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

Filing 62

*ERRATA re 60 MOTION for Hearing on Motion re 38 MOTION to Dismiss for Lack of Jurisdiction, 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 MOTION for Leave to File Brief in Opposition to Defendants' Motion to Dismiss by Maricopa, County of, Joy Rich. (Attachments: # 1 Exhibit Attachment to Notice of Errata)(Liddy, Thomas) *Modified to correct event type on 12/19/2011 (SAT).

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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; JANICE K. BREWER, et al.; 13 Plaintiffs, 14 v. 15 UNITED STATES OF AMERICA; et al. 16 NO. CV 11-01072-PHX-SRB PROSPECTIVE INTERVENORS’ MOTION FOR ORAL ARGUMENT ON MOTION TO INTERVENE AND LEAVE TO FILE A BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Defendants. 17 18 Prospective Intervenors-Plaintiffs Maricopa County and Joy Rich move under 19 LRCiv. Rule 7.2(f) for oral argument on their Motion to Intervene and to file a brief in 20 opposition to defendants’ Motions to Dismiss. 21 Movants did not initially request oral argument, but under LRCov. Rule 7.2(f), 22 this Court should exercise its discretion to grant oral argument in order to permit the 1 1 specific interests of the County employees to be heard. 2 During the December oral argument on the non-government parties’ Motions to 3 Dismiss, Court made specific inquiries to Plaintiff State of Arizona, which did not 4 respond adequately to protect the unique interests of the County’s employees for whom 5 movants seek intervention. 6 During that oral argument, the Court repeatedly announced that it is self-evident 7 that the AMMA is in direct conflict with the CSA. Counsel for the non-government 8 defendants seeking dismissal did not argue that the two statutes can be reconciled, as 9 indeed they could not. Maricopa County and Joy Rich agree that the CSA is in direct 10 conflict with the AMMA. In fact, it is the position of the Prospective Intervenors- 11 Plaintiffs that, because of this direct conflict, and because Congress intended federal law 12 to occupy the field of drug enforcement, the State law AMMA is preempted by the 13 federal CSA. 14 There is no safe harbor for County employees. 15 During the December 12 oral argument the Court posited a question based on 16 some hypothetical political activist seeking medical marijuana permits, etc., being 17 willing to risk prosecution so as to create a justiciable case or controversy. Neither the 18 State nor the defendants seeking dismissal addressed the flip side of the Court’s 19 question: what can a governmental employee who does not wish to risk prosecution do? 20 There simply is no safe harbor for them. 21 Given the recent actions of the DOJ in California, coupled with the published 22 warnings of then U.S. Attorney Burke, the threat of enforcement of the CSA against 2 1 those whose conduct is in compliance with state Medical Marijuana laws, creates an 2 urgency which gives rise to a controversy and ripeness sufficient to grant this Court 3 jurisdiction and prospective intervenor standing. 4 Specifically, the case law (ignored by those arguing on December 12) does not 5 require an individual government official or employee to violate federal criminal law to 6 achieve standing, New Hampshire Hemp, Inc. v. Marshall, 203 F.3d 1, 5 (1st Cir. 2000). 7 Maricopa County employees are not political activists who, as the Court suggested 8 during the December 13th, 2011 hearing, have the choice of whether to risk arrest by 9 federal law enforcement to achieve what they may perceive is a greater political 10 objective. 11 County officials are sworn, and employees are required as a condition of their 12 employment, to comply with state law AND federal law, irrespective of whether the 13 policies of any particular administrators of the Department of Justice direct their 14 subordinates to enforce said provisions of the CSA and related federal criminal laws 15 (aiding and abetting, etc.). If these officials and employees refuse to issue permits etc., 16 as required by AMMA because of a fear of federal prosecution, they may suffer anxiety 17 caused by their involuntary position as civil servants openly and notoriously ignoring 18 federal or state law. 19 prosecution. That is exactly why the (ignored) case law exemplified by New Hampshire 20 Hemp, Inc. v. Marshall, supra, ruled as it did. If they comply with their jobs’ requirements, they risk federal 21 Prospective Intervenors-Plaintiffs respectfully urge this Court to grant oral 22 argument on the Motion to Intervene before a decision on the pending Motion to 3 1 Dismiss. The arguments relating to Prospective Intervenors-Plaintiffs are important to 2 the appropriate resolution of both pending motions. 3 RESPECTFULLY SUBMITTED this 4 14th day of December 2011. WILLIAM G. MONTGOMERY MARICOPA COUNTY ATTORNEY 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 BY: /s William G. Montgomery WILLIAM G. MONTGOMERY Attorneys for Plaintiffs Intervenor Maricopa County and Joy Rich CERTIFICATE OF SERVICE I hereby certify that on December 14, 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: Honorable Susan Bolton United States District Court Sandra Day O’Connor U.S. Courthouse 401 West Washington Street, Suite 322, SPC 11 Phoenix, Arizona 85003-2120 Aubrey Joy Corcoran Kevin D. Ray Lori Simpson Davis 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 Ezekiel Reifler Edwards American Civil Liberties Union Foundation 1101 Pacific Avenue, Suite 333 Santa Cruz, CA 95060 Attorney for Defendant Arizona Medical Marijuana Association 22 4 1 2 3 Daniel J. Pochoda ACLU Foundation of Arizona 77 E. Columbus Street, Suite 205 Phoenix, AZ 85012 Attorney for Defendant Arizona Medical Marijuana Association 4 5 6 7 Lisa T. Hauser Cameron C. Artigue Gammage & Burnham Two North Central, 15th Floor Phoenix, AZ 85004 Attorney for Defendant Arizona Medical Marijuana Association 8 9 10 Thomas W. Dean P.O. Box J Flagstaff, AZ 86002 Attorney for Defendant Arizona Association Of Dispensary Professionals 11 12 13 14 15 16 Ken Frakes 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 and copy delivered by U.S. mail and electronic mail to: 17 20 Scott Risner Trial Attorney, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 Email: 21 /s/ 18 19 Joie Gulley 22 5

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