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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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; JANICE K.
BREWER, et al.;

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Plaintiffs,
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v.
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UNITED STATES OF AMERICA; et al.
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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.
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Prospective Intervenors-Plaintiffs Maricopa County and Joy Rich move under

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LRCiv. Rule 7.2(f) for oral argument on their Motion to Intervene and to file a brief in

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opposition to defendants’ Motions to Dismiss.

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Movants did not initially request oral argument, but under LRCov. Rule 7.2(f),

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this Court should exercise its discretion to grant oral argument in order to permit the
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specific interests of the County employees to be heard.

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During the December oral argument on the non-government parties’ Motions to

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Dismiss, Court made specific inquiries to Plaintiff State of Arizona, which did not

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respond adequately to protect the unique interests of the County’s employees for whom

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movants seek intervention.

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During that oral argument, the Court repeatedly announced that it is self-evident

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that the AMMA is in direct conflict with the CSA. Counsel for the non-government

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defendants seeking dismissal did not argue that the two statutes can be reconciled, as

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indeed they could not. Maricopa County and Joy Rich agree that the CSA is in direct

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conflict with the AMMA. In fact, it is the position of the Prospective Intervenors-

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Plaintiffs that, because of this direct conflict, and because Congress intended federal law

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to occupy the field of drug enforcement, the State law AMMA is preempted by the

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federal CSA.

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There is no safe harbor for County employees.

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During the December 12 oral argument the Court posited a question based on

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some hypothetical political activist seeking medical marijuana permits, etc., being

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willing to risk prosecution so as to create a justiciable case or controversy. Neither the

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State nor the defendants seeking dismissal addressed the flip side of the Court’s

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question: what can a governmental employee who does not wish to risk prosecution do?

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There simply is no safe harbor for them.

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Given the recent actions of the DOJ in California, coupled with the published

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warnings of then U.S. Attorney Burke, the threat of enforcement of the CSA against
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those whose conduct is in compliance with state Medical Marijuana laws, creates an

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urgency which gives rise to a controversy and ripeness sufficient to grant this Court

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jurisdiction and prospective intervenor standing.

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Specifically, the case law (ignored by those arguing on December 12) does not

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require an individual government official or employee to violate federal criminal law to

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achieve standing, New Hampshire Hemp, Inc. v. Marshall, 203 F.3d 1, 5 (1st Cir. 2000).

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Maricopa County employees are not political activists who, as the Court suggested

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during the December 13th, 2011 hearing, have the choice of whether to risk arrest by

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federal law enforcement to achieve what they may perceive is a greater political

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objective.

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County officials are sworn, and employees are required as a condition of their

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employment, to comply with state law AND federal law, irrespective of whether the

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policies of any particular administrators of the Department of Justice direct their

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subordinates to enforce said provisions of the CSA and related federal criminal laws

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(aiding and abetting, etc.). If these officials and employees refuse to issue permits etc.,

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as required by AMMA because of a fear of federal prosecution, they may suffer anxiety

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caused by their involuntary position as civil servants openly and notoriously ignoring

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federal or state law.

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prosecution. That is exactly why the (ignored) case law exemplified by New Hampshire

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Hemp, Inc. v. Marshall, supra, ruled as it did.

If they comply with their jobs’ requirements, they risk federal

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Prospective Intervenors-Plaintiffs respectfully urge this Court to grant oral

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argument on the Motion to Intervene before a decision on the pending Motion to
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Dismiss. The arguments relating to Prospective Intervenors-Plaintiffs are important to

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the appropriate resolution of both pending motions.

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RESPECTFULLY SUBMITTED this

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14th

day of December 2011.

WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY

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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

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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

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Lisa T. Hauser
Cameron C. Artigue
Gammage & Burnham
Two North Central, 15th Floor
Phoenix, AZ 85004
Attorney for Defendant Arizona Medical
Marijuana Association

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Thomas W. Dean
P.O. Box J
Flagstaff, AZ 86002
Attorney for Defendant Arizona Association
Of Dispensary Professionals

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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:

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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]

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/s/

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Joie Gulley

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