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

Filing 47

REPLY to 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 Maricopa County Intervenors' Reply in Support of Moton for Leave to Intervene filed by Maricopa, County of, Joy Rich. (Liddy, Thomas)

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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 Intervenors Maricopa County and Joy Rich 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE DISTRICT OF ARIZONA 12 STATE OF ARIZONA, et al., Plaintiffs, NO. CV 11-01072-PHX-SRB 13 v. MARICOPA COUNTY INTERVENORS’ REPLY IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE 14 15 UNITED STATES OF AMERICA; et al., Defendants. 16 17 Maricopa County, and Joy Rich in her official capacity as Assistant County 18 Manager and Director of Maricopa County Planning and Development Department 19 (collectively “County Intervenors”), Reply in support of their Motion to Intervene as Co- 20 Plaintiffs in this declaratory judgment action. Federal Defendants’ Opposition does not 21 effectively controvert the bases for County Intervenors’ Motion and the Motion should 22 therefore be granted. 1 1 2 I. Introduction County Intervenors’ Motion states two independent bases for allowing their First, County Intervenors’ claims have an 3 permissive intervention in this case. 4 independent basis for jurisdiction, they share a common question of law and/or fact with 5 the claims set forth by Plaintiffs in the main action, and the motion to intervene is 6 timely. 7 Fed.R.Civ.P. 8 claims are based on a statute they must administer and which contains requirements they 9 must meet. Therefore, permissive intervention under Rule 24(b)(2), Fed.R.Civ.P. also is 10 Therefore, permissive intervention is available under Rule 24(b)(1)(B), Second, County Intervenors are government agencies/officers. Their available. 11 County Intervenors’ Motion established additional factors supporting the grant of 12 permissive intervention, including showing that intervention will not unduly delay or 13 prejudice the original parties, that judicial economy favors intervention and that their 14 interests are not adequately represented by the existing parties. 15 Federal Defendants’ Opposition fails to make any compelling argument against 16 permissive intervention. It does not even address the fact that, as government officers 17 and agencies, County Intervenors have a favored status to intervene. Further, Federal 18 Defendants attempt to oppose the County Intervenors’ Motion by arguing their motion to 19 dismiss the State Plaintiffs’ Complaint for Declaratory Relief rather than addressing the 20 arguments for intervention raised in the Motion itself. Finally, the Opposition relies 21 heavily on the argument that County Intervenors have not shown that their interests 22 would not be adequately protected by the existing parties to the action. But in so doing, 2 1 it ignores the differences between the rights and duties of the County parties and the 2 State parties in implementing the Arizona Medical Marijuana Act (“AMMA”), as well 3 as the consequences the separate sets of parties could face as a result of their actions 4 under the state law. Accordingly, Federal Defendants’ Opposition provides no sound 5 basis for rejecting permissive intervention under the circumstances, and the Court should 6 grant County Intervenors’ Motion. 7 II. 8 Argument A. County Intervenors are Government Officers and Agencies and Their Motion to Intervene Should be Liberally Granted 9 Federal Defendants’ Opposition to intervention utterly ignores the fact that, as 10 government officers and agencies, County Intervenors enjoy a special and favored status 11 for intervention because they are required to administer the statute and to comply with 12 its requirements. Settled case law holds that intervention by government officers and 13 agencies under Rule 24(b)(2) should be granted readily. Meyer v. Macmillan Publishing 14 co., Inc., 85 F.R.D. 149, (S.D.N.Y. 1980) (“even though allowance of intervention is 15 within the court’s discretion, district courts should not be niggardly in allowing a 16 government agency to intervene in a case involving [a] statute it is required to enforce; 17 indeed, a hospitable attitude is appropriate.”) (citing Blowers v. Lawyers Co-operative 18 Publishing Company, 527 F.2d 333, 334 (2d Cir. 1975). 19 The AMMA requires Movant Joy Rich and other officers and employees of 20 Maricopa County to take actions in order to implement the AMMA. These actions 21 include approving and issuing building permits, as well as generally facilitating the 22 3 1 opening and operation of any business seeking to locate a medical marijuana dispensary 2 or cultivation center within Maricopa County. In addition, the Maricopa County Board 3 of Supervisors is charged with approving, and directing its employees to issue, special 4 use permits for such facilities. These actions serve to administer the AMMA and/or are 5 required under that statute, and are therefore within the purview of Rule 24(b)(2). 6 7 8 The Opposition’s failure even to address this critical issue, much less to defeat it, amounts to conceding to the granting of the Motion to Intervene on this basis alone. B. 9 Federal Defendants Oppose Intervention by Improperly and Ineffectively Arguing Their Motion to Dismiss the State Plaintiffs’ Complaint 10 The Opposition strenuously argues that County Intervenors’ claims suffer from 11 “the same jurisdictional flaws that exist in Plaintiffs’ Complaint,” even though Federal 12 Defendants’ Motion to Dismiss Plaintiffs’ Complaint has not yet been decided, County 13 Intervenors do not yet have standing to address the arguments raised in opposition to 14 another party’s pleading, and County Intervenors’ Complaint has not yet been filed. 15 Aside from being out of place, this argument is unavailing because there is a real threat 16 that County Intervenors could be subjected to criminal prosecution under the Federal 17 Controlled Substances Act and other federal criminal statutes if they implement the 18 AMMA as the voters’ initiative requires them to do. 19 Here, jurisdiction is present, intervention is proper and this matter is ripe for 20 review by the Court, even if no federal prosecution has yet been initiated against the 21 County Intervenors (they have not yet done anything for which they could be 22 prosecuted). The Federal Defendants’ own documents and utterances demonstrate that 4 The U.S. Attorney’s Office has stated that 1 the potential for prosecution is real. 2 “growing, distributing and possessing marijuana in any capacity, other than as part of a 3 federally authorized research program, is a violation of federal law regardless of state 4 laws that purport to permit such activities” and that it “will continue to vigorously 5 prosecute individuals and organizations that participate in unlawful manufacturing, 6 distribution and marketing activity involving marijuana, even if such activities are 7 permitted under state law.” See Motion to Intervene, Exhibit B. 8 County Intervenors should not be compelled to break the law in order to learn 9 whether, or when, they will be prosecuted for doing so. As the court in New Hampshire 10 Hemp Council, Inc. v. Marshall, 203 F.3d 1, 5 (1st Cir. 2000) stated, “there ought to be a 11 way to resolve the legal correctness of [County Intervenors’] position without subjecting 12 [them] to criminal penalties well known for their severity and inflexible 13 administration.” The Opposition hopes that, by ignoring the principle of Hemp Council, 14 it will go away. It will not. Instead, the Opposition suggests that, in order to learn their 15 fate, the County Intervenors (and State Plaintiffs for that matter) should engage in what 16 the Federal Defendants themselves confirm is felonious activity, which they will 17 “vigorously prosecute.” This is not a choice County Intervenors should be forced to 18 make. 19 Moreover, given the Supremacy Clause and statements from the Department of 20 Justice in its correspondence, press releases and briefings to the Court, County 21 Intervenors are not willing to seek safety behind a state law that apparently provides no 22 defense to federal prosecution. Nor should they be required to, given the Article III 5 1 jurisdiction of this Court to serve as a forum for relief. To the extent that the federal 2 government argues that County Intervenors have no claim because they should have “no 3 worries” over prosecutions of county employees, the Court, in its consideration of 4 whether to accept jurisdiction, should weigh the considerable harm such hypocrisy 5 causes as it makes a mockery of our criminal laws. 6 C. 7 Contrary to the Opposition’s assertions, County Intervenors must be able to 8 protect their own unique interests in order to be adequately represented in this critical 9 declaratory relief action. County Intervenors can better represent and protect their 10 interests in connection with their specific duties in implementing the AMMA than can 11 the State Plaintiffs, whose duties, authority and operations, while having some 12 similarities, also differ markedly from those of County Intervenors. For example, since 13 Intervenor Joy Rich’s Maricopa County Planning and Development Department must 14 approve new business uses, and facilitate the opening and operation of any new business 15 seeking to locate within the County, that agency’s position regarding implementation of 16 the AMMA will necessarily and obviously differ from that of the State Plaintiffs. 17 Significantly, while some of the State Plaintiffs’ activities in implementing the AMMA 18 might be legal under the federal drug laws, other activities by the County Intervenors in 19 implementing the AMMA might be considered crimes. 20 ignores this inconvenient fact, and for good reason: the Federal Defendants have no 21 answer to it. 22 County Intervenors Must Independently Protect Their Own Interests The Opposition studiously The actions that County Intervenors must take for their part in implementing the 6 1 AMMA are in addition to, and distinctly separate from, the actions the State Plaintiffs 2 must take to implement the new law. As such, County Intervenors must have a judicial 3 determination of their specific rights and duties under the admittedly inconsistent state 4 and federal laws. Indeed, County Intervenors would have a sound basis for filing their 5 own lawsuit based on their unique interests and duties in implementing the AMMA. 6 However, granting intervention would allow the County Intervenors to present and 7 protect their interests in a common lawsuit rather than in a separate action. Such 8 intervention would not prejudice the existing parties. Indeed, Federal Defendants have 9 not argued that they or any other party would be prejudiced by County Intervenors’ 10 intervention, again because they cannot make that argument. Accordingly, intervention 11 should be allowed. 12 13 RESPECTFULLY SUBMITTED this 15th day of August 2011. WILLIAM G. MONTGOMERY MARICOPA COUNTY ATTORNEY 14 15 16 BY: /s/William G. Montgomery WILLIAM G. MONTGOMERY Attorneys for Plaintiffs Intervenors Maricopa County and Joy Rich 17 CERTIFICATE OF SERVICE 18 I hereby certify that on August 15th 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: 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 7 1 Phoenix, Arizona 85003-2120 2 Kevin D. Ray Lori Simpson Davis Aubrey Joy Corcoran 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 3 4 5 6 7 8 9 Ezekiel R. Edwards, Esq. American Civil Liberties Union Foundation 1101 Pacific Avenue, Suite 333 Santa Cruz, CA 95060 Attorney for Defendant Arizona Medical Marijuana Association 10 11 12 13 14 15 16 Daniel J. Pochoda ACLU Foundation of Arizona 77 E. Columbus Street, Suite 205 Phoenix, AZ 85012 Attorney for Defendant Arizona Medical Marijuana Association Thomas W. Dean Thomas W. Dean, Esq. PLC 323 N. Leroux Street, Suite 101 Flagstaff, AZ 86001 Attorney for Defendant Arizona Association Of Dispensary Professionals 17 18 19 20 21 22 Scott Risner Trial Attorney, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 Email: And copies mailed via U.S. Mail And electronically this 15th day of August 2011 to: 8 1 2 3 4 5 6 7 8 Lisa T. Hauser Gammage & Burnham Two North Central, 15th Floor Phoenix, AZ 85004 Attorney for Defendant Arizona Medical Marijuana Association Brian Bergin 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 9 /s/Joie Gulley 10 11 12 13 14 15 16 17 18 19 20 21 22 9

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