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

Filing 34

RESPONSE to Motion re 31 MOTION 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 filed by Arizona, State of, Janice K Brewer, Robert C Halliday, William Humble. (Ray, Kevin)

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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]

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Attorneys for Plaintiffs

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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, et al.,
Plaintiffs,

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vs.

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UNITED STATES OF AMERICA, et al.,
Defendants.

Case No. 11-CV-01072-PHX-SRB
PLAINTIFFS’ RESPONSE TO
MOTION FOR LEAVE TO
INTERVENE AS CO-PLAINTIFFS
BY MARICOPA COUNTY AND
JOY RICH IN HER OFFICIAL
CAPACITIES
(Honorable Susan R. Bolton)

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

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Halladay, through undersigned counsel, hereby file this Response to Maricopa County

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and Joy Rich’s (“County Intervenors”) Motion for Leave to Intervene as Co-Plaintiffs

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(“Motion”) filed July 14, 2011. Plaintiffs submit that County Intervenors have

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addressed the necessary elements to establish a right to permissive intervention in this

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case under Rule 24(b)(2), Fed. R. Civ. P. As such, Plaintiffs have no objection to

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County Intervenors’ Motion filed July 14, 2011.

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I.

County Intervenors have established their right to permissive intervention
under Rule 24 of the Federal Rules of Civil Procedure.
A.

Intervention of Right.

The prerequisites for intervention of right under Rule 24(a)(2), Fed. R. Civ. P.
require a potential intervenor to show: (1) that it has a significant protectable interest
that is the subject of 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. U.S., 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 determine if
the requirements for intervention of right are met, a court normally follows practical
and equitable considerations and construes the governing rule broadly in favor of the
proposed intervenor. See Wilderness Soc. v. U.S. Forest Service, 630 F.3d 1173, 1179
(9th Cir. 2011); U.S. v. City of Los Angeles, 288 F.3d 391, 397 (9th. Cir. 2002). Here,
County Intervenors have not claimed intervention of right, but arguably may meet the
four elements which establish intervention of right.
B.

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 905-06. As such, 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)).

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In this case, County Intervenors have made the requisite showings for

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permissive intervention. County Intervenors have established an independent ground

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for jurisdiction. (Mot. at 7-8.) County Intervenors’ Motion is also timely made, as

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“no answers have been filed, and the case is not yet at issue.” (Id.) Additionally,

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County Intervenors’ proposed Complaint in Intervention for Declaratory Judgment

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(“County Complaint”), currently lodged with the Court at docket number 31-1, shares

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common questions of law and fact with Plaintiffs’ Complaint for Declaratory

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Judgment. (Id. at 6-7.) While it appears that the County Complaint and Plaintiffs’

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Complaint share common questions of law and fact, County Intervenors’ interests are

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sufficiently distinct and independent so that their interests are not adequately

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represented by any existing party. (Id. at 9-10.) Finally, the interests of judicial

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economy weigh in favor of granting the County Intervenors’ Motion. (Id. at 8.)
CONCLUSION

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County Intervenors have articulated a sufficient interest to allow intervention in

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the case at bar under Rule 24, F. R. Civ. P. As a result, Plaintiffs have no objection to

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the County Intervenors’ Motion for Leave to Intervene as Co-Plaintiffs filed July 14,

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2011.

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Dated this 27th day of July, 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

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CERTIFICATE OF SERVICE

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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 27th
day of July, 2011 to:

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Scott Risner, Esq.
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20001

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Brian Bergin, Esq.
Rose Law Group
6613 North Scottsdale Road, Suite 200
Scottsdale, AZ 85250

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Lisa T. Hauser, Esq.
Gammage & Burnham
Two North Central, 15th Floor
Phoenix, AZ 85004
Thomas W. Dean, Esq.
Thomas W. Dean Esq. PLC
323 North Leroux Street, Suite 101
Flagstaff, AZ 86001
Ezekiel R. Edwards, Esq.
American Civil Liberties Union
1101 Pacific Avenue, Suite 333
Santa Cruz, CA 95060
COPY of the foregoing mailed on
July 28, 2011:
Thomas P. Liddy, Esq.
Maricopa County Attorney’s Office
222 North Central Avenue, Suite 1100
Phoenix, AZ 85004
s/ Phil Londen
#2167606

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