moreover, the Attorney 
General’s representatives have briefed, argued and 
now won a motion for summary judgment as to all 
claims presented by both sets of plaintiffs. Coalition 
to Defend Affirmative Action v. Granholm, 539 F. 
Supp. 2d 924 (2008). It is beyond legitimate dispute 
that Attorney General Cox has zealously represented 
the interests of all those who support Proposal 2 -  
including Petitioners -  and there is every reason to 
believe that he will continue to do so in the event 
that further proceedings take place in the district 
court or in the Sixth Circuit.7 Moreover, petitioners 
have not identified, even at this late stage, a single 
factual assertion or legal argument omitted by the

7 Michigan Governor Jennifer Granholm, who was 
initially named as a defendant, has been critical of Proposal 2. 
However, the Governor has never taken an active role in the 
litigation, and was voluntarily dismissed from the action on 
September 5, 2007 in light of the Attorney General’s 
intervention. Petitioners also make much of a temporary (and 
extremely short-lived) stipulated injunction entered by the 
district court in the first weeks of the litigation. Pet. at 7, 23- 
24. However, the practical and logistical considerations that 
motivated the Attorney General to agree to that stipulation do 
not undermine his ability to defend Proposal 2. See Northwest 
Forest Resource Council v. Glickman, 82 F.3d 825, 838 (9th Cir. 
1996) (holding that disagreement between a current party and 
proposed intervenor over whether the district court should 
enter a permanent injunction was “not central to [the] 
declaratory judgment action” and “only a difference in strategy” 
too “minor” to raise an inference of inadequate representation); 
Jenkins v. Missouri, 78 F.3d 1270, 1275 (8th Cir. 1996) (“A 
difference of opinion concerning litigation strategy . . . does not 
overcome the presumption of adequate representation.”).



10

Attorney General that they would have proffered in 
the course of this litigation.

The per se rule advocated by Petitioners is as 
unworkable in practical terms as it is inconsistent 
with the reality that state governments can -  and as 
in this case, frequently do -  mount a robust defense 
of legislation enacted through an initiative process. 
To begin with, Petitioners do not identify which 
supporters of a ballot initiative should in their view 
have a per se right to intervene such litigation. 
Petitioner ACRF, for instance, is an out-of-state, 
nationwide organization devoted to the elimination 
of affirmative action across the nation. It is not an 
official ballot-question'committee. A presumption 
that such organizations are entitled to intervene 
would constitute a blanket license for virtually any 
advocacy group to inject itself into litigation 
addressing ballot-enacted legislation of concern to 
them.

By contrast, a principal virtue of the four-part 
test under Rule 24(a)(2) is the flexibility it affords 
the district courts to control the identity and number 
of the parties before them. See Sagebrush Rebellion, 
Inc. v. Watt, 713 F.2d 525, 526 & n.2 (9th Cir. 1983) 
(allowing intervention by the national office and five 
local chapters of the National Audubon Society, five 
Idaho non-profit environmental organizations and 
four individual residents partly on the basis that 
“ [throughout these proceedings intervenors have 
asserted a unitary interest and spoken with one 
voice” and cautioning that “ [njothing in this opinion 
should be interpreted as approving participation by



11

the intervenors on any other basis”).8 Petitioners 
would propose to strip the district courts of that 
discretion with respect to such groups.

Indeed, a per se federal rule purporting to 
delineate the categories of initiative supporters 
entitled to intervene is impossible because each state 
that permits legislation through referendum has its 
own set of procedures for placing issues on the ballot. 
Michigan law, in fact, provides for two such 
procedures -  each of which contemplates different 
roles for sponsors, citizens, and the legislature. 
Mich. Const. Art. 2, § 9. Moreover, Petitioners and 
their amici appear to advocate for a perpetual right 
to intervene -  i.e. no matter how great the lapse of 
time between a measure’s enactment and the 
initiation of litigation challenging it.

The fatal complexity of any effort to deploy 
Petitioners’ proposal in practice is matched only by 
the absurdity of Petitioners’ premise that every

8 Moreover, the very evil that Petitioners purportedly seek 
to remedy -  conflicted and/or inadequate defense of popularly- 
enacted legislation -  is already expressly envisioned and 
protected against by the current, well-settled rule. See 
Sagebrush Rebellion, 713 F.2d at 528-29 (approving 
intervention as defendant by advocacy group where legitimate 
concern existed about the likelihood of zealous advocacy by a 
government defendant who had been director of the legal 
foundation representing the plaintiff prior to his appointment 
as Secretary of the Interior); compare League of Latin American 
Citizens v. Wilson, 131 F.3d 1297, 1305-07 (9th Cir. 1997) 
(distinguishing Sagebrush Rebellion and noting that then- 
California Governor Pete Wilson -  a staunch advocate of the 
ballot-measure there at issue -  was well-qualified to supervise 
its constitutional defense).



12

member of every state’s government is categorically 
unable to defend any piece of ballot-enacted 
legislation. This Court should reject Petitioners’ 
invitation to discard the fundamental presumption 
that elected government officials can, at least in 
many instances, both defend and enforce the laws of 
their states.

III. The “Direct and Dram atic” Inter-Circuit
Conflict Petitioners Claim to Identify Does
Not Exist.

For all their efforts to manufacture a “direct and 
dramatic [inter-Circuit] conflict. . .  of major national 
significance”, Pet. at 17, Petitioners manage to cite 
only a single Ninth Circuit opinion holding that a 
ballot-initiative sponsor was entitled to intervene as 
of right in post-enactment litigation challenging a 
measure it had supported.9 That opinion,

9 In an effort to imply that the Sixth Circuit’s own law is 
somehow unsettled, Petitioners suggest that Northland and the 
opinion below depart from Mich. State AFL-CIO u. Miller, 103 
F.3d 1240 (6th Cir. 1997). As both the courts below recognized, 
no such conflict exists. In Miller, the Sixth Circuit allowed the 
Michigan Chamber of Commerce to intervene in litigation 
challenging newly-enacted state campaign finance laws. But as 
the Sixth Circuit has now repeatedly explained, Milter is 
distinguishable because the intervening party was “an entity 
also regulated by at least three of the four statutory provisions 
challenged” in the litigation. Id. at 1247. See also Northland, 
487 F.3d at 345 (pointing out that pro-life advocacy 
organization that had sponsored citizen-initiative process, 
unlike the Chamber of Commerce in Miller, was “not itself 
regulated by any of the statutory provisions at issue here”); see 
also Coalition, 501 F.3d 782. The district court distinguished 
Miller on the same grounds. Coalition, 240 F.R.D. at 375.



13

Washington State Building & Construction Trades 
Council v. Spellman, 684 F.2d 627 (9th Cir. 1982), 
contains virtually no discussion of the rule it 
announces -  which was arguably dicta in any event, 
since the same opinion simultaneously affirmed a 
judgment on the merits identical to that sought by 
the putative intervenors. Spellman’s entire 
“analysis” of this issue is as follows:

“Denial of [the initiative sponsor’s] motion 
to intervene was error and accordingly we 
reverse as to that holding. Rule 24 
traditionally has received a liberal 
construction in favor of applicants for 
intervention. 7A C. Wright & A, Miller, 
Federal Practice and Procedure § 1904 
(1972). [T]he public interest group that 
sponsored the initiativeQ was entitled to 
intervention as a matter of right under Rule 
24(a). However, while we sustain [the 
proposed intervenor’s] appeal, this reversal 
does not require a new trial because the 
holding of the case would not be changed.”

Id. at 629-30. The opinion contains no other 
discussion of the intervention issue.

Petitioners’ other cases from the Ninth Circuit 
do not concern intervention by ballot-initiative 
sponsors and therefore are inapposite. See Forest 
Conservation Council v. U.S. Forest Serv., 66 F.3d 
1489 (9th Cir. 1995) (allowing intervention by state 
and county in suit to enjoin implementation of 
certain logging regulations); Sagebrush Rebellion 713 
F.2d at 525 (allowing intervention by Audubon 
Society and certain other entities in challenge to



14

regulatory action by the Department of the Interior); 
Idaho v. Freeman, 625 F.2d 886 (9th Cir. 1980) 
(allowing intervention by women’s rights 
organization in legal challenge to procedures for 
ratifying the Equal Rights Amendment). Notably, 
Forest Conservation Council, Sagebrush Rebellion 
and Freeman all involved challenges to rulemaking 
or ratification procedures -  none involved a challenge 
to the validity of a law or regulation as enacted. Id.

In fact, other cases from the Ninth Circuit -  not 
cited in the petition -  deny intervention to initiative 
sponsors in Petitioners’ circumstances, consistent 
with the result below. Wilson, 131 F.3d at 1297 
(affirming denial of intervention by sponsors of 
initiative intended to deny government benefits to 
undocumented immigrants); see also Prete, 438 F.3d 
at 959-60 (holding that grant of intervention to 
sponsor and supporter of Oregon ballot initiative was 
erroneous but, under the circumstances, harmless). 
The present action is plainly an inappropriate 
vehicle for resolution of any inconsistency within 
Ninth Circuit caselaw. See Wisniewski v. United 
States, 353 U.S. 901, 902 (1957) (per curiam) 
(holding that “doubt about the respect to be accorded 
to a previous decision of a different panel [of the 
same Court of Appeals] should not be the occasion” 
for a writ of certiorari).



15

CONCLUSION

For all of the foregoing reasons, the petition 
should be denied.

June 11, 2008

Respectfully Submitted,

/S/Mark D. Rosenbaum

Mark D. Rosenbaum
ACLU Foundation of Southern
California

1313 W. 8th Street 
Los Angeles, CA 90017 
(213) 977-9500 
Counsel of Record

Laurence H. Tribe 
Hauser Hall 420 
1575 Massachusetts Avenue 
Cambridge, MA 02138 
(617) 495-4621

Karin A. DbMasi 
Cravath, Swaine & Moore LLP 

825 Eighth Avenue 
New York, NY 10019 
(212) 474-1000



16

Melvin Butch Hollowell, Jr . 
Detroit Branch NAACP 
Allen Brothers PLLC

400 Monroe Street, Suite 220 
Detroit, MI 48226 
(313) 962-7777

Kary L. Moss 
Michael J. Steinberg 
MarkP. Fancher 
American Civil Liberties Union 
Fund of Michigan 

60 W. Hancock Street 
Detroit, MI 48201 
(313) 578-6814

John Payton 
Jacqueline A. Berrien 
Victor Bolden 
Anurima Bhargava 
NAACP Legal Defense & 
Educational Fund

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200

Dennis Parker 
Steven R. Shapiro 
American Civil Liberties Union 
Foundation

125 Broad Street 
New York, N.Y. 10004 
(212) 549-2500



17

Erwin Chemerinsky 
Duke University School of Law 

Science Drive & Towerview Rd. 
Durham, NC 27708 
(919) 613-7173

Daniel P. Tokaji 
The Ohio State University 
Moritz College of Law 

55 W. 12th Avenue 
Columbus, OH 43206 
(614) 292-6566



APPENDIX



Case 2:06-cv-15024-DML-RSW Document 8 Filed 12/14/2006 Page 1 of 18

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE Case No, 2:06-CV-15024
ACTION. INTEGRATION AND IMMIGRANT
RIGHTS AND FIGHT FOR EQUALITY BY AN Y Hon. David M. Lawson
MEANS NECESSARY (BAM N ). UNITED FOR
EQUALITY AND AFFIRMATIVE ACTION
LECAL DEFENSE FUND. RAINBOW  PUSH
COALITION. CALVIN JEVON COCHRAN.
LASHELLE BENJAMIN, BEAUT1E MITCHELL.
DENESHA RICHEY. STASIA BROWN. MICHAEL 
GIBSON. CHRISTOPHER SUTTON, LAQUAY 
JOHNSON. TURQOISE WISE-KINO, BRANDON 
FLANN1GAN. JOS1E HUMAN, ISSAMAR 
CAM ACH O. KAHLEIF HENRY. SHANAE 
TA TU M . M ARICRUZ LOPEZ, ALEJANDRA 
CRUZ. ADARENE HOAG. CANDICE YOUNG.
TRISTAN TA YLO R. WILLIAMS FRAZIER 
JERRELL ERVES. MATTHEW  GRIFFITH,
LACRISSA BEVERLY, D'SHAWNM 
FEATHERSTONE. DANIELLE NELSON, JULIUS 
CARTER. KEVIN SMITH. KYLE SMITH, PARIS 
BU TL ER  TOUISSANT KING. A1ANA SCOTT.
ALLEN VONOU, RANDIAH GREEN. BRITTANY 
JONES. COURTNEY DRAKE. DANTE DIXON,
JOSEPH HENRY RED. AFSCME LOCAL 207.
AFSCME LOCAL 2 14. AFSCME LOCAL 312.
AFSCME LOCAL 836. AFSCME LOCAL 1642.
AFSCME LOCAL 2920. and the DEFEND 
AFFIRMATIVE ACTION PARTY.

JENNIFER GRANHOLM, in her official capacity as 
Governor o f  the State o f  Michigan, the REGENTS 
OF THE UNIVERSITY OF MICHIGAN, the 
BOARD OF TRUSTEES OF MICHIGAN STATE 
UNIVERSITY, the BOARD OF GOVERNORS OF 
W AYN E STATE UNIVERSITY, and the 
TRUSTEES OF any other public college or 
university, community college, or school district.

Defendants
and

The REGENTS OF THE UNIVERSITY OF 
MICHIGAN, the BOARD OF TRUSTEES OF 
MICHIGAN STATE UNIVERSITY and the BOARD



Case 2:06-cv-15024-DMl-RSW Documents Filed 12/14/2006 Page 2 of 18

OF GOVERNORS OF WAYNE STA TE 
UNIVERSITY.

Cross-Plaintiffs
vs.

JENNIFER GRANH O LM . in her official capacity as 
Governor o f  the State o f  Michigan.

Cross-Defendant.
___  _______  /

George B. Washington (P26201)
Shanta Driver (P65007 
SCHEFF & W ASHINGTON, P.C. 
Attorneys for Plaintiffs 
645 Griswold. Suite 1817 
Detroit Ml 48226 
(313)963-1921

James E. Long (P53251)
Brian O. Neil (P 63511)
Michigan Department o f  Attorney General 
Attorneys for Defendant Granholm 
P.O. Box 30758 
Lansing. Mi 48909 
(517) 373-1111

Leonard M. Niehoff(P36695)
Philip J. Kessler (P15921)
Christopher M. Taylor (P63780) 
BUTZEL LONG. P.C.
Attorneys for Defendant/Cross- 
Plaintilfs. the Regents o f  the University 
o f  Michigan, Ihe Board o f  Trustees o f  
Michigan State University, and the 
Board o f  Governors o f  Wayne State 
University
350 S. Main Street, Suite 300 
Ann Arbor. Ml 48104 
(734)995-3110

Margaret A. Nelson (P30342)
Heather S, Meingast (P55439)
Joseph E. Potchen (P49501)
Michigan Dept o f  Attorney General 
Attorneys for Intervening D e f C ox 
P.O. Box 30736 
Lansing, M l 48909 
(517)373-6434

ATTORNEY GENERAL MICHAEL A. COX'S MOTION TO INTERVENE AS A  
DEFENDANT IN THE COMPLAINT FILED BY PLAINTIFFS, AND IN THE CROSS 

CLAIM FILED BY THE DEFENDANT UNIVERSITIES

N OW  COMES Attorney General Michael A . Cox, by his attorneys, Margaret A . Nelson,

Heather S. Meingast, and Joseph E. Potchen, Assistant Attorneys General, and in support o f  his

motion to intervene states as follows:

2



Case 2:06-cv-15024-DML-RSW Document 8 Filed 12/14/2006 Page 3 of 18

!, On November S. 2006, Plaintiffs filed with this Court a complaint for injunctive 

and declaratory relief raising a facial challenge to newly adopted art i , § 26 o f  the Michigan 

Constitution, better known as Proposal 2. The complaint alleges equal protection and First 

Amendment challenges under the federal constitution. The complaint also asserts that § 26 is 

preempted by the Civil Rights Act o f  1866, Titles VI and V ll and, the Civil Rights Act o f  1964, 

and Title XI o f  the education Amendments o f  1972. Plaintiffs request that this Court declare § 

26 unconstitutional under the First Amendment and the Equal Protection Clause o f  the 

Fourteenth Amendment and permanently enjoin defendants from eliminating any affirmative 

action plans and granting any other relief it determines appropriate.

2. The complaint names as defendants Governor Jennifer Granholm, in her official 

capacity, the Regents o f  the University o f  Michigan, the Michigan State University Board o f  

Trustees, and the Wayne State University Board o f  Governors.

3. Although Plaintiffs filed their suit the day after the election, they did not serve the 

Governor until December 8. 2006.

4. The Defendant Universities then filed their cross claim on December 11, 2006. 

The cross claim asserts a violation o f  the Universities' alleged First Amendment right o f  

academic freedom to admit a class that best meets their academic goals during the current 

admissions cycle i f  the Universities are required to implement § 26 upon the section's effective 

d a te -  12:01 a.m. December 23. 2007.'

5. The Universities assert they have already begun both their admissions and 

financial aid cycles, with some decisions being made prior to the passage o f  § 26. They allege 

that to implement § 26 now, in the middle o f  that cycle, would require them to apply different 

polices to applicants within the same cycle and different polices than they have announced as 1

1 Sea Const 1963. art 12. § 2 providing for the effective date o f  § 26.
3



Case 2:06-ov-15024-DML-RSW Document 8 Filed 12/14/2006 Page 4 of 18

applicable to this cycle. The Universities also allege that the amendment's exceptions applicable 

to federal programs, federal law, and the federal constitution apply to their admissions policy and 

effectively exempt them from the amendment's provisions.

6. The Universities request a judgment declaring that under federal law the 

Universities may continue to use their existing admissions and financial aid policies through the 

end o f  the current cycle, and otherwise declaring their rights and responsibilities under the 

Amendment in tight o f  federal law.

7. The Universities also filed a motion for preliminary injunction and requested an 

expedited hearing in the matter. The Universities seek a preliminary injunction enjoining the 

application o f  § 26 to preserve the status quo and allow the Universities to continue to use their 

existing admissions and financial aid policies through the end o f  the current cycle or until the 

Court enters its declaratory judgment. Alternatively, i f  the Court cannot rule by December 22, 

2006. the Universities ask this Court to enter a temporary restraining order pending a ruling on 

the preliminary injunction.

8. On December 11.2006, Governor Granholm formally requested that the Attorney 

General provide her with legal representation in this suit as provided for by the state constitution 

and statutes.2 Recognizing a potential legal conflict because o f  the differing poiitical positions 

taken by the Governor and the Attorney General on Proposal 2, now Const 1963, art I, § 26, 

Governor Granholm requested the creation o f  a conflict wall to assure the independence o f  her 

assigned legal team. (See Exhibit 1) Governor Granholm also indicated she will not oppose the 

Attorney General’s intervention in this matter.

- See Const 1963. art 5. §§ 3. 21; MCL 14.28.
4



Case 2:06-cv-15024-DML-RSW Documents Filed 12/14/2006 Page 5 of 18

9. In acknowledgement o f  a legal conflict, and pursuant to the Governor's request, 

the Attorney General has assigned an independent team o f  Assistant Attorneys General and 

established a conflict wall.

10. These unique circumstances, however, compel the Attorney Genera! to seek leave 

to intervene in both the complaint and cross claim filed in this matter in order to ensure that the 

Court is presented with the full range o f  arguments on the questions presented, and so that a 

vigorous defense o f  the constitutionality o f  § 26 may be had.

11. Federal Rule o f  Civil Procedure 24, states:

(a) Intervention o f  Right. Upon timely application anyone shall be permitted to 
intervene in an action :. . .  (2) when the applicant claims an interest relating to the 
. . .  transaction which is the subject o f  the action and the applicant is so situated 
that the disposition o f  the action may as a practical matter impair or impede the 
applicant's ability to protect that interest, unless the applicant's interest is 
adequately represented by existing parties.

(b) Permissive intervention. Upon timely application anyone may be permitted to 
intervene in an action :. . .  (2 ) when an applicant's claim or defense and the main 
action have a question o f  law or fact in common. When a party to an action relies 
for ground o f  claim or defense upon any statute or executive order administered 
by a federal or state governmental officer or agency or upon any regulation, order, 
requirement, or agreement issued or made pursuant to the statute or executive 
order, the officer or agency upon timely application may be permitted to intervene 
in the action, in exercising its discretion the court shall consider whether the 
intervention will unduly delay or prejudice the adjudication o f  the rights o f  the 
original parties. [Emphasis added.]

12. Again the Attorney General, as the state’ s ch ief law enforcement officer, has not 

only a duty to ensure that the laws o f  the State are followed, but also a duty to defend those laws 

as enacted by the Legislature, or as in this case by the People o f  Michigan themselves, when

5



Case 2:06-cv-15024-0 ML-RSW Documents filed  12/14/2006 Page 6 of 18

those laws are challenged!.3 Concomitant with those duties is the Attorney General’ s right under 

Michigan law to intervene in any matter to protect state interests.4 * 6

13. The Attorney General thus has a substantial legal interest in this matter relating to 

his duty to defend the constitutionality o f  § 26 on behalf o f  the State o f  Michigan, which interest 

will not be adequately represented through Governor Granholm’ s participation in this suit.

14. The United States Court o f  Appeals for the Sixth Circuit recognized in Associated 

Builders & Contrs, Saginaw Valley Area Chapter v Perry that the Attorney General has broad 

authority to intervene in matters affecting the public’ s interests, and that he should only be 

prohibited from doing so when it would prove inimical to the public interest. s In that case, the 

Sixth Circuit determined that then Attorney General Frank Kelley should have been allowed to 

intervene as o f  right and appeal a district court decision that held a state statute preempted by 

federal law where the defendant Director o f  the Department o f  Labor and Governor did not 

appeal, hut rather "permitted the thirty-year-old [statute] to go to its demise without fully 

exercising their right to object.”4 The Court concluded that the State’ s interests were not 

adequately represented by the decision not to appeal because substantial questions o f  law existed 

as to whether the state statute was in fact preempted by federal law. and that these circumstances 

warranted the Attorney General’ s intervention and appeal in the matter.7

15. The circumstances here are analogous to those presented in Associated Builders 

and support the Attorney General’ s intervention. While this case does not yet involve an appeal

3 Const 1963, art 5, §§  3 ,21 ; MCL 14.28.
4 See MCL 14.101 See also Attorney General v Public Service Comm. 243 Mich App 487. 496- 
497; 625 N\V2d 16 (2000).
2 Associated Builders & Contrs., Saginaw Valley Area Chapter v Perry, 115 F3d 386, 390 (CA 
6. 1997).
6 Associated Builders, 115 F3d at 390.
7 Associated Builders, 115 F3d at 390-392.

6



Case 2:06-cv-15024-DML-RSW Documents Filed 12/14/2006 Page 7 of 18

and Governor Granholm remains an active party to the suit, it is clear that the State’ s interests as 

a whole will not be adequately represented through the Governor’ s participation.

16. The Attorney General should thus be allowed to intervene as a matter o f  right in 

this case under FR Civ P 24(a) to ensure that the State’ s interests are adequately presented via a 

vigorous defense o f  the constitutionality o f  § 26.

17. Alternatively, the Attorney General should be permitted to intervene under FR 

C iv P 24(b) because his defense o f  § 26 -  that it withstands constitutional scrutiny under the First 

Amendment and the Fourteenth Amendment -  will have questions o f  fact or law in common 

with the main action and original parties as required by the rule. His motion is timely and 

permitting the Attorney General’ s intervention will in no way unduly delay or prejudice the 

adjudication o f  the rights o f  the original parties since this suit is still in its initial phase. 

Accordingly, intervention should be granted in accordance with FR Civ P 24(b).

18. Under LR 7 ,1(a). Attorney General Cox has sought concurrence in the motion to 

intervene from all counsel to the parties in this action. The Governor does not oppose the 

Attorney General's intervention. Counsel for the Universities was unable to respond before 

speaking with his clients. Counsel for the Plaintiffs does not oppose the Attorney General's 

intervention.

WHEREFORE, for the reasons set forth above and in the accompanying brief Attorney 

General Michael A . C ox requests that this Court grant his Motion to Intervene pursuant to Fed R 

Civ P 24(a) and (b).

7



Case 2:Q6-cv-15024-DML-RSW Documents Filed 12/14/2006 Page 8 of 18

ATTORNEY GENERAL MICHAEL A. COX’S MEMORANDUM OF LAW  
IN SUPPORT OF MOTION TO INTERVENE IN THE COMPLAINT 

FILED BY PLAINTIFFS, AND IN THE CROSS CLAIM FILED BY THE 
DEFENDANT UNIVERSITIES

CONCISE STATEMENT OF ISSUE PRESENTED

Federal Rule of Civil Procedure 24 accords persons (he opportunity to intervene in a 
matter either as of right or by permission. Here, the Attorney General has a substantial 
legal interest in the matters presented to this Court in the complaint and cross claim, which 
challenge the constitutionality of Const 1963, art 1, § 26 and which interest will not be 
adequately represented through Governor Granholm's participation in the suit thus 
warranting his intervention as of right. Alternatively, the Attorney General should be 
permitted to intervene because his defense of § 26 -  that it withstands constitutional 
scrutiny under the First Amendment and the Fourteenth Amendment -  will have questions 
of fact or law in common with the main action and original parties. Should this Court 
therefore exercise its discretion and allow the Attorney General to intervene either as of 
right or by permission in the underlying complaint and cross claim?

CONTROLLING OR MOST APPROPRIATE AUTHORITY

Associated Builders & Contrs., Saginaw Valley Area Chapter v Perry, 115 F3d 386 (CA 6, 
1997)

Attorney General v Public Service Comm, 243 Mich App 487,496-497; 625 NW 2d 16 (2000) 

Jordan v Michigan Conference o f Teamsters Welfare Fund, 207 F3d 854, 863 (CA 6, 2000) 

Linton v Commissioner o f  Health & Evn't, 973 F2d 1311, 1319 (CA 6, 1992)

Michigan State v Miller, 103 F3d 1240, 1248 (C A  6, 1997)

Michigan State AFL-CIO v Miller. 103 F3d 1240, 1245 (C A  6, 1997)

Providence Baptist Church v Hillandale Comm, Ltd., 425 F3d 309, 313 (CA 6. 2005) 

Stupak-Thrall v Glickman. 226 F3d 467, 471 (C A  6.2000)

United States v Michigan, 424 F3d 438, 443-444 (CA 6, 2005)

8



Case2:06-cv-15Q24-DML-RSW Documents Filed 12/14/2006 Page 9 of 18

STATEMENT OF THE FACTS

On Novem ber 8.2006. Plaintiffs filed with this Court a complaint for injunctive and 

declaratory relief raising a facial challenge to newly adopted art 1, § 26 o f  the Michigan 

Constitution, better known as Proposal 2.8 The complaint alleges equal protection and First 

Amendment challenges under the federal constitution. The complaint also asserts that § 26 is 

preempted by the C ivil Rights Act o f  1866. Titles VI and VII and, the Civil Rights Act o f  1964, 

and Title XI o f  the education Amendments o f  1972. Plainti ffs request that this Court declare §

26 unconstitutional under the First Amendment and the Equal Protection Clause o f  the 

Fourteenth Amendment and permanently enjoin defendants from eliminating any affirmative 

action plans and granting any other relief it determines appropriate. The complaint names as 

defendants Governor Jennifer Granholm, in her official capacity, the Regents o f  the University 

o f  Michigan, the Michigan State University Board o f  Trustees, and the Wayne State University 

Board o f  Governors. Although Plaintiffs filed their suit the day after the election, they did not 

serve the Governor until December 8,2006.

On Decem ber 11,2006, the defendant Universities filed a cross claim with this Court 

against defendant Governor Granholm seeking declaratory and injunctive relief. The cross claim 

asserts a violation o f  the Universities' alleged First Amendment right o f  academic freedom to , 

admit a class that best meets their academic goals during the current admissions cycle i f  the 

Universities are required to implement § 26 upon the section's effective date -  12:01 a,m. 

December 2 3 ,2007.9 The Universities assert they have already begun both their admissions and

s The amendment passed overwhelmingly on November 7,2006, with 2,141,010 citizens voting 
in favor o f  the proposal, and 1,555.691 citizens voting against the proposal, or by 57.9 %  to 
42.1 %, See lillm/f'mihoecfr.ricrtisa.coni/election/resuils/OfiGEN,1'90000002.hlml.
’  See Const 1963, art 12, § 2 providing for the effective date o f  § 26.

9



Case 2:06-cv-15Q24-DML-RSW Documents Filed 12/14/2006 Page 10 of 18

imancial aid cycles, with some decisions being made prior to the passage o f  § 26. They allege 

that to implement § 26 now, in the middle o f  that cycle, would require them to apply different 

polices to applicants within the same cycie and different polices than they have announced as 

applicable to this cycle. The Universities also allege that the amendment's exceptions applicable 

to federal programs, federal law, and the federal constitution appfy to their admissions policy and 

effectively exempt them from the amendments provisions. The Universities request a judgment 

declaring that under federal law the Universities may continue to use their existing admissions 

and financial aid policies through the end o f  the current cycle, and otherwise declaring their 

rights and responsibilities under the Amendment in light o f  federal law.

The Universities also filed a motion for preliminary injunction and requested an 

expedited hearing in the matter. The Universities seek a preliminary injunction enjoining the 

application ot § 26 to preserve the status quo and allow the Universities to continue to use their 

existing admissions and financial aid policies through the end o f  the current cycle or until the 

Court enters its declaratory judgment. Alternatively, i f  the Court cannot rule by December 22. 

2006. the Universities ask this Court to enter a temporary restraining order pending a ruling on 

the preliminary injunction.

On December 11, 2006, Governor Granholm formally requested that the Attorney 

General provide her with legal representation in this suit as provided for by the state constitution 

and statutes."1 Recognizing a potential legal conflict because o f  the differing political positions 

taken by the Governor and the Attorney General on Proposal 2 , now art 1. § 26. Governor 

Granholm requested the creation o f  a conflict wall to assure the independence o f  her assigned 10

10 See Const 1963. arts, §§ 3, 21: MCI. 14.28.

10



Case 2:06-cv-15024-DML-RSW Document 8 Filed 12/14/2006 Page 11 of 18

legal team. Governor Granholm also indicated she will not oppose the Attorney General's 

intervention in this matter.

In acknowledgement o f  the legal conflict, and pursuant to the Governor's request, the 

Attorney General has assigned an independent team o f  Assistant Attorneys General and 

established a conflict wall.

These unique circumstances, however, compel the Attorney General to seek leave to 

intervene in both the complaint and cross claim filed in this matter in order to ensure that the 

Court is presented with the full range o f  arguments on the questions presented, and so that a 

vigorous defense o f  the constitutionality o f  § 26 may be had.

il



Case 2:06-cv-15024-DML-RSW Documents Filed 12/14/2006 P age12o f18

ARGUMENT

Federal Rule of Civil Procedure 24 accords persons the opportunity to intervene in 
a matter either as of right or by permission. Here, the Attorney General has a 
substantial legal interest in the matters presented to this Court in the complaint and 
cross claim, which challenge the constitutionality of Const 1963, art 1, § 26 and 
which interest will not be adequately represented through Governor Granhoim's 
participation in the suit thus warranting his intervention as of right. Alternatively, 
the Attorney General should be permitted to intervene because his defense of § 26 -  
that it withstands constitutional scrutiny under the First Amendment and the 
Fourteenth Amendment -  wifi have questions of fact or law in common with the 
maiu action and original parties. This Court should therefore exercise its discretion 
and allow the Attorney General to intervene either as of right or by permission in 
the underlying complaint and cross claim.

A. Standard of Review

The decision whether to grant a motion to intervene lies within the discretion o f  the 

district court."

B. The Attorney General should be allowed to intervene as of right under FR 
Civ 24(a).

Federal Rule o f  Civil Procedure 24. states:

(a) intervention o f  Right. Upon timely application anyone shall be permitted to 
intervene in an action :. . .  (2) when the applicant claims an interest relating to the 
. . .  transaction which is the subject o f  the action and the applicant is so situated 
that the disposition o f  the action may as a practical matter impair or impede the 
applicant's ability to protect that interest, unless the applicant's interest is 
adequately represented by existing parties.

Four criteria must be met tor intervention as a matter o f  right: (1) the application is 

timely; (2) the party must have a substantial legal interest in the case; (3) the party must 

demonstrate that its ability to protect that interest will be impaired in the absence o f  intervention; 

and (4) there must be inadequate representation o f  that interest by the current party.11 12 I f  any o f

11 Providence Baptist Church >' Hillandale Comm, Lid.. 425 F3d 309, 313 (CA 6, 2005).
12 See Michigan Stale AFL-CIU v Milter, 103 F3d 1240, 1245 (CA 6, 1997).

12



Case 2:06-cv-15024-DML-RSW Documents Filed 12/14/2006 P age13o f18

these criteria are not satisfied, a motion to intervene must he denied.13 The Sixth Circuit has 

adopted a "rather expansive notion o f  the interest sufficient to invoke intervention."14

A proposed intervenor's burden in showing inadequate representation o f  its interests is 

minimal.15 A  showing o f  possible inadequate representation is sufficient to meet such burden.16 * 

Despite such a minimal burden, "applicants for intervention must overcome the presumption o f  

adequate representation that arises when they share the same ultimate objective as a party to the 

suit."11 The Sixth Circuit has adopied a three-part test to determine if  the existing parties 

adequately represent the interests o f  a proposed intervenor.18 19 The Sixth Circuit has held that a 

movant fails to meet his burden o f  demonstrating inadequate representation when ( I ) no 

collusion is shown between the existing party and the opposition; (2) the existing party does not 

have any interests adverse to the intervenor; and (3) the existing party has not failed in the 

fulfillment orits duty.16

In reviewing these factors, it is apparent that the Attorney General's motion to intervene 

is timely filed as the present lawsuit is in its initial phase. Moreover, the Attorney Genera! has a 

substantial legal interest in this matter that will not be adequately represented by the existing 

parties. The Altorney General, as the state’ s ch ief law enforcement officer, has not only a duty to 

ensure that the laws o f  the Slate are followed, but also a duty to defend those laws as enacted by 

the Legislature, or as in this case by the People o f  Michigan themselves, when those laws are

13 Smpak-Thrall v Glickman, 226 F3d 467. 47i (CA 6. 2000).
14 Michigan Slate AFL-C.IO. 103 F3d at 1245.
15 Linton i> Commissioner o f  Health & Evn't, 973 F2d 1311, 1319 (CA 6. 1992).
16 Linton. 973 F2d at 1319.
11 United Slates v. Michigan, 424 F3d 438.443-444 (CA 6. 2005).
18 Jordan v Michigan Conference o f Teamsters Welfare Fund. 207 F3d 854. 863 (C A  6. 2000).
19 Jordan. 207 F3d at 863.

13



Case 2:06-cv-15024-DML-RSW Documents Filed 12/14/2006 Page 14 of 18

challenged."0 Concomitant with those duties is the Attorney General’ s right under Michigan law 

to intervene in any matter to protect state interests.20 21 The Attorney General thus has a substantial 

legal interest in this matter relating to his duty to defend the constitutionality o f  § 26 on behalf o f  

the State o f  Michigan, which interest will not be adequately represented through Governor 

Granholm’ s participation in this suit.

In Associated Builders & Contrs, Saginaw Valley Area Chapter v Perry the United States

Court o f  Appeals for the Sixth Circuit recognized the Attorney General's broad authority and

duty to represent the interests o f  the State22:

in Michigan exrel. Kelley v CR Equipment Sales, Inc, 898 F Supp 509, 513-14 
(W D  Mich 1995), District Judge Benjamin Gibson, discussing the same Attorney 
General involved in the instant case, said:

"Michigan's Attorney General has broad authority to prosecute actions when to do 
so is in the interest o f  the state. First. Michigan statutory law provides as follows:

The attorney general shall prosecute and defend all actions in the supreme court, 
in which the state shall be interested, or a party ... and may, when in his own 
judgment the interests o f  the state require it. intervene in and appear for the 
people o f  this state in any other court or tribunal, in any cause or matter, civil or 
criminal, in which the people o f  this state may be a party or interested. Mich.
Com p. Laws Ann. § 14.28 (West 1994). In addition, 'the attorney general has a 
wide range o f  powers at common law.' Mundy v McDonald, 216 Mich 444,450;
185 NW 877 (1921). Thus, the Attorney General 'has statutory and common law 
authority to act on behalf o f  the people o f  the State o f  Michigan in any cause or 
matter, such authority being liberally construed.' Michigan State Chiropractic 
Ass'n v Kelley, 79 Mich App 789; 262 NW2d 676, 677 (1977)(citations omitted); 
see also Mundy. 216 Mich at 450. 185 NW 877 (Attorney General has broad 
discretion 'in determining what matters may, or may not. be o f  interest to the 
people generally.’).

The Court should only prohibit the Attorney General from intervening or bringing 
an action when to do so ’is clearly inimical to the public interest.' in re

20 Const !963, art 5, § § 3 .2 1 ; MCL 14.28.
21 See M CL 14.101 See also Attorney General v Public Service Comm. 243 Mich App 487. 496- 
497: 625 NW2d 16 (2000).
~  Associated Builders & Contrs., Saginaw Valiev Area Chapter v Perry, 115 F3d 386, 390 (C A  
6. 1997).

14



Case 2;0S-cv-15024-DML-RSW Documents Filed 12/14/2006 Page 15 of 18

Intervention o f  Attorney Gen.. 326 Mich 213; 40 NW2d 124. 126 (1949) (citation 
omitted); see also Michigan Stale Chiropractic Ass'n. 262 NW 2d at 677.
Although a procedural distinction exists between intervention and initiating an 
action, 'there is merger o f  purpose, by reason o f  public policy, when the interests 
o f  the State call for action by its ch ief law officer and there is no express 
legislative restriction to the contrary.' In re Lewis' Estate, 287 M ich. 179. 184,
283 N.W. 21 (1938).” See also Humphrey v Kleinhardt, 157 FRD 404, 405 (W D 
Mich 1994).

In that ease, the Sixth Circuit determined that then Attorney General Frank Kelley should have

been allowed to intervene as o f  right and appeal a district court decision that held a state statute

preempted by federal law where the defendant Director o f  the Department o f  Labor and

Governor did not appeal, but rather “ permitted the thirty-year-old [statute] to go to its demise

without fully exercising their right to object.” 23 The Court concluded that the state’ s interests

were not adequately represented by the decision not to appeal because substantial questions o f

law existed as to whether the state statute was in fact preempted by federal law, and that these

circumstances warranted the Attorney General’ s intervention and appeal in the matter24:

The existence o f  a substantia! unsettled question o f  law is a proper circumstance 
for allowing intervention and appeal. Where such uncertainty exists, one whose 
interests have been affected adversely by a district court's decision should be 
entitled to "receive the protection o f  appellate review." A failure to seek such 
protection may constitute inadequate representation warranting intervention.
"Although diligent prosecution may not require an appeal in every case . . .  appeal 
. . .  should be liberally granted where the judgment o f  the trial court raises 
substantial and important questions o f  law in relation to its correctness."

*  *  *

[The Attorney General's] burden o f  demonstrating inadequacy o f  representation 
was minimal, not heavy. Unlike the questionable status o f  the Electrical 
Contractors’ Association in Perry I, [the Attorney General], representing the State 
o f  Michigan, has standing to argue the question o f  ERISA preemption o f  a state 
statute.

The circumstances here are analogous to those presented in Associated Builders and support the 

Attorney General’ s intervention. While this case does not yet involve an appeal and Governor

23 Associated Builders. 115 F3d at 390.
24 Associated Builders. 115 F3d at 390-392.

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Case2:06-cv-15024-DML-RSW Document 8 Filed 12/14/2006 P age16o f18

Granholm remains an active party to the suit, it is clear that the State’s interests as a whole will

not be adequately represented through the Governor’ s participation given the conflict in legal

positions. Although there is no apparent collusion between the Governor and the plaintiffs or

the Universities as cross plaintiffs, it is expected that the Governor's legal position will more

closely  align with the positions asserted by the plaintiffs and cross plaintiffs in this case. Under

these circumstances, the Attorney General has met his minimal burden o f  showing possible -  if

not probable -  inadequate representation in the defense o f  the constitutionality o f  § 26 without

his intervention. Indeed. Governor Granholm has acknowledged the conflict between the

respective posilions. and does not oppose the Attorney General's intervention. For these reasons,

this Court should exercise its discretion and allow the Attorney General to intervene as o f  right.

C. Alternatively, the Attorney General should be permitted to intervene under 
FR  Civ 24(b).

Federal Rule o f  Civil Procedure 24, states:

b) Permissive Intervention. Upon timely application anyone may be permitted to 
intervene in an action :. . .  (2) when an applicant’s claim or defense and the main 
action have a question o flaw  or fact in common. When a party to an action relies 
for ground o f  claim or defense upon any statute or executive order administered 
by a federal or state governmental officer or agency or upon any regulation, order, 
requirement, or agreement issued or made pursuant to the statute or executive 
order, the officer or agency upon timely application may be permitted to intervene 
in the action. In exercising its discretion the court shall consider whether the

Should this Court determine that the Attorney General is not entitled to intervene as o f

right, he asks that this Court permit him to intervene under FR Civ P 24(b). Again, the Attorney

General's motion is timely since this lawsuit is in its infancy. In addition, the Attorney General's

defense o f  § 26 -  that it withstands constitutional scrutiny under the First Amendment and the

Fourteenth Amendment -  will have questions o f  fact or law in common with the main action and

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Case 2:06-cv-15024-DML-RSW Documents Filed 12/14/2006 Page 17 of 18

original parties as required by the rule.25 Finally, permitting the Attorney General’s intervention 

will in no way unduly delay or prejudice the adjudication o f  the rights o fth e  original parties 

since this suit is stiil in its initial phase and no substantive proceedings have taken place. 

Accordingly, the Attorney General should permitted to intervene in accordance with FR Civ P 

24(b).

CONCLUSION AND RELIEF SOUGHT 

For the reasons set forth above and in the accompanying motion, Attorney General 

Michael A. C ox  respectfully requests that this Court exercise its discretion and grant his motion 

to intervene in the complaint and cross claim filed in this matter pursuant to either FR Civ P 

24(a) or (b).

Respectfully submitted,

Michael A. Cox 
Attorney General

s/Margaret A. Nelson 
Margaret A. Nelson (P 30342)
Heather S. Meingast (P55439)
Joseph Potchen (P4950I)
Assistant Attorneys General 
Attorneys for Intervening Defendant Cox 
Public Employment, Elections & Tort 
P.O. Box 30736 
Lansing, M l 48909

Dated: December 14,2006

25 See. e.g. Michigan State v Miller. 103 F3d 1240. 1248 (C A  6, 1997). where the Sixth Circuit 
concluded that the Michigan Chamber o f  Commerce should have been permitted to intervene in 
a lawsuit challenging the constitutionality o f  slate campaign finance laws because "[t]he 
Chamber's claim that the 1994 amendments arc valid presents a question o f  law common to the 
main action."

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Case 2:06-cv-15Q24-DML-RSW Documents Filed 12/14/2006 Page 18 of 18

CERTIFICATE OF SERVICE

I hereby certify that on December 14 ,2 0 0 6 .1 electronically filed the foregoing paper with the 
Clerk o f  the Court using the ECF system which will send notification o f  such filing o f  the 
following: ATTORNEY GENERAL MICHAEL A. COX'S MOTION TO INTERVENE AS 
A DEFENDANT IN THE COMPLAINT FILED BY PLAINTIFFS, AND IN THE CROSS 
CLAIM FILED BY THE DEFENDANT UNIVERSITIES WITH BRIEF IN SUPPORT

s/Margarei A. Nelson 
Margaret A. Nelson (P30342 )
Assistant Attorney General 
Dept o f  Attorney Genera!
Public Employment. Elections &  Tort Div. 
P.O- Box 30736 
Lansing, MI 48909-8236 
(517)373-6434
F.mail: nelsonma@michigan.gov

mailto:nelsonma@michigan.gov