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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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. 17 18 19 20 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. 21 Halladay, through undersigned counsel, hereby file this Response to Maricopa County 22 and Joy Rich’s (“County Intervenors”) Motion for Leave to Intervene as Co-Plaintiffs 23 (“Motion”) filed July 14, 2011. Plaintiffs submit that County Intervenors have 24 addressed the necessary elements to establish a right to permissive intervention in this 25 case under Rule 24(b)(2), Fed. R. Civ. P. As such, Plaintiffs have no objection to 26 County Intervenors’ Motion filed July 14, 2011. 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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)). 26 27 2 In this case, County Intervenors have made the requisite showings for 1 2 permissive intervention. County Intervenors have established an independent ground 3 for jurisdiction. (Mot. at 7-8.) County Intervenors’ Motion is also timely made, as 4 “no answers have been filed, and the case is not yet at issue.” (Id.) Additionally, 5 County Intervenors’ proposed Complaint in Intervention for Declaratory Judgment 6 (“County Complaint”), currently lodged with the Court at docket number 31-1, shares 7 common questions of law and fact with Plaintiffs’ Complaint for Declaratory 8 Judgment. (Id. at 6-7.) While it appears that the County Complaint and Plaintiffs’ 9 Complaint share common questions of law and fact, County Intervenors’ interests are 10 sufficiently distinct and independent so that their interests are not adequately 11 represented by any existing party. (Id. at 9-10.) Finally, the interests of judicial 12 economy weigh in favor of granting the County Intervenors’ Motion. (Id. at 8.) CONCLUSION 13 14 County Intervenors have articulated a sufficient interest to allow intervention in 15 the case at bar under Rule 24, F. R. Civ. P. As a result, Plaintiffs have no objection to 16 the County Intervenors’ Motion for Leave to Intervene as Co-Plaintiffs filed July 14, 17 2011. 18 19 20 21 22 23 24 25 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 26 27 3 1 CERTIFICATE OF SERVICE 2 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: 3 4 5 6 7 Scott Risner, Esq. U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 8 9 10 Brian Bergin, Esq. Rose Law Group 6613 North Scottsdale Road, Suite 200 Scottsdale, AZ 85250 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 26 27 4

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