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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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: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiffs Intervenors
Maricopa County and Joy Rich

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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,

NO. CV 11-01072-PHX-SRB

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v.

MARICOPA COUNTY
INTERVENORS’ REPLY IN
SUPPORT OF MOTION FOR
LEAVE TO INTERVENE

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UNITED STATES OF AMERICA; et al.,
Defendants.

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Maricopa County, and Joy Rich in her official capacity as Assistant County

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Manager and Director of Maricopa County Planning and Development Department

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(collectively “County Intervenors”), Reply in support of their Motion to Intervene as Co-

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Plaintiffs in this declaratory judgment action. Federal Defendants’ Opposition does not

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effectively controvert the bases for County Intervenors’ Motion and the Motion should

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therefore be granted.
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I.

Introduction
County Intervenors’ Motion states two independent bases for allowing their
First, County Intervenors’ claims have an

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permissive intervention in this case.

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independent basis for jurisdiction, they share a common question of law and/or fact with

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the claims set forth by Plaintiffs in the main action, and the motion to intervene is

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timely.

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Fed.R.Civ.P.

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claims are based on a statute they must administer and which contains requirements they

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must meet. Therefore, permissive intervention under Rule 24(b)(2), Fed.R.Civ.P. also is

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Therefore, permissive intervention is available under Rule 24(b)(1)(B),
Second, County Intervenors are government agencies/officers.

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available.

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County Intervenors’ Motion established additional factors supporting the grant of

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permissive intervention, including showing that intervention will not unduly delay or

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prejudice the original parties, that judicial economy favors intervention and that their

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interests are not adequately represented by the existing parties.

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Federal Defendants’ Opposition fails to make any compelling argument against

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permissive intervention. It does not even address the fact that, as government officers

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and agencies, County Intervenors have a favored status to intervene. Further, Federal

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Defendants attempt to oppose the County Intervenors’ Motion by arguing their motion to

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dismiss the State Plaintiffs’ Complaint for Declaratory Relief rather than addressing the

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arguments for intervention raised in the Motion itself. Finally, the Opposition relies

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heavily on the argument that County Intervenors have not shown that their interests

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would not be adequately protected by the existing parties to the action. But in so doing,
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it ignores the differences between the rights and duties of the County parties and the

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State parties in implementing the Arizona Medical Marijuana Act (“AMMA”), as well

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as the consequences the separate sets of parties could face as a result of their actions

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under the state law. Accordingly, Federal Defendants’ Opposition provides no sound

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basis for rejecting permissive intervention under the circumstances, and the Court should

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grant County Intervenors’ Motion.

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II.

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Argument
A.

County Intervenors are Government Officers and Agencies and Their
Motion to Intervene Should be Liberally Granted

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Federal Defendants’ Opposition to intervention utterly ignores the fact that, as
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government officers and agencies, County Intervenors enjoy a special and favored status

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for intervention because they are required to administer the statute and to comply with
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its requirements. Settled case law holds that intervention by government officers and
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agencies under Rule 24(b)(2) should be granted readily. Meyer v. Macmillan Publishing
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co., Inc., 85 F.R.D. 149, (S.D.N.Y. 1980) (“even though allowance of intervention is
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within the court’s discretion, district courts should not be niggardly in allowing a
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government agency to intervene in a case involving [a] statute it is required to enforce;

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indeed, a hospitable attitude is appropriate.”) (citing Blowers v. Lawyers Co-operative
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Publishing Company, 527 F.2d 333, 334 (2d Cir. 1975).
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The AMMA requires Movant Joy Rich and other officers and employees of
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Maricopa County to take actions in order to implement the AMMA. These actions
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include approving and issuing building permits, as well as generally facilitating the
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opening and operation of any business seeking to locate a medical marijuana dispensary

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or cultivation center within Maricopa County. In addition, the Maricopa County Board

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of Supervisors is charged with approving, and directing its employees to issue, special

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use permits for such facilities. These actions serve to administer the AMMA and/or are

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required under that statute, and are therefore within the purview of Rule 24(b)(2).

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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.

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Federal Defendants Oppose Intervention by Improperly and
Ineffectively Arguing Their Motion to Dismiss the State Plaintiffs’
Complaint

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The Opposition strenuously argues that County Intervenors’ claims suffer from

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“the same jurisdictional flaws that exist in Plaintiffs’ Complaint,” even though Federal

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Defendants’ Motion to Dismiss Plaintiffs’ Complaint has not yet been decided, County

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Intervenors do not yet have standing to address the arguments raised in opposition to

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another party’s pleading, and County Intervenors’ Complaint has not yet been filed.

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Aside from being out of place, this argument is unavailing because there is a real threat

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that County Intervenors could be subjected to criminal prosecution under the Federal

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Controlled Substances Act and other federal criminal statutes if they implement the

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AMMA as the voters’ initiative requires them to do.

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Here, jurisdiction is present, intervention is proper and this matter is ripe for

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review by the Court, even if no federal prosecution has yet been initiated against the

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County Intervenors (they have not yet done anything for which they could be

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prosecuted). The Federal Defendants’ own documents and utterances demonstrate that
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The U.S. Attorney’s Office has stated that

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the potential for prosecution is real.

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“growing, distributing and possessing marijuana in any capacity, other than as part of a

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federally authorized research program, is a violation of federal law regardless of state

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laws that purport to permit such activities” and that it “will continue to vigorously

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prosecute individuals and organizations that participate in unlawful manufacturing,

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distribution and marketing activity involving marijuana, even if such activities are

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permitted under state law.” See Motion to Intervene, Exhibit B.

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County Intervenors should not be compelled to break the law in order to learn

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whether, or when, they will be prosecuted for doing so. As the court in New Hampshire

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Hemp Council, Inc. v. Marshall, 203 F.3d 1, 5 (1st Cir. 2000) stated, “there ought to be a

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way to resolve the legal correctness of [County Intervenors’] position without subjecting

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[them] to criminal penalties well known for their severity and inflexible

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administration.” The Opposition hopes that, by ignoring the principle of Hemp Council,

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it will go away. It will not. Instead, the Opposition suggests that, in order to learn their

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fate, the County Intervenors (and State Plaintiffs for that matter) should engage in what

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the Federal Defendants themselves confirm is felonious activity, which they will

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“vigorously prosecute.” This is not a choice County Intervenors should be forced to

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make.

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Moreover, given the Supremacy Clause and statements from the Department of

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Justice in its correspondence, press releases and briefings to the Court, County

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Intervenors are not willing to seek safety behind a state law that apparently provides no

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defense to federal prosecution. Nor should they be required to, given the Article III
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jurisdiction of this Court to serve as a forum for relief. To the extent that the federal

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government argues that County Intervenors have no claim because they should have “no

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worries” over prosecutions of county employees, the Court, in its consideration of

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whether to accept jurisdiction, should weigh the considerable harm such hypocrisy

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causes as it makes a mockery of our criminal laws.

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C.

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Contrary to the Opposition’s assertions, County Intervenors must be able to

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protect their own unique interests in order to be adequately represented in this critical

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declaratory relief action. County Intervenors can better represent and protect their

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interests in connection with their specific duties in implementing the AMMA than can

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the State Plaintiffs, whose duties, authority and operations, while having some

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similarities, also differ markedly from those of County Intervenors. For example, since

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Intervenor Joy Rich’s Maricopa County Planning and Development Department must

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approve new business uses, and facilitate the opening and operation of any new business

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seeking to locate within the County, that agency’s position regarding implementation of

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the AMMA will necessarily and obviously differ from that of the State Plaintiffs.

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Significantly, while some of the State Plaintiffs’ activities in implementing the AMMA

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might be legal under the federal drug laws, other activities by the County Intervenors in

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implementing the AMMA might be considered crimes.

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ignores this inconvenient fact, and for good reason: the Federal Defendants have no

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answer to it.

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County Intervenors Must Independently Protect Their Own Interests

The Opposition studiously

The actions that County Intervenors must take for their part in implementing the
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AMMA are in addition to, and distinctly separate from, the actions the State Plaintiffs

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must take to implement the new law. As such, County Intervenors must have a judicial

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determination of their specific rights and duties under the admittedly inconsistent state

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and federal laws. Indeed, County Intervenors would have a sound basis for filing their

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own lawsuit based on their unique interests and duties in implementing the AMMA.

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However, granting intervention would allow the County Intervenors to present and

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protect their interests in a common lawsuit rather than in a separate action. Such

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intervention would not prejudice the existing parties. Indeed, Federal Defendants have

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not argued that they or any other party would be prejudiced by County Intervenors’

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intervention, again because they cannot make that argument. Accordingly, intervention

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should be allowed.

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RESPECTFULLY SUBMITTED this

15th

day of August 2011.

WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY

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BY: /s/William G. Montgomery
WILLIAM G. MONTGOMERY
Attorneys for Plaintiffs Intervenors
Maricopa County and Joy Rich

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CERTIFICATE OF SERVICE

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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:

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Honorable Susan Bolton
United States District Court
Sandra Day O’Connor U.S. Courthouse
401 West Washington Street, Suite 322, SPC 11
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Phoenix, Arizona 85003-2120

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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

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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

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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

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Scott Risner
Trial Attorney, U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, DC 20001
Email: [e-mail]
And copies mailed via U.S. Mail
And electronically this 15th
day of
August 2011 to:
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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

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/s/Joie Gulley
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