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").

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

I.                 Mandamus is available to correct  district  court  orders  that threaten significant non-party interests that are not correctable on appeal...... 12

II.             A writ is necessary here because the bellwether trial is legal error   that will harm Ohio’s sovereign interests................................................................... 14

A.          The bellwether trial invades Ohio’s sovereign interests and threatens its ability to recover from many of the same defendants.......... 15

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

E.          The scheduled bellwether trial  involves  the  type  of  error this Court has corrected through mandamus.................................................... 29

III.          Remedy............................................................................................................... 32

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.