Washington, DC - Attorney General Mark Brnovich announced today that Arizona led a 20-state amicus brief urging the Supreme Court of the United States (SCOTUS) to reverse a decision by the Sixth Circuit Court of Appeals that prevented the Kentucky Attorney General from intervening to defend a state law after the state official named declined to continue defending the law through the appellate process.
“Arizonans know first-hand how elected officials can fail to respect the law,” said General Brnovich. “Attorneys General have a duty to ensure state laws receive a faithful defense regardless of the inaction of other government officials.”
The matter of strategic capitulation in litigation is not reserved to Kentucky. The Arizona Attorney General’s Office, for example, has had to intervene in several important elections cases over the past year after the Arizona Secretary of State failed to defend challenged laws. One such prominent case, Brnovich v DNC, is now before SCOTUS.
The issue of whether an Attorney General can intervene in federal court to continue the defense of a challenged state law is an important component of our democratic system of governance. Public officials are not empowered to repeal duly enacted state laws unilaterally. Federal courts must permit Attorneys General to continue the defense of state law when others will not. This rule respects the voters’ ability to elect legislators separately from executive officials and preserves the checks balances within the state’s legislative process.
In the Kentucky case, the Attorney General defended the state law on behalf of the Cabinet for Health and Family Services (CHFS). The Secretary of CHFS is appointed by the Governor. When the CHFS chose not to seek further review of a Sixth Circuit Court of Appeals decision, the Kentucky Attorney General moved to intervene in the case and continue defending the law. However, the Sixth Circuit did not allow the Kentucky Attorney General to intervene. The Kentucky Attorney General is asking SCOTUS to consider whether a state attorney general should be allowed to intervene to defend a state law, after a federal court of appeals invalidates it and no other state official will defend it.
Attorney General Brnovich was joined in the brief by Attorneys General representing the following states: Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.