United States of America v. Arizona, State of, et al

Filing 109

REPLY to Response to Motion re 88 MOTION to Intervene filed by Larry A Dever. (Bergin, Brian)

United States of America v. Arizona, State of, et al

Doc. 109

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Brian M. Bergin, #016375 Kenneth M. Frakes, #021776 ROSE LAW GROUP pc 6613 N. Scottsdale Road, Suite 200 Scottsdale, Arizona 85250 Tel: [phone] Fax: [phone] [e-mail] Attorneys for Sheriff Larry Dever, Cochise County Sherriff, in his official capacity IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA The United States of America, Plaintiff, vs. The State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her official capacity, Defendants. REPLY IN SUPPORT OF COCHISE COUNTY SHERIFF LARRY A. DEVER'S MOTION TO INTERVENE (Assigned to the Honorable Susan R. Bolton) No. 2:10-cv-01413-SRB

Larry A. Dever, Cochise County Sheriff, in his official capacity ("Sheriff Dever"), by and through counsel undersigned, hereby submits the following Reply in Support of his Motion to Intervene in the instant action pursuant to Fed.R.Civ.P., Rule 24(b)(2)(A). This Reply is made and based upon the Memorandum of Points and Authorities that follows, the oral argument of counsel offered at any hearing on this matter, together with this Court's entire file maintained in this matter, judicial notice of which is requested pursuant to Rule

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201 of the Federal Rules of Evidence. RESPECTFULLY SUBMITTED this 23rd day of August, 2010.

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ROSE LAW GROUP PC /s/Brian M. Bergin Brian M. Bergin Kenneth M. Frakes 6613 N. Scottsdale Rd, Ste 200 Scottsdale, Arizona 85032 Proposed Counsel to Defendant MEMORANDUM OF POINTS AND AUTHORITIES In its response, the United States has urged this Court to deny Sheriff Dever's Motion to Intervene, claiming his interests are adequately protected by the existing Defendants, his participation is unnecessary, and will present a burden to this Court and existing parties. As is explained below, this objection is insufficient. Permissive

intervention remains warranted in this case, even through the Sheriff's interests may align
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with those of the existing defendants. This Court should exercise its discretion to allow intervention because the Sheriff has particular knowledge, experience, and perspective that will contribute to, and benefit, the Court's understanding of the issues presented in this case. Moreover, Sheriff Dever's intervention at this early date will not complicate the issues or delay the proceedings. I. INTERVENTION IS WARRANTED BECAUSE SHERIFF DEVER'S KNOWLEDGE AND CONCERN WILL GREATLY CONTRIBUTE TO THIS COURT'S UNDERSTANDING.

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The simple fact that Sheriff Dever may share a similar desire to defend the constitutionality of S.B. 1070 (the "Act") with existing Defendants does not extinguish his

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eligibility to intervene.1 See Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977). Although failure to demonstrate inadequate representation may be fatal to a movant's effort to intervene as of right under Fed.R.Civ.P., Rule 24(a), it is well within the Court's discretion to grant permissive intervention under Rule 24(b), even when a proposed intervenor's ultimate goals are shared with an existing party. See Miller v. Silbermann, 832 F.Supp. 663, 673 (S.D.N.Y. 1993). Permissive intervention is particularly appropriate when

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the proposed intervenor will contribute to the Court's understanding of the case due to its "knowledge and concern." Id. at 673-74. In Miller, landlords commenced an action against administrative law judges, administrators, and clerical personnel of the Housing Court of the Civil Court of the City of New York City alleging that the Housing Court unconstitutionally discriminated in favor of tenants. Id. at 666. Several tenants and tenant representative organizations moved to intervene as of right or permissively. Id. at 668. The court found that the tenants were not entitled to intervene as of right because they were adequately represented by the Housing Court officials who would vigorously defend their policies and pursue the tenants' shared objectives of dismissal of the complaint or maintenance of the status quo. Id. at 672-73. Despite these shared objectives and presumption of adequate representation, however, the

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Sheriff Dever recognizes that adequacy of representation is a proper factor to be considered for general permissive intervention under Fed.R.Civ.P., Rule 24(b)(1) but research has not revealed any authority for its application to permissive intervention under Rule 24(b)(2) when a public officer or agency administers a statute at issue.
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court held that permissive intervention was warranted. Id. at 673.

It found that

"considerations of fairness strongly weigh in favor of permissive intervention as the

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Tenants, in light of their knowledge and concern, will greatly contribute to this Court's understanding of this case." Id. at 673-74. Here, although Sheriff Dever shares the existing Defendants' desire to defend the constitutionality of S.B. 1070 (the "Act"), permissive intervention is appropriate as Sheriff Dever, as Sheriff of Cochise County, unlike any existing party, can represent and contribute greatly to this Court's understanding of the day-to-day experiences of citizens of Arizona's

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border counties and the law enforcement personnel charged with enforcing the law in those communities. For example, in its Order granting preliminary injunction, this Court expressed its concern that the Act's provisions requiring verification of the immigration status of arrestees may impermissibly extend the length of detention of lawfully present aliens. See Order dated July 28, 2010 at p. 16:1-16. Sheriff Dever specifically can shed light in that area by providing his first-hand knowledge concerning the average length of detentions for arrestees in Cochise County and the specific procedures utilized by his officers to minimize imposition. Sheriff Dever also can speak directly to his County's use of the cite-and-release procedure cited in the Court's Order and how it can be reconciled with the reasonable duty to verify immigration status under the Act.

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Sheriff Dever formed and supervises the Cochise County Border Alliance Group ("BAG"), a multi-task agency including ICE, to prevent drug smuggling in one of the Country's most traveled and dangerous drug smuggling
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Finally, Sheriff Dever has taken a leading role in cooperating and coordinating local enforcement with federal immigration officials during his 14 years as Cochise County Sheriff.2 As such, he is uniquely qualified to speak to this Court concerning the mechanism

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for cooperation between local and federal officials to carry out the Act and how those efforts would minimize any impact on federal resources. For all of these reasons, Sheriff Dever's knowledge and expertise will certainly assist, rather than hinder, this Court's efforts in ruling upon the ultimate constitutionality of the Act. II. SHERIFF DEVER'S INTERVENTION WILL NOT COMPLICATE THE ISSUES OR DELAY THE PROCEEDINGS.

Plaintiff also objects to Sheriff Dever's intervention by claiming that his participation is unnecessary, will complicate the issues and render this litigation unwieldy, thereby prejudicing existing parties.

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Here, as explained above, Sheriff Dever's intervention will greatly add value to the proceedings. Sheriff Dever does not desire to introduce new issues to the litigation and will not delay the proceedings, which are in their infancy. Sheriff Dever is willing and prepared to answer the Complaint and can immediately participate in discovery, which has yet to commence. Sheriff Dever will be able to expand upon crucial factual issues necessary for this Court's ultimate resolution of the claims in Plaintiffs' Complaint and represent the

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interests acknowledged as valuable under Rule 24(b)(2)--those officials charged with carrying out the law at issue in this case. appropriate and warranted. III. CONCLUSION. As such, Sheriff Dever's intervention is

Sheriff Dever respectfully renews his request that this Court grant him leave to intervene under Fed.R.Civ.P., Rule 24(b)(2)(A) as he has a statutory duty to administer and
corridors. Through these cooperative efforts, BAG has been extremely effective in reducing the amount of narcotics infiltrating Arizona from Mexico.

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enforce the Act, his participation will greatly benefit the Court and will not prejudice existing parties. DATED this 23rd day of August, 2010. ROSE LAW GROUP PC /s/Brian M. Bergin Brian M. Bergin Kenneth M. Frakes 6613 N. Scottsdale Rd, Ste 200 Scottsdale, Arizona 85032 Proposed Counsel to Defendant

CERTIFICATE OF SERVICE I hereby certify that on August 23, 2010, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the CM/ECF registrants on record in this matter.

/s/ Jennifer Alvarez Jennifer Alvarez

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