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

Filing 68

*REPLY to Response to Motion re 60 MOTION for Hearing on 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, MOTION for Leave to File Brief in Opposition to Defendants' Motion to Dismiss re 38 MOTION to Dismiss for Lack of Jurisdiction, by Intervenor Plaintiffs Maricopa, County of, Joy Rich. (Muthig, Klaus) *Modified to correct event type on 12/28/2011 (SAT).

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1 2 3 4 5 6 7 WILLIAM G. MONTGOMERY MARICOPA COUNTY ATTORNEY BAR ID#: 021246 THOMAS P. LIDDY (019384) PETER MUTHIG (018526) Deputy County Attorneys CIVIL SERVICES DIVISION 222 North Central Avenue, Suite 1100 Phoenix, Arizona 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.; NO. CV 11-01072-PHX-SRB 13 PROSPECTIVE INTERVENORS’ REPLY IN SUPPORT OF MOTION FOR ORAL ARGUMENT ON MOTION TO INTERVENE AND LEAVE TO FILE A BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Plaintiffs, 14 v. 15 UNITED STATES OF AMERICA; et al. 16 Defendants. 17 18 Prospective Intervenors-Plaintiffs Maricopa County and Joy Rich (“Intervenors”) 19 hereby provide their collective Reply to Non-Government Defendants’ and Federal 20 Defendants’ separate Oppositions to Intervenors’ Motion for Oral Argument on Motion 21 to Intervene and Leave to File a Brief in Opposition to Non-Government Defendants’ 22 Motion to Dismiss. Defendants’ Oppositions raise three objections in opposition to 1 1 Intervenors’ motions: (1) that Intervenors’ request for oral argument on their Motion to 2 Intervene is late, (2) that Intervenors’ request for leave to file a response to Non- 3 Government Defendants’ Motion to Dismiss is late, and (3) that Intervenors’ motions are 4 futile because issues pertaining to the Court’s jurisdiction compel the dismissal of the 5 State of Arizona’s underlying complaint in any event. These objections are fatally flawed 6 because they rely on an incorrect interpretation of the Rules of this Court, and because 7 they completely disregard the Intervenors’ unique position in terms of their ability to 8 fully participate in the pending litigation and have their separate position heard. 9 A. The Court Has Discretion to Allow Intervenors’ Oral Argument 10 Under LRCiv 7.2(f), parties typically request oral argument on a motion by 11 including the request in the caption of the motion or response thereto. However, the Rule 12 reads that the standard method for requesting oral argument shall be used, “unless 13 otherwise directed by the Court.” This gives the Court discretion as to whether and when 14 it will allow or direct the parties to present oral argument. Such discretion is necessary 15 because the Court may, for example, find that it wishes to hear oral argument on a motion 16 or legal issue even though the parties themselves have not expressly requested that they 17 be heard. 18 Such discretion is also useful where, as here, the party that initially failed to 19 request oral argument faces changed circumstances in the case, which circumstances 20 present a new and compelling reason to be heard by the Court. That compelling reason 21 arose during the December 12, 2011 hearing on the Non-Government Defendants’ 22 Motion to Dismiss when the Court made specific inquiries to Plaintiff State of Arizona 2 1 about the jurisdictional viability of its case and the position the State was taking on the 2 question of federal preemption. 3 adequately protect the unique interests of the County’s employees for whom Intervenors 4 seek intervention. Certain issues were not addressed, or were not properly addressed, at 5 the December 12, 2011 hearing and Intervenors believe that it would benefit the Court to 6 hear Intervenors’ position on those issues. As such, Intervenors are now requesting oral 7 argument on their own motion in order that they may better explain to the Court why 8 jurisdiction is proper, and why the County employees do not need to subject themselves 9 to criminal sanctions by the federal government before this Court may acquire 10 11 The State’s responses to those inquiries did not jurisdiction (explained at greater length below). In addition, other reasons militate in favor of the Court granting Intervenors’ 12 request for oral argument. The Court has not yet ruled on Intervenors’ Motion to 13 Intervene, so Intervenors’ request technically is not untimely. If oral argument would aid 14 the Court in a complete understanding of the positions of all of the parties, both actual 15 and prospective, then there is good reason for allowing oral argument before the motion 16 is ruled upon. Further, granting oral argument now will not prejudice any of the existing 17 parties since the Court also has not yet ruled on whether the State of Arizona’s complaint 18 will be allowed to proceed. Under the circumstances, it would appear that allowing an as 19 yet unheard party with a substantial interest in the case to be heard could only aid in the 20 Court’s decision as to whether the State’s case has merit and should proceed. Finally, 21 allowing Intervenors to be heard will likely preserve judicial resources in the long run. If 22 Intervenors are denied the opportunity to be heard and join in the pending legal action, 3 1 Intervenors would likely be compelled to file a separate action to preserve their rights. In 2 lieu of such an action, which would arise out of substantially the same facts and 3 circumstances, it would be more efficient to simply join Intervenors in the existing case. 4 For these reasons, Intervenors’ request for oral argument on their Motion to Intervene 5 should be granted. 6 B. The Court Has Discretion to Allow Intervenors’ Late Filing of a Response to Non-Government Defendants’ Motion to Dismiss 7 In order to adequately protect their interests and the interests of the employees of 8 Maricopa County, Intervenors wish the opportunity to file a response to Non-Government 9 Defendants’ Motion to Dismiss. Unfortunately, the pressing need for such a response 10 was not abundantly clear until the December 12, 2011 hearing on the Motion to Dismiss. 11 At that hearing, the Court confronted Plaintiff State of Arizona with questions regarding 12 the ripeness of the case for adjudication and the related question of the Court’s 13 jurisdiction. The Court also questioned whether the State was willing to adopt a position 14 on what the Court announced as a self-evident direct conflict between the AMMA and 15 the federal CSA. The State’s responses did not adequately address or protect the 16 Intervenors’ (County and County employees) position vis a vis the question of 17 implementation of the AMMA in the face of contrary federal law. 18 Intervenors have unequivocal answers to the critical questions posed by the Court 19 and therefore strongly desire the opportunity to be heard. Intervenors agree with the 20 Court that there is a direct conflict between the AMMA and the CSA, and believe that the 21 federal law preempts the state law. That is why Intervenors are loath to advise their 22 4 1 employees to comply with the provisions of the AMMA only to risk being criminally 2 liable under the CSA. Intervenors also believe that their employees do not have to be put 3 in the position of facing criminal prosecution in order for this Court to have jurisdiction. 4 In fact, as Intervenors have pointed out, there is case law that holds that individual 5 government officials or employees do not have to violate federal criminal law in order to 6 achieve standing regarding the question of whether implementing a state medical 7 marijuana law will lead to federal prosecution on drug charges. New Hampshire Hemp, 8 Inc. v. Marshall, 203 F.3d 1, 5 (1st Cir. 2000). This case was not discussed, and this 9 argument was not even addressed, at the December 12, 2011 hearing, which provides 10 another compelling reason why Intervenors should be heard on Non-Government 11 Defendants’ Motion to Dismiss before the Court rules on that motion. 12 Intervenors wish to make clear to the Court that they are not requesting another 13 oral argument on the Motion to Dismiss. 14 opposition for the Court’s consideration so that their position can be heard and their 15 employees’ interests protected. In this regard, Non-Government Defendants argue in 16 their Opposition that Intervenors are late in their request because they “disregarded the 17 fourteen day deadline applied in this district for oppositions to motions to dismiss.” 18 Intervenors point out that the stated deadline applies to parties, which Intervenors were 19 not at the time the Motion to Dismiss was filed. Intervenors assumed they had no right to 20 file an opposition until they were granted leave to intervene. Perhaps Intervenors should 21 have requested leave to file an opposition at that time, but again, the pressing need for 22 Intervenors to be able to state their unique position only became obvious in light of the 5 Intervenors wish only to file a written 1 issues raised, and more importantly not raised, at the December 12, 2011 hearing. In any 2 event, the fact that the Court has not yet ruled on the Motion to Dismiss, and the further 3 fact that Intervenors’ proposed opposition will likely aid the Court in its ruling, makes it 4 entirely appropriate for Intervenors to request leave to file an opposition to the Motion at 5 this time. 6 Contrary to Defendants’ assertions, allowing Intervenors to file an opposition to 7 the pending Motion to Dismiss will not prejudice the remaining parties. From a 8 procedural standpoint, this case is still in its very early stages. Indeed, because there is a 9 motion to dismiss pending, the case is not even at issue, and no discovery or scheduling At worst Defendants would have to reply to Intervenors’ 10 has been undertaken. 11 opposition, which would delay the Court’s ruling by a short time. 12 In addition, as explained above, Intervenors have good reason for seeking to file 13 an opposition at this time. Because of their non-party status, filing an opposition during 14 the initial briefing seemed improper, and Intervenors had a reasonable expectation that 15 the Court might rule on their Motion to Intervene before ruling on the Motion to Dismiss. 16 That did not happen. Now, based on what occurred at the December 12, 2011 hearing on 17 Non-Government Defendants’ Motion to Dismiss, Intervenors have confirmed that the 18 State of Arizona cannot adequately represent or defend the interests of the County and its 19 employees, and Intervenors realize there is a pressing need to independently brief the 20 Court on their position. 21 Finally, Non-Government Defendants’ citation to Kastl v. Maricopa County 22 Community College Dist., No., 2006 WL 2460636 at *2 (D. Ariz. Aug. 22, 2006) does 6 1 not support denial of Intervenors’ request for additional briefing in this case. There, the 2 plaintiff had a history of missing other deadlines in the case, and also had filed her 3 pleading late without seeking leave of the Court. Those factors are not present here so 4 Kastl is readily distinguishable. In addition, the other factors considered by the Court in 5 Kastl – “length of the delay and its potential impact on judicial proceedings, the reason 6 for the delay, including whether it was within the reasonable control of the movant, and 7 whether the movant acted in good faith” – all favor allowing Intervenors to be heard on 8 the Motion to Dismiss, even though Intervenors’ request comes late and would result in a 9 slight delay. Intervenors seek additional briefing in good faith in order to protect their 10 unique position as implementer of the AMMA that could face federal criminal liability 11 for simply complying with state law. The Court should hear what Intervenors have to 12 say. Intervenors’ Position is Not Futile 13 C. 14 Non-Government Defendants claim that the relief Intervenors seek “would be 15 futile” even though Defendants have no idea how the Court will rule on their Motion to 16 Dismiss and have not seen the brief Intervenors intend to file. Defendants mistakenly 17 assume that it is a foregone conclusion that the State of Arizona’s case will be dismissed 18 for lack of subject matter jurisdiction. But that is precisely the reason Intervenors wish to 19 be heard. Intervenors wish to bring a different, and as yet unargued, perspective to the 20 case. Contrary to Defendants’ assertions, dismissal of the underlying complaint is not 21 appropriate, and the so called “jurisdictional flaws” that Defendants point out are 22 addressed by Intervenors’ proposed arguments. 7 1 Intervenors have taken the position that the AMMA is preempted by the federal 2 anti-narcotics laws, and this position will be reflected in their proposed complaint in 3 intervention. Because Intervenors have also taken the position (supported by case law) 4 that County employees who are tasked with implementing the AMMA do not have to 5 wait to be prosecuted by the federal government before getting an answer as to whether 6 their actions would be legal, the issue of ripeness remains to be determined. In addition, 7 it is Intervenors’ position that the circumstances presented by the irreconcilable conflict 8 between the state and federal laws pertaining to marijuana distribution and use require 9 court intervention, and that such intervention would not result in the Court issuing an 10 advisory opinion. 11 Defendants would have Intervenors’ employees break the law and suffer 12 consequences before being allowed to litigate the correctness of their actions in federal 13 court. In Intervenors’ view, that is unacceptable, and also unnecessary given the clearly 14 established legal precedent that does not require those who are innocently implementing 15 state approved marijuana laws to first be arrested before gaining access to the courts. 16 Further, Defendants cannot credibly argue that Intervenors’ efforts will be for naught 17 because they have somehow foreseen that the State of Arizona’s case will be dismissed. 18 Defendants, and the Court, should first be able to hear and evaluate the merits of 19 Intervenors’ position on these issues in order that a fully informed decision can be made 20 in this important case. All Intervenors ask for is the chance to be heard. 21 RESPECTFULLY SUBMITTED this 22 8 23rd day of December 2011. WILLIAM G. MONTGOMERY MARICOPA COUNTY ATTORNEY 1 2 3 4 BY: /s William G. Montgomery WILLIAM G. MONTGOMERY Attorneys for Plaintiffs Intervenor Maricopa County and Joy Rich 5 CERTIFICATE OF SERVICE 6 I hereby certify that on December 23, 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: 7 8 9 10 11 12 13 14 15 16 17 18 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 19 20 21 22 Daniel J. Pochoda ACLU Foundation of Arizona 77 E. Columbus Street, Suite 205 Phoenix, AZ 85012 Attorney for Defendant Arizona Medical Marijuana Association 9 1 2 3 4 5 6 7 8 9 10 11 Lisa T. Hauser Cameron C. Artigue Gammage & Burnham Two North Central, 15th Floor Phoenix, AZ 85004 Attorney for Defendant Arizona Medical Marijuana Association Thomas W. Dean P.O. Box J Flagstaff, AZ 86002 Attorney for Defendant Arizona Association Of Dispensary Professionals 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 12 13 14 15 16 and copy delivered by U.S. mail and electronic mail to: Scott Risner Trial Attorney, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 Email: 17 /s/ Nadxiely Valerio 18 19 20 21 22 10

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