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

Filing 88

MOTION to Intervene by Larry A. Dever. (Attachments: # 1 Exhibit Exhibit In Support of Sheriff Dever's Motion to Intervene)(Bergin, Brian)

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

Doc. 88

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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 A. 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. COCHISE COUNTY SHERIFF LARRY A. DEVER'S MOTION TO INTERVENE (Assigned to the Honorable Susan R. Bolton) No. 2:10-cv-01413-PHX-SRB

Larry A. Dever, Cochise County Sheriff, in his official capacity ("Sheriff Dever"), by and through counsel undersigned, hereby respectfully requests that this Court enter an order permitting him to intervene in this case. Permissive intervention is appropriate as Sheriff Dever and his deputies must administer the legislative act that is the subject matter of this action. This Motion is made and based upon Rule 24(b)(2)(A) of the Federal Rules of Civil Procedure the Memorandum of Points and Authorities that follows, any oral

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argument offered at any hearing conducted on this issue and this Court's entire file maintained on this issue, judicial notice of which is requested pursuant to Rule 201 of the

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Dockets.Justia.com

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Federal Rules of Evidence. RESPECTFULLY SUBMITTED this 28th day of July, 2010. ROSE LAW GROUP PC /s/Brian M. Bergin Brian M. Bergin Kenneth M. Frakes 6613 N. Scottsdale Rd.; Ste 200 Scottsdale, Arizona 85250 Proposed Counsel to Defendant MEMORANDUM OF POINTS AND AUTHORITIES Introduction and Background At issue in this matter is whether SB 1070, as amended by HB 2162 (the "Act") is constitutional and should be enjoined. The United States has alleged that the Act violates the Supremacy and Commerce Clauses of the United States Constitution. Sheriff Dever is the Sheriff of Cochise County, a southern Arizona border county. Sheriff Dever is the Chairman of the National Sheriff's Association Border Issues Subcommittee, a member of the Arizona Border Sheriff's Alliance and the Border States Sheriff's Association. He is serving his fourth elected term as Sheriff of Cochise County and has taken a vocal leadership role in resolving border issues both locally and state-wide. Cochise County's entire southern border (nearly 84 miles) is shared with Mexico and the County has two active ports of entry in Douglas and Naco. Since 1996, when elected as Sheriff to his first term, Sheriff Dever has battled illegal immigration and related issues, including human and drug smuggling, as the County is an extremely popular smuggling corridor for travel to Tucson and Phoenix.

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It is the Sherriff's job to protect the people of Cochise County, notwithstanding whether they are legally present. No party is as familiar with (1) the problems associated with illegal immigration; (2) existing law enforcement procedures related to illegal immigration; and (3) law enforcement procedures that will be followed if the Act is implemented and enforced, as Sheriff Dever. Sheriff Dever is a Defendant in a related matter (Friendly House et al. v. Whiting et

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al., No. 2:2010-cv-01061) and possesses the statutory duty to enforce and administer the Act when it becomes effective. See A.R.S. § 11-441(A)(2). He desires to intervene in this case to advocate in favor the Act's constitutionality and value and to ensure its lawful and proper administration. Intervention is proper in this case because the Sheriff is uniquely qualified to represent the interests of one, who as County Sherriff, must administer and enforce the very Act that is the focus of this litigation. Law and Argument

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PERMISSIVE INTERVENTION IS WARRANTED UNDER RULE 24(b)(2)(A) AS SHERIFF DEVER MUST ADMINISTER THE ACT, WHICH IS THE SUBJECT MATTER OF PLAINTIFF'S CLAIMS.

Sheriff Dever should be permitted to intervene in this case as a Defendant under Rule 24(b)(2)(A). This rule authorizes permissive intervention of a government officer or agency when a party's claim or defense is based on "a statute or executive order administered by the officer or agency." Fed. R. Civ. P. 24(b)(2)(A).

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In exercising their discretion under Rule 24, district courts should apply this rule liberally "in allowing a government agency to intervene in cases involving a statute it is required to enforce; indeed, a hospitable attitude is appropriate." Meyer v. MacMillan Publishing Co., Inc., 85 F.R.D. 149, 150 (S.D.N.Y. 1980) (citing Blowers v. Lawyers Coop. Publishing Co., 527 F.2d 333, 334 (2nd Cir. 1975)). Moreover, this specific subsection of Rule 24 was added in 1946 to assure

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government access free from overly-limited interpretations of the intervention provision. See Fed. R. Civ. P. 24 advisory committee's notes; see also Arthur F. Greenbaum, Government Participation in Private Litigation, 21 Ariz. St. L. J. 853, 968-69 (1989). Although public officials or agencies "may not intrude in a purely private controversy, permissive intervention is available when sought because an aspect of the public interest with which he is officially concerned is involved in the litigation." In re First Databank Antitrust Litigation, 205 F.R.D. 408, 414 (D.D.C. 2002) (citing Nuesse v. Camp, 385 F.2d 694, 706 (D.C. Cir. 1967)). One advantage of government intervention is heightened protection of the public interest in litigation. See New Orleans Pub. Serv., Inc. v. United Gas Pipeline Co., 690 F.2d 1203, 1210 (5th Cir. 1982). Here, Sheriff Dever possesses a statutory duty to enforce all laws of the State of

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Arizona. See A.R.S. § 11-441(A)(2) (the county sheriff shall "arrest and take before the nearest magistrate for examination all persons who attempt to commit or have committed a public offense"). Accordingly, Sheriff Dever is charged with the crucial and considerable duty of enforcing the Act and ensuring that it is applied justly and within constitutional directives. The enforcement and administration of the Act is not purely a `private

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controversy' but one with which Sheriff Dever is `officially concerned.' In re First Databank, 205 F.R.D. at 414. Furthermore, Sheriff Dever has a unique and specific perspective to present to this Court as a border sheriff, with nearly 84 miles of shared border and two active ports of entry. During his 14-year tenure as Sheriff, Sheriff Dever has had significant experience in border control and has been called upon to testify before Congress regarding the specific

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issues his county faces in the battle against illegal immigration. Sheriff Dever can provide knowledge and information to this Court that would otherwise be unavailable to it to demonstrate the necessity of the Act as critical tool for securing the border and the health, safety, and welfare of all persons present in his county and our State. II. SHERIFF DEVER'S MOTION IS TIMELY.

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Sheriff Dever's Motion is timely. When considering the timeliness of a motion to intervene, courts consider the following three factors: (1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and the length of the delay. U.S. ex rel. McGough v. Covington Technologies Co., 967 F.2d 1391, 1394 (9th Cir. 1992) (citing U.S. v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984)). A. Sheriff Dever is seeking permission to intervene at a very early stage in the proceedings.

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The first factor weighs heavily in favor of this Court authorizing Sheriff Dever's intervention as he is intervening at a very early stage of this matter. The United States' Complaint was filed only three weeks ago, on July 6, 2010 and Defendants have not answered. This Court has not yet made any substantive rulings in this matter, including a

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decision on Plaintiff's motion for a preliminary injunction. See Northwest Forest Res. Council v. Glickman, 82 F.3d 825, 837 (9th Cir. 1996). Sheriff Dever's intervention at this time will also permit him to file a timely answer. B. No party will be prejudiced by Sheriff Dever's intervention.

Sheriff Dever's intervention will not prejudice any of the existing parties. No prejudice results from intervention when the Court has neither made any substantive rulings

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nor will need to re-open or re-litigate any of the issues. Id.; see also CEP Emery Tech Investors, LLC v. JPMorgan Chase Bank, N.A., No. 09-04409-SBA, slip op. at 3 (N.D. Cal. Apr. 12, 2010) (attached). Sheriff's Dever's intervention will not prejudice any of the

parties as this Court will not need to re-open or re-litigate any of the issues as he is seeking to participate in the underlying substantive merits. C. The instant motion is not delayed.

Finally, the third factor also justifies Sheriff Dever's intervention as he has not unnecessarily delayed in filing his request to intervene. Sheriff Dever will defend against the DOJ's claims and file a timely answer. III. CONCLUSION.

Consequently Sheriff Dever respectfully requests that this Court grant him leave to
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intervene under Rule 24(b)(2)(A). His motion is timely and his intervention will not prejudice any parties herein. /// /// ///

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DATED this 28th day of July, 2010. ROSE LAW GROUP PC /s/Brian M. Bergin Brian M. Bergin Kenneth M. Frakes 6613 N. Scottsdale Rd.; Ste 200 Scottsdale, Arizona 85250 Proposed Counsel to Defendant

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CERTIFICATE OF SERVICE I hereby certify that on July 28, 2010, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the following CM/ECF registrants: Tony West Dennis K. Burke Arthur R. Goldberg Varu Chilakamarri Edwin Smiley Kneedler Joshua Wilkenfeld U.S. Department of Justice, Civil Division 20 Massachusetts Ave, N.W. Washington, D.C. 20530 John J. Bouma Robert A. Henry Joseph G. Adams SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Joseph A. Kanefield Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 By: /s/ Brian M. Bergin

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