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

Filing 39

RESPONSE in Opposition 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 Dennis K Burke, Eric Himpton Holder, Jr, United States Department of Justice, United States of America. (Attachments: # 1 Text of Proposed Order)(Risner, Scott)

TONY WEST

1 Assistant Attorney General

ARTHUR R. GOLDBERG

2 Assistant Branch Director

SCOTT RISNER (MI Bar #P70762)

3 Trial Attorney

United States Department of Justice

4 Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

5 Washington, D.C. 20530

Telephone: [phone]

6 Facsimile: [phone]
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[e-mail]
Attorney for Defendants United States,

8 U.S. Department of Justice, Eric H. Holder,
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and Dennis K. Burke
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

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11 State of Arizona, et al.,

No. 2:11-cv-01072-SRB

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FEDERAL DEFENDANTS’
OPPOSITION TO MOTION FOR
LEAVE TO INTERVENE AS COPLAINTIFFS BY MARICOPA
COUNTY AND JOY RICH

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Plaintiffs,
vs.

14 United States of America, et al.,
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Defendants.

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The United States of America, the U.S. Department of Justice, Attorney General

18 Eric H. Holder, and United States Attorney Dennis K. Burke (collectively the “Federal
19 Defendants”) hereby file this opposition to the motion for leave to intervene as co20 plaintiffs submitted by Maricopa County and Joy Rich (collectively the “Proposed
21 Intervenors”).1

For the reasons set forth below, the Court should deny the motion

22 because Proposed Intervenors do not satisfy the requirements for intervention in this case.
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INTRODUCTION
Because the Proposed Intervenors “submit the same bases for jurisdiction as

25 submitted by State Plaintiffs in their Complaint,” see Mot. to Intervene 7-8, their
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While Proposed Intervenors filed their motion on July 14, 2011, this response is timely
27 because Federal Defendants were not served with Plaintiffs’ complaint until June 2, 2011,

and did not appear in this action until filing their motion to dismiss on August 1, 2011.

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intervention as plaintiffs suffers from the many jurisdictional flaws that require dismissal
of the state’s complaint. The Court should deny this motion on these grounds, but
alternatively it need not address this motion until after it has resolved the pending
motions to dismiss filed by the various defendants.
Even if the Court looks past the jurisdictional issue, however, Proposed
Intervenors still fail to satisfy the requirements for intervention.

complaint is a near copy of the state’s, and they cannot explain why their interests are not
adequately represented by the original plaintiffs. As the Court has recognized in denying
two other motions to intervene in this case, that failure “is fatal to intervention,” Dkt. 29
at 4, and Proposed Intervenors’ motion should be denied.
BACKGROUND

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Their proposed

The plaintiffs in this action include the State of Arizona and three state officials
charged with responsibility to implement Proposition 203, also known as the Arizona
Medical Marijuana Act (AMMA). Compl. ¶¶ 3, 33-36. According to Plaintiffs, that law
“envisioned decriminalizing medical marijuana for use by people with certain chronic
and debilitating medical conditions.” Id. ¶ 1. The AMMA calls for a process, to be
established through regulations promulgated by the state, of registration and certification
of marijuana dispensaries, agents, patients, and caregivers. Id. ¶ 4.
Plaintiffs brought this case seeking a declaratory judgment as to whether the
AMMA is consistent with, or preempted by, federal law. Specifically, Plaintiffs ask for a
declaratory judgment as to “the validity, enforceability, and implementation of the
AMMA,” and as to “whether strict compliance and participation in the AMMA provides
a safe harbor from federal prosecution.” Id. at 30.
Each defendant has now moved to dismiss Plaintiffs’ complaint.

Federal

Defendants moved to dismiss for lack of jurisdiction, while the non-governmental
defendants moved to dismiss for lack of jurisdiction and failure to state a claim. See Dkt.
30; Dkt. 38.

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Moreover, the Court has already rejected motions to intervene as plaintiffs by Carl
Eric Olsen and Arizona Dispensary Solutions, LLC. See Dkt. 29.
On July 14, 2011, Maricopa County and Rich, the Assistant County Manager and
Director of Maricopa County Planning and Development Department, filed a motion for
leave to intervene as plaintiffs, pursuant to Federal Rule of Civil Procedure 24(b)(1)(B)
and 24(b)(2). See Dkt. 31.
LEGAL STANDARD
Rule 24(b) allows for the permissive intervention of certain parties who can satisfy
certain criteria.2 The Court has recently set forth the appropriate standard for intervention
under Rule 24(b)(1)(B), indicating that the prospective intervenor:
must demonstrate three things: “‘(1) independent grounds for jurisdiction;
(2) [that] the motion is timely; and (3) [that] the applicant’s claim or
defense, and the main action, have a question of law or a question of fact in
common.’” S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002)
(quoting United States v. City of L.A., 288 F.3d 391, 403 (9th Cir. 2002)).
Even where those three elements are satisfied, however, the district court
retains the discretion to deny permissive intervention. Id. (citing Donnelly
v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998)). In exercising its
discretion, a court must consider whether intervention will unduly delay or
prejudice the original parties and should consider whether the applicant’s
interests are adequately represented by the existing parties and whether
judicial economy favors intervention. Venegas v. Skaggs, 867 F.2d 527,
530-31 (9th Cir. 1998); see also Fed. R. Civ. P. 24(b)(3) (requiring courts
to consider undue delay or prejudice to original parties).

20 Dkt. 29 at 3. Rule 24(b)(2), also relied on here, governs the intervention of government
21 officers or agencies, providing that:
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On timely motion, the court may permit a federal or state governmental
officer or agency to intervene if a party's claim or defense is based on:
(A) a statute or executive order administered by the officer or
agency; or
(B) any regulation, order, requirement, or agreement issued or
made under the statute or executive order.

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2 Rule 24(a) provides for intervention as a matter of right, but Maricopa County and Rich
do not move under that rule, nor do they suggest that they could satisfy its requirements.

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Fed. R. Civ. P. 24(b)(2).

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ARGUMENT

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As presented in their motion and proposed complaint, the question Proposed

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Intervenors seek to raise is virtually identical to the central question in Plaintiffs’

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complaint.

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AMMA is consistent with, or preempted by, federal law, and whether participation in the

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implementation of the AMMA provides a “safe harbor” from federal prosecution for

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government employees. See Mot. to Intervene 2. To raise that question, Proposed

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Intervenors’ complaint relies on the same jurisdictional bases identified in Plaintiffs’

Proposed Intervenors ask for a declaratory judgment as to whether the

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complaint.

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jurisdiction as submitted by State Plaintiffs in their Complaint.”). Proposed Intervenors’

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complaint thus suffers from the same jurisdictional flaws that exist in Plaintiffs’

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complaint. See generally Fed. Defs.’ Mot. to Dismiss 5-17. Intervention must therefore

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be denied. See EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir.

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1998) (“Permissive intervention . . . has always required an independent basis for

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jurisdiction.”).

See id. at 7-8 (“Here, County Intervenors submit the same bases for

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In their complaint, Proposed Intervenors do nothing to cure the jurisdictional

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deficiencies of Plaintiffs’ complaint. Like Plaintiffs, they ask this Court for an advisory

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opinion as to the validity of state law with respect to federal law, a question that is not

20 within the original jurisdiction of this Court. See Franchise Tax Bd. of the State of Cal.
21 v. Const. Laborers Vacation Trust of S. Cal., 463 U.S. 1, 22 (1983); Republican Party of
22 Guam v. Gutierrez, 277 F.3d 1086, 1089 (9th Cir. 2002). They seek relief under the
23 Declaratory Judgment Act, but fail to identify an actual, concrete controversy between
24 the parties. And like Plaintiffs, Proposed Intervenors fail to explain whether they believe
25 the AMMA is preempted by federal law, instead resorting to the same procedural
26 maneuvers as the state by relying on the “standing and legal position” of one defendant
27 vis-à-vis another and the hypothetical disputes that may exist between fictional
28 defendants. See Proposed Compl. ¶¶ 34, 45-46, 85-87.
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As with the state’s complaint, Proposed Intervenors also ask this Court to consider
a claim that is not ripe for review. Proposed Intervenors contend that Maricopa County’s
employees or agents “face an immediate threat of prosecution” because “the AMMA has
already gone into effect, and applications have been received by the County requesting
permitting in connection with marijuana cultivation and distribution.” Mot. to Intervene
6. But that is little more than what Plaintiffs have alleged, and it is far less than what the
Ninth Circuit requires from a plaintiff.
While Proposed Intervenors contend that county employees who implement the
AMMA could “face the possibility that they could be prosecuted for violation of federal
law,” Mot. to Intervene 6, the Ninth Circuit has recognized that “the mere possibility of
criminal sanctions applying does not of itself create a case or controversy.” San Diego
Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996). To bring a preenforcement challenge, a party must allege injuries that are “real and concrete rather than
speculative and hypothetical,” and show a “genuine threat of imminent prosecution.”
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122 (9th Cir. 2009). Proposed Intervenors
discuss a letter sent to state officials by United States Attorney Burke – indeed, their
discussion of the letter is a nearly verbatim recitation of the discussion in Plaintiffs’
complaint – but that letter did not present “an immediate threat of prosecution to state and
county employees.” See Mot. to Intervene 12. Rather, it said nothing whatsoever about
state and county employees. Unable to show a concrete, genuine threat of imminent
enforcement against their employees, the county seeks to present a claim that is not yet
ripe for review.
In addition to their failure to provide an adequate basis for jurisdiction, Proposed
Intervenors also cannot show that intervention is necessary to protect their interests. As
the Court has recognized in this case, the Court retains discretion on matters of
permissive intervention, and a failure to show how a prospective intervenor’s interest “is
not adequately represented by the current parties to this litigation . .

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. is fatal to

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“The most important factor in determining the adequacy of representation is how
the interest compares with the interests of existing parties.” Arakaki v. Cayetano, 324
F.3d 1078, 1086 (9th Cir. 2003) (citing Charles Alan Wright et al., Federal Practice &
Procedure § 1909 (1986)). “When an applicant for intervention and an existing party
have the same ultimate objective, a presumption of adequacy of representation arises.”
Id. See also Nebraska v. Wyoming, 515 U.S. 1, 21 (1995) (“Ordinarily, in a suit by one
State against another subject to the original jurisdiction of this Court, each State ‘must be
deemed to represent all its citizens.’”) (quoting Kentucky v. Indiana, 281 U.S. 163, 173
(1930)).
Intervention by Maricopa County and Rich would add nothing to this case because
the interests of Proposed Intervenors are really no different than those of the existing
plaintiffs. Although Proposed Intervenors contend that the AMMA requires the county
“officials and employees to perform certain duties to implement the new law,” see Mot.
to Intervene 3, the State Plaintiffs make the same allegation about state employees.
Proposed Intervenors argue that county employees’ responsibilities in implementing the
AMMA are different than state employees’ responsibilities, in that county employees
have separate duties regarding issuing building and special use permits, id. at 9, but at no
point do they explain why that distinction matters for purposes of the legal question they
present. Both Plaintiffs and the Proposed Intervenors seek declaratory relief as to the
validity of state law and the existence of a “safe harbor” from federal prosecution for
actions taken to implement the AMMA, and there is nothing in the record to suggest that
the state would not adequately represent the position of its counties.
To satisfy their burden here, Proposed Intervenors must do more than simply say
that their “position regarding implementation of the AMMA will necessarily differ from
that of the State Plaintiffs.” Id. at 10. Instead, their motion must explain how. It does
not. Like Plaintiffs’ complaint, Proposed Intervenors’ motion and complaint do not even
identify their “position regarding implementation of the AMMA.” They seek to present a

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question for the Court to address – whether state law is consistent with or preempted by
federal law – but offer no position on that question.
That intervention is inappropriate here is further underscored by Proposed
Intervenors’ argument that their participation will not “draw the focus of the litigation
away from the original parties, but will actually augment the State Plaintiffs’ position.”
Id. at 8. Intervention is not intended to “augment” or protect an existing party’s position,
but rather to ensure that the intervenor’s interests are protected. Maricopa County and
Rich have not shown why intervention is necessary to protect their interests here, and
their motion should be denied.
CONCLUSION

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For the reasons stated herein, the Court should deny Maricopa County and Joy
Rich leave to intervene as co-plaintiffs in this case.
Dated: August 3, 2011.

Respectfully submitted,
TONY WEST
Assistant Attorney General
ARTHUR R. GOLDBERG
Assistant Branch Director
Federal Programs Branch
/s/ Scott Risner
SCOTT RISNER (MI Bar #P70762)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendants United States,
U.S. Department of Justice, Eric H. Holder,
and Dennis K. Burke

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CERTIFICATE OF SERVICE

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I hereby certify that on August 3, 2011, I electronically transmitted the attached

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document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a

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Notice of Electronic Filing to the following CM/ECF registrants:

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Aubrey Joy Corcoran, Kevin D. Ray, and Lori Simpson Davis
Office of the Attorney General
1275 W. Washington St.
Phoenix, AZ 85007
Attorneys for Plaintiffs

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Ezekiel R. Edwards
ACLU Foundation, Criminal Law Reform Project
125 Broad St., 18th Floor
New York, NY 10004-2400
Attorney for Defendant Arizona Medical Marijuana Association

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Daniel Joseph Pochoda
ACLU Foundation of Arizona
77 E. Columbus St., Ste. 205
Phoenix , AZ 85012
Attorney for Defendant Arizona Medical Marijuana Association

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Thomas W. Dean
323 N Leroux St., Ste. 101
Flagstaff , AZ 86001
Attorney for Defendant Arizona Association of Dispensary Professionals
Thomas P. Liddy
Maricopa County Attorney’s Office
Civil Services Division
222 N. Central Ave., Ste. 1100
Phoenix, AZ 85004
Attorney for Proposed Intervenor-Plaintiffs Maricopa County and Joy Rich

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and I transmitted the document by first class mail and e-mail to the following attorneys:
Ken Frakes
Rose Law Group, PC
6613 N. Scottsdale Road, Suite 200
Scottsdale, AZ 85250
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[e-mail]
Attorney for Defendants Serenity Arizona, Holistic Health Management, Levine,
Pennypacker, Flores, Christensen, Pollock and Silva

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/s/ Scott Risner
Scott Risner

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