« First Mondays on First Year | Main | Hiring: Florida State University College of Law »

Tuesday, August 21, 2018

Flipping constituional litigation

Here is a move that could shake-up our expectations in constitutional litigation. A group of Kentucky filed suit in the District of the District of Columbia, challenging HHS' grant of a waiver for Kentucky to change its Medicaid program; Kentucky intervened in that action as a defendant. At the same time, Kentucky sued the D.C. plaintiffs for a declaratory judgment of the validity of the state's new Medicaid rules. The district court dismissed on standing grounds, concluding that Kentucky had not shown an injury and that any injury arose from the result in the D.C. litigation, not from any conduct of the defendants. The court did not resolve defendants' 12(b)(6) and first-to-file arguments.

This is an aggressive move, allowing a state to preempt constitutional litigation by rights-holders by running to a preferred court either before or during the rights-holders' litigation. At the very least, it forces rights-holders into a two-front war. On this logic, nothing would stop a state from the following: Prosecution of X for violating a law, with X arguing in the prosecution that the law is invalid. State runs to a different court against X, seeking a declaration that the law is constitutionally valid.

Perhaps the benefit of resolving this case on standing, rather than something discretionary such as first-to-file, is to signal that states lack standing to sue over an anticipated injury caused by someone else's lawsuit.

Posted by Howard Wasserman on August 21, 2018 at 10:59 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


How is this different from any declaratory judgment case? Isn't the fact that the citizens are threatening to sue, or actually sued, enough to make it a case or controversy?

Posted by: Biff | Aug 22, 2018 5:20:43 PM

Kentucky learned how to do this from a recent 6th Circuit case, George v Hargett, 879 F3d 711 (2018). Plaintiffs sued state officials in federal court alleging that something the officials had done violated the Due Process Clause because it didn't follow state constitutional procedures. District judge rejected defendants' suggestion to abstain or certify state question. Defendant officials then sued the 8 private-citizen plaintiffs in state court (in the wrong venue under state law, but unfriendly to federal plaintiffs) asking for a declaratory judgment that their actions didn't violate state constitution -- and state court refused to dismiss and issued declaratory judgment. Federal district court ruled one day later the other way, for plaintiffs. Sixth Circuit reversed on the ground that the state ruling had to be given preclusive effect. (NOT on Erie grounds, since it was just one state trial court.) Federal-court plaintiffs have filed a cert petition. Full disclosure: I filed an amicus brief in the Sixth Circuit arguing that if the state-court ruling was given preclusive effect, states and state officials would try this trick all the time, preempting much 1983 litigation. Looks like that's starting to happen, at least in the Sixth Circuit!

Posted by: Suzanna Sherry | Aug 21, 2018 2:21:06 PM

Question: within this context what would be the difference between a "declaratory judgment" and an "advisory opinion"?

Posted by: James | Aug 21, 2018 1:39:14 PM

Thanks for that interesting one , but the more ridiculous thing here , is the standing issue . For it is clear , that the commonwealth couldn't have standing here . It is a state issue , a policy issue , so how factually and facially could it stand ?? here I quote :

It is also clear that if the Commonwealth ever suffers any economic injury as a result of not being able to implement Kentucky HEALTH, that injury will be traceable to whatever entity last affected its implementation, not these Defendants. The Court agrees with Defendants that there is no clear traceability between these Defendants’ conduct and any future harm the Commonwealth claims will occur. Furthermore,
even assuming the D.C. Action ultimately runs its full course and prevents the Commonwealth from implementing Kentucky HEALTH, any action thereafter concerning expanded Medicaid in Kentucky would be based on a policy decision by the Commonwealth.


Posted by: El roam | Aug 21, 2018 1:12:32 PM

The comments to this entry are closed.