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)

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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: (602) 542-8309 Facsimile: (602) 542-8308 Email: 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

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