The Role of the Modern State Solicitor General: Current and Former SGs Weigh In

Jack Derwin:  Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin. I’m Associate Director of the Practice Groups here at The Federalist Society. Today, we’re excited to host a panel discussion titled “The Role of the Modern State Solicitor General: Current and Former State SGs Weigh In.” As you might have guessed by the title, joining us on today’s panel is an impressive group of four current and former state SGs. In the interest of time, we’ll keep intros brief on the program, but you can view our speakers’ full bios at fedsoc.org.

 

It’s my pleasure to introduce our moderator today, the Honorable Britt C. Grant, who is a judge in the United States Court of Appeals for the Eleventh Circuit. Judge Grant was appointed to the federal bench in August 2018 after serving as a justice on the Supreme Court of Georgia. Before becoming a judge, she served as the Solicitor General of Georgia and practiced in the Washington D.C. office of Kirkland and Ellis. After graduating from law school, Judge Grant served as a law clerk to then-Judge Brett M. Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit.

 

After the discussion between our panelists today, we’ll go to audience Q&A if time allows, so please enter any questions for our panelists into the Q&A function at the bottom right of your Zoom window. As always, we’ll note that all expressions of opinion on today’s program are those of the speakers joining us and not those of The Federalist Society. With that, the virtual floor is yours, Judge Grant.

 

Hon. Britt C. Grant:  Thank you, Jack. I really appreciate it. Solicitors general are near and dear to my heart. I really treasured the opportunity to represent my home state, and I’m excited to hear what all of our panelists have to say today. So I too will keep the bios short so we can get to the meat of it, but wanted to introduce first Benjamin Flowers, who is the Solicitor General of Ohio. Before joining the Attorney General’s office, Ben worked at Jones Day in Columbus, Ohio. He served as a law clerk for Justice Scalia and also for Judge Sandra Ikuta of the U.S. Court of Appeals for the Ninth Circuit.

 

Elbert Lin is Chair of Issues and Appeals at Hunton Andrews Kurth LLP. He served as Solicitor General of West Virginia from 2013 to 2017. Before his time as SG, he served as a trial attorney in the Federal Programs Branch of the U.S. DOJ, and he clerked for Justice Clarence Thomas on the U.S. Supreme Court, Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit, and for Senior Judge Robert Keeton on the U.S. District Court for the District of Massachusetts.

 

And Ryan Park is the Solicitor General of North Carolina. Previously, he practiced at Boies Schiller. He clerked for Justices Ruth Bader Ginsburg and David Souter of the U.S. Supreme Court, Chief Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit, and Judge Jed Rakoff of the U.S. District Court for the Southern District of New York. So I appreciate and welcome all of our panelists and appreciate your participating in this discussion with us about the role of the modern state solicitor general.

 

So I think for our audience, some of you may or may not be as familiar with the inner workings of state solicitor general offices. And, so, I thought it would be helpful to start out with a question for each of our panelists in terms of describing the kind of size and structure of your current or former SG office, a little bit about your role and interaction with the attorney general, and just give us some background so that we can understand the range of SG units.

 

I’ll mention that a lot of them have grown. I know when I was in Georgia, I joined the Attorney General’s Office when the first state solicitor general was appointed—Nels Peterson—who now serves on the Supreme Court of Georgia. And at that time, it was Nels as the solicitor general and me as the functional deputy, plus doing a lot of other things. When I became SG, it was me and two deputies and an honors fellow. Now, I believe the solicitor general has two deputies, two assistant solicitors general, and then two honors fellows. So a lot of these offices have grown over the last period of time. So I’m interested also in kind of what you all have seen in the structure of your own offices over that time. Let’s start with Ben Flowers.

 

Benjamin M. Flowers:  Sure. So our office, I oversee two units. I’ll start with the Opinions unit, which is probably not what people think about when they think of an SGs office. But I think it’s actually pretty common that the SG oversees something like this in a lot of states. Basically, the state law permits county officials and certain statewide officials to seek opinions on issues of state law from the attorney general. Our Opinions unit issues that. I oversee that and our lawyers in that group.

 

But the group that maybe more readily comes to mind when you think of an SG’s office is what we would call our Appeals unit, the people who do the appeals at the Supreme Court of the United States, Supreme Court of Ohio, the Sixth Circuit, and sometimes other courts as well. We have eight attorneys in that group, in addition to myself. It’s expanded since I’ve been there. And it’s gradually expanded over the years, I think not just in Ohio, but as Judge Grant said, in other states, partly because I think attorneys general around the country have seen the work that SG’s offices have done. So for my large, excellent staff, I think I have to thank Judge Grant and Elbert and people who served in this role in other states before I did.

 

Hon. Britt C. Grant:  Thanks so much. Ryan Park.

 

Ryan Park:  Yeah, so sure. Well, first of all, just thank you for having me. It’s really an honor to be with this panel. And I’ve known Ben for a while, since he was a fierce rebounder on our basketball games at the court. So this is really cool to be here. And I haven’t met Elbert and Judge Grant before, but I’ve long admired you both, so it’s really great to be here. So, yeah, our office is kind of similar, I think, to how Judge Grant described Georgia in terms of the progression. Prior to me coming on board with a new attorney general in 2016, the SG’s office here was a solicitor general and a paralegal, and that was it. And there had been a time where there had been two attorneys, but they had been downgraded to one. And in that kind of office environment, it was mostly you serving as lead counsel in really big appeals but in conjunction with the attorneys that had handled the case previously, and not necessarily entirely in house obviously with one attorney. That is not often possible.

 

And when we came in, and we dramatically expanded the office to three attorneys and a paralegal. And now we are four attorneys and no paralegal. So I spend my time site checking and the like so we can have an extra attorney. But it actually is a pretty dramatic expansion in terms of what you can do with four attorneys. You can really do big things with four really good attorneys. You can litigate fast breaking state constitutional disputes and easily handle—well, I don’t want to say easily—but you can handle contentious multi-state efforts, including at the U.S. Supreme Court, when you have four really strong, dedicated attorneys. And that’s what’s so exciting about an SG’s office, is you get just your -- you could not have better cases in terms of how interesting and complex they are. But you’re not in this environment where you’re layers upon layers of hierarchy, and it’s pretty streamlined in terms of effectiveness.

 

I guess one thing I’d say too is our office generally oversees all civil appeals in the state, but we don’t have kind of direct supervisory jurisdiction over criminal appeals. And that’s kind of a big difference between -- from office to office. So some states, their SG oversees all criminal appeals and often directly handles even all civil appeals. And those offices have to just of necessity be much larger than mine is.

 

Hon. Britt C. Grant:  Absolutely. Thank you. Elbert, tell us about West Virginia.

 

Elbert Lin:  Thanks. It’s good to be here, Judge. It’s good to see you. The viewers may pick up on some warmness and familiarity between the two of us, which I think reflects maybe something we’ll talk about later, that the state SG community, I think, one of the nice things about it is that it tends to be -- you tend to work together a lot. A lot of times it’s on one side of the aisle or the other, but as we’ll talk about, there are things where priorities cross the political boundaries, and you get to know people on the other side too.

 

In terms of my office, so I was the first solicitor general in West Virginia, and so we kind of went through the evolution of starting with just me as a one-man band for probably six to eight months. And then, by the time I left, it varied. We were, I think at our height, maybe seven people. There was me, a deputy, and then five assistant solicitors, although just sort of -- it’s hard to keep it straight because people would kind of go in and out. But that was roughly what it was. But there was also, separate from the SG division, a criminal appellate shop. And, so, in West Virginia, before I joined the office and under the previous attorney general, there had always been a criminal appellate shop, and that was sort of what was known as the Appellate Division in the West Virginia Office of Attorney General.

 

And that was a Deputy Attorney General who then reported to the SG—-and I think still does—as well as, again, as many as between four and six assistant AGs. And that’s because all criminal appeals -- so prosecutions would be handled by the local county prosecutors, but then all appeals would go up through the AG’s office. And one of the interesting dynamics there is that the AG’s office could confess error. And, so, you did kind of have a really -- part of the reason why you needed such a big staff is that every appeal needed to be looked at carefully.

 

In terms of responsibilities, I’ve always described it just sort of four buckets. And I often tell new folks who are taking SG jobs that they should not ask for as much as I asked for when I first built the office. So we had all appeals, which is all civil and criminal appeals. Obviously, criminal appeals were mostly handled by the Criminal Appellate Division, but we would sometimes handle the more controversial and difficult ones. We handled all opinions, and so that’s kind of like Ben, except there was no separate opinions division. So we actually wrote the opinions, and then I would be the one who would ultimately sign them.

 

For those who are more familiar with the U.S. Department of Justice, I often described it as kind of the West Virginia version of the Office of Legal Counsel, where you would have things as important as “Is this statute constitutional?” to things as seemingly trivial as “Does this person get an extra parking space,” right? Or is that legal? One of the ones we had was, can you use this building? Well, the County wanted to know if they could use a building to turn it into a taxidermy museum. It was owned by the county. There was this question about whether you could essentially use that for this somewhat private purpose.

 

The third bucket of things was all federal litigation fell under the SG division. And then the fourth was being a senior advisor to the AG. And I know Ben and Ryan didn’t mention that, but I’m sure it’s the same for them, where you’re just one of the members of the senior staff who’s consulted on important decisions that the AG needs to make, sometimes policy, sometimes legal.

 

Hon. Britt C. Grant:  That’s great. Thank you all for that background. Hearing about the different states and you joking about the taxidermy museum makes me think of my first oral argument was before the Georgia Court of Appeals, and it was defending regulations that Georgia had put in place to highlight its Vidalia onion trademark, to protect that trademark against certain farming practices. So everything is local itself, very appropriate that that was my first argument in the Georgia Attorney General’s Office. So speaking of that, let’s hear about some war stories. I think probably less local than the Vidalia onion trademark issues, but can you tell us about if there are any war stories? Maybe where you faced a tension between the duty to defend the state and a political priority or anything like that? And if they’re not specific examples, and maybe just how you kind of deal with these challenges on a day-to-day basis. I’ll let anyone who has one at the top of mind jump in. If not, I’ll call on someone. So help your colleagues by jumping in if you have one, right?

 

Benjamin M. Flowers:  I think I have one that might be a fun example. Yeah. There is this conflict between a duty to defend and our own obligation to support and defend the Constitution. And it’s different than in the federal system. In almost every state, including Ohio, the attorney general is separately elected. So we don’t have a unitary executive where the president -- or where the governor of the state appoints the attorney general. There are a few states like that, but not many. So because of that, you can end up in a situation where an agency that’s under the governor’s oversight takes a position that’s contrary to that of the attorney general.

 

And I suppose one way the AG could resolve that is to simply not let the agency appeal since he is ultimately the lawyer for the state. But my boss has taken the view that people elected attorney general to ensure that laws at least get their day in court. So the way he accommodates that while at the same time accommodating his role to support and defend the law is to, when necessary, either put up a screen and have divided teams—where somebody is representing the agency, somebody represents him in an amicus brief—or alternatively appointing outside counsel for the agency, and then he could, if he wants, file an amicus brief.

 

The example that came to mind was a case just last year called TWISM. The question was basically whether Ohio should abandon its version of Chevron Deference, and the agency, not surprisingly, was opposed to that. My boss, the attorney general, was in favor of abandoning it and indeed had taken that position quite a few times in the federal context, so it would have been a little awkward to insist otherwise in the state context. And the way he dealt with that was to set up a screen with two different teams. One team represented the agency. I was pleased to be put on the team representing the attorney general and arguing for the elimination of the deference doctrine, and so I argued that case. My side—the attorney general’s side—won, which was rewarding.

 

But I guess what made this a war story and somewhat made it a little bit awkward is the person leading the opposite team was my chief deputy. So they were screened off. And the attorney—he’s in a fantastic lawyer—so the attorney general made sure that they got good representation. But we did have to show up to court on the same day arguing against one another. So that was certainly an interesting experience.

 

Hon. Britt C. Grant:  Hopefully, your personal relationship is still solid after fighting in court.

 

Benjamin M. Flowers:  Yeah.

 

Hon. Britt C. Grant:  Anybody else have an example of a war story on that along those lines?

 

Elbert Lin:  I mean, I can go next. So I guess I have a story, but maybe I can start with kind of some broad observations picking up on what Ben said. Because there are some things that are really interesting, I think, and unique about the AG’s office. And one of them is what Ben just described. I mean, this idea that you can have two teams on opposite sides of a case I think is unique to state AG offices and ultimately a creature, right, of state law. Because you could, as a matter of state law, I guess, prohibit that from happening. In which case, presumably if you’re going to have different teams, there’d have to be outside counsel supervised by God only knows whom, sometimes maybe the governor’s office. In West Virginia, it was similar, where you could have two teams screened off from each other. The one thing that was unique from us that it sounds like might have been different from Ohio is we didn’t have the power to prevent anyone from appealing with the exception of the criminal appeals. Because in the criminal appeals, the state AG ultimately stood in the shoes of the county prosecutor.

 

But in every other situation and the case law in West Virginia held that the client is ultimately -- the client agency is ultimately the boss. And that is one of the questions that maybe we’ll get to later is like, what’s the difference between us and the USSG? Unlike with the U.S. DOJ where there’s literally a statute that says that they are the ultimate decider of the arguments that they’re going to make, in our state, the client ultimately made the call. And, so, this is very -- it sometimes could be kind of an awkward situation.

 

And this gets to the duty to defend point. I think if there was ultimately the conclusion by the AG that there’s just no way that he could represent a particular client agency, then he had an independent right as an independently elected official and as the ultimately the chief legal officer for the state who was elected to speak for the legal interests of the people, he could then intervene himself and represent -- speak for the state’s legal interest. So all that is to say there’s a lot of interesting, unique things.

 

And, so, the two last things -- I’ll say one thing and then the worst story is one of the interesting ways that this sometimes came up is there is a state statute, not unlike in the federal system, where in the challenge to the constitutionality of statute, the parties had to give notice to the AG’s office. And one of the ways that you sometimes saw this tension between the duty to defend and the political priorities is we didn’t have to respond to that. We were given notice of whether we wanted to. And there were situations where—and I won’t mention them specifically—but where we got notice of a constitutional challenge, and we just let it ride. Just sort of assumed that whoever was defending it was going to do a fine job, and it was something that the AG didn’t have a particular interest in getting involved in.

 

I guess the war story that I have was this very strange statute involving Air Evac, and that’s where these -- Ben, actually, you guys might have had one of these, or maybe I’m thinking of Michigan. But there was --

 

Benjamin M. Flowers:  Oh, [inaudible 20:03], don’t make that mistake.

 

Elbert Lin:  That’s the thing. It’s these things where the helicopter comes, right, and where there’s a medical emergency and takes you out, helicopters used somewhere for emergency medical services. And basically, they passed a law that was incredibly protectionist and pretty much blatantly discriminated against out-of-state providers. And it was a pet project of the governor who—it didn’t matter that he was on the other side, but it happened that he was a Democrat—and he had had a friend who had been Air Evaced and ended up getting charged through the nose and like the insurance company wouldn’t pay for it all. So he sort of pushed through this bill that was, some might argue, unconstitutional.

 

And, ultimately, the question for us -- and this gets to sort of the duty to defend question, right? Like, where’s that line? I mean, I think we ultimately concluded that there was a colorable argument to defend it, although it was extremely difficult. And we ended up defending it. But there was a lot of debate internally about what do you do about this and do you take one of these other measures where you allow the governor to hire outside counsel to defend it or whatnot. That case is now concluded, and we ended up losing. Those of us who thought maybe there was a problem were ultimately vindicated.

 

Hon. Britt C. Grant:  Sometimes that happens. Ryan, what about you?

 

Ryan Park:  Yeah, there’s something to be said for losing with honor. We’ve had to go through that process as well. So, yeah, I guess I’ll get to a war story—I thought of something while others were talking—but some broader context. I think that there are major conflicts that occur between the duty to defend and policy or even jurisprudential priorities of the attorney general. And that really is above my pay grade. I think a lot of the things that anyone here listening might have heard of are above my pay grade. And, as Elbert mentioned, I’m among kind of the group of people that provide policy and constitutional advice to the attorney general, but I’m not the decision maker in that -- on the categorical cases that you might heard. And I’m comfortable with that.

 

And I think this does relate to the nature of a state AG’s office. As I think Ben mentioned, we have a divided executive North Carolina and in most states, and the AG is independently elected here, as they are in most states. And critically, for my role, is that the SG is an AG appointment. It’s not a statutory officer. I wasn’t confirmed by the legislature, I’m not subject to the governor’s control. And, so, it’s a very different—and we’ll talk about this later—but very different than the federal system where the SG’s a statutory officer. And my perspective on those kinds of high-level cases are always two and a half million people plus voted for my boss to be attorney general to make those kinds of decisions. And I feel privileged to be able to advise him but don’t feel like it’s my prerogative to step in and to feel like -- that’s not the job. That’s not my role.

 

But that being said -- and often there are circumstances where my even advising role is very limited, and that might be because of the dual hat that I wear in terms of being the head of the Civil Appeals Division, which is different than being kind of civil solicitor general and being lead counsel in constitutional cases and that sort of thing. So I will say that these -- but those kinds of high-level disputes are pretty rare even in politically contentious cases. So I have personally defended way more statutes that my boss voted against when he was a state senator than those that he voted for. And that’s really just a consequence of kind of the political realities of North Carolina where my boss was in the minority when he was in the State Senate.

 

And I can’t even think of times where I even spoke to him about most of those cases. And when I did give updates on those cases, I never had any sense that they were being shaped by his political priorities, our defense of the case. So usually when those situations arise, it’s way before I am filing a brief. It’s not like I have written a brief, and then there is some sense that, oh, we have to alter the arguments or even the language based on political priorities. Those things all happen at the front end before I’m in the weeds in the case.

 

And I think, as Elbert mentioned, there’s a whole lot of work-a-day cases where these kinds of conflicts arise as well. And often, I am the most senior official that looks at a case that doesn’t rise to something you’d hear about in the newspapers or in legal circles either. I guess just to give a little bit more insight into the role, at least North Carolina—I think in most states—what makes the solicitor general unique and different and why you get like a special title is you’re kind of like the most senior official for a state whose job it is to be a practicing attorney. So I am not at the top of the org chart in my office, but everyone above me doesn’t write briefs and go to court and argue cases and that sort of thing. And, so, often things just -- they end with me because they just don’t get to the level that people above me are interested in.

 

So I guess I’ll give my example, although it does arise in a criminal case and one where I wasn’t the SG yet, but I think it’s kind of funny. So this got some local news press where there -- it’s a criminal case called State v. Ellis, and a guy had been stopped while driving because he flipped the bird to a cop. It was kind of like an anti-cop message that he was trying to deliver, at least that’s what he was saying. And the cop stopped him and searched him, and it was a big thing. And the lower courts have held that giving the finger to a cop provides reasonable suspicion of a crime, and that’s sufficient to stop a driver. And there was a First Amendment defense.

 

And, so, we’re often heavily involved in criminal cases where there’s a First Amendment defense or a constitutional challenge to the prosecution. And, so, we were brought in to kind of assess what was going on here, and there was kind of this automatic defense as we do for almost all of our criminal appeals. And then, when we studied the issue—and we really didn’t think there was a good faith argument that merely making an offensive gesture to a police officer was reasonable suspicion of a crime—but it was kind of on the margin, right? And you could make the argument and lose. But then there was this First Amendment component, and there were a lot of out-of-jurisdiction cases that had held that making an offensive gesture at a cop doesn’t mean that you have committed a crime, and that in itself is also not a crime. It’s not disorderly conduct or something to merely make a gesture that was -- the people were driving, so there’s no kind of like in-person confrontational aspect of it too. So it was a cleaner case from the First Amendment.

 

And, so, yeah, we in consultation, of course, with our criminal folks decided that we would confess error in this case essentially and not claim that this stop was valid. And that was something that ended with us. And it raised a lot of difficult questions in terms of this core issue of the duty to defend, because often it arises in these things where it’s like something so contentious and everyone’s talking about it, like reproductive rights or elections. And, so, there’s always this question of what are they doing and why are they doing it. But for this, it really was us just trying to see if there’s a good faith basis for us to try to defend this conviction. But there was no controlling precedent, right? So what do you do in that circumstance? Is your duty to defend the conviction at all costs even if there is not a case that the North Carolina Supreme Court has held saying you have a right to do this and not be detained? So, yeah, and we came out in favor of saying that there didn’t have to be an explicit precedent, that we would use our judgment.

 

Hon. Britt C. Grant:  I think that’s a really interesting point that when we think of duty to defend, we often think of high-profile issues, like some of the ones you’ve described. Others a few years ago, there was a lot of conversation around same sex marriage laws and the duty to defend. But as you point out, the duty to defend can also involve specific convictions or specific actions taken by state officials or even potentially policy differences between the attorney general and the legislature or the past legislature. Does anyone have any insights on whether you see those types of duties to defend differently or the same as one another?

 

Benjamin M. Flowers:  I think I see them as the same. I guess what I think of when I think of the duty to defend, what I think of being a key thing for us to remember is that the value of having an SG, as I see it, is really twofold. On the one hand, you have someone with appellate expertise, and that’s obviously valuable. But you also have someone who’s a repeat player, who’s not engaged in politics on a day-to-day basis, who at least has the potential to be someone who the courts they interact with can trust. And I tell my deputies all the time that I really want them to tell me if I’m wrong, and I want them to tell me before I’m standing at the podium when I can’t do anything about it. And the reason I say that to them is that credibility is really hard to get and very, very easy to lose. So I think in all of the things we do—whether we’re representing the facts of a situation, deciding what to defend, when to defend it—I think there are a lot of various options, but we need to have a rule that guides our conduct. That’s sort of how I think about it. I know that doesn’t give a bright line rule for what you should do, but I think you do need to have a rule.

 

And I can even give an example. This isn’t duty to defend, but we had a case recently where we briefed a Sixth Circuit case. And in the moot the day before, we learned that there was a fact that ended up being quite relevant that had never been revealed to us before. But it came to light, and it wasn’t a difficult decision what to do. We had to inform the court because it potentially had a bearing on what would happen. And it was frustrating for me. It was certainly frustrating for the attorney who had to stand up and admit that this factual representation we made, we just learned was not actually true. But I think it’s critical to do those things because, again, once you lose that credibility, it’s usually gone for good.

 

Elbert Lin:  Yeah. I mean, I’d say a couple of observations. The first is I totally agree with Ben. I think at least my own personal view is I see the duty to defend the same way, whether they’re controversial cases or not. I think it’s just sort of the same line to that. However, this gets to something that Ryan said before. At the end of the day, you mean the call with the bosses, right? I was able to give him advice. And, as Ben and Ryan have both said, as the SG was in a sort of a unique position as one of the highest-ranking folks in the office who practiced on a sort of day-to-day basis and was, I think by design, some kept out of a lot of the political stuff. And, so, you were able to give advice that I think was perceived as sort of more purely legal. But ultimately, at the end of the day, it was a judgment call for the attorney general.

 

The other thing that I wanted to mention is—and this gets back to something I mentioned earlier about state law—because I do think that duty to defend can be and often is shaped by and influenced by what your state laws are. In the abstract, I think I haven’t thought as much about this, I think, as some others have. But if I were to just sort of randomly -- not random --if I were to sort of pick a line if someone said, “What would you say it would be?” I would probably say that you need to defend things that are duly enacted for which there’s a colorable or non-sanctionable argument to defend it.

 

But West Virginia law also provides—and I mentioned this earlier—that because the attorney general is an independently elected chief legal officer and is elected precisely to represent the state’s legal interests and what he views as the state’s legal interests—and there is a sort of a competing duty there, right, for him—that I think arguably diminishes or maybe heightens the level of what kind of argument there has to be available to defend something that he might disagree with, at least as a legal matter. He has this independent obligation charged to him under the law to speak to what he thinks the right view of the law is. And, so, I imagine different states do it differently, but I think there’s a good argument that that may -- that certainly should have some effect on how robust his duty is to defend a law with which he disagrees, certainly legally, but maybe even as a policy matter.

 

Hon. Britt C. Grant:  Thanks. Those are all interesting comments. My next question, I think, brings in threads of several things we’ve talked about. I know, Elbert, you mentioned the warmth and friendship, that it can develop amongst SGs because often states are working together. You’ve all talked about the need to check with your bosses on various calls and the lines of authority. How do you handle multi-state efforts? I know when I was in Georgia, central amicus briefs from multi-state issues are constantly being flung through the computers as multi-state actual litigation efforts. So how do you guys approach that or did you approach that in your positions, and what are some things that you think are important to think through in those decisions?

 

Benjamin M. Flowers:  I can jump in. We do it quite a few different ways. So sometimes we’ll have a brief that we either think or hope can get -- every state could potentially join. And something like that we’ll probably send out through NAAG or at least get it to every SG to make sure.

 

Hon. Britt C. Grant:  Want to tell them what NAAG is?

 

Benjamin M. Flowers:  NAAG’s the National Association of Attorneys General, and they have -- they operate a service basically where we can circulate amicus briefs to our fellow SGs, other states. So for a brief could be a criminal procedure issue where every state will presumably be on the same side, or something of that nature, may go out through that. Sometimes, we’ll have an idea that it’s going to be a particular group of states are the only ones who may have any interest. And, in that circumstance, we’ll send it to the people who may have interest. Because if we know other folks are on the other side, we’re probably not going to waste our time sending them the brief or give them the advantage of reading the brief before it’s filed. And then sometimes we have briefs that have a more narrow focus.

 

So the easiest example of that is sometimes at the en banc stage in particular we have an issue where, really, it’s a Sixth Circuit issue. Other states don’t have much interest in what the Sixth Circuit says about this particular issue. And in that circumstance, I’ll email Michigan, Tennessee and Kentucky and say -- if we’re the ones seeking en banc review, for example, or we’re the ones running the appeal, say, “Would one of you mind doing an amicus brief?” Sometimes, they’ll reach out to us. But that’s a way where we can sort of highlight to the Sixth Circuit that this is an issue that affects all the states in the circuit, and we’re not -- there’s no reason to bring in other states that could make it look too political or something. This is a non-political issue, and we’re all here because it means a great deal to us. So that’s another, I think, particularly useful function amicus briefs can serve.

 

Ryan Park:  Yeah, I can jump in here. I mean, I think it’s possible that my experience in this arena is actually the least interesting, but I’ll just go through it. I mean, I think that there really are two entirely separate categories in my mind between amicus briefs that other states have written and we’re asked to join and we go through a process of deciding whether to join and things that we feel very strongly about and decide to try to lead on. And, in North Carolina at least, we have a lot of contentious constitutional litigation that’s just about North Carolina. And, so, I think based on that and in part just on the boss’s priorities, when we’re working in the multi-state, we’re usually trying to find areas where there’s broad agreement. And, so, we often are -- or we very, very rarely are even close to the lead -- playing a lead role in something where, for example, states are suing the federal government, whether it’s one administration or the other, or trying to defend the federal government when they’re being sued. At least in terms of things that we’re leading on, we kind of stay away from those most contentious fights.

 

So one good example in this area is we have kind of a long running partnership with the Indiana SG’s office to present kind of bipartisan views on robocalls, and that has led to a couple of Supreme Court cases, kind of to my surprise. But also there’s a lot of other cases working their way through the federal appellate courts and even state courts sometimes. And I think when you see that, if the court is attuned to the fact that this is a bipartisan brief with a broad bipartisan coalition of states, then it kind of pierces any sense that this is a bunch of elected officials trying to make elected official type policy arguments to the courts. And I think it just adds a huge amount of heft to the argument you’re making if it’s a broad coalition.

 

And we had a case—we in North Carolina and North Carolina Supreme Court—where I’m pretty sure it was the broadest coalition of states in terms of numbers that have ever filed a brief in our state Supreme Court, at least that’s what I’ve been told. And it was a state taxing authority case, kind of a follow-on to Wayfair and the online sales tax issues. And some of our opposing amici were trying to create the sense that there are potentially some sort of policy valence to this case or there’s even a partisan valence to this case. And I think when you have Alaska and very conservative AG signing on to the brief along with states like New York and Rhode Island and that sort of thing, it kind of created a sense of this is actually just about state authority. It’s not about politics, and that was very helpful.

 

Benjamin M. Flowers:  We very recently in Ohio had a case that exemplifies that where it’s ongoing. We sought certiorari in a case called Ohio v. CSX, and it’s basically about whether federal law preempts state laws that regulate how long railroads can block grade crossings for. And we got joins from AGs of many different views, whether its jurisprudence or politics or anything else different, very different geographies, which can matter for how often this actually comes up. And I found out I was so grateful for that because it does show, as Ryan is saying, that it’s an issue that cuts across any of those issues. It’s an issue of importance to states as states generally.

 

Hon. Britt C. Grant:  So we’ve touched on this a little bit. But going back to the state versus federal issue, how would you all see your jobs as different than or similar to the United States Solicitor General’s job?

 

Elbert Lin:  I’ll start because having been the first solicitor general at least that anybody can really remember in West Virginia, one of the things that I really wanted to do was to try to establish the credibility with the state supreme court that the USSG has with the federal -- with the U.S. Supreme Court. And part of that was obviously do good work, right, elevate what we do, participate as amicus in cases where the voice of the AG’s office is important or the voice of the state is important. And one of the things that I did is I went up and sat in the Supreme Court every time somebody from the office was arguing, not at the counsel table, right, but just in the back, just to sort of convey to the court that we took appellate litigation seriously. We took the state’s voice and role seriously. And, so, I think in that sense it was something that we tried to emulate with the -- that the U.S. -- that the whole 10th justice thing at the U.S. Supreme Court. We were at least trying to build up that credibility, and I think we’ve done that. Lindsay, who’s the current SG, could probably speak better to \whether that’s carried on, that perception has carried on. But that is one thing that we definitely tried to kind of pattern ourselves on the federal system.

 

Hon. Britt C. Grant:  Elbert, before we go to whoever else has a comment, do you think that state SGs have also garnered more credibility with the United States Supreme Court justices in terms of being able to bring that higher level of appellate advocacy to that court on a regular basis?

 

Elbert Lin:  Yeah, I mean, I think so. We’ve certainly seen quotes, right, from justices who have talked about that. I mean, I think Scalia is on record as having said that the trend of state SGs is a positive. I remember before I took the job, I called Justice Thomas and asked him if I should take it. And he told me that it was important for people with our experiences collectively—the four of us, right—the kinds of experiences that we’ve had and the training and education that we’ve had the privilege of having to go and serve in state government to provide states a stronger appellate voice. So I think so.

 

Perhaps, not coincidentally -- or coincidentally, but not -- coincidentally but on topic is that there was an article linked on SCOTUSblog this morning about state SGs being poised to have a big week this week. I think—I can’t remember—the Nebraska SG is arguing, and New Jersey and New York arguing against each other this week. So I think the answer is yes, and I think we have actually the sort of empirical evidence to show it. So, yeah, short answer is I think so.

 

Hon. Britt C. Grant:  Great. Any other thoughts on those issues from Ben or Ryan?

 

Ryan Park:  I’ll just jump in. This is kind of a non sequitur, but one thing that I think is interesting is that state standing is a big topic, in part because coalitions of states are often suing the federal government when big things happen. And, so, it always raises this question of do they have standing to do so. And if you look through the briefs—I actually went back and looked through the briefs in a lot of these very contentious cases over the last, I guess, six years now where it’s New York against Trump or Biden against Nebraska—and of course, you’re seeing these multi-state amicus briefs. But on both sides, there’s kind of a détente that we’re not going to go after state standing to win a particular case. And, so, you have in the Nebraska case, for example, North Carolina joined coalition of states supporting the federal government’s position, but we didn’t go after state standing, the states that had sued.

 

And the same is true in a lot of the Trump era cases where Texas or whatever would file an amicus brief and they wouldn’t go after whether New York had standing, for example. And you would see this. I’m sure that it was a topic of discussion among those coalitions as well. So there was a census case—I think it was Trump v. New York, its final caption—where that was dismissed on standing grounds. But if you go back and look at the amicus brief—I think Louisiana led on it—they didn’t go after New York standing. And, so, I think we all kind of agree that it’s in the state’s institutional interests to have robust state standing, and we’re not going to sacrifice that to win a particular case.

 

Benjamin M. Flowers:  Yeah, and I think that goes to that credibility point I mentioned earlier. If you’re flipping your position on state standing every presidential administration, I think it becomes harder to view you as an honest broker. Now, look, sometimes we’ll make arguments and either later reconsider or they just are rejected and then we’re not going to kneecap ourselves by keeping -- by continuing to make a losing argument. But generally speaking, yeah, I think that’s right, and I think it’s a good trend. I think if we are changing our views on those fundamental issues every four years, that’s a sign that’s something -- that’s a sign that we’re losing our ability to persuade the court, I think. 

 

Hon. Britt C. Grant:  Mm-hmm. Those are all great points. I’ll move to one question from an audience member because it gets at a different angle on some of the institutional issues. David Burge says, “A lot of governors have an executive counsel in their office, and many state agencies have a chief agency counsel. How is your relationship with those lawyers? How do you manage through those? What’s the working relationship?” He adds—although I can only repeat and not personally echo as a Wake Forest alum—he adds, “Go heels.” I think it’s only fair to say it and not endorse it. So that may leave you, Ryan, with the first up to that question, given the comment and your basketball logo in the background. But if anyone else wants to jump in, we can allow that too.

 

Ryan Park:  Yeah, sure, I’ll jump in there. Yeah. So I think because AGs are independently elected, you do have this possibility—and it’s live in some states and has been in North Carolina in the past—where the AG and the governor are members of different political parties. But my experience has always been where my boss is a Democrat and the governor is as well. And, so, we’ve always had a good working relationship with their general counsel’s office. And I think what I’d say there, which might be helpful, is when we were in this period where I spent a year of my life defending executive orders related to COVID—that was my life for a year—and the orders were coming fast and furious, and then they’d immediately be challenged in multiple cases. And, so, there was this kind of immediate feedback loop between legal advice that I might be giving to the governor’s office saying, “Well, if you structure it in this way, it has a greater chance of being upheld,” and then we’d find out two weeks later whether I was right or not.

 

And, so, I think when the governor’s office is doing a lot that leads to that kind of litigation, then we have a very close working relationship. But I’d like to say, because we are a plural executive, we have -- and again with Carolina we’re kind of maybe unique. I’m not quite sure. But many executive officials are members of the opposing political party. And at least in cases where I am working with their general counsel, we’re all on the same team. And I very much have the mentality that if I am counsel, especially counsel in the case, I’ve entered an appearance, and I’m writing briefs, and I’m trying to win the case, and nothing else. And if there’s something else in terms of -- that might be affecting my ability to play in that role, my goal is for that to happen before I’ve entered an appearance and taken on the mantle of trying to win the case.

 

Hon. Britt C. Grant:  Great points. Great points.

 

Benjamin M. Flowers:  I have one thing to add. We have a pretty open line of communication. Of course, sometimes there may be some disagreement, but I think we’re pretty good at warning one another when that may happen. It probably also helps that Governor DeWine was himself Attorney General DeWine before becoming governor so I think understands the role.

 

Elbert Lin:  Yeah. Judge, it’s an interesting question because it does come back to this, what I find to be this fascinating difference between the feds and the state, right? I was the DOJ attorney for several years at federal programs. And, again—I think I alluded to this earlier—I mean, there’s literally a statute that says that the Attorney General of the United States makes the call as to what the position of the United States is in court. Now, there are independent agencies, and that’s kind of tricky and interesting and what role DOJ plays there. But for the executive branch agencies in the United States, the AG decides what arguments you’re going to make.

 

That, at least in West Virginia, is not the case, right? I think I said earlier there’s case law that says that the attorney general relationship with its client agencies is much closer to just your standard private party relationship. But then you had this competing issue with the attorney general being the independently elected chief legal officer for the state. So anyway, that’s all a very long way of saying that having been in private practice before I was the SG, we treated those relationships very much like the way we had clients in private practice. Those were our clients, and we gave them the advice. Now, to the extent that they’re always kind of lurking in the background was, well, what is the AG’s independent view of this because he has that power? But the short answer is we tried to maintain a good and cordial relationship because they were our clients, and that’s how we viewed it.

 

Hon. Britt C. Grant:  Absolutely. In some states, it may have an impact on something else. That leads me to the next question, which is budget for outside counsel. I think sometimes governors have different budget authority and different budget options than attorneys general do. So I think sometimes, I know in Georgia that can be a point of discussion. And one question we have from an anonymous attendee is one option for an AG/SG and a difficult duty to defend the situation is to appoint outside counsel. But that is often quite expensive to the state. Do any of the panelists have experience of navigating that tension? In other words, does the potential cost to the state enter the duty to defend conversation when outside counsel is an option on the table? You may or may not be able to say much about this, but I think it’s an interesting question about how those extra layers that you really never have in the federal government can apply in state defense issues.

 

Benjamin M. Flowers:  I don’t have too much to add, only I’m aware when cases are assigned to outside counsel. I’m not really involved in the decision. I’m sure that would be part of the consideration, but it’s not something I’ve been personally involved with.

 

Hon. Britt C. Grant:  Got it. Is that same for the rest of you? All right. Well, I guess this is a wrap-up question, and then we’ll see if we have more questions from the audience that’ll be interesting. But what was the most unexpected thing that has popped up for any of you as you’ve had your job as solicitor general? I know there are a lot of surprises, probably both on a big scale and a small scale, and I’m curious to hear what you’ve learned or what has been the most surprising thing that has come up for you. I’m going to make Elbert go first.

 

Elbert Lin:  Sure.

 

Hon. Britt C. Grant:  Put you on the spot.

 

Elbert Lin:  Yeah. So I think the thing that I’ve -- it seems weird in retrospect that it was a surprise, but the amount of the trial by fire in terms and the baptism, by fire in terms of leadership skills was, I think, more surprising to me than I had expected. But again, in retrospect, it seems like obvious, right? You’re going in as one of the top lawyers for an elected state official. You would think that that would be the case. But there was a lot of -- I came out a far better manager and leader I think I was than I went in.

 

Hon. Britt C. Grant:  I’ll jump in while the other two are thinking and say one thing that I learned that was surprising was how quickly it’s possible to do a good job. I think I’ve talked with other former solicitors general about this. When you go into different situations, especially back into private practice, the timelines that are set off for things seem extraordinarily longer than they need to be sometimes. I know in one case, that one multi-state that Elbert and I worked on together, I think that we proposed a reply brief timeline of something like 24 hours for a complicated jurisdictional issue. And you realize that if you really want to get it done and stay up all night, you can do it. So I think that necessity breeds efficiency. And, so, that’s one thing that I learned and one thing that I try to remember in my current job is that it is possible to get things done on a pretty quick timeline if you need to do it.

 

Elbert Lin:  I think that’s bad news for those of us who still practice before people like you that that’s the lesson you take away from it.

 

Benjamin M. Flowers:  I want to echo that, and I can give a concrete example, and this will also go to my unexpected point, which is how informal a lot of the work that we do is with the other AGs in terms of which SG ends up taking the lead on something. The OSHA case to start with, the fortuity point, was those challenges to OSHA regulations have to be filed in an appellate court. And if they are filed in more than one appellate court but in ten days some organization whose name I can’t even recall does a lottery and they picked the circuit, in that case I believe every circuit except the Federal Circuit had a ball in the lottery machine. They picked the Sixth, which is just random chance. We had been doing a lot of the work on the briefing and everything, which was a lot of chance and just how things got divvied up. And, so, we were fortunate to be able to take the lead on that, which ultimately led to a Supreme Court argument. So that shows how unplanned a lot of these situations can be. And then in terms of getting things --

 

Hon. Britt C. Grant:  For the record—and I won’t interrupt you permanently—but I’d like to say I think that the ping pong ball is heavily weighted in the Sixth because the multi-state Waters of the United States Challenge had a similar circuit decision. That one also landed in the Sixth. So you guys were especially lucky or unlucky. I don’t know.

 

Benjamin M. Flowers:  Yeah. Well, it worked out, whether it was rigged or not, and I was happy with the result. But in terms of what you were saying about doing good work quickly, in that case there were I don’t even know how many petitioners, but many, and you want to be one of the first to get in. But I also really wanted in our application for a stay to have a response to the Sixth Circuit’s opinion. I wanted to have the negative case, not just our positive arguments. So it was a Friday in December. I will not forget this. It was around Christmas, started watching Home Alone with the kids, and I got a call from Henry Whitaker, who’s Florida’s SG. And he said, “Are you going up? And I said, “Eventually, probably, but what are you talking about?” He’s like, “Well, the ruling came out.” I said, “It did?” It’s like 7:00 at night; this thing came out.

 

I drove back downtown; I called my team. I was writing responses to the Sixth Circuit’s argument, sending each section to my Harris fellow, who’s a one-year fellow coming off a clerkship we have. He would site check them, send them back to me. I’d put them in the brief. I think we got them filed right around midnight, and then we had to serve all those 100 parties or whatever. I think there were four or five of us. I had bought everyone pizza so they’d come back. And we were printing off on every print -- our print shop was closed, so we were printing off using every printer we could find, all these applications. They smelled like smoke because of the machines were too hot. And then we stayed up ‘til 3:00 a.m. packing FedEx envelopes, and I mailed them in the morning. In less than 12 hours we added the negative case, got hundreds of copies printed, and got them in the mail. And that was, I won’t say it was fun, but in retrospect it was rewarding, as you say, to see that you can do good work quickly if need be.

 

Hon. Britt C. Grant:  Nicely done. Last but not least, Ryan, what’s your general response to this question?

 

Ryan Park:  Oh, sure. Well, I guess I’ll say—and I’ll be quick, mindful of the time—part of my thinking and going to work for a state attorney general was leaving the D.C. hothouse and maybe I was thinking this would be kind of a good work-life balance type job. And that was completely a failure. It really is just very hectic. But I will say that the sheer variety and number of at-bats you get in this role is just extraordinary. And I was talking to a friend of mine who is a partner at one of these appellate shops in their big law firm, and she said like, “Oh, well, you don’t write your own briefs, right?” And I was like, “We have four people in my office, like hundreds of cases.” So, of course, you’re kind of involved on the really granular level in your cases, and that’s really fun. You’re kind of doing the real work of being an appellate lawyer.

 

Benjamin M. Flowers:  Especially on the state law issues, because a lot of us anyway came from practices that were really heavily focused on federal appellate courts, and so we just didn’t have that much engagement with state constitutions. But there’s so many interesting issues there and that we by necessity litigate all the time. So that’s been fun, to echo your point.

 

Hon. Britt C. Grant:  That’s absolutely right. Well, I think those are two great ways to close, and I hope that this last part of the conversation hasn’t scared away any future solicitors general who may be listening in on the call. I think there’s just about no better job than representing a state as a solicitor general, so thank all three of you for taking the time to talk with me today and to share some of your experience with those who are listening in on the call or watch the call.

 

Jack Derwin:  On behalf of The Federalist Society would like to echo Judge Grant’s thanks, and thanks to you, Judge Grant, as well. And thank you to our audience for tuning in to today’s program. You can check out our website fedsoc.org or follow us on all the major social media platforms @FedSoc to stay up to date. With that, we are adjourned. Thank you.