WASHINGTON, D.C. – Attorney General Karl A. Racine today led a bipartisan coalition of 12 Attorneys General defending a rule applied by the U.S. Court of Appeals for the Eleventh Circuit that encourages states and localities to amend laws and policies that raise significant constitutional questions—thereby encouraging governments to respect key rights of their residents. The rule would require courts to put an end to litigation if the government amends or abandons a law or policy because of a potential constitutional issue, provided the only remaining claims for relief are for harms previously suffered. In an amicus brief filed in Uzuegbunam v. Preczewski before the U.S. Supreme Court, the coalition argues that this rule encourages state governments to modify potentially problematic laws early in response to litigation—producing immediate benefits to all residents, not just those who happen to be parties to a particular case. Further, the coalition explains that a contrary rule will produce lengthy litigation over laws that are no longer on the books, taxing limited government and court resources. In the Uzuegbunam case, the respondents modified the student speech policies at a Georgia college in response to petitioners’ First Amendment claims and maintain that there is no further relief the court can provide for those claims.

“Our bipartisan coalition of state Attorneys General believes it is in the public interest for state and local governments to proactively address potential constitutional issues present in their laws,” said AG Racine. “Municipal resources should not be drained in litigation over laws that are no longer in effect, given the need to fund social services and other essential government functions. The Eleventh Circuit’s rule would better serve state residents by encouraging states to reconsider challenged laws and conserving limited government resources.”

State governments, responsible for protecting the health and safety of their residents, pass and administer laws affecting the daily lives of millions of people. As the law develops in areas such as First Amendment and Second Amendment rights, government actors often revisit laws and policies to ensure they still comply with constitutional requirements. States across the political spectrum require flexibility in responding to legal developments and should be encouraged to reform their laws in response to their residents’ concerns.

In this amicus brief, the states collectively defend the respondents’ position because:

• This rule gives government actors an incentive to revise constitutionally questionable laws: In response to constitutional challenges, state and local governments across the country have reasonably changed laws and policies at issue. For example, governments have revised laws concerning the selection of political party leadership, use of school facilities for expressive activities, demonstrations on public property, and sign ordinances, all in response to lawsuits. Similarly, lawsuits have prompted state and local governments to revise their criminal laws, including certain restrictions on those convicted of sex offenses. By making such changes, state and local governments can better protect the constitutional rights of all residents, not just those who happen to bring suit. Additionally, this rule encourages parties to resolve disputes outside of court, which is beneficial because it conserves government and court resources.
   
• In contrast, a rule that allows a case to continue when the law at issue is no longer on the books is not in the public interest: Litigation over laws that are no longer in place needlessly consumes government and court resources. Such cases can take years to work their way through the court system, even after the government has resolved any potential constitutional issue. As a result, governments will have fewer resources to devote to other important government functions.

A copy of the amicus brief is available at: https://oag.dc.gov/sites/default/files/2020-11/Uzuegbunam-Amicus.pdf

AG Racine is leading the amicus brief and is joined by Attorneys General from Florida, Hawaii, Illinois, Indiana, Minnesota, New Jersey, New Mexico, North Carolina, Tennessee, Utah, and Virginia.