3:18-cv JMC Date Filed 07/03/18 Entry Number 7 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

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1 3:18-cv JMC Date Filed 07/03/18 Entry Number 7 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION South Carolina Electric & Gas Company, v. Plaintiff, Swain E. Whitefield, in his official capacity as Chairman of the South Carolina Public Service Commission; Comer H. Randall, in his official capacity as Commissioner of the South Carolina Public Service Commission; John E. Howard, in his official capacity as Commissioner of the South Carolina Public Service Commission; Elliott F. Elam, Jr., in his official capacity as Commissioner of the South Carolina Public Service Commission; Elizabeth B. Fleming, in her official capacity as Commissioner of the South Carolina Public Service Commission; Robert T. Bockman, in his official capacity as Commissioner of the South Carolina Public Service Commission; and G. O Neal Hamilton, in his official capacity as Commissioner of the South Carolina Public Service Commission. Defendants. Civil Action No. 3:18-cv-1795-JMC HOUSE SPEAKER JAY LUCAS S NOTICE OF MOTION AND MOTION TO INTERVENE YOU WILL PLEASE TAKE NOTICE that James H. Jay Lucas, Speaker of the South Carolina House of Representatives, seeks to intervene in the above-referenced matter pursuant to Federal Rule of Civil Procedure Speaker Lucas seeks to intervene as a matter of right or, in 1 Although the undersigned counsel had hoped to file the present request as a consent motion, at the time of this filing, counsel for SCE&G was still contemplating whether to consent to Speaker Lucas s intervention to defend the laws passed by the South Carolina General Assembly.

2 3:18-cv JMC Date Filed 07/03/18 Entry Number 7 Page 2 of 7 the alternative, permissively. See Fed. R. Civ. P. 24(a (b. The plaintiff, South Carolina Electric & Gas (SCE&G, challenges the constitutionality of 2018 S.C. Act No. 287 (Act 287 or H.4375 and 2018 S.J. Res. 285 (the Joint Resolution or S.954. These two pieces of legislation were the subject of extensive debate and study as they moved through the legislative process prior to becoming law on June 28, Thus, Speaker Lucas respectfully requests intervention to defend these laws passed by the South Carolina House of Representatives (the House. For the reasons set forth below, the Court should grant this motion. 2 Under Federal Rule of Civil Procedure 24(a, on timely motion, the Court must permit anyone to intervene who claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant s ability to protect its interest, unless existing parties adequately represent that interest. Fed. R. Civ. P. 24(a(2. The U.S. Court of Appeals for the Fourth Circuit has interpreted this rule as requiring a party seeking to intervene to meet the following requirements: (1 the application to intervene must be timely; (2 the applicant must have an interest in the subject matter of the underlying action; (3 the denial of the motion to intervene would impair or impede the applicant s ability to protect its interest; and (4 the applicant s interest is not adequately represented by the existing parties to the litigation. Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir Further, the party seeking to intervene bears the burden of demonstrating to the court a right to intervene. In re Richman, 104 F.3d 654, 658 (4th Cir Additionally, Federal Rule of Civil Procedure 24(b provides that the Court may permit, on timely motion, anyone to intervene who... has a claim or defense that shares with the main 2 Pursuant to Local Civil Rule 7.04, DSC, a memorandum is not submitted because a full explanation of the argument is contained within the motion and a memorandum would serve no useful purpose. 2

3 3:18-cv JMC Date Filed 07/03/18 Entry Number 7 Page 3 of 7 action a common question of law or fact. Fed. R. Civ. P. 24(b(1. Although some standards have been developed to guide the courts in making intervention determinations, the Court s decision to allow permissive interventions under Rule 24(b lies within [its] sound discretion. Hill v. W. Elec. Co., 672 F.2d 381, 386 (4th Cir In the Fourth Circuit, a movant seeking permissive intervention as a plaintiff must satisfy four criteria. First, the motion must be timely. Second, the movant must have a claim or defense that shares with the main action a common question of law or fact. Third, there must be an independent ground of subject matter jurisdiction. Finally, the proposed intervention must not unduly delay or prejudice the adjudication of the rights of the original parties. S.C. Coastal Conservation League v. Pruitt, No. 2:18-cv-330-DCN, 2018 WL , at *3 (D.S.C. May 11, 2018 (internal citations omitted (quoting Fed. R. Civ. P. 24(b(1(B, (b(2 & (b(3. Rule 24(b is to be liberally construed in favor of intervention. Backus v. South Carolina, No. 3:11-cv-03120, 2012 WL , at *2 (D.S.C. Feb. 8, Both intervention of right and permissive intervention require timely application. Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir In analyzing this factor, the Fourth Circuit generally considers how far the suit has progressed, the prejudice that delay might cause other parties, and the reason for the tardiness in moving to intervene. See id. Because the plaintiff filed its complaint in this Court on June 29, 2018, this motion undoubtedly is timely under either method of intervention. The lawsuit has just begun, no responsive pleadings have been filed, no motions have been argued or decided, and allowing Speaker Lucas to intervene would not cause any delay. Therefore, under either intervention standard, this motion is timely. Further, to support a right to intervene, the potential intervenor s interest in the dispute must be direct, rather than remote or contingent. Dairy Maid Dairy, Inc. v. United States, 147 F.R.D. 109, 111 (E.D. Va Speaker Lucas has a direct interest in the subject matter of this 3

4 3:18-cv JMC Date Filed 07/03/18 Entry Number 7 Page 4 of 7 litigation because the House and Senate collectively passed the legislation the plaintiff is challenging as unconstitutional. Not allowing Speaker Lucas to intervene would impair or impede the [House s] ability to protect its interest in this litigation because the members of the Public Service Commission (the PSC had nothing to do with the passage of S.954 and H.4375 the legislation under challenge and have no interest in defending the constitutionality of these enactments. Because the commissioners played no role in the passage of these laws, nor could they under the South Carolina Constitution, the House s interest is not adequately represented by the existing parties to the litigation. The House and the PSC do not necessarily share the same objectives in this case. Indeed, the PSC s authority to regulate utilities is still subject to and limited by the General Assembly s constitutional authority to regulate utilities to the extent required by the public interest. S.C. CONST. art. X, 1. Additionally, the Court would have an independent basis for subject matter jurisdiction over Speaker Lucas s claims in this federal-question case. Although SCE&G has sued members of the PSC in their official capacities, this lawsuit is against the General Assembly for all intents and purposes. The Court need look no further than the second paragraph of SCE&G s complaint, in which it alleges that [t]he General Assembly s actions are unconstitutional, violate SCE&G s constitutional rights, and impermissibly interfere with interstate commerce. ECF No. 1 at 2. Indeed, the complaint goes on to state that [t]his lawsuit seeks review only of the unconstitutional statutory provisions enacted by the South Carolina General Assembly. It does not challenge or seek review of any order by the PSC or any other South Carolina agency. ECF No. 1 at 4. SCE&G even went to great lengths to quote specific legislators including Speaker Lucas in an effort to demonstrate legislative intent behind S.954 and H ECF No. 1 at Yet, SCE&G inexplicably did not name either the House, the Senate, or the State of South Carolina as defendants in this lawsuit to defend against 4

5 3:18-cv JMC Date Filed 07/03/18 Entry Number 7 Page 5 of 7 these allegations. The General Assembly, of course, has an interest in setting the record straight with respect to the enactments in question. Notwithstanding the plaintiff s creative attempt to get around this inconvenient fact, the complaint is plainly directed toward one body the South Carolina General Assembly. The plaintiff does not even mention the PSC, or any of its commissioners, in Counts I IV of the complaint. Indeed, the plaintiff failed to allege that any PSC commissioners, acting under color of state law, violated its constitutional rights. See 42 U.S.C All allegations center on the actions of the General Assembly as well as the purported effects of two enactments passed by the General Assembly. Even though the plaintiff s lawsuit admittedly has nothing to do with any action of the PSC, SCE&G has named its commissioners as defendants in their official capacities. The plaintiff s beef, however, is with the General Assembly, and Speaker Lucas has a direct interest in defending the position of the House. In matters of public law litigation that may affect great numbers of citizens, it is the government s basic duty to represent the public interest. And the need for government to exercise its representative function is perhaps at is apex where, as here, a duly enacted statute faces a constitutional challenge. Stuart v. Huff, 706 F.3d 345, 351 (4th Cir In Stuart, the Fourth Circuit observed that, when a statute comes under attack, it is difficult to conceive of an entity better situated to defend it than the government because, after all, it is the government that, through the democratic process, gains familiarity with the matters of public concern that lead to the statute s passage in the first place. Id. Although members of the PSC are named in this lawsuit, they were not involved in the passage of the enactments in question, and a denial of the present motion to intervene would impair or impede the House s ability to represent its interests. See Houston Gen. Ins. Co., 193 F.3d at 5

6 3:18-cv JMC Date Filed 07/03/18 Entry Number 7 Page 6 of The PSC, as the ultimate arbiter over the merits rate proceeding for SCE&G, is likely constrained to take a more limited position in this lawsuit because the PSC commissioners are only interested in carrying out their duties within the confines of the law passed by the General Assembly unless and until a court declares otherwise. The General Assembly, on the other hand, has an interest in carrying out its constitutional authority to regulate utilities and defend the laws it passes within the confines of the federal and state constitutions. Under these circumstances, the House respectfully believes its interest in defending the constitutionality of the law will not be adequately represented. Particularly when SCE&G put the statements of legislators in issue, the PSC is not equipped to delve into the General Assembly s intent behind this legislation because it did not participate in the democratic process that lead to its passage. Finally, given the very early stages of this lawsuit, the plaintiff could hardly argue Speaker Lucas s intervention would unduly delay or prejudice the adjudication of the rights of the original parties. Although intervention could lead to some delay, this litigation is already quite complicated and Speaker Lucas filed [a] timely motion[] to intervene and ha[s] a substantial stake in the outcome of this litigation. Pruitt, 2018 WL , at *9. Speaker Lucas s involvement further has common question[s] of law and fact given that he seeks to defend the constitutionality of the law on behalf of the House and the people that body represents. The South Carolina Constitution gives the General Assembly the authority to provide for appropriate regulation of... privately owned utilities serving the public as and to the extent required by the public interest, S.C. CONST. art. X, 1, and the Court should give Speaker Lucas the opportunity to defend his chamber s appropriate use of that power to pass the legislation in question. Pursuant to Federal Rule of Civil Procedure 24(c, Speaker Lucas submits a proposed pleading attached hereto as Exhibit A. In filing this answer, Speaker Lucas does not waive the 6

7 3:18-cv JMC Date Filed 07/03/18 Entry Number 7 Page 7 of 7 right to respond more fully to the allegations in the plaintiff s complaint should the Court grant the present motion to intervene. CONCLUSION Based upon the foregoing, Speaker Lucas respectfully requests that the Court enter an order granting his motion to intervene to defend the constitutionality of H.4375 and S.954 either as of right or under the permissive intervention rule. Respectfully submitted, ROBINSON GRAY STEPP & LAFFITTE, LLC Columbia, South Carolina July 3, 2018 By: s/ Robert E. Tyson, Jr. Robert E. Tyson, Jr. Fed. ID No Vordman Carlisle Traywick, III Fed. ID No Gadsden Street Post Office Box Columbia, South Carolina ( rtyson@robinsongray.com ltraywick@robinsongray.com Michael J. Anzelmo Fed. ID No Office of House Speaker Jay Lucas South Carolina House of Representatives Post Office Box Columbia, South Carolina ( michaelanzelmo@schouse.gov Counsel for Intervenor, James H. Jay Lucas, Speaker of the South Carolina House of Representatives 7