# Who represents a State before the US Supreme Court **URL:** \ **Category:** Factual Questions\ **Created:** [January 16, 2013, 5:47pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399 "2013-01-16T17:47:34Z")\ **Posts on this page:** 11\ **Page:** 1
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [January 16, 2013, 5:47pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/1 "2013-01-16T17:47:34Z")
I know the US Solicitor General represents the United States, usually at least. WHat about when a case where the State is a party ends up before the SCOTUS, on appeal from a State Supreme Court? WHat about collateral challenges to State decisions in Federal Courts generally. I suppose they are 50 answers to this. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [January 16, 2013, 6:08pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/2 "2013-01-16T18:08:24Z")
> [@AK84](#): > > I know the US Solicitor General represents the United States, usually at least. WHat about when a case where the State is a party ends up before the SCOTUS, on appeal from a State Supreme Court? WHat about collateral challenges to State decisions in Federal Courts generally. > > I suppose they are 50 answers to this. I just looked up some criminal procedure Supreme Court cases involving the State of Illinois as a party (_Illinois v. Wardlow_, 528 U.S. 119 (2000) and _Williams v. Illinois_, 566 U.S. \_\_\_\_ (2012)); both were argued by the Cook County State’s Attorney, which is the original prosecuting attorney in the matter. In _Illinois v. Caballes_, 543 U.S. 405 (2005) , the cause was argued by the Attorney General of Illinois. Per the [ILAG webpage](http://illinoisattorneygeneral.gov/about/history.html): > [@](#): > > While the Attorney General has prosecutorial powers under the common law, he generally lacks the power to take exclusive charge of the prosecution of cases over which a State’s Attorney shares authority, unless exclusive or independent authority is given by statute. (See, People v. Massarella (1978), 73 Ill. 2d 531, and People v. Buffalo Confectionery Co. (1980), 78 Ill. 2d 447.) The powers of the Attorney General provide that he is to assist State’s Attorneys in prosecutions “when, in his judgment, the interest of the people of the State requires it.” (15 ILCS 205/ 4.) Prosecution assistance has been a major function, particularly necessary when serious cases have arisen in smaller counties with limited resources. Criminal activity on a multicounty basis has led to statutory power to convene a statewide grand jury with powers crossing jurisdictional lines for investigation of specified drug and streetgang related offenses. (725 ILCS 215/1 et seq.) In specialized areas, and particularly in areas pertaining to environmental protection, the General Assembly has given the Attorney General independent power to prosecute. As was provided in the office’s earliest days, the Attorney General retains the prerogative to “appear for and represent the people of the state before the supreme court in all cases [civil or criminal] in which the state or the people of the state are interested.” (15 ILCS 205/4.) Thus, most serious criminal matters, and particularly capital cases, eventually fall within the Attorney General’s purview. So, in criminal matters, typically the State’s Attorney (although smaller counties’ State’s Attorneys could request the AG as its advocate in light of that office’s greater experience with Supreme Court advocacy — on the other hand, they might not defer a once-in-a-career opportunity). In non-criminal matters (say, a CERCLA action), the state AG would be the advocate. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [January 16, 2013, 11:09pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/3 "2013-01-16T23:09:48Z")
As Kimmy suggests, it depends on what capacity the state is appearing before the Supreme Court. The state prosecutes criminal cases generally through local proescutors, commonly known as District Attorneys or State’s Attorneys. In some states, such as New York, prosecutions are brought in the name of “The People of the State of New York”, and the case is referred to in state courts as People v. Smith. If People v. Smith were appealed to the Supreme Court, it would be known as either New York v. Smith or Smith v. New York, depending on who did the appealing (the party bringing the appeal, most likely by filing a petition for certiorari gets named first). In that case, the local prosecutor would continue to represent the state, and he or she could either personally appear before the court, appear through one of his or her assistant prosecuting attorneys, or appear through another lawyer, who he or she might name a “special assistant district attorney” or something similar. If the state is a party in its capacity as a state, or a state agency or state governement official is the party, the state, agency or official will usually be represented by the state’s Attorney General. Similarly, the state Attorney General may appear personally, appear through an assistant Attorney General, or through another lawyer who the Attorney General might name as a “special assistant attorney general.” Many states have an official in the Attorney General’s office known as the Solicitor General (like the U.S. Solicitor General), who is responsible for appellate litigation, and would normally be the one to appear for the case, though not necessarily. (Indeed, there is a tradition, not always honored, for the U.S. Attorney General to personally argue one Supreme Court case during his or her term of office). ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 17, 2013, 4:17pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/4 "2013-01-17T16:17:20Z")
> [@AK84](#): > > I know the US Solicitor General represents the United States, usually at least. WHat about when a case where the State is a party ends up before the SCOTUS, on appeal from a State Supreme Court? I suppose they are 50 answers to this. You will find the PDF versions cite the presenters. This is from an Ohio case; Ohio v. Robinette. Ohio was the Petitioner; > [@](#): > > Carley J. Ingram argued the cause for petitioner . With her on the briefs was Mathias H. Heck, Jr. Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Paul A. Engelmayer, and Joseph C. Wyderko. James D. Ruppert argued the cause and filed a brief for respondent.\* A search of her name will reveal her various legal capacities, one was an Assistant Prosecuting Attorney. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 17, 2013, 4:52pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/5 "2013-01-17T16:52:13Z")
Here is the Wardlow case cited, PDF version: > [@](#): > > Richard A. Devine argued the cause for petitioner. With him on the briefs were James E. Ryan, Attorney General of Illinois, Joel D. Bertocchi, Solicitor General, Renee G. Goldfarb, Theodore Fotios Burtzos, and Veronica Ximena Calderon. > **[Richard A. Devine](https://en.wikipedia.org/wiki/Richard_A._Devine)** > > Richard A. Devine (born July 5, 1943) is an American attorney who served as the Cook County State's Attorney from 1996 to 2008. > The second of five children, he was the son of a Chicago Water Department employee. Devine grew up in Rogers Park, Chicago, and played football and basketball at Loyola Academy in Wilmette, Illinois. He attended John Carroll University for one year on a football scholarship but returned home when his father's health worsened after a stroke. > In 1966, Devine graduated fro... ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 17, 2013, 6:02pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/6 "2013-01-17T18:02:07Z")
Florida is represented by the state AG’s office in criminal matters appealed to the federal courts. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [January 17, 2013, 10:11pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/7 "2013-01-17T22:11:14Z")
The short answer is the attorney general of the state, or his designee. In a criminal case, the designee could be the local prosecutor (District Attorney, most frequently) whose office handled the case at trial. Cases regarding the activities if state administrative agencies might be argued by attorneys for those agencies, but I’d expect someone from the AG’s office would more typically handle such instances. –Cliffy ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [January 17, 2013, 10:18pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/8 "2013-01-17T22:18:02Z")
IIRC in the case of California’s constitutional ban on gay marriage, weren’t the governor and attorney general the only two state officials who had standing to defend the state in the U.S. Supreme Court, and neither of them chose to do so? ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [January 18, 2013, 4:15am UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/9 "2013-01-18T04:15:40Z")
Standing is very different from being the Counsel before a Court. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 18, 2013, 4:58pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/10 "2013-01-18T16:58:58Z")
AK84, here is another example, Ohio and Kentucky were involved in a border dispute. Suits bewteen States are heard in the US SC as an Original Jurisdcition case, no lower courts first. OHIO v. KENTUCKY, 444 U.S. 335 (1980) 444 U.S. 335 OHIO v. KENTUCKY. ON EXCEPTIONS TO REPORT OF SPECIAL MASTER. No. 27, Orig. Argued December 3, 1979. Decided January 21, 1980. Held: The boundary between Ohio and Kentucky is the low-water mark on the northerly side of the Ohio River as it existed in 1792 when Kentucky was admitted to the Union, not the current low-water mark on the northerly side of the river. Historical factors establish that the boundary is not the Ohio River just as a boundary river, but is the northerly edge. Thus, the accepted rules of accretion and avulsion attendant upon a wandering river that are applicable in customary situations involving river boundaries between States, do not apply here. Indiana v. Kentucky, 136 U.S. 479 , controls this case. Pp. 337-341. Exceptions to Special Master’s report overruled, report adopted, and case remanded. > [@](#): > > James M. Ringo, Assistant Attorney General of Kentucky, argued the cause for defendant. With him on the briefs were Robert F. Stephens, Attorney General, and George F. Rabe. > [@](#): > > Michael R. Szolosi argued the cause for plaintiff. With him on the brief were William J. Brown, Attorney General of Ohio, Howard B. Abramoff, Assistant Attorney General, and Stephen C. Fitch. You can also check the case where New Jersey and New York were involved in a boundary dispute to see who argued the case and who actually owned Ellis Island (Liberty Island). ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [January 18, 2013, 7:21pm UTC](https://boards.straightdope.com/t/who-represents-a-state-before-the-us-supreme-court/647399/11 "2013-01-18T19:21:14Z")
Here’s the State of Ohio’s current top appellate lawyer: [http://www.law.uc.edu/current-students/practical-experiences/irving-and-selma-harris-distinguished-visitors/alexandra\_schimmer](http://www.law.uc.edu/current-students/practical-experiences/irving-and-selma-harris-distinguished-visitors/alexandra_schimmer) And a Wiki article about her office: [Solicitor General of Ohio - Wikipedia](http://en.wikipedia.org/wiki/Solicitor_General_of_Ohio)