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)

Download PDF
1 2 3 4 5 6 7 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: (602) 506-8541 8 9 Attorneys for Plaintiffs Intervenor Maricopa County and Joy Rich 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE DISTRICT OF ARIZONA 12 13 14 15 16 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; 17 Plaintiffs, 18 v. 19 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 20 21 22 1 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 1 2 3 4 5 6 7 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; 8 Defendants. 9 10 Pursuant to Rule 24(b)(1)(B) and 24(b)(2), Fed.R.Civ.P., MARICOPA 11 COUNTY, in its official capacity, and JOY RICH, in her official capacity as Assistant 12 County Manager and Director of Maricopa County Planning and Development 13 Department (collectively “County Intervenors”) move the Court for an Order permitting 14 them to intervene as Co-Plaintiffs in this declaratory judgment action. 15 Intervenors’ claims share a common question of law and/or fact with the claims set forth 16 by Plaintiffs in the main action. County Intervenors seek this Court’s determination of 17 whether participation by County employees/agents in activities that would serve to 18 implement and facilitate Arizona’s “medical marijuana” law provides a safe harbor from 19 prosecution under applicable, but inconsistent, federal drug enforcement laws or, in the 20 alternative, whether the state statute is preempted by federal law. County 21 In addition, because County Intervenors are a government agency and officers, 22 their claims are based on a statute which they must administer and/or requirements they 2 1 must meet under the statute and, therefore, permissive intervention under Rule 24(b)(2), 2 Fed.R.Civ.P. is available. As such, intervention is particularly appropriate here because 3 County Intervenors satisfy several conditions that militate in favor of allowing 4 intervention in the main action. County Intervenors’ request to intervene is timely and 5 intervention will not cause delay or prejudice because the request has been made at the 6 very earliest stages of litigation. A copy of the Proposed Complaint in Intervention is 7 attached hereto as Exhibit A. 8 9 MEMORANDUM OF POINTS AND AUTHORITIES I. Background 10 Plaintiffs State of Arizona, Janice K. Brewer, Will Humble and Robert C. 11 Halliday (“State Plaintiffs”) have filed an action in this Court seeking a declaratory 12 judgment on a question pertaining to an immediate and serious potential conflict 13 between enforcement of a newly enacted state law and an existing federal law that could 14 render actions taken pursuant to the state law illegal. 15 passed Proposition 203, an initiative measure identified as the “Arizona Medical 16 Marijuana Act” (“AMMA”), codified at A.R.S. §§ 36-2801, et seq. 17 purports to decriminalize marijuana under certain circumstances pertaining to medical 18 use, and requires Maricopa County officials and employees to perform certain duties to 19 implement the new law. Those duties would have the effect of facilitating the growth, 20 manufacture, dispensation and possession of marijuana by, e.g., approving and 21 permitting medical marijuana distribution centers or allowing marijuana cultivation. 22 3 At issue in this matter is the voter The AMMA 1 Under federal law, marijuana is considered a dangerous drug under provisions of 2 the federal Controlled Substances Act (“CSA”), codified at 21 U.S.C. § 801, et seq. 3 Under the CSA, marijuana is a Schedule I drug, meaning it has a high potential for 4 abuse, lacks any accepted medical use and cannot be used safely even under the 5 supervision of a physician. In this regard, the CSA does not recognize a “medical 6 exception” for marijuana. 7 possession of marijuana is a criminal offense under the CSA. Penalties for violating the 8 federal statute are severe. For example, the manufacture, distribution or possession with 9 intent to distribute, marijuana each constitute felonies punishable by up to five years in 10 prison and fines up to $250,000 for individuals and $1 million for entities. Repeat 11 offenders face more severe penalties. 21 U.S.C. § 841. As a Schedule I drug, the manufacture, distribution or 12 The tension between the AMMA and the CSA is clear in that the state law seeks 13 to make legal that which the federal law unequivocally makes illegal. The position 14 taken by the federal government is that growing, distributing and possessing marijuana 15 in any capacity, other than as part of a federally authorized research program, is a 16 violation of federal law regardless of state laws that purport to permit such activities. In 17 this regard, the United States Attorney’s Office for the District of Arizona has taken the 18 position that it “will continue to vigorously prosecute individuals and organizations that 19 participate in unlawful manufacturing, distribution and marketing activity involving 20 marijuana, even if such activities are permitted under state law.” See May 2, 2011 letter 21 from United States Attorney Dennis K. Burke to DHS Director Will Humble, attached 22 hereto as Exhibit B. Thus, there is no safe harbor from federal criminal prosecution 4 1 based on legality under state law.1 2 Under the foregoing circumstances, employees/agents of Maricopa County could 3 be subject to federal prosecution under the CSA in connection with activities they are 4 required to perform in order to implement the AMMA. For example, the Maricopa 5 County Planning and Development Department is charged with approving and issuing 6 building permits and special use permits, and generally facilitating the opening and 7 operation of any business seeking to locate within unincorporated Maricopa County. 8 See Declaration of Joy Rich (“Rich Decl.”), ¶¶ 2-5, attached hereto as Exhibit D. Under 9 the AMMA, this would include the issuance of permits for medical marijuana 10 distribution centers or permits allowing the cultivation of marijuana. Rich Decl., ¶ 6. 11 As such, County employees/agents who, by virtue of actions taken as required by the 12 AMMA, will facilitate the possession, manufacture and distribution of marijuana, all of 13 which are illegal under the CSA, and could be held liable as aiders or abettors under 18 14 U.S.C. § 2. Similarly, County employees/agents could be liable under other theories, 15 including conspiring to commit an offense against the United States (18 U.S.C. § 371), 16 assisting an offender thereby becoming an accessory to the crime (18 U.S.C. § 3), and 17 1 18 19 20 21 22 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. 5 1 concealing knowledge of a felony from the United States (18 U.S.C. § 4). 2 Because the AMMA has already gone into effect, and applications have been 3 received by the County requesting permitting in connection with marijuana cultivation 4 and distribution, County employees/agents face an immediate threat of prosecution for 5 facilitating the use, possession, manufacture or distribution of marijuana. Rich Decl., ¶¶ 6 6-11. County Intervenor Joy Rich, who is the Director of Maricopa County Planning 7 and Development Department, confirms that there are two applications currently 8 pending before her for approval of a Special Use Permit; one to allow a dispensary for 9 medical marijuana and one for cultivation of medical marijuana. Rich Decl., ¶ 6. In 10 addition, there are six more applicants interested in applying for dispensaries for medical 11 marijuana and three more applicants interested in applying for permits for cultivation of 12 medical marijuana. Rich Decl., ¶ 7. Because of the discrepancies between the AMMA 13 and the CSA, Director Rich feels her employees face a dilemma because they can either 14 issue those permits they are required to issue as part of their job duties and face the 15 possibility that they could be prosecuted for violation of federal law, or follow federal 16 law and refuse to enforce state statute. 17 employees are being asked to make a choice that, in either event, will result in potential 18 exposure to liability. Rich Decl., ¶ 11. 19 II. Rich Decl., ¶¶ 8-10. Rich feels that her Permissive Intervention is Appropriate 20 Pursuant to Rule 24(b), Fed.R.Civ.P., the Court may allow a party to intervene in 21 a case if that party “has a claim or defense that shares with the main action a common 22 question of law or fact” or, in the case of a government officer or agency, if the 6 1 government party’s claim or defense is based on “a statute administered by the officer or 2 agency” or based on “any regulation, order, requirement, or agreement issued or made 3 under the statute.” Here, both bases for intervention apply, and there is a compelling 4 argument for allowing County Intervenors to intervene. 5 County Intervenors’ claims are consistent with the allegations being made by 6 State Plaintiffs because Maricopa County officials and employees, including Rich and 7 her employees, could be subject to federal prosecution for violation of the CSA if they 8 participate in actions that would implement the AMMA. 9 intervention by them as Co-Plaintiffs is appropriate because: Accordingly, permissive 10 1. They have a claim or defense that shares with the main action a 11 common question of law or fact, i.e., the implementation of the AMMA 12 and the potential criminalization of such implementation under the 13 CSA; and 14 2. County Intervenors’ claim is based upon a statute administered by the 15 County, as well as requirements and regulations made under the subject 16 statute, i.e., implementation of the AMMA, which is the subject matter 17 of this action. 18 19 Thus, the fundamental requirement of commonality of claims under Rule 24(b)(1)(B) and government interest under Rule 24(b)(2) are met. 20 In addition, requests for permissive intervention must be supported by an 21 independent basis for jurisdiction and must be timely made. S. Cal. Edison Co. v. 22 Lynch, 307 F.3d 794, 803 (9th Cir. 2002). Here, County Intervenors submit the same 7 1 bases for jurisdiction as submitted by State Plaintiffs in their Complaint at ¶¶ 57-59. 2 County Intervenors’ claims arise under the Constitution and laws of the United States, 3 they present a federal question, the United States and its agencies and officers are 4 Defendants, and County Intervenors are seeking relief pursuant to the Declaratory 5 Judgment Act, 28 U.S.C. § 2201. Further, County Intervenors’ request to intervene is 6 timely because it is being submitted at a very early stage in the proceedings. To date, no 7 answers have been filed, and the case is not yet at issue. 8 The Court may also look at other factors in making its decision whether to allow 9 intervention, including whether intervention will unduly delay or prejudice the original 10 parties, whether judicial economy favors intervention and whether the requesting 11 parties’ interests are adequately represented by the existing parties. Venegas v. Skaggs, 12 867 F.2d 527, 530-31 (9th Cir. 1998). All of these factors weigh in favor of allowing 13 intervention. 14 First, no party will be prejudiced if the Court grants intervention. This case was 15 only very recently filed by the State Plaintiffs and no party has yet answered the 16 Complaint. Aside from the Court’s recent rulings on other motions to intervene, the 17 Court has not made any substantive rulings and therefore will not need to re-open or re- 18 litigate any of the issues. Because of the nature of their claims, the County Intervenors 19 will not add any complexity to the case that might prolong the litigation. Further, the 20 presence of the County Intervenors will not draw the focus of the litigation away from 21 the original parties, but will actually augment the State Plaintiffs’ position. In short, 22 there is simply no evidence that allowing the County to intervene would result in 8 1 prejudice. It has been held that a district court abused its discretion in denying 2 permissive intervention where the requirements for permissive intervention had been 3 met and there was no evidence that intervention would prejudice the original parties. 4 Venegas, 867 F.2d at 530 (quoting Crumble v. Blumthal, 549 F.2d 462, 468-69 (7th 5 Cir.1977)). 6 Second, judicial economy favors intervention in this case. County Intervenors 7 have specific issues pertaining to the actions their employees/agents must take in 8 connection with the implementation of the AMMA, including issuing building and 9 special use permits. Rich Decl., ¶¶ 2-9. These actions by the County are in addition to, 10 and distinctly separate from, the actions the State Plaintiffs must take to implement the 11 new law. As such, County Intervenors require a judicial determination of their specific 12 rights and duties under the inconsistent state and federal laws. Because of this, County 13 Intervenors have a sound basis for filing their own lawsuit based on the County’s unique 14 interests and duties in implementing the AMMA. Granting intervention would allow the 15 County Intervenors to present and protect their interests in a common lawsuit rather than 16 in a separate action. This would also avoid the possibility of duplicative litigation and 17 inconsistent rulings. 18 Third, for reasons stated in the previous paragraph, if County Intervenors are 19 allowed to intervene in the State Plaintiffs action, they could better represent and protect 20 their unique interests in connection with their specific duties in implementing the 21 AMMA. Since the County Planning and Development Department must approve new 22 business uses, and facilitates the opening and operation of any new business seeking to 9 1 locate within the County, County Intervenors position regarding implementation of the 2 AMMA will necessarily differ from that of the State Plaintiffs. As Director Rich has 3 stated, her Department is “charged with issuing permits under and enforcing the Zoning 4 Ordinance for the Unincorporated Areas of Maricopa County” and “without the approval 5 by [her] Department, no new use can begin within the jurisdiction of unincorporated 6 Maricopa County.” Rich Decl., ¶¶ 2-4. As such, the County’s actions, and interests 7 related thereto, in implementing the AMMA differ markedly from those actions the State 8 Plaintiffs will be required to take. 9 There is no doubt the State Plaintiffs will vigorously and competently pursue 10 their case, but the County Intervenors should be allowed to present a case from their 11 own unique perspective and based on the duties their employees/agents are called upon 12 to perform under the AMMA if their interests are to be adequately represented and 13 protected. In this regard, Director Rich should be independently represented so that her 14 unique factual perspective on the County’s and her employees’ duties, and potential 15 liability, can be presented in a manner independent from the interests and duties of the 16 State Plaintiffs. There is no guarantee that the County Intervenors’ interests will be 17 presented or protected if County Intervenors are left out of this lawsuit. 18 Granting permissive intervention is, of course, at the Court’s discretion. 19 However, it has been held that, in exercising their discretion to grant permissive 20 intervention under Rule 24, district courts are encouraged to apply this rule liberally “in 21 allowing a government agency to intervene in cases involving a statute it is required to 22 enforce; indeed, a hospitable attitude is appropriate.” Meyer v. MacMillan Publishing 10 1 Co., Inc., 85 F.R.D.149, 150 (S.D.N.Y.1980)(citing Blowers v. Lawyers Coop. 2 Publishing Co., 527 F.2d 333, 334 (2nd Cir.1975)). 3 Finally, this matter is ripe for review by the Court even if no federal prosecution 4 has been initiated against the County Intervenors because the threat of prosecution is 5 realistic and the County Intervenors should not be compelled to break the law in order to 6 see if the federal prosecutors are serious. See New Hampshire Hemp Council, Inc. v. 7 Marshall, 203 F.3d 1, 5 (1st Cir. 2000). The U.S. Attorney’s Office has made it clear 8 that “growing, distributing and possessing marijuana in any capacity, other than as part 9 of a federally authorized research program, is a violation of federal law regardless of 10 state laws that purport to permit such activities” and that they “will continue to 11 vigorously prosecute individuals and organizations that participate in unlawful 12 manufacturing, distribution and marketing activity involving marijuana, even if such 13 activities are permitted under state law.” See Exhibit B. With this threat of prosecution 14 looming, County officers and employees, who clearly have a role in implementing the 15 AMMA, should not be put in a position of having to act pursuant to state law and then 16 waiting to see whether or not federal drug charges will be brought against them. Or, as 17 the court in New Hampshire Hemp Council stated “there ought to be a way to resolve the 18 legal correctness of [County Intervenors’] position without subjecting [them] to criminal 19 penalties well known for their severity and inflexible administration.” Id. 20 III. Substantive Reasons for Allowing the County to Intervene 21 County Intervenors find themselves in the immediate and untenable position of 22 having to decide which of two contradictory laws they are obligated to follow. County 11 1 Intervenors are tasked with implementing the terms of the AMMA. However, in doing 2 so, they are faced with the dilemma of either following the state law, as they are required 3 to do as part of their job duties, and face the possibility that they could be prosecuted for 4 violations of federal law, or follow federal law and refuse to enforce the state statute. 5 Rich Decl., ¶ 10. Ultimately, County employees are being asked to make a choice that, 6 in either event, will result in potential exposure to liability. Rich Decl., ¶ 11. 7 Issuing permits for marijuana distribution centers or marijuana cultivation could 8 be construed as facilitating the use, possession or distribution of marijuana, which acts 9 are illegal under the CSA, regardless of what is allowed under Arizona law. The 10 Department of Justice has not waived, and has specifically reserved, its authority to 11 prosecute such crimes. See Exhibits B and C. Thus, there is a very definite risk that 12 Maricopa County employees who are involved in issuing permits to implement the 13 AMMA, and thereby are facilitating the use, possession or distribution of marijuana, 14 could be subject to federal prosecution under the CSA. 15 The issues presented in this declaratory action are pertinent to the conduct of the 16 County and the performance of duties related to the implementation of the state law. 17 Moreover, the legal threat to county employees is immediate. Prior to receiving a copy 18 of the May 2, 2011 letter from the United States Attorney’s Office, the County had 19 received applications pursuant to the AMMA, and employees who were handling those 20 applications were in the process of implementing the law. Rich Decl., ¶¶ 6-9. Thus, the 21 position espoused by United States Attorney Burke poses an immediate threat of 22 prosecution to state and county employees processing the applications already filed with 12 1 the various state and county agencies. This declaratory action is appropriate because 2 County officers and employees who have a role in implementing the AMMA should not 3 be put in a position of having to wait and see whether or not any federal administration’s 4 policies would result in their prosecution under federal law. 5 County Intervenors have the statutory duty to implement and administer the 6 AMMA in Maricopa County as it becomes effective in August 2011. See A.R.S. §11- 7 441(a)(2). County Intervenors wish to intervene in this case to seek clarification as to 8 the exposure of Maricopa County officials and employees who, under the AMMA, are 9 required to implement and perform administrative functions such as issuing licenses or 10 permits for marijuana distribution centers. Intervention is proper because Maricopa 11 County and its employees must comply in their own unique ways with the AMMA when 12 it goes into effect. 13 IV. 14 Conclusion For the stated reasons, County Intervenors respectfully requests that this Court 15 grant them leave to intervene in the main action under Fed.R.Civ.P. 24(b)(1)(B) and/or 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 13 1 24(b)(2). County Intervenors’ motion is timely, their intervention will not prejudice any 2 parties herein, and their claim shares with the main action a common question of law 3 and/or fact. 4 RESPECTFULLY SUBMITTED this 14th day of July 2011. 5 WILLIAM G. MONTGOMERY MARICOPA COUNTY ATTORNEY 6 7 8 BY: /s William G. Montgomery WILLIAM G. MONTGOMERY Attorneys for Plaintiffs Intervenor Maricopa County and Joy Rich 9 CERTIFICATE OF SERVICE 10 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: 11 12 13 14 15 16 17 18 19 20 21 22 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 14 1 Marijuana Association 2 Daniel J. Pochoda ACLU Foundation of Arizona 77 E. Columbus Street, Suite 205 Phoenix, AZ 85012 Attorney for Defendant Arizona Medical Marijuana Association 3 4 5 6 7 8 Lisa T. Hauser Cameron C. Artigue Gammage & Burnham Two North Central, 15th Floor Phoenix, AZ 85004 Attorney for Defendant Arizona Medical Marijuana Association 9 10 11 Thomas W. Dean P.O. Box J Flagstaff, AZ 86002 Attorney for Defendant Arizona Association Of Dispensary Professionals 12 13 14 15 16 17 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: 18 21 Scott Risner Trial Attorney, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 Email: 22 /s/ 19 20 15

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?