notes on CIF Labor Intervenor's motion for dismissal.

I write here briefly as an amicus curiae to comment on the Intervenor's motion for dismissal without award of fees against it.
Amicus has been recognized by the court at an earlier stage of the litigation, when I submitted a brief arguing that the disclaimer regulations, which were part of what CIF sought to enjoin. Due to a delay in printing and mailing my brief, the court had already issued the preliminary injunction when it received my brief, which I only learned later. I admit some confusion as to whether that part of the earlier preliminary injunction, enjoining the disclaimer provisions, remains in force, since it was not addressed in the statutory revisions. Perhaps all that will be clear once the case goes to final judgment.

The Labor Intervenors, "Labor", seek dismissal, itself reasonable, and freedom from costs and fees, less so.

The Labor intervenors cite as reasons that the election cycle is over, so they have little interest in continuing. The motion to dismiss should be granted, but the intervenors should not be relieved of their obligations of costs and fees.
Perhaps another reason is that they lost, because their position below was wrong.

Labor intervened to seek to uphold the constitutionality of the unconstitutional statutes, and to seek to have the statutes enforced during the 2008 campaign season.
Labor interests are an established voice in West Virginia elections and lobbying.
They benefit when censorship of campaign speech, via a host of campaign finance rules, limits the participation of others.
When censorship is lifted, their voice and impact becomes diluted when others are free to speak.
When the first set of unconstitutional statutes was enjoined, the legislature quickly enacted yet another set of unconstitutional statutes. Secretary Ireland then relied on these to evade her obligations under the injunction. The second set was then enjoined as well.
Labor claims to be an innocent intevenor. It is only half right.

Labor claims, as argument rather than evidence, that they are not the authors of
those statutes, and do not have the power to enact, enforce, or amend them.
This claim is far from certain, and is not supported by the record.
West Virginia does not keep much in the way of formal legislative history.
We do not know the extent, if any, of coordination between the legislature and the Labor interests in drafting and enacting the revised statutes.
The court should not assume this point without factfinding and a hearing, in which Labor would have the burden of proof to show non-involvment.

Labor correctly states that injunctive relief does not run against them.
Labor incorrectly states that they have no share of the state's liability upon final judgment. Plaintiffs have not asked for damages. Liability here consists of costs and fees.
Labor cites Independent Association of Flight Attendants v Zipes, 491 US 754 (1989) as authority,and also mentions Rum Creek Coal v Caperton 31 F 3d 169 (4th Cir. 1994) on another point.

Zipes is not controlling here, on either the facts or the law. In Zipes, TWA was sued for firing pregnant stewardesses under Title VII. A settlement was reaches which included reinstatement with seniority.
The union intervened to object to the settlement in order to protect the relative seniority of its other members. The Court found, under title VII, that the union was an innocent intervenor, was not a participant in the civil rights violations at issue, but was only caught up in the dispute by the terms of the settlement agreement. The court found that intervention is favored in such cases, and that alternatively the judgment could have been subjected to collateral attack in a separate action. These factors are not present in this case.

This is a case under 42 USC 1988 rather than Title VII. Zipes is not legally controlling here, and a different set of policy justifications apply, where there is no comparable collateral attack available,and no $3 million settlement fund to haggle over.
Here, labor is not an blameless intervenor caught in the crossfire. It entered the litigation knowingly and deliberately, assuming the risks inherent in defending unconstitutional policies and statutes, assuming the risks that plaintiffs would become prevailing parties and seek legal fees and costs. All parties agree that Labor was not an indispensable party. It is here by choice,and should be held accountable for that choice. It could have chosen to participate merely as an amicus curiae, as I have done, if it wanted to avoid the risks of being held accountable.
Unlike the union in TWA, which never agreed with TWA's discriminatory policy,
Labor here sought to defend the unconstitutional policies as constitutional, and sought to have the policies continue in force, at least during the 2008 season.
Having lost once, at the preliminary injunction stage, it tried again following the enactment of new legislation (which it may or may not have had some hand in.)
Its role in the case is not like that of the TWA union in Zipes, so Zipes does not control here.
Its arguments on the merits were weak,and misstated the facts and the law, and did not prevail. Nonetheless, its arguments were not frivolous or made solely for delay or harrassment, such that legal fees would be awarded against it anyway. It was more successful on procedural issues, in avoiding the first injunction and requiring an emergency motion for a second injunction.
This is a case where the West Virginia legislature enacted a censorship regime which was ultra vires, beyond the scope of what the legislature is allowed to do under its state constitution and under the Supremacy Clause. Secretary of State Ireland chose to follow the statutes in conflict with her oath of office to uphold the state and federal constitutions. The West Virginia Attorney General also chose to defend the unconstitutional statutes rather than to do his duty to uphold the state and federal constitution.
As it happens, Labor and the State made similar arguments and took compatible positions, but, having intervened, Labor could have objected if the other parties had settled their differences. Labor here is fully one of the parties against which plaintiffs prevailed. Costs and fees should be awarded against Labor as well as against the state. It should be noted that costs and fees are not the same thing,
and even if Labor prevails on its arguments about fees under 42 USC 1998 and cases such as Zipes, it should still remain liable for costs. The government officials whose misconduct required this litigation are themselves immune, either absolutely or qualifiedly, and they will not be paying the costs and fees out of their pocket, but will bill the taxpayers. The taxpayers are the real blameless ones here. It is more appropriate that Labor, actively involved in attempting to suppress and monopolize core political speech, should bear its fair share of the litigation.
What that fair share is is itself a question.
This is a consolidated case. Labor did not intervene in the WVFL case. It should not be held to answer for any fees in that case prior to the consolidation. It has indicated that it now wants to be dismissed. It should not be held responsible for any further proceedings in the case, once the issue of costs and fees is resolved.
Questions remain. What is its fair share vis a vis the state? A 50-50 split seems most equitable, but I leave this to the court's discretion.
What is its fair share of Right to Life's part of the fees and costs? For the period post-consolidation up to the present motion to dismiss, the answer might be half, or none. Again this seems to be a matter for the court's discretion, assuming the parties cannot agree.
However, Zipes is not the only case at issue.
Rum Creek Coal v Caperton 31 F 3d 169 (4th Cir. 1994) is the case most nearly on point. Labor cites to the case merely to argue that plaintiffs rather than the state should absorb the costs of its intervention. But the case, more than Zipes does, also supports their argument for relief from fees.
Rum Coal is a 4th circuit case about fees under 42 USC 1988, concerning a labor intervenor which argued in support of an unconstitutional statute and policy and lost, but was relieved of its fee obligations. Rum Coal is not persuasive. The dissent gets the better of the argument. However, the case may be controlling.
In which case, the court should dismiss Labor without assessment of fees, but should do so explicitly as governed by Rum Creek, so that the matter may be taken up on appeal to the 4th Circuit en banc.
I do not attempt here to resolve the issue of whether or not Rum Creek is controlling - I leave that to the court.
Alternatively the court may be able to facilitate a settlement of these issues, in order to get these matters resolved now, since each side has some grounds to otherwise continue to litigate these procedural matters.
I thank the parties and the court for having kept me posted on the progress of the case. I am willing to receive filings by email at gtbear@gmail.com rather than by mail, if that is more convenient for anyone.

Respectfully submitted,
________________
Robbin Stewart.