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

Filing 24

RESPONSE to Motion re 6 MOTION to Intervene filed by Arizona, State of, Janice K Brewer, Robert C Halliday, William Humble. (Ray, Kevin)

1
2
3
4
5
6
7
8

THOMAS C. HORNE
Attorney General
Firm Bar No. 14000
Kevin D. Ray, No. 007485
Lori S. Davis, No. 027875
Aubrey Joy Corcoran, No. 025423
Assistant Attorneys General
1275 West Washington Street
Phoenix, Arizona 85007-2926
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

9
10

Attorneys for Plaintiffs

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13
14

STATE OF ARIZONA, et al.,
Plaintiffs,

15
16

vs.

RESPONSE AND OBJECTION
TO MOTION TO INTERVENE

17
18
19
20

Case No. 11-CV-01072-PHX-SRB

UNITED STATES OF AMERICA, et al.,
Defendants.
Plaintiffs State of Arizona, Janice K. Brewer, Will Humble, and Robert C.

21

Halladay, through undersigned counsel, hereby object to Carl Eric Olsen’s (“Olsen”)

22

Motion to Intervene (“Motion”) filed June 3, 2011. Plaintiffs ask the Court to deny

23

Olsen’s motion because he has not met the requisite burden of proof to establish his

24

right to intervene under Rule 24 Fed. R. Civ. P.

25
26
27

1

I.

2

A. Olsen cannot claim an intervention of right.

3

Olsen has not established the prerequisites for intervention under Rule 24(a),

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Olsen failed to establish his right to intervene under Rule 24 of the Federal
Rules of Civil Procedure.

Fed. R. Civ. P. An applicant seeking an intervention of right must show: (1) that it has
a significant protectable interest that is the subject of the action; (2) that disposition of
the action may impair or impede its ability to protect its interest; (3) timely
application; and (4) that existing parties inadequately represent applicant’s interest.
Fed. R. Civ. P. 24(a); see also Donaldson v. United States, 400 U.S. 517, 531 (1971);
Perry v. Schwarzenegger, 630 F.3d 898, 903-06 (9th Cir. 2011); Green v. U.S., 996
F.2d 973, 976-78 (9th Cir. 1993). To satisfy these requirements, the alleged interest
cannot be one that is “an undifferentiated, generalized interest in the outcome of an
ongoing action,” and the applicant bears the burden of showing that each element
exists. S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) (internal
quotation marks omitted). Failure to establish any of the four elements is fatal to the
application. Freedom From Religion Found., Inc. v. Geithner, 2011 WL 1746137 at
*1, 2 (9th Cir. 2011); Perry v. Prop. 8 Official Proponents, 587 F.3d 947, 950 (9th Cir.
2009).
Here, Olsen provides no legally relevant basis, or facts, for the Court to grant
his Motion. Olsen’s Motion provides only a brief history of medical marijuana in the
United States coupled with his opinion of how Arizona has failed to seek
reclassification of the drug on both a state and federal level. He seeks reclassification
of marijuana from Schedule I to Schedule II and argues that the federal government
cannot maintain a rule that would make an accepted state medical standard illegal.
This argument, however, fails to establish Olsen’s right to intervene. It offers only a
superficial examination of the federalism concerns at issue without establishing the
elements necessary for successful intervention.
2

1

Olsen has failed to establish the four elements of a proper intervention of right.

2

Most notably, he has not illustrated the substance of his alleged interest. In fact, Olsen

3

resides in Iowa and has not offered any evidence suggesting he has contact with the

4

State of Arizona and its laws. His only assertion of interest is an unsupported

5

negligence claim against Arizona officials and a generalized grievance on behalf of

6

everyone in the United States. Similarly, Olsen has also failed to prove that his interest

7

is inadequately represented by the existing parties. Olsen offers no evidence

8

establishing that the existent parties to this suit inadequately represent his interest.

9

Rather, the crux of his motion advances only his opinion of the type of action that

10

should be taking place. Thus, Olsen’s application for intervention must fail since he

11

has not established all four elements of a proper intervention of right under Rule 24(a)

12

Fed. R. Civ. P.

13
14
15
16
17
18
19
20
21
22
23
24
25
26

B. Olsen should not be allowed to intervene through permissive
intervention.
A court may grant permissive intervention if: (1) the movant shows
independent ground for jurisdiction, (2) the motion is timely, and (3) the applicant’s
claim or defense with the main action shares a common question of law or fact. Fed.
R. Civ. P. 24(b); see also Greene v. U.S., 996 F.2d 973, 978 (9th Cir. 1993). District
Courts have broad discretion when making the determination on a motion for
permissive intervention. See Perry, 630 F.3d at 905-906. Even if an applicant satisfies
threshold requirements, permissive intervention may be denied. S. Cal. Edison Co. v.
Lynch, 307 F.3d 794, 803 (9th Cir. 2002) (quoting Donnelly v. Glickman, 159 F.3d
405, 409 (9th. Cir. 1998)).
A District Court deciding an issue of permissive intervention should consider
several aspects, including: the nature and extent of intervenors’ interest, the legal
position they seek to advance and its probable relation to the case, whether the
intervenors’ interest is adequately represented by other parties, whether allowing

27
3

1

intervention will significantly contribute to the full development of underlying factual

2

issues in suit and equitable adjudication of the legal question presented, and whether

3

the party will have standing to raise relevant legal issues. Fed R. Civ. P. Rule 24(b)(1)-

4

(2); see also Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326, 1329 (9th. Cir.

5

1977); Perry, 630 F.3d at 905. Here, allowing Olsen to intervene will not advance the

6

resolution of any factual or legal issues. As previously stated, Olsen resides in Iowa

7

and has provided no proof to establish a connection between himself and Arizona. His

8

only alleged interest is generalized and admittedly shared with the entire United States.

9

Thus, the interest alleged by Olsen is adequately represented by the parties currently

10

involved and, even if Olsen is permitted to intervene, he would not have standing to

11

raise any legal issues.

12

CONCLUSION

13

Olsen has not met his burden of proof to intervene; nor would allowing his

14

intervention further the resolution of any factual or legal issues. Olsen’s motion only

15

provides a brief overview of medical marijuana history without offering any evidence

16

to support his right to intervene. As such, Olsen’s motion fails to establish the

17

elements necessary to allow lawful intervention under Rule 24 Fed. R. Civ. P. Thus, as

18

a matter of law, Olsen’s motion to intervene fails and he should not be permitted to

19

intervene.

20
21
22
23
24
25
26
27

Dated this 17th day of June, 2011.
THOMAS C. HORNE
Attorney General
s/ Kevin D. Ray
Kevin D. Ray
Lori S. Davis
Aubrey Joy Corcoran
Assistant Attorneys General
Attorneys for Plaintiffs
4

1
2
3
4
5
6
7

COPY of the foregoing filed via ECF this 17th day of June, 2011 to all ECF registrants in the
instant matter.
I certify that I electronically
transmitted the attached document
to the Clerk’s Office using the
CM/ECF System for filing and
transmittal of a Notice of Electronic
Filing to the following, if CM/ECF
registrants, and mailed a copy of
same to any non-registrants, this
this 17th day of June, 2011 to:

8
9
10
11
12
13
14
15
16
17
18
19
20
21

Scott Risner
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, D.C. 20001
Brian Bergin
Rose Law Group
6613 N. Scottsdale Road, Suite 200
Scottsdale, AZ 85250
Lisa T. Hauser
Gammage & Burnham
Two North Central, 15th Floor
Phoenix, AZ 85004
Thomas W. Dean
Thomas W. Dean Esq. PLC
323 N Leroux Street, Suite 101
Flagstaff, AZ 86001
COPY of the foregoing mailed on
June 20, 2011 to:

22
23
24
25
26

Carl Eric Olsen
130 E Aurora Ave.
Des Moines, IA 50313-3654
s/ Phil Londen
#1991950

27
5