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

Filing 31

MOTION to Intervene Motion for Leave to Intervene as Co-Plaintiffs by: A. Maricopa County; and B. Joy Rich in her official capacity as Assistant County Manager and Director of Maricopa County Planning and Development Department by Maricopa, County of, Joy Rich. (Attachments: # 1 Exhibit Exhibit 1 of 2, # 2 Exhibit Exhibit 2 of 2, # 3 Text of Proposed Order Proposed Order)(Liddy, Thomas)

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WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY
BAR ID#: 021246
THOMAS P. LIDDY
Deputy County Attorney
BAR ID#: 019384
CIVIL SERVICES DIVISION
222 North Central Avenue, Suite 1100
Phoenix, AZ 85004
MCAO Firm #: 00032000
Telephone: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiffs Intervenor
Maricopa County and Joy Rich

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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
Capacity;

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Plaintiffs,

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v.

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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

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NO. CV 11-01072-PHX-SRB
MOTION FOR LEAVE TO
INTERVENE AS CO-PLAINTIFFS
BY:
A. MARICOPA COUNTY; and
B. JOY RICH, in her official
capacity as ASSISTANT
COUNTY MANAGER AND
DIRECTOR OF MARICOPA
COUNTY PLANNING AND
DEVELOPMENT
DEPARTMENT

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Official Capacity; ARIZONA
ASSOCIATION OF DISPENSARY
PROFESSIONALS, INC., an Arizona
corporation; JOSHUA LEVINE; PAULA
PENNYPACKER; DR. NICHOLAS
FLORES; JANE CHRISTENSEN;
PAULA POLLOCK; SERENTIY
ARIZONA, INC., an Arizona nonprofit
corporation; HOLISTIC HEALTH
MANAGEMENT, INC., an Arizona
nonprofit corporation; JEFF SILVA;
ARIZONA MEDICAL MARIJUANA
ASSOCIATION; DOES 1-X; DOES XIXX;

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Defendants.
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Pursuant to Rule 24(b)(1)(B) and 24(b)(2), Fed.R.Civ.P., MARICOPA

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COUNTY, in its official capacity, and JOY RICH, in her official capacity as Assistant

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County Manager and Director of Maricopa County Planning and Development

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Department (collectively “County Intervenors”) move the Court for an Order permitting

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them to intervene as Co-Plaintiffs in this declaratory judgment action.

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Intervenors’ claims share a common question of law and/or fact with the claims set forth

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by Plaintiffs in the main action. County Intervenors seek this Court’s determination of

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whether participation by County employees/agents in activities that would serve to

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implement and facilitate Arizona’s “medical marijuana” law provides a safe harbor from

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prosecution under applicable, but inconsistent, federal drug enforcement laws or, in the

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alternative, whether the state statute is preempted by federal law.

County

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In addition, because County Intervenors are a government agency and officers,

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their claims are based on a statute which they must administer and/or requirements they
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must meet under the statute and, therefore, permissive intervention under Rule 24(b)(2),

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Fed.R.Civ.P. is available. As such, intervention is particularly appropriate here because

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County Intervenors satisfy several conditions that militate in favor of allowing

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intervention in the main action. County Intervenors’ request to intervene is timely and

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intervention will not cause delay or prejudice because the request has been made at the

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very earliest stages of litigation. A copy of the Proposed Complaint in Intervention is

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attached hereto as Exhibit A.

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

Background

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Plaintiffs State of Arizona, Janice K. Brewer, Will Humble and Robert C.

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Halliday (“State Plaintiffs”) have filed an action in this Court seeking a declaratory

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judgment on a question pertaining to an immediate and serious potential conflict

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between enforcement of a newly enacted state law and an existing federal law that could

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render actions taken pursuant to the state law illegal.

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passed Proposition 203, an initiative measure identified as the “Arizona Medical

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Marijuana Act” (“AMMA”), codified at A.R.S. §§ 36-2801, et seq.

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purports to decriminalize marijuana under certain circumstances pertaining to medical

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use, and requires Maricopa County officials and employees to perform certain duties to

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implement the new law. Those duties would have the effect of facilitating the growth,

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manufacture, dispensation and possession of marijuana by, e.g., approving and

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permitting medical marijuana distribution centers or allowing marijuana cultivation.

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At issue in this matter is the voter

The AMMA

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Under federal law, marijuana is considered a dangerous drug under provisions of

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the federal Controlled Substances Act (“CSA”), codified at 21 U.S.C. § 801, et seq.

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Under the CSA, marijuana is a Schedule I drug, meaning it has a high potential for

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abuse, lacks any accepted medical use and cannot be used safely even under the

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supervision of a physician. In this regard, the CSA does not recognize a “medical

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exception” for marijuana.

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possession of marijuana is a criminal offense under the CSA. Penalties for violating the

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federal statute are severe. For example, the manufacture, distribution or possession with

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intent to distribute, marijuana each constitute felonies punishable by up to five years in

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prison and fines up to $250,000 for individuals and $1 million for entities. Repeat

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offenders face more severe penalties. 21 U.S.C. § 841.

As a Schedule I drug, the manufacture, distribution or

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The tension between the AMMA and the CSA is clear in that the state law seeks

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to make legal that which the federal law unequivocally makes illegal. The position

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taken by the federal government is that growing, distributing and possessing marijuana

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in any capacity, other than as part of a federally authorized research program, is a

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violation of federal law regardless of state laws that purport to permit such activities. In

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this regard, the United States Attorney’s Office for the District of Arizona has taken the

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position that it “will continue to vigorously prosecute individuals and organizations that

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participate in unlawful manufacturing, distribution and marketing activity involving

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marijuana, even if such activities are permitted under state law.” See May 2, 2011 letter

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from United States Attorney Dennis K. Burke to DHS Director Will Humble, attached

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hereto as Exhibit B. Thus, there is no safe harbor from federal criminal prosecution
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based on legality under state law.1

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Under the foregoing circumstances, employees/agents of Maricopa County could

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be subject to federal prosecution under the CSA in connection with activities they are

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required to perform in order to implement the AMMA. For example, the Maricopa

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County Planning and Development Department is charged with approving and issuing

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building permits and special use permits, and generally facilitating the opening and

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operation of any business seeking to locate within unincorporated Maricopa County.

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See Declaration of Joy Rich (“Rich Decl.”), ¶¶ 2-5, attached hereto as Exhibit D. Under

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the AMMA, this would include the issuance of permits for medical marijuana

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distribution centers or permits allowing the cultivation of marijuana. Rich Decl., ¶ 6.

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As such, County employees/agents who, by virtue of actions taken as required by the

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AMMA, will facilitate the possession, manufacture and distribution of marijuana, all of

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which are illegal under the CSA, and could be held liable as aiders or abettors under 18

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U.S.C. § 2. Similarly, County employees/agents could be liable under other theories,

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including conspiring to commit an offense against the United States (18 U.S.C. § 371),

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assisting an offender thereby becoming an accessory to the crime (18 U.S.C. § 3), and

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To further solidify the point, on June 29, 2011, Deputy Attorney General James M.
Cole released a memorandum to United States Attorneys wherein he stated “persons
who are in the business of cultivating, selling or distributing marijuana, and those who
knowingly facilitate such activities, are in violation of the Controlled Substances Act,
regardless of state law. Consistent with resource constraints and the discretion you may
exercise in your district, such persons are subject to federal enforcement action,
including potential prosecution. State laws or local ordinances are not a defense to civil
or criminal enforcement of federal law with respect to such conduct, including
enforcement of the CSA” (emphasis added). See June 29, 2011memorandum from
Deputy Attorney General James M. Cole, attached hereto as Exhibit C.
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concealing knowledge of a felony from the United States (18 U.S.C. § 4).

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Because the AMMA has already gone into effect, and applications have been

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received by the County requesting permitting in connection with marijuana cultivation

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and distribution, County employees/agents face an immediate threat of prosecution for

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facilitating the use, possession, manufacture or distribution of marijuana. Rich Decl., ¶¶

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6-11. County Intervenor Joy Rich, who is the Director of Maricopa County Planning

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and Development Department, confirms that there are two applications currently

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pending before her for approval of a Special Use Permit; one to allow a dispensary for

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medical marijuana and one for cultivation of medical marijuana. Rich Decl., ¶ 6. In

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addition, there are six more applicants interested in applying for dispensaries for medical

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marijuana and three more applicants interested in applying for permits for cultivation of

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medical marijuana. Rich Decl., ¶ 7. Because of the discrepancies between the AMMA

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and the CSA, Director Rich feels her employees face a dilemma because they can either

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issue those permits they are required to issue as part of their job duties and face the

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possibility that they could be prosecuted for violation of federal law, or follow federal

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law and refuse to enforce state statute.

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employees are being asked to make a choice that, in either event, will result in potential

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exposure to liability. Rich Decl., ¶ 11.

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II.

Rich Decl., ¶¶ 8-10.

Rich feels that her

Permissive Intervention is Appropriate

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Pursuant to Rule 24(b), Fed.R.Civ.P., the Court may allow a party to intervene in

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a case if that party “has a claim or defense that shares with the main action a common

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question of law or fact” or, in the case of a government officer or agency, if the
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government party’s claim or defense is based on “a statute administered by the officer or

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agency” or based on “any regulation, order, requirement, or agreement issued or made

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under the statute.” Here, both bases for intervention apply, and there is a compelling

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argument for allowing County Intervenors to intervene.

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County Intervenors’ claims are consistent with the allegations being made by

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State Plaintiffs because Maricopa County officials and employees, including Rich and

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her employees, could be subject to federal prosecution for violation of the CSA if they

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participate in actions that would implement the AMMA.

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intervention by them as Co-Plaintiffs is appropriate because:

Accordingly, permissive

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1. They have a claim or defense that shares with the main action a

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common question of law or fact, i.e., the implementation of the AMMA

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and the potential criminalization of such implementation under the

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CSA; and

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2. County Intervenors’ claim is based upon a statute administered by the

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County, as well as requirements and regulations made under the subject

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statute, i.e., implementation of the AMMA, which is the subject matter

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of this action.

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Thus, the fundamental requirement of commonality of claims under Rule
24(b)(1)(B) and government interest under Rule 24(b)(2) are met.

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In addition, requests for permissive intervention must be supported by an

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independent basis for jurisdiction and must be timely made. S. Cal. Edison Co. v.

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Lynch, 307 F.3d 794, 803 (9th Cir. 2002). Here, County Intervenors submit the same
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bases for jurisdiction as submitted by State Plaintiffs in their Complaint at ¶¶ 57-59.

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County Intervenors’ claims arise under the Constitution and laws of the United States,

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they present a federal question, the United States and its agencies and officers are

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Defendants, and County Intervenors are seeking relief pursuant to the Declaratory

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Judgment Act, 28 U.S.C. § 2201. Further, County Intervenors’ request to intervene is

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timely because it is being submitted at a very early stage in the proceedings. To date, no

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answers have been filed, and the case is not yet at issue.

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The Court may also look at other factors in making its decision whether to allow

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intervention, including whether intervention will unduly delay or prejudice the original

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parties, whether judicial economy favors intervention and whether the requesting

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parties’ interests are adequately represented by the existing parties. Venegas v. Skaggs,

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867 F.2d 527, 530-31 (9th Cir. 1998). All of these factors weigh in favor of allowing

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intervention.

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First, no party will be prejudiced if the Court grants intervention. This case was

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only very recently filed by the State Plaintiffs and no party has yet answered the

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Complaint. Aside from the Court’s recent rulings on other motions to intervene, the

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Court has not made any substantive rulings and therefore will not need to re-open or re-

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litigate any of the issues. Because of the nature of their claims, the County Intervenors

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will not add any complexity to the case that might prolong the litigation. Further, the

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presence of the County Intervenors will not draw the focus of the litigation away from

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the original parties, but will actually augment the State Plaintiffs’ position. In short,

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there is simply no evidence that allowing the County to intervene would result in
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prejudice.

It has been held that a district court abused its discretion in denying

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permissive intervention where the requirements for permissive intervention had been

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met and there was no evidence that intervention would prejudice the original parties.

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Venegas, 867 F.2d at 530 (quoting Crumble v. Blumthal, 549 F.2d 462, 468-69 (7th

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Cir.1977)).

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Second, judicial economy favors intervention in this case. County Intervenors

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have specific issues pertaining to the actions their employees/agents must take in

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connection with the implementation of the AMMA, including issuing building and

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special use permits. Rich Decl., ¶¶ 2-9. These actions by the County are in addition to,

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and distinctly separate from, the actions the State Plaintiffs must take to implement the

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new law. As such, County Intervenors require a judicial determination of their specific

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rights and duties under the inconsistent state and federal laws. Because of this, County

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Intervenors have a sound basis for filing their own lawsuit based on the County’s unique

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interests and duties in implementing the AMMA. Granting intervention would allow the

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County Intervenors to present and protect their interests in a common lawsuit rather than

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in a separate action. This would also avoid the possibility of duplicative litigation and

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inconsistent rulings.

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Third, for reasons stated in the previous paragraph, if County Intervenors are

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allowed to intervene in the State Plaintiffs action, they could better represent and protect

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their unique interests in connection with their specific duties in implementing the

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AMMA. Since the County Planning and Development Department must approve new

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business uses, and facilitates the opening and operation of any new business seeking to
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locate within the County, County Intervenors position regarding implementation of the

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AMMA will necessarily differ from that of the State Plaintiffs. As Director Rich has

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stated, her Department is “charged with issuing permits under and enforcing the Zoning

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Ordinance for the Unincorporated Areas of Maricopa County” and “without the approval

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by [her] Department, no new use can begin within the jurisdiction of unincorporated

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Maricopa County.” Rich Decl., ¶¶ 2-4. As such, the County’s actions, and interests

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related thereto, in implementing the AMMA differ markedly from those actions the State

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Plaintiffs will be required to take.

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There is no doubt the State Plaintiffs will vigorously and competently pursue

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their case, but the County Intervenors should be allowed to present a case from their

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own unique perspective and based on the duties their employees/agents are called upon

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to perform under the AMMA if their interests are to be adequately represented and

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protected. In this regard, Director Rich should be independently represented so that her

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unique factual perspective on the County’s and her employees’ duties, and potential

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liability, can be presented in a manner independent from the interests and duties of the

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State Plaintiffs. There is no guarantee that the County Intervenors’ interests will be

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presented or protected if County Intervenors are left out of this lawsuit.

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Granting permissive intervention is, of course, at the Court’s discretion.

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However, it has been held that, in exercising their discretion to grant permissive

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intervention under Rule 24, district courts are encouraged to apply this rule liberally “in

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allowing a government agency to intervene in cases involving a statute it is required to

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enforce; indeed, a hospitable attitude is appropriate.” Meyer v. MacMillan Publishing
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Co., Inc., 85 F.R.D.149, 150 (S.D.N.Y.1980)(citing Blowers v. Lawyers Coop.

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Publishing Co., 527 F.2d 333, 334 (2nd Cir.1975)).

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Finally, this matter is ripe for review by the Court even if no federal prosecution

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has been initiated against the County Intervenors because the threat of prosecution is

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realistic and the County Intervenors should not be compelled to break the law in order to

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see if the federal prosecutors are serious. See New Hampshire Hemp Council, Inc. v.

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Marshall, 203 F.3d 1, 5 (1st Cir. 2000). The U.S. Attorney’s Office has made it clear

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that “growing, distributing and possessing marijuana in any capacity, other than as part

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of a federally authorized research program, is a violation of federal law regardless of

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state laws that purport to permit such activities” and that they “will continue to

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vigorously prosecute individuals and organizations that participate in unlawful

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manufacturing, distribution and marketing activity involving marijuana, even if such

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activities are permitted under state law.” See Exhibit B. With this threat of prosecution

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looming, County officers and employees, who clearly have a role in implementing the

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AMMA, should not be put in a position of having to act pursuant to state law and then

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waiting to see whether or not federal drug charges will be brought against them. Or, as

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the court in New Hampshire Hemp Council stated “there ought to be a way to resolve the

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legal correctness of [County Intervenors’] position without subjecting [them] to criminal

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penalties well known for their severity and inflexible administration.” Id.

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III.

Substantive Reasons for Allowing the County to Intervene

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County Intervenors find themselves in the immediate and untenable position of

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having to decide which of two contradictory laws they are obligated to follow. County
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Intervenors are tasked with implementing the terms of the AMMA. However, in doing

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so, they are faced with the dilemma of either following the state law, as they are required

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to do as part of their job duties, and face the possibility that they could be prosecuted for

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violations of federal law, or follow federal law and refuse to enforce the state statute.

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Rich Decl., ¶ 10. Ultimately, County employees are being asked to make a choice that,

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in either event, will result in potential exposure to liability. Rich Decl., ¶ 11.

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Issuing permits for marijuana distribution centers or marijuana cultivation could

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be construed as facilitating the use, possession or distribution of marijuana, which acts

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are illegal under the CSA, regardless of what is allowed under Arizona law. The

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Department of Justice has not waived, and has specifically reserved, its authority to

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prosecute such crimes. See Exhibits B and C. Thus, there is a very definite risk that

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Maricopa County employees who are involved in issuing permits to implement the

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AMMA, and thereby are facilitating the use, possession or distribution of marijuana,

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could be subject to federal prosecution under the CSA.

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The issues presented in this declaratory action are pertinent to the conduct of the

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County and the performance of duties related to the implementation of the state law.

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Moreover, the legal threat to county employees is immediate. Prior to receiving a copy

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of the May 2, 2011 letter from the United States Attorney’s Office, the County had

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received applications pursuant to the AMMA, and employees who were handling those

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applications were in the process of implementing the law. Rich Decl., ¶¶ 6-9. Thus, the

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position espoused by United States Attorney Burke poses an immediate threat of

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prosecution to state and county employees processing the applications already filed with
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the various state and county agencies. This declaratory action is appropriate because

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County officers and employees who have a role in implementing the AMMA should not

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be put in a position of having to wait and see whether or not any federal administration’s

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policies would result in their prosecution under federal law.

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County Intervenors have the statutory duty to implement and administer the

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AMMA in Maricopa County as it becomes effective in August 2011. See A.R.S. §11-

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441(a)(2). County Intervenors wish to intervene in this case to seek clarification as to

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the exposure of Maricopa County officials and employees who, under the AMMA, are

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required to implement and perform administrative functions such as issuing licenses or

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permits for marijuana distribution centers. Intervention is proper because Maricopa

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County and its employees must comply in their own unique ways with the AMMA when

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it goes into effect.

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IV.

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Conclusion
For the stated reasons, County Intervenors respectfully requests that this Court

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grant them leave to intervene in the main action under Fed.R.Civ.P. 24(b)(1)(B) and/or

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24(b)(2). County Intervenors’ motion is timely, their intervention will not prejudice any

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parties herein, and their claim shares with the main action a common question of law

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and/or fact.

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RESPECTFULLY SUBMITTED this 14th day of July 2011.

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WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY

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BY: /s William G. Montgomery
WILLIAM G. MONTGOMERY
Attorneys for Plaintiffs Intervenor
Maricopa County and Joy Rich

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CERTIFICATE OF SERVICE

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I hereby certify that on July 14th 2011, I caused the foregoing document to be
electronically transmitted to the Clerk’s Office using the CM/ECF System for filing and
transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

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Honorable Susan Bolton
United States District Court
Sandra Day O’Connor U.S. Courthouse
401 West Washington Street, Suite 322, SPC 11
Phoenix, Arizona 85003-2120
Aubrey Joy Corcoran
Kevin D. Ray
Lori Simpson Davis
Office of the Attorney General
1275 West Washington Street
Phoenix, Arizona 85007
Attorneys for Plaintiffs State of Arizona,
Janice K. Brewer, William Humble,
Robert C. Halliday
Scott Michelman
American Civil Liberties Union Foundation
1101 Pacific Avenue, Suite 333
Santa Cruz, CA 95060
Attorney for Defendant Arizona Medical
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Marijuana Association

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Daniel J. Pochoda
ACLU Foundation of Arizona
77 E. Columbus Street, Suite 205
Phoenix, AZ 85012
Attorney for Defendant Arizona Medical
Marijuana Association

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Lisa T. Hauser
Cameron C. Artigue
Gammage & Burnham
Two North Central, 15th Floor
Phoenix, AZ 85004
Attorney for Defendant Arizona Medical
Marijuana Association

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Thomas W. Dean
P.O. Box J
Flagstaff, AZ 86002
Attorney for Defendant Arizona Association
Of Dispensary Professionals

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Ken Frakes
Rose Law Group, PC
6613 N. Scottsdale Road, Suite 200
Scottsdale, AZ 85250
Attorneys for Defendants Serenity Arizona,
Holistic Health Management, Levine,
Pennypacker, Flores, Christensen,
Pollock and Silva
and copy delivered by U.S. mail and
electronic mail to:

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Scott Risner
Trial Attorney, U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, DC 20001
Email: [e-mail]

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/s/

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