Monday, August 05, 2019

Arizona's Long-Shot Original Jurisdiction Opioid Case in the SCOTUS

by Michael C. Dorf

As recently reported, the State of Arizona is trying to sue members of the Sackler family and Purdue Pharma in the US Supreme Court, invoking (in its complaint and accompanying brief) both a federal jurisdictional statute and Article III, Section 2 of the Constitution, which provides in relevant part: "In all cases . . . in which a state shall be party, the Supreme Court shall have original jurisdiction." The case falls within the subject matter of the federal courts because, in compliance with the prior paragraph of Article III, Section 2, it is a "controvers[y] between a State and citizens of another state." While the Eleventh Amendment curtailed such jurisdiction where states are defendants, it left such jurisdiction intact where states sue as plaintiffs.

Still, bringing this lawsuit in the US Supreme Court in the first instance is problematic in at least four ways.

(1) The brief lacks credibility, because the counsel of record for Arizona is William S. Consovoy. Does that name ring a bell? Consovoy also represents President Trump in Trump's individual capacity in cases in which he makes audacious arguments that Congress lacks a legitimate interest in investigating the president. As I noted here, in a complaint in one of those cases, Consovoy goes full-partisan by childishly referring to the "Democrat party." His complaint and argument in the Arizona suit against the Sacklers and Pharma also display Consovoy's characteristic--how to put this politely?--let's call it his penchant for hyperbole.

Most egregiously, the complaint asserts (without any citation or argument), that "[t]he opioid crisis is the worst man-made disaster in American history." I'll grant that the opioid crisis is indeed terrible, but the worst man-made disaster in American history? Really? Perhaps the genocide committed against Native Americans doesn't count because it mostly occurred before the US was a country and thus isn't part of American history? But still, is the opioid crisis self-evidently worse than slavery? Than the looming catastrophe due to global warming? Or does that not count as a man-made disaster because, you know, Chinese hoax?

To be clear, in pointing to a questionable assertion in Arizona's brief, I don't mean to take a position on the legal or factual basis for the underlying lawsuit. I simply mean to say that it does not inspire confidence in the rest of the complaint and brief, which chiefly argues for original jurisdiction in the Supreme Court. And sure enough, when we look at the jurisdictional arguments, we find that they are dubious.

(2) In the 1971 case of Ohio v. Wyandotte Chemicals Corp., the Supreme Court, in an 8-1 opinion by Justice Harlan, held that the Court has discretion to decline original jurisdiction in cases between a state and citizens of other states. Only Justice Douglas dissented, and nearly all of his dissent focused on why the Court ought to have taken jurisdiction in that particular case. Justice Harlan's argument was straightforward: "As our social system has grown more complex, the States have increasingly become enmeshed in a multitude of disputes with persons living outside their borders." Allowing every such dispute to be resolved in the Supreme Court in the first instance would unreasonably tax the Court's limited resources. This is essentially a floodgates rationale.

Arizona asks the Court to overrule Wyandotte Chemicals. Why? The state cites a familiar statement by CJ John Marshall in Cohens v. Virginia: "We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given." Somewhat surprisingly, given the brief's author's knack for rhetorical overkill, it does not also cite Marshall's next line: "The one or the other would be treason to the Constitution." In any event, that's the gist of the argument: The Constitution and a statute give the Court jurisdiction; Wyandotte Chemicals is therefore mistaken in asserting a power to decline such jurisdiction. Pretty good argument, right?

No, of course not. It's a bad argument. Anybody who took a Federal Courts class from a competent instructor knows that the Cohens statement has never been taken seriously. Consider the longstanding "domestic relations" exception, under which federal courts refuse to exercise the jurisdiction Congress conferred on them in diversity cases involving divorce, alimony, custody, and like matters. The Court reaffirmed the exception in 1992 in Ankenbrandt v. Richards (although finding it inapplicable in the particular case and purporting to ground it in congressional intent, notwithstanding the complete absence of a textual basis).

More broadly, as Prof David Shapiro (who taught me Civil Procedure 32 years ago) wrote in a landmark 1985 article in the NYU Law Review, "suggestions of an overriding obligation, subject only and at most to a few narrowly drawn exceptions, are far too grudging in their recognition of judicial discretion in matters of jurisdiction." As the late great Prof Dan Meltzer (who taught me Federal Courts 30 years ago) noted in a 2005 festschrift article in the Notre Dame Law Review, there has been some pushback against Shapiro's thesis, including by a few Supreme Court justices, but "no treatment of the" subject is "as rich, nuanced, or persuasive" as Shapiro's. It is one thing to take one side of a debate about a question--even the wrong side. It is quite another to pretend, as the Arizona brief does, that the other side does not exist.

The closest thing to a good argument that Arizona presents relies on a dissent by Justice Thomas, joined by Justice Alito, from the Court's exercise of discretion to decline original jurisdiction in the 2016 case of Nebraska v. Colorado. There Justice Thomas questions the legal basis for the exercise of such discretion. Although the Thomas dissent does question the entire range of discretion to refuse original jurisdiction, he focuses chiefly on the fact that the Supreme Court has exclusive jurisdiction over state-versus-state cases.

Both of the italicized phrases distinguish the Arizona opioid case. The original-jurisdiction-conferring statute itself provides for "original and exclusive" jurisdiction in state-versus-state cases but only for "original but not exclusive" jurisdiction in state-versus-citizen-of-other-state cases. Although the Arizona brief correctly states that concurrent jurisdiction does not by itself automatically imply judicial discretion to decline jurisdiction, surely the case against such discretion is considerably stronger where, as in Nebraska v. Colorado but not in the Arizona opioid case, Congress has designated the Supreme Court as the exclusive forum.

Second, the floodgates concern that worried Justice Harlan and the Court in Wyandotte Chemicals is present in state-versus-citizen-of-other-state cases but not in state-versus-state cases, which are fairly rare. Accordingly, even if one were persuaded by Justices Thomas and Alito that the Court should not have discretion to decline original jurisdiction in state-versus-state cases, there would remain powerful reasons to retain such discretion in state-versus-citizen-of-other-state cases like the Arizona opioid case.

(3) Arizona argues in the alternative that the SCOTUS ought to accept jurisdiction over its suit as an exercise of its discretion if the Court rejects the argument that it has no discretion to decline jurisdiction. Arizona contends that "a decision from [the Supreme] Court would allow for a uniform resolution" of the underlying issues of legal liability for the opioid crisis.

That's just wrong, as the Arizona brief goes on to more or less recognize. All that any court can resolve in this case is the liability question under Arizona law. Other states' respective laws might be more or less generous to plaintiffs than Arizona's.

The Arizona brief cites the fact that "[n]early every State has adopted the Uniform Fraudulent Transfer Act." Of course, nearly every is not every, but even if every state had adopted the same model statute, each of the fifty state high courts would be entitled to resolve how it sees fit any issues about the meaning of that model statute as adopted by the legislature in that state. Interstate disuniformity notwithstanding the adoption of a model statute occurs routinely and is a basic feature of judicial federalism in the US. At most, what the US Supreme Court could do is issue an opinion that might be persuasive to various state courts (as the Arizona brief eventually and grudgingly admits).

So the Arizona brief vastly overclaims when it states: "Allowing Arizona’s original action to proceed will ensure this issue is resolved in a uniform, timely manner." There is no good reason why the Court should exercise its discretion to take the case.

(4) Moreover and perplexingly, there is no good reason why Arizona should want to bring this case in the Supreme Court's original jurisdiction. Arizona could sue in its own state courts, where it would likely get a very sympathetic hearing. Although Congress could have authorized the federal district courts to hear such cases, the diversity jurisdiction statute does not extend to suits by states against citizens of other states. Because the federal removal statute allows defendants sued in state court to remove to federal court only if the case could have been filed in federal court in the first place, that means that if Arizona sued in its own courts, the case would have stayed there.

Maybe Arizona figured that rather than start in state court and end up in the US Supreme Court, it would go right to the top? That doesn't make sense either. The Supreme Court cannot review state court decisions based on state law in the absence of a federal issue. Unless the Arizona courts were to violate federal law in some way in the course of adjudicating the state law claims, the case would end at the Arizona Supreme Court.

It's not even clear that suing in the SCOTUS saves much time. In the Arizona state courts, there would be a trial, an appeal, and possibly discretionary review by the Arizona Supreme Court. That's two or three steps, which seems like substantially more than the one-stop-shopping available in the US Supreme Court's original jurisdiction. But in fact, the Supreme Court's original jurisdiction is itself a two-step process. In cases in which the SCOTUS takes original jurisdiction, the justices do not hear evidence or conduct a trial. They appoint a special master to perform those tasks. The special master then writes a report and the justices entertain objections to it, hold argument, and issue a ruling either adopting the special master's recommendation (in whole or in part) or rejecting it. That process is roughly analogous to a trial followed by an appeal--so going straight to the US Supreme Court saves at most one and possibly no steps (if the Arizona Supreme Court would deny review).

Perhaps the best that can be said for Arizona's litigation strategy is that it rests on a timing calculation. All fifty states and numerous private parties will eventually sue Purdue Pharma and the Sacklers. Perhaps sooner rather than later, they will run out of money. If Arizona's lawyers have correctly deduced that a full original jurisdiction proceeding in the SCOTUS would take less time than litigating in state court, then maybe it makes sense to sue in the SCOTUS and get to judgment before other states and private parties exhaust the defendants' assets.

If timing concerns do explain the decision to seek original jurisdiction in the SCOTUS, that tactic still presents a real risk. The US Supreme Court is probably a friendlier forum for the defendants than the Arizona courts. The latter have institutional reasons to favor Arizona over an out-of-state pharmaceutical company and its owners; by contrast, the US Supreme Court is quite business-friendly. Thus, in the unlikely event that the Supreme Court agrees to accept original jurisdiction, this could be a be-careful-what-you-wish-for case for Arizona.