Justia Summary
Kentucky’s attorney general and its Secretary of Health and Family Services were defendants in a suit concerning House Bill 454, regulating abortion procedures. Plaintiffs agreed to dismiss the attorney general, stipulating that the attorney general’s office reserved “all rights, claims, and defenses . . . in any appeals” and agreed to be bound by the judgment. The district court enjoined HB 454's enforcement.
While an appeal was pending, Kentucky elected a new attorney general, Cameron. Former attorney general Beshear became Governor. Cameron entered an appearance as counsel for the new Secretary. A divided Sixth Circuit panel affirmed. The Secretary opted not to challenge the decision. The attorney general moved to withdraw as counsel for the Secretary and to intervene on the Commonwealth’s behalf, then filed a timely petition for rehearing en banc. The Sixth Circuit denied the motion to intervene.
The Supreme Court reversed. Although the attorney general could have filed a notice of appeal, his failure to do so did not mean his motion for intervention should be treated as an untimely notice of appeal. The Sixth Circuit panel failed to account for the strength of the attorney general’s interest in defending HB 454 after the Secretary acquiesced. The attorney general sought to intervene “as soon as it became clear” that the Commonwealth’s interests “would no longer be protected” by the parties. While the rehearing petition pressed an issue (third-party standing) not raised in the Secretary’s appellate briefs, allowing intervention would not have necessitated resolution of that issue. The plaintiffs’ “loss of its claimed expectations around the election of a Governor with a history of declining to defend abortion restrictions is not cognizable as unfair prejudice.”