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

Filing 29

ORDER denying the 6 Motion to Intervene filed by Carl Eric Olsen. It is further ordered denying as moot Carl Eric Olsen's 23 Motion for Leave to File Electronically. It is further ordered denying the 7 Motion to Intervene filed by Arizona Dispensary Solutions, LLC. Signed by Judge Susan R Bolton on 07/06/11.(ESL)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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State of Arizona; Janice K. Brewer,)
Governor of the State of Arizona, in her)
official capacity; Will Humble, Director of)
the Arizona Department of Health)
Services, in his official capacity; Robert C.)
Halliday, Director of the Arizona)
Department of Public Safety, in his official)
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capacity,
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Plaintiffs,
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vs.
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United States of America; United States)
Department of Justice; Eric H. Holder, Jr.,)
Attorney General of the United States of)
America, in his official capacity; Dennis)
K. Burke, United States Attorney for the)
District of Arizona, in his official capacity;)
Arizona Association of Dispensary)
Professionals, Inc., an Arizona)
corporation; Joshua Levine; Paula)
Pennypacker; Dr. Nicholas Flores; Jane)
Christensen; Paula Pollock; Serenity)
Arizona, Inc., an Arizona nonprofit)
corporation; Holistic Health Management,)
Inc., an Arizona nonprofit corporation; Jeff)
Silva; Arizona Medical Marijuana)
)
Association; Does I-X; Does XI-XX,
)
)
Defendants.
)
)

No. CV 11-1072-PHX-SRB
ORDER

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At issue are the Motion to Intervene (“Olsen Mot.”) and Motion for Leave to File

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Electronically filed by Carl Eric Olsen (Docs. 6, 23). The Court also resolves the Motion to

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Intervene filed by Arizona Dispensary Solutions, LLC (“ADS Mot.”) (Doc. 7).

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I.

BACKGROUND

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This lawsuit concerns Proposition 203, the Arizona Medical Marijuana Act (“the

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Act”), which Arizona voters passed on November 2, 2010, and Governor Brewer signed into

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law on December 14, 2010. (Doc. 1, Compl. ¶¶ 1-2.) The Act aimed to decriminalize the

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possession and use of certain quantities of marijuana for medicinal purposes by qualified

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patients. (Id. ¶ 1.) On April 14, 2011, the Arizona Department of Health Services (“ADHS”)

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began accepting applications from people seeking certification as qualified patients. (Id. ¶

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8.) The Complaint alleges that on or about April 18, 2011, ADHS Director and Plaintiff Will

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Humble spoke to an Assistant United States Attorney to inquire about the possibility of

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liability for state employees implementing the Act, on account of the state law’s conflict with

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federal drug law. (Id. ¶ 24.) On May 2, 2011, Arizona United States Attorney Dennis Burke

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sent a letter to Mr. Humble stating that cultivation, distribution, and possession of marijuana

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remains illegal under federal law. (Id. ¶ 25.) Plaintiffs seek a declaratory judgment regarding

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the liability under federal law of state employees who are implementing the Act. (Id. ¶¶ 62-

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165.) Plaintiffs also seek a determination of whether the Act complies with federal law or is

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preempted. (Id. ¶ 170.)

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Carl Eric Olsen filed a Motion to Intervene in this matter, asserting that he has worked

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on behalf of the legalization of medical marijuana in Iowa. (Olsen Mot. at 2.) Arizona

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Dispensary Solutions (“ADS”), a dispensary in Tucson, Arizona, also seeks to intervene to

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protect its asserted business interest. (ADS Mot. at 1.) Both proposed intervenors are

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proceeding pro se. Plaintiffs oppose both Motions to Intervene. (Doc. 24, Pls.’ Resp. to Olsen

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Mot. at 1; Doc. 25, Pls.’ Resp. to ADS Mot. at 1.)

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II.

LEGAL STANDARDS AND ANALYSIS

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A.

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Federal Rule of Civil Procedure 24(a) permits intervention as a matter of right on a

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timely motion. While the Ninth Circuit Court of Appeals construes Rule 24(a) liberally in

Standards for Intervention

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favor of potential intervenors, the applicant for intervention bears the burden of

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demonstrating that he has satisfied the elements for intervention. See Ctr. for Biological

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Diversity v. U.S. Bureau of Land Mgmt., 266 F.R.D. 369, 372 (D. Ariz. 2010); see also Prete

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v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006). Applicants are required to satisfy a four-part

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test for intervention by right:

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“(1) the motion must be timely; (2) the applicant must claim a ‘significantly
protectable’ interest relating to the property or transaction which is the subject
of the action; (3) the applicant must be so situated that the disposition of the
action may as a practical matter impair or impede its ability to protect that
interest; and (4) the applicant’s interest must be inadequately represented by
the parties to the action.”

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United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir. 2010) (quoting Cal. ex
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rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006)). “Failure to satisfy any one
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of the requirements is fatal to the application . . . .” Perry v. Proposition 8 Official
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Proponents, 587 F.3d 947, 950 (9th Cir. 2009) (citation omitted).
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Federal Rule of Civil Procedure 24(b) governs permissive intervention. An applicant
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seeking to intervene under Rule 24(b) must demonstrate three things: “‘(1) independent
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grounds for jurisdiction; (2) [that] the motion is timely; and (3) [that] the applicant’s claim
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or defense, and the main action, have a question of law or a question of fact in common.’”
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S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) (quoting United States v. City
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of L.A., 288 F.3d 391, 403 (9th Cir. 2002)). Even where those three elements are satisfied,
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however, the district court retains the discretion to deny permissive intervention. Id. (citing
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Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998)). In exercising its discretion, a court
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must consider whether intervention will unduly delay or prejudice the original parties and
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should consider whether the applicant’s interests are adequately represented by the existing
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parties and whether judicial economy favors intervention. Venegas v. Skaggs, 867 F.2d 527,
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530-31 (9th Cir. 1998); see also Fed. R. Civ. P. 24(b)(3) (requiring courts to consider undue
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delay or prejudice to original parties).
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B.

Mr. Olsen’s Motion

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Mr. Olsen argues that he ought to be permitted to intervene because he has worked
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on behalf of the legalization of medical marijuana in Iowa. (Olsen Mot. at 2.) Mr. Olsen

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further argues that Arizona has not properly sought reclassification of marijuana under

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federal drug laws. (Id. at 3.) Mr. Olsen does not make any arguments regarding the standards

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for intervention as a matter of right or permissive intervention. The Court finds that Mr.

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Olsen has not satisfied the standard to intervene under Rule 24(a) or (b). Mr. Olsen has not

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shown that he has a significantly protectable interest in the subject matter of this litigation,

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the protection of which might be impeded or impaired by the outcome of this case, nor has

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he demonstrated that any such interest is not adequately represented by the current parties.

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See Aerojet, 606 F.3d at 1148 (applying Fed. R. Civ. P. 24(a)). Turning to permissive

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intervention, the Court concludes that Mr. Olsen has not demonstrated that there is an

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independent basis for jurisdiction or that his claim (which is unclear) shares a question of law

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or fact with the subject of this litigation. See Lynch, 307 F.3d at 803. Finally, even if Mr.

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Olsen had satisfied the elements for permissive intervention, the Court would still exercise

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its discretion to deny the Motion because, as stated above, Mr. Olsen has not shown that his

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interests are not adequately represented by the existing parties. See Venegas, 867 F.2d at

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530-31.

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Mr. Olsen’s Motion to Intervene is denied. This renders his Motion for Leave to File
Electronically moot.

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C.

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ADS asserts that it “has a vested interest in Proposition 203 and believes that” this

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lawsuit is “arbitrary” and “frivolous.” (ADS Mot. at 1.) ADS argues that, as a medical

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marijuana dispensary, its “core business” is at the heart of this litigation and that its business

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is “suffering significant financial harm, losing potential revenue, and is being put in a

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stressful position with its existing clients.” (Id.) ADS has not shown that its interest in

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protecting its business is not adequately represented by the current parties to this litigation,

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which is fatal to intervention under either Rule 24(a) or (b). See Aerojet, 606 F.3d at 1148

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(analyzing intervention as a matter of right); Venegas, 867 F.2d at 530-31 (discussing

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permissive intervention). The present Defendants include the Arizona Association of

ADS’s Motion

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Dispensary Professionals (“AADP”), and ADS does not state how its interest would differ

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or conflict with AADP’s. The Court finds that ADS has not satisfied the requirements for

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either intervention as a matter of right or permissive intervention.

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IT IS THEREFORE ORDERED denying the Motion to Intervene filed by Carl Eric
Olsen (Doc. 6).
IT IS FURTHER ORDERED denying as moot Carl Eric Olsen’s Motion for Leave
to File Electronically (Doc. 23).
IT IS FURTHER ORDERED denying the Motion to Intervene filed by Arizona
Dispensary Solutions, LLC (Doc. 7).

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DATED this 6th day of July, 2011.

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