14 Relationship with Local and County Government 14 Relationship with Local and County Government
A core responsibility of a state attorney attorney general is to defend the legality of state statutes as well as the decisions of state office holders and administrative agencies. But the state attorney general is not the only governmental enforcement officer and the resposibility to defend some state statutes and polices can become problematic because of decisions made by local officials who are also interpreting state statutes. This Chapter examines the relationship between state attorneys general with different levels of state government.
The first readings examine the increasing polarization of the country, in which there are not only “blue states” and “red states,” but within those states, there are “blue cities” and “red counties.” The Chapter focuses on the implications of these conflicts guns and opioids. but the principle is widespread and has become particularly evident in the area of Covid regulations.
Localism - The relationship between state attorneys general and state political subdivisions is defined by each states constitution and statutes.
I. “Dillon’s Rule” and the presumption of state dominance over cities and towns:
[A] municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient but indispensible; fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation-against the existence of the powers.” Merriam v. Moody's Executors, (Dillon, Ch J) 25 Iowa 163, 170 (1868).
“A municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words (from the state); second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable; and fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation.” City of Clinton v. Cedar Rapids and the Missouri River Rail Road Company. (Dillon Ch J) Supreme Court. Of Iowa, 7 Jan.1884
“Dillon’s Rule operates as a standard of delegation, a canon of construction and a rule of limited power. It reflects the view of local governments as agents of the state by requiring that all local powers be traced back to a specific delegation: whenever it is uncertain whether a locality possesses a particular power, a court should assume that the locality lacks the power. By denying localities broad authority, Dillon’s Rule limits the number of entities that may regulate private activity. Only through a clear and express state delegation may a locality obtain power to govern.” Richard Briffault, “On Localism, Columbia Law Review, 1990. Page 8
“The Dillon Rule Guards Against Runaway Local Governments” The Dillon Rule grants state government the power to rein in irresponsible or uncooperative local governments. In fact, John Dillon created the rule in a time when local government corruption ran rampant. Industrial titans and political machines like Tammany Hall interfered with local government, furthering its corruption and waste. Grafting, which is the unscrupulous use of a politician’s authority for personal gain, was a common practice in utility franchising and public works projects. To make matters worse, local governments borrowed outrageous sums of money in order to attract big businesses and railroad companies. Unable to pay businesses back, local officials dissolved their cities and left the debt to the state.
Lord Bryce of England observed in 1888: “There is no denying that the government of cities is one conspicuous failure of the United States.” Dillon realized that those in local politics easily succumb to using their power for private gain, or for the gain of their city at the expense of those around it. To halt such abuses of power, it was necessary to grant the states authority to prevent local governments from becoming too powerful or corrupt.
The Dillon Rule also guarantees a certain level of uniformity throughout the state. If the state is a body, the local governments are the limbs. Detached from the body, the limbs are useless. In the same way, local governments must remain attached to the state in order to be effective in good governance. Rather than having vastly different policies and codes in each local jurisdiction, the state can create uniform tax codes and licensing policies, making it a business-friendly environment. Without commonality between local governments on these issues, businesses find more red tape than opportunity, making it difficult for the state and businesses to prosper.
Lastly, consistency throughout the state prevents local jurisdictions from taking ill-advised risks. In this way, local governments cannot implement policies that lead to the detriment of neighboring local jurisdictions. Consistent uniformity, protected by the Dillon Rule, is a prerequisite for statewide stability and prosperity.” Federalism, Dillon Rule and Home Rule By Honorable, Jon D. Russell & Aaron Bostrom. ALEC White Paper, January, 2016
II. Home Rule and General Welfare Clauses in State Constitutions and their impact on local governance
“… It is not appropriate for this Court to enfeeble local governments on the unjustified assumption that strict construction of delegated powers is necessary to prevent abuse. The enactment of a broad general welfare clause conferring police powers directly on the counties was to enable them to act in every reasonable, necessary and appropriate way to further the general welfare of its citizens.
The ultimate limitation upon potential abuses by local governments is the people themselves… In short, we simply do not accept the proposition that local governments are not to be trusted with the full scope of legislatively granted powers to meet the needs of their local constituents. On the contrary, the history of our political institutions is founded in large measure on the concept at least in theory if not practice that the more local the unit of government is that can deal with a political problem, the more effective and efficient the exercise of power is likely to be.
….
The wide diversity of problems encountered by county and municipal governments are not all, and cannot be realistically be, effectively dealt with by a state legislature which sits for sixty days every two years to deal with matters of general importance.” State of Utah v. Hutchinson, Supreme Court of Utah, 624 P2nd 1116 (1980) (Stewart, Justice)
“The constitutional amendments and statutory provisions authorizing home rule vary enormously from state to state, and may provide different categories or sizes of local governments within a single state. So, too, judicial construction of home rule has been neither uniform or consistent, but has instead been marked by variations from state to state, and often within a state.” State and Government Law, 8th Ed, Richard Briffault and Laurie Reynolds, American Casebook Series, 2016, Page 346.
14.1 The increasing divide between urban, suburban and rural communities 14.1 The increasing divide between urban, suburban and rural communities
14.1.1. Pew Research Center, What Unites and Divides Urban, Rural and Suburban Communities (May 22, 2018)
14.1.2. How the Urban-Rural Divide Became America’s Political Fault Line, Emily Badger, New York Times (May 21, 2019)
How the Rural-Urban Divide Became America's Political Fault Line
Such a conflict isn't unique to the U.S., but the consequences are far-reaching here.
3 By Emily Badger
May 21, 2019 f ._ Ill ,+
More Americans voted for Hillary
100%
Dem.
75%
Dem.
Even 75%
Rep.
100%
Rep.
|
Source: 2016 precinct datafrom Ryne Rohla
it' s true across many mctustna11zect ctemocrac1es that rural areas lean conservative while cities tend to be more liberal, a pattern partly rooted in the history of workers' parties that grew up where urban factories did.
But urban-rural polarization has become particularly acute in America: particularly entrenched. particularly hostile, particularly lopsided in its consequences. Urban voters, and the party that has come to represent them, now routinely lose elections and power even when they win more votes.
Democrats have blamed the Senate, the Electoral College and gerrymanderingfor their disadvantage. But the problem runs deeper, according to Jonathan Rodden, a Stanford political scientist: The American form of government is uniquely structured to exacerbate the urban-rural divide - and to translate it into enduring bias against the Democratic voters, clustered at the left of the accompanying chart.
Yes, the Senate gives rural areas (and small states) disproportionate strength. "That's an obvious problem for Democrats," Mr. Rodden said. "This other problem is a lot less obvious."
In a new book, "Why Cities Lose," he describes the problem as endemic, affecting Congress but also state legislatures; red states butblueones, too. As the Democratic Party is tugged between its progressive and moderate wings heading into the next election, Mr. Rodden's analysis also suggests that if Democrats move toofar to the left, geography will punish them.
In the United States, where a party's voters live matters immensely. That's because most representatives are elected from single-member districts where the candidate with the most votes wins, as opposed to a system of proportional representation, as some democracies have.
Democrats tend to be concentrated in cities and Republicans to be more spread out across suburbs and rural areas. Thedistribution of all of the precincts in the 2016 election shows that while many tilt heavily Democratic, fewer lean as far in the other direction.
As a result, Democrats have overwhelming power to elect representatives in a relatively small number of districts - whether for state house seats, the State Senate or Congress - while Republicans have at least enough power to elect representatives in a larger number of districts.
Republicans, in short, are more efficiently distributed in a system that rewards spreading voters across space.
This helps explain why Republicans have controlled the Pennsylvania State Senate for nearly four decades, despite losing statewide votes about half that time. It explains why Republicans are routinely overrepresented in state legislatures, even in blue states like New York. It explains why Hillary Clinton carried only three of eight congressional districts in Minnesota - districts
drawn by a panelof judges - even as she won the whole state.
In most European democracies, geography doesn't matter in the same way. Legislators are elected from larger districts, each with multiple representat ives, gra nting parties proportional power. If a party wins 50 percent of the votes, it doesn't matter much if those votes are evenly spread around or tightly clustered.
Britain, Australia and Canada, unlike much of Europe, have the same majoritarian system the United States does, and urba n-rural divides appear there, too. Underrepresentation of the left, Mr.
Rodden argues, is a feature of any democracy that draws winner take-all distr icts atop a map where the left is concentrated in cities.
In the United States, twofeatures make this polarization even more powerful. Gerrymandering, a particularly America n pract ice, allows Republicans to amplify the ir advantages in the
political map. Democrats gerrymander, too, but often the most they can achieve is to neutralize their underlying disadvantage.
The U.S. also has an inflexible two-party system. That results in our political disagreements being drawn into the urban-rural divide. Today the urban party is also the partyof gay marr iage and gun control. The more rural party is also the partyof str icter immigration and abortion restr ictions.
We keep adding more reasons to double down on geography as our central fault line, and to view our policy disagreeme nts as conflicts between fundamentally different ways of liv ing.
Recent history has obscured the consequences of all this for the Democratic Party, which controlled the House for nearly all of the postwar period leading up to the Gingrich Revolution in 1994.
Democrats were able to do that - and to retake the House in 2018
- by winning seats on what resembled Republican te rr itory. Democrats need moderate "bluedogs," Mr. Rodden argues, to overcome their geographic disadva ntage.
Party Loyalties Solidify
Historically it was not unusual for voters to divide party support betwee n candidates for president and House, but that changed starting in th e 1990s. Share of districts where voters chose ...
Midterm years compare results with the previouspresident ial election.
By The Ne w Yo rk Times I Sour ce: Why Cities Lo se,' Jonathan Rodden
Historically, split-ticket voting has been asymmetrical. Many districts that voted Republican in presidential elections supported moderate Democrats for Congress that year or in the following midterm. But the reverse has been more rare. Republicans have seldom picked off congressional districts that voted for the Democrat for president.
"They've not as a matter of survival needed to do that," Mr. Rodden said. "Democrats need to do it even in a good year."
In the wave election in 2018, Democrats eked out precisely such districts, many in suburbs that hadlong voted Republican, with candidates who were avowedly moderate.
However, split-ticket voting has become far less common, as the parties have more clearly staked out their differences, and as local elections have become nationalized. Both trends make it harder for individual Democratic candidates to separate themselves from the national party - tostand for both low taxes and abortion rights, say, or the Affordable Care Act and the Second Amendment.
Three red-state Democratic senators, Heidi Heitkamp, Claire McCaskill and Joe Donnelly, lost in 2018 in such an environment.
"You have this great strategy available to you as a Republican: Just talk about A.O.C. all the time," Mr. Rodden said, referring to the progressive representativeAlexandria Ocasio-Cortez. "Talk about Nancy Pelosi. They say, 'This is what it means to have a 'D' next to your name, you're signing up for that team.' That makes it so hard to be a suburban Salt Lake City, suburban Oklahoma City Democrat.''
The median congressional district in America looks ideologically more Republican, Mr. Rodden finds (the median precinct in the chart also voted slightly Republican). And so Democrats have to find a way to win in those places, even as the progressive wing of the party is ascendant and lobbying for control of the party's message.
If Democrats hold on to some suburbs they recently flipped - a possibility as suburbia diversifies and as college-educated whites move toward the Democrats - Republicans could one day be as concentrated in rural areas as Democrats have been in cities.
In that situation, one where Republicans pack their votes more tightly in rural America and the median suburban district becomes slightly Democratic, the urban party might actually start tobenefit from geographic polarization. But there will still always be the Senate.
14.1.3. Red and Blue States Move Further Apart on Health Care Policy, Stephanie Armour,, Wall Street Journal (Feb. 28, 2018)
This copy is for your personal, non-commercial use only. To order presentation-ready copies for distribution to your colleagues, clients or customers visit https://www.djreprints .com.
https://www.wsj.com/articles/red-and-blue-states-move-further-apart-on-heaIth-policy-1519813801
HEALTH POLICY
Red and Blue States Move Further Apart on Health Policy
Cost and the scope of coverage will look very different depending on which party is on control
Health-care options in any given state are likely to depend on which party controls the statehouse. Here, a hospital room in Cumming, Ga., early this year. PHOTO: ROBERT RAY/ ASSOCIATED PRESS
By Stephanie Armour
Updated Feb. 28, 2018 5:15 pm ET
Democratic and Republican states are moving in opposite directions on health policy, leaving Americans with starkly divergent options for care depending on where they live.
The Trump administration and congressional Republicans, by easing many of the Affordable Care Act's nationwide requirements after failing last year to repeal the entire law, are effectively turning major components of health policy over to the states. The roughly half of states controlled by Republicans are therefore moving aggressively to roll back the law widely known as Obamacare, while the smaller number of Democratic states are working to bolster it.
As a result, the health-care options in any given state are likely to depend on which party controls the statehouse. That dictates access, cost and coverage, particularly for the roughly 17 million people nationwide who buy their own insurance and the 29 million people who lack it entirely.
Increasingly, state health-care policy reflects the ruling party's goals. In Democrat-controlled California, a patient with a costly medical condition may likely get relatively affordable premiums, while a young, healthy and self-employed professional could pay more. In
Republican Texas, the sicker patient will likely do less well or go without coverage, while the younger, healthier one will have less-comprehensive options that may cost far less.
"You're seeing red and blue states moving further from each other," said Sam Richardson, a health economist at Boston College. "You're going to have blue states hang on to what they can. For red states, the more they can dismantle Obamacare, the more they'll look like before Obamacare. They'll have higher rates of uninsured, but other innovations."
This divergence reflects a seismic
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rollback of the Obama administration effort to promote a more standardized, nationwide health system. The ACA sought to have the healthy help cover the costs of the sick and the wealthy help cover the poor, and it has led to about 20 million people gaining health coverage. But Republicans
have long balked at the ACA's idea of taxing higher earners to pay for health care and have opposed the law's mandate that individuals who don't get care through their job or through a government program get coverage or pay a penalty.
The divergence has existed for years. Eighteen largely GOP states never accepted the federal money to expand Medicaid under the ACA. But now it is widening, with GOP states seeking work requirements in the program, and that gap is also accelerating in the individual insurance market.
After congressional Republicans tried repeatedly last year, unsuccessfully, to repeal the health law, they did repeal the individual mandate, beginning in 2019.
In the meantime, the Trump administration has worked to take apart the law piecemeal. One proposal would allow the type ofless-comprehensive health plans limited under the ACA. Another would let businesses and some individual band together in associations to get non ACA-compliant plans. Those actions, along with a willingness to impose new requirements on Medicaid, have emboldened Republican-led states to further undercut the law they have long opposed and raised alarm in Democratic states, where lawmakers are preemptively looking to buttress the law from any GOP policy changes.
On Tuesday, 20 Republican state attorneys general sued to overturn the law, arguing that it is unconstitutional now that the individual mandate has been repealed.
Under the administration's proposals, states are expected to get more flexibility in waiving some ACA requirements and oversight of plans that don't comply with the ACA.
Democrats say non-ACA-compliant plans would siphon younger and healthier people away from the law's exchanges, which they say would cause premiums for older and less-healthy
Health and Human Services Secretar y Ale x Azar at a conference last week in Washington. PHOTO: JOSE LUIS M AGANA / ASSOCIATED PRESS
people to jump. Republicans say being able to offer cheaper and less-comprehensive plans amounts to more consumer choice.
Health and Human Services Secretary Alex Azar told reporters he is exploring options to let states "create affordable, individualized insurance" for their systems.
"There is no single one right answer," he said.
States like Indiana and Kentucky are being allowed to impose certain changes on Medicaid for the first time, like requiring recipients to work or undertake similar activities before they get benefits. In Idaho, Republican Gov. Butch Otter is largely flouting the ACA by letting insurers sell plans that don't comply with the law.
By contrast, Democrat-led states such as California and Maryland are looking to block or limit the expansion of cheaper and less-robust health plans that don't adhere to ACA rules. Nearly a dozen states are considering measures requiring residents to have health coverage, essentially re-imposing an individual mandate with new modifications .
Washington state Insurance Commissioner Mike Kreidler said he is drafting a rule that would ban so-called short-term plans, which aren't ACA-compliant, from being carried longer than 90 days.
"How are we going to protect this from the feds?" Mr. Kreidler said. "You're going to see states take these types of action."
New Mexico, at the behest of the state legislature, is studying plans to allow more people to buy into Medicaid, a state-federal program for the low-income and disabled.
As the states fight it out, the Republicans' proposed and actual changes could erode some of the ACA's basic goals like ensuring that health insurance bought by individuals meets certain standards, and that it is priced equally regardless of a person's medical history.
States with a large share of Democratic legislators, especially those with a Democratic supermajority, are more likely to have generous public health insurance programs and more regulated private insurance than red states, according to a 2015 report by University of Houston researchers.
"If I was chronically ill and didn't get insurance through an employer and if I was in a red state, I'd be really worried right now," said Nicholas Bagley, a University of Michigan law professor.
Republicans counter that greater autonomy works best. GOP-designed arrangements tend to allow for lower taxes, they say, while letting individuals find insurance policies that work for them, rather than forcing people into rigidly defined plans.
"Give us flexibility at the state level," Republican
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Ohio Gov. John Kasich told reporters recently. "Let me design a Medicaid program I want. Let's change the Obamacare essential benefit to what I want."
Insurers that offer ACA plans want to see those markets strengthened, so that rates wouldn't surge and enrollment, particularly among healthier consumers, would remain steady.
But some companies see a business opportunity in the potential growth ofnon-ACA-compliant plans. UnitedHealth Group Inc. Chief Executive David Wichmann has said his company has a lot
of experience in the types of policies that would increase under the Trump administration's proposals.
Write to Stephanie Armour at stephanie.armour@wsj.com
Appeared in the March 1, 2018, print edition as 'States Diverge on Health Policy.'
Copyright© 2020 Dow Jones & Company, Inc. All Rights Reserved
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14.1.4. Texas Attorney General Ken Paxton says local governments can't stop or delay evictions, Juan Garnham, Texas Tribune, Aug. 7, 2020
https://www.texastribune.org/2020/08/07/texas-evictions-coronavirus-ken-paxton/
14.2 State and Local Divide - Guns 14.2 State and Local Divide - Guns
Attorneys general are divided on gun control policy. These few readings focus on their relationship with localities who do not share the same position as the attorney general.
14.2.1. Fox News, More than 100 Virginia cities, counties declare themselves gun sanctuaries as Dems prepare to take over legislature (Dec. 20, 2019)
14.2.2. Virginia Attorney General Mark Herring Opinion on Local Gun Sanctuary Laws (Dec. 20, 2019)
Mark R. Herring
Attorney General
COMMONWEALTH of VIRGINIA
Office of the Attorney General
December 20, 2019
202 North Ninth Street Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1
The Honorable Jerrauld C. Jones Member, Virginia House of Delegates Post Office Box 2892
Norfolk, Virginia 23501
Dear Delegate Jones:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.
Issues Presented
You have "request[ed] a formal opinion" on the "recent actions taken by more than twenty localities across the Commonwealth" to declare themselves exempt from any new gun safety laws that the General Assembly may enact in the future,1 specifically, (l) Do the resolutions adopted by these localities have any legal effect? (2) May localities or local officials (including local constitutional officers) nullify or opt out of state laws duly enacted by the General Assembly?
Background
As your letter notes, "recurring incidents of gun violence" continue to plague the Commonwealth of Virginia.2 The scale of the gun violence epidemic is staggering: over 10,000 Virginians have been killed by a gun since 2007.3 Virginians also have been the victims of several mass shootings, including the 2019 tragedy in Virginia Beach. 4
Gun violence prevention has been the subject of a vigorous public debate for many years. This debate included a special session of the General Assembly that the Governor convened in July 2019 but
1 Letter from Delegate Jay Jones to Mark R. Herring, Attorney General of Virginia (Dec. 2, 2019).
2 Id
3 VIRGINIA DEP'T OF HEALTH, OFFICE OF THE CHIEF MEDICAL EXAMINER, ANNUAL REPORT 2017, (Apr. 2019) at 231, available at http://www.vdh.virginia.gov/content/uploads/sites/18/2019/04/Annual-Report-2017.pdf; VIRGINIA DEP'T OF HEALTH, OFFICE OF THE CHIEF MEDICAL EXAMINER, Table 25: One Hundred Thirteen Selected Causes of Resident Deaths by !CD Tenth Revision Codes by Age, Race, and Sex: Virginia 2018, available at http://www.vdh.virginia.gov/HealthStats/documents/pdf/death 2-25 2018.pdf.
4 Steve Almasy & Rebekah Riess, At Least 12 Dead After Disgruntled Employee Opens Fire at Virginia Beach Municipal Center, CNN, https://www.cnn.com/2019/05/31/us/virginia-beach-shooting/index.html (last updated June I, 2019).
was adjourned without action.5 Issues related to gun safety were also a central issue in Virginia's recent legislative elections. Following those elections, the Governor has promised to work with legislative leaders to enact certain gun safety measures-such as universal background checks-once the General Assembly convenes in January 2020.6 In response to the upcoming General Assembly session, some localities have adopted resolutions declaring that they intend to opt out of any gun violence prevention measure that may be adopted. 7
Applicable Law
The Virginia Constitution, the Code of Virginia, and established common law doctrines all bear on these questions.
First, the Constitution of Virginia provides that all local authority is subject to the control of the General Assembly. For example, Article VII, Section 2 of the Constitution provides that "[t]he General Assembly shall provide by general law for the ... powers ... of counties, cities, towns, and regional governments." 8
Second, the Code of Virginia establishes the supremacy of state law over local ordinances and policies. Section 1-248 provides:
The Constitution and laws of the United States and of the Commonwealth shall be supreme. Any ordinance, resolution, bylaw, rule, regulation, or order of any governing body or any corporation, board, or number of persons shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth.f 9l
As the Virginia Supreme Court has explained, because local authority is subordinate to state law, "local ordinances must conform to and not be in conflict with the public policy of the State as embodied in its statutes."10
Third, established common law doctrines specifically limit the authority of local governments. Virginia follows the Dillon Rule, which provides that local governments may exercise "only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensab le."11 The Dillon Rule is one of strict construction: "[I]f there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body." 12 Thus, when a Virginia locality seeks to take any action, the Dillon Rule applies "to determine in the first
5 Cameron Thompson & Gabrielle Harmon & CNN Wire, Virginia Republicans End Governor Northam 's Special Session on Gun Violence One Hour After It Starts, WTVR (July 9, 2019), https://wtvr.com/2019/07/09/gun violence-special-session-ends/.
6 Gregory S. Schneider, In Virginia, and Elsewhere, Gun Supporters Prepare to Defy New Laws, WASH. POST (Nov. 23, 2019), https://www.washingtonpost.com/local/virginia-politics/in-virginia-and-elsewhere-gun-supporters prepare-to-defy-new-laws/2019/l l /23/4a95fcc2-0c86-l l ea-bd9d-c628fd48b3a0 story.html.
7 Examples of these resolutions are attached hereto as Exhibit 1.
8 VA. CONST. art. VII, § 2; see also 2 A.E. DICK HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 803--05 (1974) ("Central to [Article VII, Section 2] is the idea of the General Assembly's power to control local government."); id. at 829 (noting that the Constitution of Virginia "makes no attempt to spell out [the] duties or compensation" of local constitutional officers and that "[t]he General Assembly is authorized to fix these either by general law or by special act").
9 VA. CODE ANN. § 1-248 (2017).
1° King v. Arlington Cty., 195 Va. 1084, 1090, 81 S.E.2d 587,591 (1954).
11 Richmond v. Confrere Club of Richmond, Virginia, Inc., 239 Va. 77, 79,387 S.E.2d 471,473 (1990).
12 Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 417, 690 S.E.2d 84, 88 (2010).
identify a reasonably specific source of delegated authority, "the inquiry is at an end" and the act in questi.on 1.s unauth on.zed .14
Discussion
These constitutional, statutory, and common law doctrines establish that these resolutions neither have the force of law nor authorize localities or local constitutional officials to refuse to follow or decline to enforce gun violence prevention measures enacted by the General Assembly.
1. By their own terms, these resolutions have no legal effect. Although the resolutions typically contain several "Whereas" clauses, the "be it resolved" clauses generally do not purport to take any concrete action. 15 Instead, the operative clauses: (a) "express[]" the "intent" of the locality's Board of Supervisors "to uphold the Second Amendment rights of [the county's] citizens," (b) "express[]" the Board's "intent that public funds of the [c]ounty not be used to restrict the Second Amendment rights of the [county's] citizens," and (c) "declare[]" the Board's "intent to oppose" any "infringement" or "restrictions" of their residents' Second Amendment rights using "such legal means [as] may be expedient, including without limitation, court action." 16 These general statements do not direct or require any specific result, and any suggestion of potential future action is entirely speculative.
2. In any event, all localities, local constitutional officers, and other local officials are obligated to follow duly enacted state laws. As described above, both the Virginia Constitution and the Code of Virginia specifically establish the supremacy of laws passed by the General Assembly over local ordinances and policies,17 and "[i]t is well settled that when a statute and an ordinance conflict, the statute must preva il." 18 Nor have localities been delegated any authority-either express or implied-to exempt themselves (or anyone else) from gun violence prevention statutes. 19 Absent such delegation, under the Dillon Rule, "the inquiry is at an end."20
It also bears emphasis that neither local governments nor local constitutional officers have the authority to declare state statutes unconstitutional or decline to follow them on that basis. "All actions of the General Assembly are presumed to be const it utiona l."21 Furthermore, it has long "been the indisputable and clear function of the courts, federal and state, to pass upon the constitutionality of
13 Commonwealth v. Cty. Bd. of Arlington Cty., 217 Va. 558, 575, 232 S.E.2d 30, 41 (1977).
14 See id.; see also Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 576, 727 S.E.2d 40, 44 (2012) ("In considering whether a local governing body had authority to enact an ordinance, there is no presumption that it is valid; ifno delegation from the legislature can be found to authorize its enactment, it is void.").
15 See Exhibit 1.
16 Id. at 2, 4, 5, 6.
17 VA. CODE ANN. § 1-248.
18 Covel v. Town of Vienna, 280 Va. 151,162,694 S.E.2d 609,616 (2010).
19 In fact, Virginia law currently provides that localities are prohibited from "adopt[ing] or enforc[ing] any ordinance, resolution or motion ... governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute." VA. CODE ANN. § 15.2-915(A) (2018).
2° Commonwealth v. Cty. Bd. of Arlington, 217 Va. at 575, 232 S.E.2d at 41.
21 Hess v. Snyder Hunt Corp., 240 Va. 49, 52, 392 S.E.2d 817, 820 (1990); see also Montgomery Cty. v. Virginia Dep't of Rail & Pub. Transp., 282 Va. 422,435, 719 S.E.2d 294,300 (2011) (emphasizing that "[t]here is, indeed, no stronger presumption known to the law").
constitutional officers are required to comply with all laws enacted by the General Assembly unless and until those laws are repealed by the legislature or invalidated by the judiciary .23
Nor may localities or local constitutional officers decline to enforce laws enacted by the General Assembly on the theory that requiring them to do so would "commandeer" local resources. Although the United States Supreme Court has held that "the Federal Government may not compel the States to implement ... federal regulatory programs,"24 that doctrine derives from the specific limitations on Congress's legislative powers and the "residuary and inviolable sovereignty" retained by the states in our federal system.25 In contrast, "the Constitution of Virginia is not a grant of legislative power to the General Assembly," 26 and, unlike Congress, "[t]he authority of the General Assembly shall extend to all subjects of legislation" not specifically "forbidden or restricted" by the State Constitution.27 And neither the Federal Constitution nor Virginia law recognizes any "anti-commandeering" principle that allows localities or local constitutional officers to refuse to participate in the enforcement of state law.28
Conclusion
It is my opinion that these resolutions have no legal effect. It is my further opinion that localities and local constitutional officers cannot nullify state laws and must comply with gun violence prevention measures that the General Assembly may enact.
With kindest regards, I am,
Very truly yours,
Mark R. Herring Attorney General
22 Wise v. Bigger, 79 Va. 269,273 (1884) (emphasis added); see also Marbury v. Madison, 5 U.S. (I Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").
23 See Freeman v. Commonwealth, 65 Va. App. 407, 421-22, 778 S.E.2d 519,526 (2015) (stating that "[p]olice [officers] are charged to enforce laws until and unless they are declared unconstitutional" and that "[s]ociety would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement" (quoting Michigan v. DeFillippo, 443 U.S. 31, 38 (1979)); 2014 Op. Va. Att'y Gen. 73, 75, 76 (concluding "that a Clerk has no authority by which to make independent determinations respecting the constitutionality of statutes" because "the interpretation of the federal and state constitutions is a discretionary duty for the judicial branch and thus outside [a Clerk's] authority"); see also 2007 Op. Va. Att'y Gen. 30, 31 n.8 (citing cases for the proposition that administrative agencies have no power to determine the constitutional validity of statutes).
24 Printz v. United States, 521 U.S. 898, 925 (1997) (emphasis added).
25 Id. at 919 (quoting THE FEDERALIST No. 39, at 245 (J. Madison)); see Murphy v. Nat'! Collegiate Athletic Ass'n, 138 S. Ct. 1461, 1475 (2018) (noting that, under the Federal Constitution, Congress may not "issue orders directly to the States")
26 FFW Enterprises v. Fairfax Cty., 280 Va. 583, 593, 701 S.E.2d 795, 801 (2010) (internal quotation marks and citations omitted).
27 VA. CONST. art. IV,§ 14.
28 See, e.g., Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40 (I 933) ("A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the [F]ederal [C]onstitution which it may invoke in opposition to the will of its creator." (collecting cases)).
14.2.3. Continued Resistance Against Gun Control Initiative (Washington) (Feb. 24, 2019) )
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Continued resistance against gun control initiative; Attorney General defends law
Wednesday, February 13, 2019 3:05pm UliYil
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By Madeline Coats
WNPA Olympia News Bureau
The stateattorney general has stepped in with a warning to more than half the state's county law enforcement officials who say they refuse to fully enforce the gun control measures voters approved in November.
Police chiefs and sheriffs will be held liable if they refuse to perform background checks required by I-1639, said Attorney General Bob Ferguson on Tuesday in an open letter to the lawenforcement officers who oppose the measure.
"I will defend Initiative1639 against any challenge," wrote Ferguson. "My officedefeated the legal challenge to the previous gun safety initiative passed by the people, and I am confident wewill defeat any constitutional challengeto Initiative1639 as well.
"Local law enforcement are entitled to their opinions about the constitutionalityof any law, but those personal views do not absolve us of our duty to enforce Washington laws and protect the public," he said.
TheWashington StateSheriffs Association issued a statement on their website last week regarding their public opposition of I-1639. They expressed concerns about rights protected by the Second Amendment. Law enforcement officials in at least 21of Washington's 39 counties have said they will not actively enforce the measure.
"The initiative placed greater restrictions on law-abiding citizens while creating unreasonable expectations regarding howsuch restrictions would be enforced," said the statement.
Spokane County Sheriff Ozzie Knezovich believes Initiative1639 is unconstitutional at the stateandfederal level.
"As Sheriff there is nothing, at this time, for me to enforce as it pertains to 1639," said Knezovich in a statement from his spokesperson. "As it is now, 1639 is not constitutional, is being challenged in court and there is nothing for me to enforce."
I-1639 was intended to increase public safety by reducing gun violence and accidents. The law creates an enhanced background checksystem, requires
individuals to complete a firearm safety training course, raises the ageof possession to 21 years old and establishes standards forsafestorage of guns.
The provision with the most pushback relates to standards of gun storage. Under the measure, a person who leaves a firearm in a place where another person could potentially gain access to the weapon would be guilty of community endangerment.
According to the initiative, shootings involving semi - automatic assault rifles have resulted in hundreds of injuries and lives lost. Such incidents can have lasting psychological impacts on survivors and their communities, states I-1639.These weapons havebeen used in the country's deadliest mass shootings within the past couple decades.
One week after the general election, the National Rifle Association and the Second Amendment Foundation filed a joint lawsuit against Washington stateandAttorney General Ferguson. The two organizations claim that the initiative violates the U.S. and Washington stateconstitutions.
"You can own a houseor car before 21, but you can't own a firearm to protect yourhouseor car," said Lars Dalseide of the National Rifle Association. The law denies protection for individuals between the ages of 18 and 21, he said.
According to the officeof the Secretary of State, I-1639 was adopted as state law by nearly 60 percent of the people.
"No action bya city council or county commission can change this statelaw or theresponsibilities and duties that thelawvests in Washington's law enforcement agencies," said Ferguson in his letter.
TheAlliance for Gun Respon s ibility supports the provision, said communications manager Kristen Ellingboe. Shebelieves the law is the most comprehensive gun violence measure in the nation.
The alliance's focus has been on trying to correct misunderstandings that have sparked opposition. While Ellingboe said therehas been an overwhelming amount of support in the initiative, she is disappointed to see sheriffs and lawenforcement officials oppose the law.
"We are counting on the fact that when the time really comes, the sheriffs will follow the law," she said. "If they continue to stand in opposition, I would expect that they are opening themselves up to legal vulnerabilities."
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Th e H oly Roller a year ago
Why don't w e just vot e in a 51 st st at e... anything east of the cascades canbe named
Trumpland..
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vanman54 a year ago I"
personal opinions are not the law andif they refi.Jse t o e nfor ce it it m ay b e time for the citizens to recall certain Sheriff s and if not the AGshould pursue all legal avenues
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UpperleftCoast a year ago I"
It st rikes me as very odd that these sheriffs don't have even an element ary underst anding of legal process. If a law is in effect and challenged in court, it is still in effect unless enjoined by the court . That is, unless the judge grants an injunction preventing th e law from going
into effect or being enforced, it is effective. Perhaps demonst rating even a basic underst anding of th e law should be a requirement for serving as county sheriff?
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Aryq 1o mon t hs ago I"
The fight continu es!!!! Jo in Ary e h Rohde a Whidbey highschool stu dent and constituti onal activist as he att em pt s t o creat e dialogu e and debate and st and against the south Whidbey high school social justice club as they demand th e end of the 2A. This Saturday 10AM Langley cascade avenue. htt ps://m .facebook.com/even..
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14.2.4. SC attorney general demands that Columbia mayor repeal recent city gun laws, Post and Courier , Chris Trainor, (Dec. 3, 2019)
14.2.5. Suing Guns Out of Existence? Scott R. Thomas and Mystica M. Alexander, 75 Wash and Lee L. Review, 175 (2019)
https://scholarlycommons.law.
14.3 State and Local Divide - Opioids 14.3 State and Local Divide - Opioids
All state attorneys general are involved in litigation against opioid manufactuers and pharmaceutical distributors, but thousands of cities and counties are involve in the same litigation. These few readings highlight the differences not just in law but also in policy.
14.3.1. In the Opioid Litigation, It’s Now States v. Cities, Wall Street Journal , Sara Randazzo, (Aug. 6, 2019)
14.3.2. WV counties, cities seek larger share of potential opioid settlement, Eric Eyre, Gazette Mail (Oct. 5, 2019)
14.3.3. State of Ohio Mandamus Brief, National Prescription Opioid Litigation, 2019, (6th Circuit)
No.
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
IN RE: STATE OF OHIO :
:
[COUNTY OF SUMMIT, OHIO, ET AL., :
VS. PURDUE PHARMA, L.P., ET AL.] :
:
: [CUYAHOGA COUNTY V. PURDUE : PHARMA, ET AL.] :
{RELATES TO: NATIONAL PRESCRIP-
TION OPIATE LITIGATION}
United States District Court
for the Northern District of Ohio Eastern Division
District Court Case Nos. 1:18-op-45090
1:17-op-45004
[relates to: 1:17-md-02804]
PETITION FOR WRIT OF MANDAMUS OF STATE OF OHIO
DAVE YOST
Ohio Attorney General (0056290)
JONATHAN BLANTON* (0070035)
Deputy Attorney General for Major Litigation
*Counsel of Record
CHARLES MILLER (0073844)
Office Counsel
MICHAEL HENDERSHOT (0081842)
Chief Deputy Solicitor General SAMUEL PETERSON (0081432)
Deputy Solicitor General
30 East Broad Street, 17th Floor Columbus, Ohio 43215
614-728-1171
Jonathan.Blanton@ohioattorneygeneral.gov
Counsel for the State of Ohio
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES................................................................................................ iii
STATEMENT OF THE ISSUE............................................................................................. 1
INTRODUCTION................................................................................................................... 2
STATEMENT........................................................................................................................... 4
ARGUMENT............................................................................................................................ 11
B. A writ is necessary to end legal error............................................... 23
C. Because Ohio cannot be forced to join or intervene in the federal cases, mandamus is the appropriate remedy.................................. 27
D. This petition raises important questions about state sovereignty and state resources 28
CERTIFICATE OF COMPLIANCE................................................................................. 35
CERTIFICATE OFSERVICE............................................................................................. 36
APPENDIX:
State ex rel. Yost v. Purdue Pharma, L.P. Complaint, Ross County Court of Common Pleas, May 31, 2017
State ex rel. Yost v. McKesson Corp., et al. Complaint, Madison County Court of Common Pleas, February 26, 2018
The County of Summit, Ohio Complaint, United States District Court for the Northern District of Ohio, May 29, 2018
Opinion and Order, United States District Court for the Northern Dis- trict of Ohio, December 19, 2018
Civil Jury Trial Order, United States District Court for the Northern District of Ohio, May 1, 2019
Letter from Attorneys General, United States District Court for the Northern District of Ohio, June 24, 2019
Letter from National Association of Attorneys General, United States District Court for the Northern District of Ohio, July 23, 2019
Letter from Ohio Attorney General, United States District Court for the Northern District of Ohio, July 24, 2019
Transcript of Proceedings, United States District Court for the Northern District of Ohio, August 6, 2019
TABLE OF AUTHORITIES
Cases Page(s)
Alden v. Maine,
527 U.S. 706 (1999)..................................................................................................... 20, 25
Alfred L. Snapp & Son v. Puerto Rico,
458 U.S. 592 (1982).................................................................................................... passim
Allegheny Gen. Hosp. v. Philip Morris,
228 F.3d 429 (3d Cir. 2000)........................................................................................... 22
In re Am. Med. Sys.,
75 F.3d 1069 (6th Cir. 1996)............................................................................... 13, 29, 30
Amchem Prods. v. Windsor,
521 U.S. 591 (1997)............................................................................................................ 30
State ex rel. Bd. of Educ. v. Gibson,
130 Ohio St. 318 (1935).................................................................................................... 23
Beacon Theatres, Inc. v. Westover,
359 U.S. 500 (1959)............................................................................................................ 24
In re Bendectin Prods. Liab. Litig.,
749 F.2d 300 (6th Cir. 1984).............................................................................. 13, 23, 28
CBS, Inc. v. Young,
522 F.2d 234 (6th Cir. 1975)............................................................................................ 14
Cheney v. United States Dist. Court for D.C.,
542 U.S. 367 (2004)..................................................................................................... 12, 23
City of Cleveland v. Ameriquest Mortg. Sec., Inc.,
615 F.3d 496 (6th Cir. 2010)............................................................................................ 22
City of Columbus v. Ours Garage & Wrecker Serv.,
536 U.S. 424 (2002).............................................................................................. 10, 17, 29
Cmty. Commc’ns Co. v. City of Boulder,
455 U.S. 40 (1982).......................................................................................................... 9, 17
Cty. of Summit v. Purdue Pharma L.P (In re Nat’l Prescription Opiate Litig.),
No. 1:18-op-45090, 2018 U.S. Dis. LEXIS 176260 (N.D. Ohio Oct.
5, 2018) ............................................................................................................25
Cty. of Summit v. Purdue Pharma L.P. (In re Nat’l Prescription Opiate Litig.),
No. 1:18-op-45090, 2018 U.S. Dist. LEXIS 213657 (Dec. 19, 2018)..................... 25
Doe v. Univ. of Mich. (In re Univ. of Mich.),
F.3d , No. 19-1636, 2019 U.S. App. LEXIS 25304 (6th
Cir. Aug. 23, 2019)................................................................................................... 3, 12, 13
Envtl. Def. Fund, Inc. v. Higginson,
631 F.2d 738 (D.C. Cir. 1979).......................................................................................... 18
Evans v. Buchanan,
582 F.2d 750 (3d Cir. 1978)....................................................................................... 12, 14
Georgia v. Pa. R. Co.,
324 U.S. 439 (1945)..................................................................................................... 17, 22
In re Glenn W. Turner Enters. Litig.,
521 F.2d 775 (3d Cir. 1975)............................................................................................... 21
Goldman, Sachs & Co. v. Edelstein,
494 F.2d 76 (2d Cir. 1974)............................................................................................... 24
Gregory v. Ashcroft,
501 U.S. 452 (1991)..................................................................................................... 17, 24
HD Media Co., LLC v. United States DOJ (In re Nat’l Prescription Opiate Litig.),
Nos. 18-3839/3860, 2019 U.S. App. LEXIS 18502 (6th Cir. June
20, 2019)...............................................................................................26, 29, 33
Heath v. Alabama,
474 U.S. 82 (1985).............................................................................................................. 25
Holt Civic Club v. City of Tuscaloosa,
439 U.S. 60 (1978).............................................................................................................. 16
Jackson v. Cleveland Clinic Found.,
No. 1:11 CV 1334, 2011 U.S. Dist. LEXIS 101768 (N.D. Ohio Sept.
9, 2011) ............................................................................................................10
John B. v. Goetz,
531 F.3d 448 (6th Cir. 2008)...................................................................................... 13, 14
Lehman Bros. v. Schein,
416 U.S. 386 (1974)............................................................................................................ 27
Maryland v. Soper,
270 U.S. 9 (1926)................................................................................................................ 13
Missouri v. Jenkins,
515 U.S. 70 (1995).............................................................................................................. 32
In re Multidistrict Vehicle Air Pollution,
481 F.2d 122 (9th Cir. 1973)............................................................................................ 22
In re: Nat’l Prescription Opiate Litig.,
Fed. App’x , No. 19-3682 (6th Cir. Aug. 15, 2019).................................. 12
In re NLO,
5 F.3d 154 (6th Cir. 1993).................................................................................... 24, 30, 31
Ortiz v. Fibreboard Corp.,
527 U.S. 815 (1999)............................................................................................................ 30
Principality of Monaco v. Mississippi,
292 U.S. 313 (1934)............................................................................................................ 28
Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality By Any Means Necessary (BAMN),
572 U.S. 291 (2014)............................................................................................................ 16
Seminole Tribe v. Florida,
517 U.S. 44 (1996)....................................................................................................... 27, 28
State v. Sullivan,
38 Ohio St. 3d 137 (1988).......................................................................................... 22, 23
Thomas v. FAG Bearings Corp.,
50 F.3d 502 (8th Cir. 1995)....................................................................................... 27, 28
Thornton v. State Farm Mut. Auto Ins. Co.,
No. 1:06-cv-00018, 2006 U.S. Dist. LEXIS 83972 (N.D. Ohio Nov.
17, 2006) ......................................................................................... 17, 18, 21, 22
United States v. Kagama,
118 U.S. 375 (1886)............................................................................................................ 16
Univ. of Tex. v. Vratil,
96 F.3d 1337 (10th Cir. 1996)........................................................................................... 14
Virginia v. Am. Booksellers Ass’n,
484 U.S. 383 (1988)........................................................................................................... 27
Wisconsin Pub. Intervenor v. Mortier,
501 U.S. 597 (1991)............................................................................................................ 16
Statutes and Rules
12 U.S.C. §5538......................................................................................................................... 18
15 U.S.C. §15............................................................................................................................. 18
15 U.S.C. §45............................................................................................................................. 18
15 U.S.C. §6103......................................................................................................................... 18
15 U.S.C. §6309......................................................................................................................... 18
15 U.S.C. §6504......................................................................................................................... 18
18 U.S.C. §248.......................................................................................................................... 18
18 U.S.C. §1595......................................................................................................................... 18
42 U.S.C. §1320......................................................................................................................... 18
49 U.S.C. §14711....................................................................................................................... 19
Fed. R. Civ. P. 24(c)................................................................................................................ 28
Ohio Rev. Code § 109.21................................................................................................... 3, 20
Ohio Rev. Code §109.81........................................................................................................ 18
Ohio Rev. Code §1345.07...................................................................................................... 18
Other Authorities
Alan Johnson, OxyContin, other narcotic pain pills still plentiful in Ohio,
Canton Repository (Jan. 15, 2017)................................................................................... 6
Curtis Florence, et al., Nat’l Ctr. for Injury Prevention and Control, Ctrs. for Disease Control and Prevention, The Economic Burden of Prescription Opioid Overdose, Abuse and Dependence in the United
States, 2013 (Oct. 2016)...................................................................................................... 6
Doug Caruson, JoAnne Viviano, Rita Price, Billions of opioids shipped to
Ohio in just 7 years, The Columbus Dispatch (July 21, 2019).................................. 6
Emily Mills, Summit, Cuyahoga counties settle with drugmakers ahead of
October opioid trial, Columbus Dispatch (Aug. 20, 2019)..................................... 28
Nat’l Inst. on Drug Abuse, Ohio Opioid Summary................................................. 6
STATEMENT OF THE ISSUE
The Northern District of Ohio is the home for an MDL of nearly 2,000 law- suits where political subdivision plaintiffs have sued manufacturers, distributors, and others responsible for the nation’s opioid epidemic. The court has scheduled a consolidated seven-week bellwether trial for two of those subdivisions (Ohio’s Cuyahoga and Summit counties) seeking $8 billion, and to begin on October 21, 2019. If the consolidated trial proceeds on the theories pleaded in the complaints, it will include claims that belong to the State of Ohio. This petition presents the following question:
Should a writ of mandamus issue to stop or delay the trial in order to protect Ohio’s sovereign right to litigate on behalf of its citizens as parens patriae?
INTRODUCTION
The State of Ohio seeks a Writ of Mandamus to preclude a United States District Court from trying non-justiciable claims in a trial that, if unchecked, will cripple the federal dual-sovereign structure of these United States. Under this structure, only a State Attorney General has parens-patriae standing to prosecute claims vindicating generalized harm to a State’s inhabitants. Political subdivisions do not have parens-patriae standing. In addition, the trial would fragment the State’s claims, pose a high risk of inconsistent verdicts, result in duplicative or overlapping damages, and misallocate funds in the State.
The manufacturers and distributors of opioids (“the Industry”) are defend- ants in a broad range of lawsuits brought by public entities—foremost among them, States—but also including localities—cities, counties, townships, and others. Claims by nearly 2,000 political subdivisions are consolidated in the U.S. District Court for the Northern District of Ohio as multi-district litigation (“MDL”). The States, as sovereigns, have chosen to pursue their cases in their own state courts.
In the MDL, two Ohio counties have been selected to begin a consolidated seven-week consolidated trial, as “bellwethers” of the localities’ complaints, be- ginning October 21, 2019. It is this trial—seeking an $8 billion recovery—that the State of Ohio asks this court to halt or delay.
The counties advance claims that belong to the State in an effort to com- mandeer moneys that rightfully should be distributed across the state by Ohio. See Ohio Rev. Code §109.21. The proposed trial seeks to use the federal court to real- locate this internal balance of power away from the Statehouse and to local officials. See Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 603-04 (1982) (“‘[I]f the health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them.’”) (quoting Missouri v. Illinois, 180 U.S. 208, 241 (1901)) (emphasis added). Reworking the internal structure of the States is not the role of the federal courts. See Doe v. Univ. of Mich. (In re Univ. of Mich.), F.3d , No. 19-1636, 2019 U.S. App. LEXIS 25304, at *14 (6th Cir. Aug. 23,
2019) (“Mandamus is also appropriate to prevent ‘intrusion by the federal judici- ary on a delicate area of federal-state relations’”) (citation omitted).
In their respective cases, the State of Ohio and the bellwether counties assert nearly identical claims. Ohio and the counties also pursue the same relief: injunc- tive relief, monetary damages, punitive damages, restitution, civil penalties, abate- ment of the nuisance, court costs, and attorneys’ fees. However, only the State as parens patriae may advance claims and seek remedies on behalf of the general pub- lic. The question before this court is whether a writ of mandamus will issue to pro-
tect the State’s sovereign right to seek such relief from interference by political subdivisions.
STATEMENT
In 2017, the Ohio Attorney General brought a civil action in Ross County Common Pleas Court against several major opioid manufacturers (the “Ross County Defendants”) seeking relief from the opioid epidemic on behalf of all of Ohio’s citizens. State ex rel. Yost v. Purdue Pharma, L.P. No. 17 CI 000261 (Ross Cty. Ct. C.P.). In 2018, the Ohio Attorney General filed a second complaint, this time in Madison County Common Pleas Court, against several opioid distributors (the “Madison County Defendants”) alleging additional facts and theories of liabil- ity. State ex rel. Yost v. McKesson Corp., et al, No. CVH 2018055 (Madison Cty. Ct. C.P.). Together these cases (the “Ohio cases”) are poised to bring comprehensive statewide relief, accountability, and remediation to the citizens of Ohio for their past, present, and future injuries.
Five months after the Attorney General sued, Cuyahoga County filed a com- plaint in Cuyahoga County Common Pleas Court against nearly all of the Ross and Madison County Defendants, and others. See R.1, Notice of Removal, PageID#1, Cty. of Cuyahoga v. Purdue Pharm L.P., et al.., No. 1:17-op-45004 (N.D. Ohio Nov. 27, 2017). Nearly three months later, Summit County and several of its political
subdivisions filed suit in Summit County Common Pleas Court against a number of the Ross and Madison County Defendants. See R.1, Notice of Removal, PageID#3, Cty. of Summit, et al. v. Purdue Pharma, L.P., et al., No. 1:18-op-45090 (N.D. Ohio Jan. 22, 2019). Both the Cuyahoga and the Summit County cases were removed to the United States District Court, Northern District of Ohio, based on diversity ju- risdiction.
The complaints, from States and localities alike, all tell a similar story, and all assert nearly identical claims. For decades, the Industry aggressively marketed its opioid products, downplaying or outright misrepresenting their highly addictive na- ture. Ignoring their own data, the Industry dumped vast amounts of opioids into communities far exceeding any legitimate medical need. As addiction, misery, and overdose deaths skyrocketed, the Industry focused on only one goal: selling more product.
As the State struggled to control these floodwaters of opioid addiction by clamping down on “pill mills” and stepping up enforcement of its laws, a second- ary, illegal black market emerged. Since the black market was supplied by diverting opioids from the medical market, the Industry was able to sell even more, fulfilling its overarching goal.
The scale of the crisis produced by the Industry’s conduct is hard to over-
state.
· The crisis involves “[b]illions of pain pills distributed, more than a million years of life lost, thousands of deaths by overdose.” Doug Caruson, JoAnne Viviano, Rita Price, Billions of opioids shipped to Ohio in just 7 years, The Co- lumbus Dispatch (online) (July 21, 2019), available at https://www. dispatch.com/news/20190721/billions-of-opioids-shipped-to-ohio-in-just-7- years; Nat’l Inst. on Drug Abuse, Ohio Opioid Summary, available at https://www.drugabuse.gov/opioid-summaries-by-state/ohio-opioid- summary (last visited Aug. 28, 2019) (4,000 Ohio opioid overdose deaths in 2017).
· One government study estimates the cost of the epidemic at $78.5 billion a year, including the costs of healthcare, lost productivity, addiction treat- ment, and criminal-justice involvement. Curtis Florence, et al., Nat’l Ctr. for Injury Prevention and Control, Ctrs. for Disease Control and Prevention, The Economic Burden of Prescription Opioid Overdose, Abuse and Dependence in the United States, 2013, at 6, 14 (Oct. 2016), available at https://www.ncbi.nlm.nih.gov/pubmed/27623005.
· One Ohio public health nurse described her Ohio county as “awash in pain pills” because “[t]hey were available to everyone.” Alan Johnson, OxyCon- tin, other narcotic pain pills still plentiful in Ohio, Canton Repository (online) (Jan. 15, 2017), available at https://www.cantonrep.com/news/20170115/ oxycontin-other-narcotic-pain-pills-still-plentiful-in-ohio. And when pills are available to everyone, kids “lose their parents,” they “live amid trauma and chaos,” “they need crisis counseling and speech therapy and tutoring,” and they “wind up with disabilities and delays and problems that teachers can’t fix.” Caruson, Billions of opioids, supra.
The District Court here summarized the epidemic’s scope well. “It is accu- rate to describe the opioid epidemic as a manmade plague, twenty years in the mak- ing. The pain, death, and heartache it has wrought cannot be overstated. … [I]t is hard to find anyone in Ohio who does not have a family member, a friend, a parent of a friend, or a child of a friend who has not been affected.” R.1203, Opinion and Order, PageID#29057.
These are widespread, statewide harms, not local harms—the localities’ nui- sance claims even cite the wrongs done to “the general public.” E.g., R.513, Sec- ond Amended Complaint, PageID#10871 (unless noted, record numbers are in the MDL case, No. 17-md-02804). The District Court recognized this when it com- mented on its selected plaintiffs for the bellwether trial: “In terms of liability, I could probably substitute almost any other city or county for Summit and Cuya- hoga and the trial would be similar. For damages, there would be – there would be differences.” R.2147, Transcript of Proceedings of Aug. 6, 2019, 32:21–24 (PageID numbers not yet available) (“Aug. 6, 2019 Transcript”); see R.1598, Order Setting Trial, PageID#44988. The bellwether trial therefore will not focus on the particu- lar Ohio county plaintiffs. It will examine the opioid crisis writ large—through complaints raised by small players.
The intrusion onto sovereign territory can be gleaned on a granular level by comparing the various complaints. The bellwether cases and the Ohio cases seek to rectify the same harms to Ohio citizens caused by common defendants including:
(1) extremely high rates of opioid use among Ohio adults; (2) secondary effects on the children of opioid addicted parents and other family members including infants born already addicted to opioids; (3) the emotional and financial costs to Ohioans having to care for addicted family members; (4) higher health care costs for Ohio- ans; (5) less productive employees; (6) the creation of a secondary, criminal market for opioids which fueled “a new wave of addiction, abuse, and injury”; and (7) the increase in heroin and other illicit drug addiction in Ohio. Compare State ex rel. Yost
v. Purdue Pharma, L.P. No. 17 CI 000261 (Ross Cty. Ct. C.P.), Complaint ¶163 (At-
torney General lawsuit) and State ex rel. Yost v. McKesson Corp., et al, No. CVH 2018055 (Madison Cty. Ct. C.P.), Complaint ¶¶36-47, 130, 146 (Attorney General lawsuit), with R.513, Summit County Complaint, PageID#10842-43 (county law- suit); see also R.521, Cuyahoga County Complaint, PageID#12818-19 (county law- suit) (same).
The broad injunctive relief sought in the bellwether cases also intrudes onto sovereign claims. The counties request injunctions and continued court monitor- ing of the defendants in ways that would have a statewide impact such as: (1) future
marketing strategies; (2) disseminating “corrective” advertising statements; (3) prohibiting future lobbying; (4) limiting the defendants’ ability to contract; and (5) creating a “National Foundation for education, research, publication, scholarship, and dissemination of information regarding the health risks of opioid use and abuse to be financed by the Defendants in an amount to be determined by the Court.” R.513, Summit County Complaint, PageID#10852-53; see also R.521, Cuyahoga County Complaint, PageID#12819-20 (same). It is clear that the bellwether coun- ties actually assert parens patriae claims.
The United States Supreme Court has long recognized that States have standing to bring claims like these—claims brought on behalf of all the people of a State—but that localities, which are merely parts or administrative subdivisions of the States, do not. These are, after all, the United States, not the United Counties and Cities of America. See Cmty. Commc’ns Co. v. City of Boulder, 455 U.S. 40, 54 (1982) (“‘We are a nation not of “city-states” but of States’”) (citation omitted). Our Republic’s structure is dual, not triple, and that dual structure “has no place for sovereign cities” (or counties). Id. at 53.
Counties and cities are mere creatures of statute. “‘The principle is well settled that local governmental units are created as convenient agencies for exercis- ing such of the governmental powers of the State as may be entrusted to them in its
absolute discretion.’ Whether and how to use that discretion is a question central to state self-government.” City of Columbus v. Ours Garage & Wrecker Serv., 536
U.S. 424, 437 (2002) (citation omitted). Accordingly, a political subdivision “may not sue to enforce its residents’ rights—‘courts have consistently held that munic- ipalities are not vested with the power to protect their residents’ interests under the theory of parens patriae.’” Jackson v. Cleveland Clinic Found., No. 1:11 CV 1334, 2011 U.S. Dist. LEXIS 101768, at *17-18 (N.D. Ohio Sept. 9, 2011) (citation and brackets omitted) (collecting cases).
But the District Court recently explained that it sees Ohio’s sovereignty as an obstacle to overcome.
The problem is that in a number of States any money that is, that a State Attorney General obtains, either by victory in court, litigated judgment, or settlement, goes into the general fund. And the men and women who control what happens in the general fund are the elected state representatives and senators. That’s what they do. And that’s what happened in the tobacco litigation. Over $200 billion, far more than 90 percent of that was used for public purposes totally un- related to tobacco smoking, lung cancer, whatever. And I believe that’s why we have all these counties and cities that filed separate lawsuits, to make sure that doesn’t happen again. … [Any settle- ment] has to address the problem of putting money into the state general funds or else it isn’t going to fly.
R. , Aug. 6, 2019 Transcript, 54:12-55:6.
For the reasons set out more fully below, the State of Ohio asks this Court to issue a writ of mandamus to the District Court ordering the dismissal of the Ohio
localities’ complaints, or in the alternative, to stay the bellwether trial until the State of Ohio’s claims have been adjudicated, limiting the relief in the bellwether to purely local monetary expenditures which are not subsumed by the State of Ohio’s claims in its own courts.
ARGUMENT
The District Court has effectively invited Ohio to seek this writ. At a recent hearing, plaintiffs’ counsel noted that “you’ve got a couple of trials about to go and nobody, as far as I know, has come into the courtroom and said stop. So that is just an observation I’d like to make on behalf of the Class [of subdivisions] here.” R.
, Aug. 6, 2019 Transcript, 69:1-69:23. The Court agreed when addressing an Ohio Assistant Attorney General, attending the hearing for informational purposes: “I mean the corollary of what you’re saying is the Attorney General represents everyone in Ohio, which he does. And so these cases should all be dismissed. If that’s what you’re saying, you should say it overtly that the Court should dismiss—should have filed, you know, say these cases are not justiciable; cities and counties in Ohio don’t have a right to bring them, they should be dismissed.” Id. at 61:7-14. That is what Ohio is saying.
Of course, Ohio is not party to any of the federal cases. Nor does it want to be. As a non-party Ohio cannot file a dispositive motion below. However, Ohio
may bring this original action to protect its interests. Cf. In re Univ. of Mich., 2019
U.S. App. LEXIS 25304, at *12 (writ appropriate to prevent intrusion by the federal judiciary on a delicate area of federal-state relations.); Evans v. Buchanan, 582 F.2d 750, 776-79 & n.25 (3d Cir. 1978) (granting writ in favor of non-party state, inter alia, to vindicate principles of federalism).
I. Mandamus is available to correct district court orders that threaten significant non-party interests that are not correctable on appeal.
The All Writs Act gives courts a “‘potent weapon[]’” in the writ of manda- mus. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 381 (2004) (cita- tion omitted). Its potency requires care, and the weapon must be reserved for “re- ally extraordinary cases.” In re: Nat’l Prescription Opiate Litig., Fed. App’x
, No. 19-3682, at *3 (6th Cir. Aug. 15, 2019) (citation omitted). That is why it comes with “demanding,” but not “insuperable,” prerequisites. Cheney, 542 U.S. at 381. The prerequisites are three: (1) the petitioner must “have no other adequate means to attain the relief he desires,” (2) the petitioner must show a “clear and indisputable” right to the writ, and (3) the court “must be satisfied that the writ is appropriate under the circumstances.” Id. at 380-81 (internal quotation marks and citations omitted). Among the relevant circumstances that “should inform” an appellate court’s decision about whether to grant an extraordinary writ are structural constitutional issues, like “separation-of-powers considerations.” Id.
at 382; see also Maryland v. Soper, 270 U.S. 9, 29 (1926) (granting writ to protect “the jurisdiction of the courts of a State to try offenses against its own laws” from invasion by an “order of an inferior federal court”).
This Court has clarified the considerations that govern when mandamus should be granted, explaining that it balances five non-exclusive factors to separate mere reversible error from error grave enough for mandamus. John B. v. Goetz, 531 F.3d 448, 457 (6th Cir. 2008). Those factors are: (1) absence of “other adequate means” to “attain the relief desired”; (2) damage or prejudice “not correctable on appeal”; (3) a district court order “clearly erroneous as a matter of law”; (4) an order that contains either an “oft-repeated” error or “manifests a persistent disregard of the federal rules”; and (5) an order that “raises new and important problems, or issues of law of first impression.” Id.
Balancing these factors, this Court has issued writs, for example, to stop an order mandating extensive discovery from State officials, id. at 461, to vacate class certifications, In re Am. Med. Sys., 75 F.3d 1069, 1074 (6th Cir. 1996); In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 301 (6th Cir. 1984), and earlier this month, to protect the delicate federal-state balance of power, In re Univ. of Mich., 2019 U.S. App. LEXIS 25304, at *15.
This Court and others have also used the writ to protect non-parties from district-court orders. In John B., this Court granted a writ to “set aside” parts of a discovery order against non-parties who contracted with Tennessee. 531 F.3d at 461; see id. at 462 (Cole, J., concurring) (flagging “unique” aspect of district court’s order that reached non-parties); CBS, Inc. v. Young, 522 F.2d 234, 237, 242 (6th Cir. 1975) (granting writ to non-party affected by district court’s gag order). The Tenth Circuit also issued a writ (there, prohibition) to shield many non-party state institutions from discovery. Univ. of Tex. v. Vratil, 96 F.3d 1337, 1339 (10th Cir. 1996). The Tenth Circuit grounded the writ in both the entities’ non-party status and their federal-court immunity that flows from the Constitution’s struc- tural protections. Id. The Third Circuit has also used its writ power to protect a State when a district court’s order did not afford Delaware’s laws a “presumption of regularity.” Evans, 582 F.2d at 778. Commenting on the mandamus aspect of the case, the court noted the “exceptional circumstances” in a petition where a nonparty state had an interest apart from the parties and aimed to “vindicate[]” “principles of federalism.” Id. at 777 n.25.
II. A writ is necessary here because the bellwether trial is legal error that will harm Ohio’s sovereign interests.
Viewed through this Circuit’s five factors for evaluating a writ, this petition checks all the boxes. The planned bellwether trial before Ohio has had a chance to
resolve its own claims (1) prejudices Ohio and its citizens, (2) through a trial that is contrary to law, (3) in a way Ohio cannot correct on appeal or by other means; and whether that trial may proceed (4) raises an important legal question in a
(5) context that warrants a writ.
A. The bellwether trial invades Ohio’s sovereign interests and threatens its ability to recover from many of the same defendants.
The prejudice to Ohio’s sovereignty is twofold—only Ohio, not its counties, has the power and the right to represent the people of the State; and only Ohio, not its counties or a federal district court, has the responsibility and the right to distrib- ute proceeds of those claims. As a result, Ohio’s Attorney General is uniquely po- sitioned to litigate on behalf of all Ohioans.
Structural sovereignty. The bellwether trial threatens Ohio’s sovereign inter-
est in vindicating its citizens’ and subdivisions’ rights—all of its citizens’ and sub- divisions’ rights—against the various defendants who fueled the opioid epidemic in Ohio. The District Court has erroneously conflated Ohio with its political subdivi- sions, going so far as stating that the cities and counties bring their claims “in their capacity as sovereigns.” R.1203, Op., PageID#29039 (emphasis added). The State’s interests are far greater than the sum of its subdivisions’ interests—and the statewide, collective harms to Ohio’s citizens are not rights that Ohio’s political subdivisions can litigate or settle—let alone settle on their own.
The Supreme Court long ago described the grand architecture of the Repub- lic. “The soil and the people within these limits are under the political control of the government of the United States, or of the states of the Union. There exists within the broad domain of sovereignty but these two. There may be cities, coun- ties, and other organized bodies, with limited legislative functions, but they are all derived from[,] or exist in[] subordination to[,] one or the other of these.” United States v. Kagama, 118 U.S. 375, 379 (1886). Political subdivisions like cities and counties are not sovereigns, but are “created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its ab- solute discretion.” Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 607 (1991) (internal quotation marks, alterations, and citations omitted).
The States have “extraordinarily wide latitude” in “creating various types of political subdivisions and conferring authority upon them.” Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978). This “near-limitless sovereignty” to “design
[a] governing structure as it sees fit” means that a State “may give certain powers to cities, later assign the same powers to counties, and even reclaim them for it- self.” Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality By Any Means Necessary (BAMN), 572 U.S. 291, 327 (2014) (Scalia, J., concurring). States’ choices about “[w]hether and how” to give power
to political subdivisions “is a question central to state self-government.” Ours Garage & Wrecker Serv., 536 U.S. at 437. This structuring is a key part of how “a State defines itself as a sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). In short: “Ours is a ‘dual system of government,’ … which has no place for sover- eign cities.” Cmty. Commc’ns Co., 455 U.S. at 53 (citation omitted).
The fact that the State, and not its subdivisions, provides the cornerstone of sovereignty has consequences for litigation. A State’s sovereignty means it may, as “a representative of the public,” sue to right a wrong that “limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States.” Georgia v. Pa. R. Co., 324 U.S. 439, 451 (1945); cf. Thornton v. State Farm Mut. Auto Ins. Co., No. 1:06-cv- 00018, 2006 U.S. Dist. LEXIS 83972 (N.D. Ohio Nov. 17, 2006) (denying class certification in view of defendant’s settlement with multiple states’ attorneys gen- eral).
To protect their people, States have, for example, “represent[ed] the inter- ests of their citizens in enjoining public nuisances.” Alfred L. Snapp & Son, 458
U.S. at 603. States have also succeeded in protecting their citizens’ economic in- terests. See id at 605; Pa. R. Co., 324 U.S. at 472-73. The States have, the Court has said, “a quasi-sovereign interest in the health and well-being—both physical
and economic—of its residents in general.” Alfred L. Snapp & Son, 458 U.S. at 607. If that health and well-being are injured, “‘the State is the proper party’” to vindicate and protect the citizens’ interests. Id. at 604 (citation omitted) (emphasis added).
This same point shows up both in decisions recognizing a state attorney gen- eral’s unique role in protecting a State’s citizens, and in statutory provisions giving attorneys general the power to vindicate state interests. Court decisions, for exam- ple, deny political-subdivisions intervention in a State’s lawsuit and favor attorney- general suits over class actions. See, e.g., Envtl. Def. Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C. Cir. 1979) (per curiam) (“[A] state that is a party to a suit in- volving a matter of sovereign interest is presumed to represent the interests of all its citizens.”); Thornton, 2006 U.S. Dist. LEXIS 83972, at *8.
In statutory law, a State’s Attorney General is often empowered to vindicate the peoples’ common interests, such as in consumer-protection laws and antitrust restrictions. E.g. Ohio Rev. Code §1345.07(A); Ohio Rev. Code §109.81(A). Fed- eral statutes that include the phrase ‘parens patriae’ refer to a State’s Attorney General’s power to act on behalf of its citizens. E.g. 12 U.S.C. §5538; 15 U.S.C.
§§15c-15h, 45b-45c, 6103, 6309, 6504; 18 U.S.C. §§248, 1595; 42 U.S.C. §1320d-
5(d); 49 U.S.C. §14711. Those statutes do not afford similar standing to political subdivisions.
The scheduled bellwether trial undermines all this because it lets political subdivisions act as representatives of the people’s interests—and thereby appro- priate remedies that belong to the State. The complaints in these cases include claims brought “for the public health, safety and welfare of their citizens,” public nuisance claims, claims for “indivisible” injuries, and damages for the increased use of the “judicial system,” the decreased “efficiency” of the workforce, and “the societal harms caused by Defendants’ conduct.” E.g., R.513, Summit County Complaint, PageID#10579, 10865-69, 10877, 10842, 10892. These are not claims that counties or cities have standing to litigate. They are claims that Ohio can liti- gate as parens patriae. The injuries are injuries to the people of Ohio as a whole.
The bellwether trial strikes at our Republic’s core structure, including its recognition of state sovereignty. First, the political subdivisions plan to litigate Ohio citizens’ “wellbeing,” even though Ohio, as sovereign, is the only public body with standing to do so. Alfred L. Snapp & Son, 458 U.S. at 607. Second, the bell- wether trial will undermine Ohio’s “rightful status within the federal system,” id., by allowing counties to step into the State’s shoes to distribute state funds and by endangering Ohio’s efforts to resolve its own lawsuits. Both invasions of Ohio’s
sovereignty are all the worse because they come at the hands of the federal courts.
Cf. Alden v. Maine, 527 U.S. 706, 751-52 (1999).
Distributing funds. As the District Court stated frankly, these cases are in- tended to avoid Ohio Rev. Code §109.21, which states that all recoveries by the At- torney General will be placed into the general fund. “The problem is that in a number of States, any money that … a State Attorney General obtains, either by victory in court, litigated judgment, or settlement, goes into the general fund.” R.
, Aug. 6, 2019 Transcript, 54:12-55:6. Of course, this policy choice is not a “problem” a district court can resolve.
The bellwether trial would undermine Ohio’s sovereignty by providing polit- ical subdivisions with direct access to funds that by law go to the general fund for distribution by the legislature. If the bellwether plaintiffs win their trial on the pleaded theories, they will recover money for harms to the general health, safety, and physical and economic wellbeing of Ohioans. And if that happens, the trial will have created a mechanism that allows political subdivisions to take Ohio’s place as the sovereign responsible for directing money to the appropriate places in the State. Ohio’s “rightful status within the federal system,” is denied when a federal court facilitates the efforts of political subdivisions to avoid state-wide fiscal laws. Alfred
L Snapp & Son, 458 U.S. at 607.
Ohio is prejudiced in another way—the MDL itself has hampered efforts to settle Ohio’s state-court actions. And just as Attorney General actions may be a reason to deny parallel class litigation, the Attorney General actions here are a rea- son to question the MDL proceedings, including the bellwether. “[I]f courts con- sistently allow parallel or subsequent class actions in spite of state action, the state’s ability to obtain the best settlement for its residents may be impacted, since the accused may not wish to settle with the state only to have the state settlement operate as a floor on liability or otherwise be used against it.” Thornton, 2006 U.S. Dist. LEXIS 83972, at *10. A parallel MDL on behalf of political subdivisions is equally offensive. The MDL has made settlement more difficult for the States. See R.1726, June 24, 2019, Letter of 26 State Attorneys General, PageID#51635; R.1951, July 23, 2019, Letter of 38 State Attorneys General, PageID#119886; R.1973, Letter of Attorney General Yost, PageID#209115. Moreover, any judg- ment or settlement between two Ohio counties and the defendants will draw down a limited pool of money available to satisfy these claims, and will do so in a way that risks defenses that are unique as against the counties.
Preferred Plaintiff Status. State Attorneys General make better plaintiffs to litigate on behalf of a State’s citizens. Cf. In re Glenn W. Turner Enters. Litig., 521 F.2d 775, 779 (3d Cir. 1975) (reversing order in a multi-district class action that in-
terfered with a state attorney general’s prior litigation against the same defendant); Thornton, 2006 U.S. Dist. LEXIS 83972, at *16 (denying class certification in view of defendant’s settlement with multiple states’ attorneys general).
A State Attorney General is also a better plaintiff in this case because the counties will face defenses that the State is better positioned to surmount. Cities (and other political subdivisions) have frequently lost claims like those in the bell- wether trial because they have been unable to satisfy proximate cause. E.g., City of Cleveland v. Ameriquest Mortg. Sec., Inc., 615 F.3d 496 (6th Cir. 2010). Unlike its subdivisions, Ohio has standing to sue “without regard to proximate cause.” Alle- gheny Gen. Hosp. v. Philip Morris, 228 F.3d 429, 436 (3d Cir. 2000). As parens pa- triae, Ohio has standing to assert claims based on harms to the health and welfare of its citizens. Alfred L. Snapp & Son, 458 U.S. at 607; see also Pa. R. Co., 324 U.S. at 447; In re Multidistrict Vehicle Air Pollution, 481 F.2d 122, 131 (9th Cir. 1973). Ohio’s ability to bring such claims—and its political subdivisions inability to do so—means that Ohio is better able to seek justice for its citizens.
Second, the State can maintain claims otherwise barred by statutes of limita- tions. Statutes of limitations in Ohio generally do “not apply as a bar to the rights of the state.” State v. Sullivan, 38 Ohio St. 3d 137, 138 (1988). But, because “the rule is an attribute of sovereignty only, it does not extend to townships, counties,
school districts or boards of education, and other subdivisions of the state.” Id. at 139; State ex rel. Bd. of Educ. v. Gibson, 130 Ohio St. 318, syl. ¶2 (1935). As with proximate-cause defenses, the State is able to avoid limitations defenses that might block the bellwether counties from recovering. That is, the State can recover for its citizens where the counties cannot.
Whether the counties win or lose, the bellwether trial harms Ohio by divert- ing time and energy away from its own litigation to recover for all its citizens and subdivisions. The trial and resulting appeals will consume court and party re- sources that would not have been spent had the claims been brought by a sovereign State. These same kinds of concerns supported this Court’s grant of a writ in the Bendectin litigation, where the court vacated a class certification that would have diverted attention from other litigation. 749 F.2d at 304. Ohio’s energy should remain invested in its own litigation and negotiation rather than dealing with the fallout of a trial that should never go forward.
B. A writ is necessary to end legal error.
Ohio has shown a “clear and indisputable” right to relief. Cheney, 542 U.S. at 381. As detailed above, the bellwether trial is legally flawed because it invades Ohio’s sovereignty and impedes the Ohio Attorney General’s ability to litigate on behalf of all Ohioans. See above at 14-23. In many ways, the harms that Ohio will
suffer, and the District Court’s legal error in allowing the bellwether trial to pro- ceed, are two sides of the same coin.
Mandamus is appropriate to stop a trial that invades legal interests. This Court, for example, ordered a district court to vacate an order for a summary jury trial because such trials may not be conducted over a party’s objection. In re NLO, 5 F.3d 154, 156-59 (6th Cir. 1993). Although the summary trial may well have lu- bricated settlement, this Court issued the writ because a district court’s “‘zeal to settle’” a case cannot trump restraints on the district court’s powers. Id. at 158 (ci- tation omitted).
And mandamus is used to protect constitutional interests. In one case, sev- eral plaintiffs sued the same defendant, and the cases had been consolidated for pretrial matters. Goldman, Sachs & Co. v. Edelstein, 494 F.2d 76, 77 (2d Cir. 1974). As the first trial neared, the district court decided to hear one case set as a non-jury trial ahead of another case set for a jury trial. Id. The Second Circuit issued the writ to protect the Seventh Amendment rights that were threatened by the judge’s sequencing. Id. at 78; cf. Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959).
If mandamus is appropriate to protect the Seventh Amendment, it is appro- priate to protect the Tenth. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 60, 463 (1991) (the Tenth Amendment protects States’ interests in defining the “structure
of its government”). The need to protect public rights, like the Constitution’s structural feature that “leaves in the possession of each State ‘certain exclusive and very important portions of sovereign power,’” Heath v. Alabama, 474 U.S. 82, 93 (1985) (quoting The Federalist No. 9, at 55 (Hamilton) (J. Cooke ed. 1961)), is at least equal to, if not greater than, the need to protect private rights like those guar- anteed by the Seventh Amendment. After all, if a State’s sovereignty shields it from a Congressional command that it answer to private suit in its own courts, Alden, 527 U.S. 706, then surely it protects a State from federal-court suits that commandeer Ohio’s sovereignty.
This litigation has placed political subdivisions like the two bellwether coun- ties on equal footing with the States themselves. The Magistrate commented last year, for example, that “no other category of potential plaintiff groups, aside from states and their political subdivisions, can be counted on to vindicate the law in the same manner.” Report & Recommendation, Cty. of Summit v. Purdue Pharma L.P (In re Nat’l Prescription Opiate Litig.), No. 1:18-op-45090, 2018 U.S. Dis. LEXIS 176260, *111 (N.D. Ohio Oct. 5, 2018) (discussing RICO claims) (emphasis added); accord Opinion & Order, Cty. of Summit v. Purdue Pharma L.P. (In re Nat’l Prescrip- tion Opiate Litig.), No. 1:18-op-45090, 2018 U.S. Dist. LEXIS 213657, at *70 (Dec. 19, 2018) (“No other party can vindicate the law and deter Defendants’ alleged
conduct because Plaintiffs’ asserted damages are not recoverable by any other par- ty.”). One of the District Court’s premises was wrong—political subdivisions are not representatives of the State’s citizens; only the State is. The District Court’s error will be compounded if the bellwether trial proceeds as planned.
Finally, to the extent that the District Court intends for the bellwether trial to help facilitate settlement, it has erred as well. This Court has previously criti- cized actions taken based on the District Court’s “desire to settle the litigation be- fore it proceeds to trial.” HD Media Co., LLC v. United States DOJ (In re Nat’l Prescription Opiate Litig.), Nos. 18-3839/3860, 2019 U.S. App. LEXIS 18502, at *3, 27–29 (6th Cir. June 20, 2019). No matter how strong the desire to settle, a dis- trict court abuses its discretion when it lets that desire replace legal analysis so that it has a “bargaining chip” to force settlement. Id. at *28.
The District Court’s statement regarding the potential class certification again shows its willingness to brush aside the law to facilitate a settlement, just as it does here. “I’m not worried about the Supreme Court. The issue is what will I do.” R. , Aug. 6, 2019 Transcript, at 35:12–13; see also id. at 34:17–35:13. A court cannot turn a blind eye to the law because it believes doing so will result in a better or fairer result. “Address[ing] the problem of putting money into the state general fund,” id. at 55:5-6, at the purported expense of the political subdivisions,
is a political question—and a State level one at that—wholly unsuited for an Article III court. Because the District Court has allowed a desire to resolve the underlying litigation to prevail over Ohio’s sovereign interests, it repeats its earlier error, mer- iting a writ.
C. Because Ohio cannot be forced to join or intervene in the federal
cases, mandamus is the appropriate remedy.
Ohio has made the informed choice to pursue its claims in state court—and it did so before either of the two bellwether counties filed suit. Because Ohio is a sovereign, neither the plaintiffs nor defendants in this action can force it to become a party to the federal cases. See, e.g., Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996); Thomas v. FAG Bearings Corp., 50 F.3d 502, 506 (8th Cir. 1995).
Ohio’s choice to pursue remedies in state court has both a structural and a practical component. Structurally, of course, only state courts can make “authori- tative” interpretations of state law. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 395 (1988). Practically, federal judges are “‘outsiders’” to state law and lack the “common exposure to local law which comes from sitting in the jurisdiction.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974) (citation omitted). Ohio has a val- id interest in preferring that Ohio judges decide questions of Ohio law. For reasons of autonomy and efficiency, Ohio has chosen to litigate these claims in its own courts.
It is no answer to Ohio’s mandamus petition to say that it should just inter- vene in the federal case. Ohio has no “claim or defense” to plead in the federal cases. Fed. R. Civ. P. 24(c). More fundamentally, Ohio has no desire to assert any claims in federal court, and its sovereign right to litigate in its own courts means that it cannot be forced to participate in federal court merely to protect its rights. See Seminole Tribe v. Florida, 517 U.S. at 54; Thomas, 50 F.3d at 506; Principality of Monaco v. Mississippi, 292 U.S. 313, 322-23 (1934). Mandamus is the appropriate avenue for the State to pursue relief.
D. This petition raises important questions about state sovereignty and state resources.
For the same reasons that the planned bellwether trial prejudices Ohio, the planned trial meets this Court’s requirement that a mandamus petition raise an “important” legal issue. In re Bendectin, 749 F.2d at 304. The threat to state sovereignty ranks above the threats to private interests in class-action cases. Politi- cal subdivisions are not stand-ins for the State. A city law director or county prose- cutor is no substitute for the Ohio Attorney General. The fact that the political subdivisions have begun extracting settlements indicates that other settlements may soon follow, and shows that the harm to Ohio’s sovereignty is real and needs an immediate remedy. See Emily Mills, Summit, Cuyahoga counties settle with drug- makers ahead of October opioid trial, Columbus Dispatch (online) (Aug. 20, 2019),
available at https://www.dispatch.com/news/20190820/summit-cuyahoga- counties-settle-with-drugmakers-ahead-of-october-opioid-trial/1.
This Court has already recognized the “importance” of this litigation’s sub- ject matter, pointing both to the presidential declaration of a “national emergency” and quoting the District Court that the underlying facts “affect the health and safe- ty of the entire country.” HD Media, 2019 U.S. App. LEXIS 18502, at *3, 43.
The mandamus writ is a powerful tool that should remain little used. But this court should not let forays by political subdivisions into federal courts erode state sovereignty. The relative power of political subdivisions within the various States is committed to the “‘absolute discretion’” of each State, Ours Garage, 536
U.S. at 437 (citation omitted), and is a question ill-suited for Article III resolution.
This extraordinary situation calls for an extraordinary writ.
E. The scheduled bellwether trial involves the type of error this Court has corrected through mandamus.
This Court’s writ cases also consider whether the District Court’s error is a repeat one. This factor and the importance factor “are somewhat contradictory, and the district judge’s order typically will not satisfy both guidelines.” In re Am. Med. Sys., 75 F.3d at 1088. Even so, the factor supports Ohio here.
Applying the repetition factor, this Court looks both backward and forward. Looking back, the Court sometimes invokes the “larger context” of the issue under
review, not merely the particular judge’s own rulings. Id. at 1089. Looking for- ward, the Court has issued a writ despite no “manifest disregard” of the law, be- cause the writ would offer “guidance” that “may be applied with some frequency in the future.” In re NLO, 5 F.3d at 159. These same considerations support a writ here.
The “larger context” of the District Court’s bellwether-trial plan is a sprawling MDL, where settlement pressure threatens to override the rule of law. The judge overseeing it has called it “perhaps the most complex constellation of cases that have ever been filed.” R.1732, June 25, 2019 Transcript, pt. 1, 4:12-13 (PageID not yet available). In the MDL, political subdivisions have moved to certi- fy a “negotiating class” to negotiate with defendants. See R.1820 Amended Mo- tion for Certification of Negotiation Class, PageID#56631, etc. But the Supreme Court has warned that a desire to settle large civil actions cannot override restraints on federal-court authority. See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) and Amchem Prods. v. Windsor, 521 U.S. 591 (1997). The bellwether trial is yet an- other tool to catalyze settlement. In context, the error of allowing the bellwether trial is the kind of error that justifies a writ.
The need for forward-looking guidance also supports issuing a writ. Most immediately, guidance is needed for the many other suits in the MDL. The very
purpose of a bellwether trial is to guide those other cases. This is not just about the relationship between Ohio and its subdivisions. It is about every State and political subdivision. See R.1951, 38 Attorneys General Letter. Issuing a writ that prevents subdivisions from getting ahead of their respective States in litigating state-wide is- sues will guide the way as the litigation unfolds even after the bellwether trial is over.
The District Court faces a Herculean task—dealing with political subdivi- sions, but not their parent States; herding dozens of defendants that played distinct roles in the opioid crisis; and witnessing the ongoing need to resolve the cases—all while the opioid epidemic continues to rage. Even so, this Court can easily “sym- path[ize]” with the District Court’s efforts, “when faced with [a] complicated, multi-party civil action[] … to impose some degree of manageability through inno- vative use of the federal rules,” yet still recognize the need to issue a writ to pre- vent an action that might advance settlement, but that breaks fidelity with the law. See In re NLO, 5 F.3d at 159. This is particularly so where there is easy relief for Hercules.
Paradoxically, the District Court has recognized the available relief: “Now it’s easy to set -- establish a team of 50 AGs. It’s 50 men and women. That kind of team has been put together in lots of other lawsuits very effectively. They were
here from the beginning. It’s not so easy with 2000 litigating cities and counties and potentially 20 or 30,000 others.” R. , Aug. 6, 2019 Transcript, 48:9-14. The solution to this conundrum is simple and profound: Allow the State Attorneys General to do their jobs as they have heretofore done—unimpeded by a cities-and- counties MDL.
* * *
Federal courts should “pause” before “intrud[ing] into the proper sphere of the States.” Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas, J., concurring). The proper sphere of the State is clear: as a sovereign, it alone speaks for all of its citizens. This Court should issue a writ to protect Ohio’s interests.
III. Remedy
The vast bulk of the subdivisions’ claims and relief can be pursued only by Ohio. Any remaining claims cannot be quantified and awarded until after the State’s overriding interest in protecting its citizens as a whole is seen to fruition.
As demonstrated by the recent settlements, allowing the bellwether trial to proceed will elevate the interests of Cuyahoga and Summit counties above those of the State of Ohio as a whole. It will render 86 Ohio counties, and countless com- munities, subservient to the desires of a select few. And it will be an affront to the principals of sovereignty and primacy that form the foundation of state govern-
ment.
Plaintiffs cannot seek advertising and marketing limitations; impose a regula-
tory regime; pursue claims stemming from general harm to the public, general eco- nomic harm, reduced tax base, and reduced property values; or pursue claims stemming from redirected public expenditures, or hard dollars expended by Ohio passed through the political subdivisions. These remedies are available only to the State.
Ohio respectfully requests that a writ be issued that commands the District Court to dismiss and/or limit the claims that seek these categories of relief. More- over, the District Court should be instructed to stay any trial of any remaining claims brought by any Ohio political subdivision while Ohio’s claims against the opioid manufacturers and distributors are pending.
In a recent appeal from this MDL, this court recognized “the paramount importance of the litigation’s subject matter.” HD Media Co., LLC, 2019 U.S. App. LEXIS 18502, at *43. Ohio submits the issues presented in this original ac- tion—state sovereignty, and the State’s relationship both with its own political subdivisions and its place in the federal system—are even weightier than those pre- sented in that discovery dispute, and cry out for this court’s attention.
CONCLUSION
The Court should grant a writ compelling the District Court to dismiss or limit all claims that seek to remedy societal harms and to delay the bellwether trial until after Ohio’s state-court actions conclude.
Respectfully submitted, DAVE YOST
Ohio Attorney General (0056290)
/s/ Jonathan Blanton
JONATHAN BLANTON* (0070035)
Deputy Attorney General for Major Litigation
*Counsel of Record
CHARLES MILLER (0073844)
Office Counsel
MICHAEL HENDERSHOT (0081842)
Chief Deputy Solicitor General SAMUEL PETERSON (0081432)
Deputy Solicitor General
30 East Broad Street, 17th Floor Columbus, Ohio 43215
614-728-1171
Jonathan.Blanton@ohioattorneygeneral.gov
Counsel for the State of Ohio