[EL] Bethune-Hill II: The Ghost of Frankfurter

[Hugh L Brady]

Cross-posted on the Legislation listserv.



Justice Ginsberg’s opinion is less than satisfying. She failed to read the
statute once, much less three times as she does not engage in any
meaningful construction of the statutory provision that she declares
operates to defeat the House of Delegates’ claim to standing. She also does
not understand internal principles of legislative comity or the legislative
process. It certainly does not appear that she was helped in either of
these endeavors by the Virginia House’s lawyers. And all sides seemingly
ignored at least one of the Court’s prior rulings where it expressly
permitted a single House to continue to defend the constitutionality of
statute after the executive branch wanted to throw in the towel.



Her conclusion succinctly states how she views the case: “In short,
Virginia would rather stop than fight on. One House of its bicameral
legislature cannot alone continue the litigation against the will of its
partners in the legislative process.” *Va. H. of Del. v Bethune-Hill,* 587
U.S. ___ (2019) (slip op. at 12). This does not seem to fairly characterize
either the facts of the case or the underlying law. As Ginsberg notes
earlier, “Virginia’s Attorney General announced, both publicly and in a
filing with the District Court, that the State would not pursue an appeal
to this Court [because he] concluded [that any further appeal] would not be
in the best interest of the Commonwealth or its citizens.” *See id.* (slip
op. at 2). The Virginia attorney general is not a “partner in the
legislative process.” He neither initiates, enacts, nor approves statutes.
To suggest that the attorney general is anything more, as Ginsberg
concludes, seems fundamentally erroneous.



Ginsberg does not carefully examine the text of the statutory provision at
issue, including contextual clues that might suggest a different outcome.
Section 2.2-507, Virginia Code, provides that “[a]ll legal service in civil
matters for the Commonwealth, the Governor, and every state department,
institution, division, commission, board, bureau, agency, entity, official,
court, or judge, including the conduct of all civil litigation in which any
of them are interested, shall be rendered and performed by the Attorney
General,” with certain exceptions not relevant here.



The first question is whether the Legislature is a “state department,
institution, division, commission, board, bureau, agency, [or] entity[.]” A
quick Westlaw search failed to uncover any court or administrative opinions
interpreting this phrase, so we have to look elsewhere.



The Legislative is referred to as one of the three great departments of
government under Section1, Article III, of the Virginia Constitution. That
phraseology is somewhat archaic, and has been copied among several other
state constituions, including Texas’s. I strongly doubt that the
Constitution’s denomination of the legislature as a “department” is
sufficient to import that definition in statutory law, especially when one
looks at the other provisions of Title 2.2. The structure of Title 2.2
indicates that it is concerned primarily with the executive branch. Title
2.2 is entitled “Administration of Goverment” and a quick glance through
its chapters shows that the title deals primarily with major enterprises of
state government in the executive branch such as the Virginia Department of
the Treasury.



Notably, Section 2.2-600 provides for a “standard nomenclature system”
under which the term “department” refers to “an independent administrative
agency within the executive branch[.]” Similarly, the terms “board,”
“commission,” “council,” “division,” bureau,” “section,” and “unit” all
refer to executive branch entities. While not specified, “entity” appears
to be defined by implication as non-legislative components of state
government, as Section 2.2-600 provides that “[e]xceptions to this standard
nomenclature shall be used only for agencies and entities with unique
characteristics requiring unique descriptive titles, including museums,
libraries and historic or commemorative attractions.” It also seems from a
quick search that when a portion of Title 2.2 includes the legislative
branch, the code specifies that; for example, the definitions section of
the Virginia Freedom of Information Act specifically includes “legislative
body” in the definition of “public body.” Va. Code § 2.2-3701.



Finally, there is a separate title of the Virginia Code devoted to the
legislature: Title 30, entitled “General Assembly.” And Title 30 provides
some clue that the Section 2.2-507 is not the final word. Chapter 2.2
establishes the Legislative Services Division. The division’s director must
be “an experienced lawyer and a graduate of the school of law of an
approved institution of higher education.” Va. Code § 30-28.12. Among the
division’s duties are rendering legal advice to both the legislature and
executive branch officials. “Upon the request of the Governor, any member
of the General Assembly, any Governor's Secretary, or the head of any
legislative, judicial or independent agency, the Division shall … [a]dvise
as to the constitutionality or probable legal effect of proposed
legislation[.]” Va. Code § 30-28.16(B)(2).



To be clear, I am not arguing that any of this is dispositive and this
might be explained away. For example, one could argue that headings and
catchlines don’t import meaning (except, as we know, when they do). Or one
could argue that litigation is something vastly different from opining on a
statute’s constitutionality. But it seems to me that to deny standing to a
popularly elected legislative body requires something more than the flat
citation of a statute without analysis or meaningful discussion. The
statutory duty to provide some sort of legal advice to both the legislature
and executive branch officials on its face undercuts Ginsberg’s position
and should be dealt with. And again, without reading the briefs, I doubt
this type of argument was made to the Court because the House’s own lawyers
– all respectable members of the Supreme Court Bar, it appears – failed to
engage in any sort of holistic reading of Virginia law.



Further, I can guess at one simple reason why only the Virginia house is
undertaking the litigation. There is an unwritten rule of legislative
comity in most state legislatures that each chamber draws its maps without
interference from the other, which approves it pro forma. The House drew
the map, and the Senate acquiesced, just as the Senate drew the map and the
House acquiesced. The Senate has no fight here and to require them to weigh
in, as Ginsberg does, violates this principle. So long as the legislature
draws lines, it seems problematic to me to open the door to letting one
chamber essentially hold another chamber’s map hostage. The Court, as
usual, seems to enunciate one rule for the Congress and another for state
legislatures.



As to a cognizable injury, changes to chamber maps “necessarily alter its
day-to-day operations [because, a]mong other things, leadership selection,
committee structures, and voting rules would likely require alteration.”
587 U.S. at ___ (slip op. at 10). It appears that Virginia House Committees
are appointed to reflect relative partisan strength in the chamber. Va. H.
Rule 16(a) (2018). So, a change in maps directly affects “committee
structures” because it will alter the composition of those committees,
which in turn would/will, at a minimum, affect the committee’s internal
operating procedures and likely affect the subject matters referred to the
committee itself. And constituents do have an interest in being represented
by members who sit on influential committees not only to enact its policy
preferences but to ensure that local conditions are considered and local
needs are met. We all know that getting an executive agency to respond to
constituent’s needs is highly dependent at the state level on the committee
assignments and relative seniority of a member. It seems to me, then, that
the argument is not whether the House has an interest in the identity of
its members as Ginsberg says, but the House does have an interest in its
members being elected from lawful districts that comply with the Virginia
Constitution and which it endeavored to draw in obedience to the legal
requirements. The district court essentially convicted the Virginia House
of improper motive and it cannot now clear its name.



As an aside, I am surprised that *U.S. v. Windsor* (joined by Sotomayor,
Ginsberg, and Kagan) escaped comment by either side, especially since the
Court expressly held that the Bipartisan Legal Advisory Group of the U.S.
House of Representatives could continue to litigate the constitutionality
of the Defense of Marriage Act after the Department of Justice declined to
continue to defend it and fairly characterized the situation as one where
the executive branch agreed with the parties to end the litigation because
that would achieve the executive branch’s policy preferences but it
permitted the committee of one house of the Congress to continue the
appeals because it was directly adverse to the plaintiffs. 570 U.S. at
754-761. It seems that *Windsor* might be helpful here, because the Court’s
reasoning there provides some support for the statement that continuing
compliance with an unconstitutional statute satisfies the injury
requirement. *See id*. The harms were numerous in *Windsor* and affected
substantially more Americans than the 8.18 million living in Virginia, but
perhaps only in degree and kind.

-- 
Hugh L. Brady
Clinical Profess of Law | Director, Legislative Lawyering Clinic
The University of Texas School of Law
T (512) 232-2751
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