morning may it please the court the district court's denial of the legislature's motion to intervene disregards wisconsin sovereign policy judgments about how it statute should be defended when they're subject to a constitutional challenge the supreme decision just a few months ago in bethune hill makes clear that it is ultimately up to each state to decide for itself how its laws should be defended when there constitutionality is challenge so in bethune hill the court held that the virginia house of delegates had no with already to initiate an appeal on behalf of the state because virginia simply hadn't given it that power virginia had a strong attorney general with exclusive litigating authority for the state but the court was very clear and through in hell that the virginia legislature would have had that power to initiate the appeal if the legislature had given it that power and that's exactly what we have here the court to through and help pointed to an indiana statute which looks exactly like the wisconsin statute and said so the st one is a federal court must look to state law in determining how a state is represented in federal court it addresses the broad question of how do we decide who speaks for the state in litigation and i think within his also critical on a nd point which is the athletes keep saying that we are trying to override rule twenty four or we're trying to impose a state law on the federal courts of course not but the one hill was about article three standing which is a core federal constitutional doctrine but the court still look to state law in determining how to apply that doctrine so i think the through in hill shows when even when you're applying a federal doctrine such as standing or such as rule twenty four you always have to overlay the analysis with the relevant principles of state law and i think that's exactly what should have been done here now turning to adequacy of representation st since i think it's fair to say that's where our core dispute with the other side lies the district court required the legislature to show bad faith or gross negligence merely because the attorney general was defending the statute but neither the district court nor the apple e's has cited a single case applying that very difficult standard to an entity that had statutory authority to participate in the case it's one thing to require a higher showing like that when you have for example a private party trying to elbow its way into a case where the government's already defending it there it makes perfect sense to say we don't let un unless you can show some serious defect with with how the government's defending the law but but that's not at all what we have here here we have two entities co equal branches of government both with authority to participate in the case and yet the district or still require this heightened showing and we would submit it's just simply not the case as the other side says that this court's precedent directly speaks to that situation so we think this bad faith and gross negligence test it's just a complete mismatch for the situation we have here and that so we would have to create a new test or carve out an exception under your argument to the rule that's in place about that i don't think it's a new test or an exception all we would ask court to do is apply the ordinary adequacy test which is a simply you must show in the courts describe the test as minimal where you must merely show that that the other side may not you know may potentially not represent your interests and so in it be an exception to what's already out there that if you are a state entity with the authority which clearly the attorney general is here i don't think you could testing at that you have to show this heightened standard rate so i think it's i think it's harder than that and i think it's i don't think it's more than just a point of of of how it's described so here there are two entities that are charged with administering the statute and so i think it would be i think it just doesn't fit with the court's existing doctrine so i think it's and i don't want to quibble over the phrasing but i don't think it's an exception so much as we would just be saying that test is designed for a different situation where you have a party with statutory authority party with no statutory authority general of wisconsin has no inherent power the powers of the attorney general are defined by statute by the legislature and so here the legislature has decided in this particular important category of cases constitutional challenges to state law that the legislature should not necessary that the attorney general should not necessarily be the sole person speaking on the house is your position that then any time there's a challenge  constitutional issues that the district in a similar situation to what we have here is similar in the sense means that there is no room for the job to make any discretionary just presume to have the capacity to replace the attorney general i mean participate and just because of the challenge to the courts must always apply rule twenty four and of course have inherent authority to manage their dockets and ensure  the orderly administration of justice but i think a couple points on this mean that the legislature the legislature of course litigation is costly litigation is expensive but the legislature has no intention to jump into every single case involving the constitutionality direction to a district judge and how he or she would would view this desire to intervene right so i think i think this is actually it goes to permissive intervention as well and so under permissive intervention the district judge actually has quite a bit of discretion to shape the participation and so being candid i think the real reason the legislature wants to be in these cases is so that they don't get dropped or saddled or consented out from under us because that's a really dangerous power to give the attorney general the ability to enter a consent decree that basically wipes a state law off the books but on permissive intervention we kind of get the best of all worlds because we would be able to have that seat at the table to prevent the statute from being settle out from under us but but that does give the district has more authority to say ok well maybe we're going to put limits on what you can do in discovery maybe we're going to limit your number of witnesses and so i think the other side keeps saying you can just be an amicus but i think that just doesn't get to the core problem which is what i would call legislation by litigation it doesn't solve that problem of having laws wiped off the books soley through litigation posture so are you listening i'm hearing two different things here are you seeking to intervene here to represent the legislature or are you seeking to intervene here to be an agent of the state and represent the state's interests right so it would be to the court doesn't have to decide that at this stage because it's defensive but i may ask you which one are you st were seeking we would be i think it does matter for the analysis and especially in looking at what your interest is and in looking at some of the case law including the supreme court's recent opinion we feel we would be speaking we would be defending this it would be the legislature participating the case to defend the law on behalf of the state i think is our position so you you're not seeking to come in or to intervene to represent the legislature you're seeking to intervene and come in as an agent of the city the legislature of course is an agent of the state as is the attorney general so i think the ultimate goal would be we want this law to be enforced in fall in our pelts so yes that would be and i think and i think a good indication of that is the the indiana law that the supreme court pointed to in both you and hell which the court said would likely be sufficient are statutes very similar to that it gives the legislature the power to hire outside counsel and to intervene in a discrete class of cases so i think our position is the court doesn't need to make any determinations about that for purposes of defensive intervention but we are we are part of the state of wisconsin and and would be seeking to defend the statute that actually put this in this case doesn't implicate any interest of the legislature as a legislature it impedes the interest of the legislature under the statute with authorizes it to speak for the state and defense of the constitution state legislation so we're dealing with a state law that confers a shared power the attorney general and the legislature by statute to represent the state or defense of constitutionality of its laws and difficulty i have with your argument is that in that sort of a stately shimon they are becoming more popular in the era of divided government at the state level it trumps the intervention statute because by definition is it establishes interests and it establishes inadequacy of representation because an argument can always be made as a matter of practical politics these arguments are only going to come into court when there's divided government at the state level and a case can always be made when that's the situation that the other side's adequacy of representation is not to the liking of the other branch of government so it's essentially an argument that the state law trumps the federal intervention role it's not we're not we're not saying that state law trumps all we would ask the court to do is the exact same thing the court did in the through in hell with article three standing doctrine which is just as the constitutional article three standing doctrine was of course informed by virginia's approach to how it defended state law were simply asking the court to apply rule twenty four through the lens of state law and to give that state law that comedy and  deserves if if you're allowed to come in and really circumvent rule twenty four what would stop the legislatures from passing other state laws that would allow them to come in and try to circumvent other federal procedural rules well i don't again i don't i don't think it's circumvent i think it's a question of for purposes of who is an adequate representative of the state of wisconsin for for defending the constitutionality of certain state laws and the legislature which as i mentioned at the oak creek in other cases say is income alternately in control of the a g s office has decided it that that in this class of cases this is not necessarily the only adequate representative  powers in that very provision there's now the intervention a discussion of intervention as well so in in the very provision that confers the attorney general power the attorney general's power it says subject to these interventions that are so nervous going to give you additional time is more or less expansive than being in a party but if we take the view that you need something more and you suggested your concern is that there would  be perhaps settlement or some resolution sure know what might be the desire of the legislature then does the district judge have to start with a presumption that's a possibility that your concern would develop and just because there is the possibility of a resolution unfavorable in your group that that potential is sufficient enough to tilt it toward your view that given given the statute i think that's all the court would need to address on adequacy but if there's something more that your honor referred to is required i don't think the court needs to find any make any findings about motivation or about parties inclination to litigate this suit was brought nine days after the new attorney general was sworn into office to challenge years or decades old laws and the attorney general was a close political ally and so i think there is no inference from those facts other than the plaintiffs themselves seem to think that they have a good adversary and that necessary for your argument it's not an absolute and it was extensively brief but as i understand your argument from the podium it's that the statute establishes both the interest element of intervention and the inadequacy element of intervention because by definition  the state is saying as a matter of policy that the attorney general is inadequate in this class of cases and legislature has a right to step in that certainly aren't we of course want to give the court the full context of what was happening in the case but i think exactly what your honor said is sufficient to resolve the case in our favor well the courts are not going to be drawn into these battles of determining whether the attorney general's litigation strategy is adequate i don't think the court needs to make any findings about that to reach a decision or favor well that's good  oh i'm sorry good morning your honour's assistant attorney general brian keenan on behalf of the defendants and police the district were properly denied the legislature's intervention motion for several reasons but i was going to start with the law preventing that as well in the same set of laws that were just passed giving them the right to intervene in certain cases there's also prevention of the attorney general from entering into a settlement of the of a case of this kind so that's really not a legitimate fear here and i think also to the extent that such a situation what arise the flying j k shows that someone can intervene at a later point when it becomes apparent that the party isn't fulfilling its duty to defend and so i think that w a shared power under state law by statute but that statute establishes as a matter of wisconsin policy that the attorney general cannot adequately represent the defense quite i am not sure that the statute actually establishes that that representation is an adequate there's no finding that the attorney general it just gives the legislature the right to also participate in certain cases i think that important point of the statu too as it applies in state court and federal courts on state court they can just give themselves the right to intervene without having to show any sort of factors federal court i think they still do have to meet the factors and i don't think a state statute that said we he applies here as well and it would constitute an exception to that rule applied in this case exceptions to rules exist when there are material distinctions and there is a material distinction when we're talking about i don't believe that it is a state government as opposed to a public employee union it's a difference but this is about adequacy of representation and the focus is on the duty of the defendants in the case here that duty exists equally here as it does with those other cases and so essentially i believe that there is going to be have to be a finding although the legislature disclaims that the attorney general's representation is not adequate and i believe that to be found as a matter of fact well or else it's going to be a matter of law in every single case as that's why i clarified the argument yeah so under that reason gage with the recently clarified argument yes then i guess it would just be a rule of law that applies in every case in which case then the legislature will have an automatic right to intervene whenever it so chooses and i believe that's problematic to have a state be able to say we can intervene and whenever we want in any case what's problematic well i believe that this could the court would well there is one party who's already doing this the district court now is being forced to have multiple parties complicating the case and we think that it's the rule does say that it needs to show at inadequate representation and there's really no showing of that here in the actual case state i think that would be one concern i think it's also a concern that the court does have to then find the attorney general's representation is inadequate and that supposed under the law it under the rule that should be a case by case a termination in each case and not a blanket state law that provides that and i think if you look at the case law it's adequate representation is about the defendants not about who is intervening we don't dispute that the state can give the legislature the right to pursue an appeal for example but the hill was problematic because of legislators there had no authority to pursue an appeal so they couldn't do so because there is no state statute giving them any such a right to represent the state affirmatively but here it's a little bit different in that it's defending a case brought by so is it your position that with you inhale is limited to the interest element yes but doesn't apply to the adequacy yassin because there was no there wasn't that wasn't an intervention case it was a case where there were two parties in the district court because it did not have an underlying state statute giving it the right to represent the state and i think also that the one house didn't have an interest in the legislative districts so i think that doesn't say anything to of representation at all sticky and would you address the import of the oak creek case in the analysis sure and i misspoke a moment ago we're not talking about a battle between branches of government you turn a general is not part of the executive branch he is an independent elected constitutional officer but his powers are limited and the legislature he has no inherent power that's lester's the holding of that yes i'm sure why wouldn't the statute that's at issue away the attorney general's duty to defend the law as it still has that initial feeling them in this case and thus we think the presumption applies and it would have to overcome that but it's not it's not it's never been exclusive and now it's have to assume that state officials aren't actually fulfilling their duties and that they're falling down on the job instead you need the actual actual evidence that that is the case in this case there's really no actual evidence of failure to perform  of bleeds into the interest element too as that when both when the intervenor and the part of the case are serving the same interest which is we want to defend the constitutionality of the statute that then the whole question is boils down to then adequa representation that you're not doing a good enough job at defending the statute that's why we need to be let into the case and so i think that was also i think the basis behind the case of saying that the intervenor needs its own interest and can't be adopting the interest of the party already in the case because at that point now you're just always going to be talking about like disputing litigation tactics as not being sufficient when the part of the case is defending the law and intervene or want to come in  here well i think that agassi ends up being the key and i think the interest the cases dealing with interesting to be unique are sort of recognizing that fact that that when the interests are the same then everything this comes down to adequa representation because all you're going to be doing is fighting with each other about whether the party in the case is really doing its job and adequately defending the law so why isn't preferable for from the standpoint of intervention  position that's not consistent with rule twenty four dollars and also that i think the concern would be that essentially than the every legislature can now give themselves an inherent right to intervene in any case what's wrong with that well we  it would be what in the legislature dictate how these courts must decide these issues so i see my red lights on if there's a skew let me just ask you a question you may not know the answer to is there any personally doing it it's with ultimately attorney general call they have the head of the office so it seems like if there was some severe agent that person would probably likely still report to the attorney general in which case i don't know that that would solve their concern when that happened example the legislature has brought up these actually sixty nine cases where the attorney general thought he had a conflict of interest and then in that case it is he's going to hire outside counsel to represent them in the attorney general refuses thank your honor and on behalf of the plaintiffs i want to start with the adequacy point as well because to judge say neves point i do think this court would be creating an exception to its standard the gross negligence and bad faith standard if it were to conclude that that  not apply where you would be intervener is another government entity we think the same rationale applies in intervention cases where you're adding a declarative party with the same conceded goals and interests and so those cases and the rationale behind them entirely apply where the would be intervener is a you know the state entity but i want to also emphasize that even if this court were to disagree with that proposition the alternative is not what the legislature describes as the ordinary test of the t court held quite clearly in wisconsin education associations counsel that even where the attorney general is not clothed with statutory authority to protect a party's interest in that case it was municipal employees who were tending to intervene and this court said quite clearly that the attorney general does not have the authority to represent their interests where the would be intervene or and the party in the case have the same goal ape some presumption of adequacy still exists and we argument that they could they've only made arguments on the adequacy problem statute provide the rebuttal to that the saying that they made the determination that they want the legislature to come in here so to victor but the court was considering that as an indication that the indiana legislature would be allowed to step into the shoes of the state here if you look at the statute that wisconsin passed at the same time that it made no change to the authority of the tourney general under state law and i think this goes to the oak creek point that both parties have raised at the same time the legislature passed a statute allowing it to intervene and just intervene i think that were choice is important because it indicates that the legislature thought there would already be a party in the case invoking the authority of the state here the attorney general and that's quite different from a statute like the indiana statute that may allow a court or a legislature to intervene to represent the state  interests and so to the extent that has a bearing on the interest we don't think that the interest goes to the state's interest here and in fact if you look closely at the legislature's brief filed in this court and also at docket twenty seven below they've never a certain interest to step in here in the shoes of the state they've always asserted an interest to represent the legislators interest and i think we can see that quite clearly to by their references to the coleman and the rains cases and their apparent arguments that almost never gets a state attorney general would be found to be inadequate in a legal sense well you're out of the statue would certainly still apply in state courts and i do think it's something that courts in the federal system could consider under the interest problem but your point about the legislature never asserting an interest different from the recognition of state law in our view that tips decidedly in favor of finding the right of intervention here because they're asserting the exact same interests that is already represented in this case and just one final point i know my time is expired but the jew apply this statute categorically in federal courts would require federal district court judges to let these parties intervene in every case and it's important to point out that the statute provides what constance actually provides for distinctive authority of the assembly the senate and the legislature to hire counsel to interven cases and so you could very well have situations in which district courts are required to let multiple at parties of legislature and i think this records must have the authority in discretion to manage their caseload and that's what will twenty four provides for so legislature intervened to defend a state law that rule twenty four dollars talks about an interest in the subject of the property a transaction has nothing to do with the other parties and so on the interest our interest is exactly the same as that in every other case where the legislature intervened and then an alliance of who and a group i think was the point right and then i'd like to briefly talk about the allen case because the attorney general said there's no need to intervene now if there ever comes a point when they don't commit to seeing the case through to completion no where in their brief do they say they commit not to settle it do they commit not to compromise or do they commit to appeal if they lose the allen case shows why it is so important to have a seat at the table up front so when allen this court held by a two to one vote that one of wisconsin's right to work laws was preempted by federal law the previous attorney general took a certain attention to the supreme court it had four amicus briefs it was fully br if all that was left was for the supreme court to rule on it and one day before the court was due to consider it the attorney general with no notice to us pulled it down settle that and then by monday morning when once we saw what happened the court had entered final judgment so if the legislature in that case had intervened and had the proverbial seat at the table that never would have happened and i think alan also it just is both both apple e s want to keep saying well of course we're adequate representatives because we have a duty to defend and i think alan makes clear that the duty to defend only exists until it doesn't and so all the legislature seeking to do is proactively have a seat at the table at the critical junctions in the case we intend to litigate in perfect good faith we're not looking to duplicate work that they're already doing but when there is a critical juncture in the case we think the legislature under state law does have a right to be there thank you and thank you all counsel i think this is thinking on your vi