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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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: [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.;

NO. CV 11-01072-PHX-SRB

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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,
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v.
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UNITED STATES OF AMERICA; et al.
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Defendants.
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Prospective Intervenors-Plaintiffs Maricopa County and Joy Rich (“Intervenors”)

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hereby provide their collective Reply to Non-Government Defendants’ and Federal

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Defendants’ separate Oppositions to Intervenors’ Motion for Oral Argument on Motion

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to Intervene and Leave to File a Brief in Opposition to Non-Government Defendants’

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Motion to Dismiss. Defendants’ Oppositions raise three objections in opposition to

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Intervenors’ motions: (1) that Intervenors’ request for oral argument on their Motion to

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Intervene is late, (2) that Intervenors’ request for leave to file a response to Non-

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Government Defendants’ Motion to Dismiss is late, and (3) that Intervenors’ motions are

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futile because issues pertaining to the Court’s jurisdiction compel the dismissal of the

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State of Arizona’s underlying complaint in any event. These objections are fatally flawed

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because they rely on an incorrect interpretation of the Rules of this Court, and because

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they completely disregard the Intervenors’ unique position in terms of their ability to

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fully participate in the pending litigation and have their separate position heard.

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A.

The Court Has Discretion to Allow Intervenors’ Oral Argument

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Under LRCiv 7.2(f), parties typically request oral argument on a motion by

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including the request in the caption of the motion or response thereto. However, the Rule

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reads that the standard method for requesting oral argument shall be used, “unless

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otherwise directed by the Court.” This gives the Court discretion as to whether and when

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it will allow or direct the parties to present oral argument. Such discretion is necessary

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because the Court may, for example, find that it wishes to hear oral argument on a motion

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or legal issue even though the parties themselves have not expressly requested that they

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be heard.

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Such discretion is also useful where, as here, the party that initially failed to

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request oral argument faces changed circumstances in the case, which circumstances

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present a new and compelling reason to be heard by the Court. That compelling reason

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arose during the December 12, 2011 hearing on the Non-Government Defendants’

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Motion to Dismiss when the Court made specific inquiries to Plaintiff State of Arizona

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about the jurisdictional viability of its case and the position the State was taking on the

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question of federal preemption.

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

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seek intervention. Certain issues were not addressed, or were not properly addressed, at

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the December 12, 2011 hearing and Intervenors believe that it would benefit the Court to

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hear Intervenors’ position on those issues. As such, Intervenors are now requesting oral

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argument on their own motion in order that they may better explain to the Court why

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jurisdiction is proper, and why the County employees do not need to subject themselves

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to criminal sanctions by the federal government before this Court may acquire

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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’

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request for oral argument.

The Court has not yet ruled on Intervenors’ Motion to

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Intervene, so Intervenors’ request technically is not untimely. If oral argument would aid

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the Court in a complete understanding of the positions of all of the parties, both actual

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and prospective, then there is good reason for allowing oral argument before the motion

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is ruled upon. Further, granting oral argument now will not prejudice any of the existing

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parties since the Court also has not yet ruled on whether the State of Arizona’s complaint

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will be allowed to proceed. Under the circumstances, it would appear that allowing an as

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yet unheard party with a substantial interest in the case to be heard could only aid in the

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Court’s decision as to whether the State’s case has merit and should proceed. Finally,

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allowing Intervenors to be heard will likely preserve judicial resources in the long run. If

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Intervenors are denied the opportunity to be heard and join in the pending legal action,

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Intervenors would likely be compelled to file a separate action to preserve their rights. In

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lieu of such an action, which would arise out of substantially the same facts and

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circumstances, it would be more efficient to simply join Intervenors in the existing case.

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For these reasons, Intervenors’ request for oral argument on their Motion to Intervene

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should be granted.

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B.

The Court Has Discretion to Allow Intervenors’ Late Filing of a
Response to Non-Government Defendants’ Motion to Dismiss

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In order to adequately protect their interests and the interests of the employees of
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Maricopa County, Intervenors wish the opportunity to file a response to Non-Government
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Defendants’ Motion to Dismiss. Unfortunately, the pressing need for such a response
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was not abundantly clear until the December 12, 2011 hearing on the Motion to Dismiss.
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At that hearing, the Court confronted Plaintiff State of Arizona with questions regarding
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the ripeness of the case for adjudication and the related question of the Court’s
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jurisdiction. The Court also questioned whether the State was willing to adopt a position
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on what the Court announced as a self-evident direct conflict between the AMMA and
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the federal CSA.

The State’s responses did not adequately address or protect the

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Intervenors’ (County and County employees) position vis a vis the question of
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implementation of the AMMA in the face of contrary federal law.
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Intervenors have unequivocal answers to the critical questions posed by the Court
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and therefore strongly desire the opportunity to be heard. Intervenors agree with the
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Court that there is a direct conflict between the AMMA and the CSA, and believe that the
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federal law preempts the state law. That is why Intervenors are loath to advise their
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employees to comply with the provisions of the AMMA only to risk being criminally

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liable under the CSA. Intervenors also believe that their employees do not have to be put

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in the position of facing criminal prosecution in order for this Court to have jurisdiction.

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In fact, as Intervenors have pointed out, there is case law that holds that individual

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government officials or employees do not have to violate federal criminal law in order to

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achieve standing regarding the question of whether implementing a state medical

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marijuana law will lead to federal prosecution on drug charges. New Hampshire Hemp,

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Inc. v. Marshall, 203 F.3d 1, 5 (1st Cir. 2000). This case was not discussed, and this

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argument was not even addressed, at the December 12, 2011 hearing, which provides

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another compelling reason why Intervenors should be heard on Non-Government

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Defendants’ Motion to Dismiss before the Court rules on that motion.

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Intervenors wish to make clear to the Court that they are not requesting another

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oral argument on the Motion to Dismiss.

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opposition for the Court’s consideration so that their position can be heard and their

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employees’ interests protected. In this regard, Non-Government Defendants argue in

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their Opposition that Intervenors are late in their request because they “disregarded the

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fourteen day deadline applied in this district for oppositions to motions to dismiss.”

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Intervenors point out that the stated deadline applies to parties, which Intervenors were

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not at the time the Motion to Dismiss was filed. Intervenors assumed they had no right to

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file an opposition until they were granted leave to intervene. Perhaps Intervenors should

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have requested leave to file an opposition at that time, but again, the pressing need for

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Intervenors to be able to state their unique position only became obvious in light of the

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Intervenors wish only to file a written

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issues raised, and more importantly not raised, at the December 12, 2011 hearing. In any

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event, the fact that the Court has not yet ruled on the Motion to Dismiss, and the further

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fact that Intervenors’ proposed opposition will likely aid the Court in its ruling, makes it

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entirely appropriate for Intervenors to request leave to file an opposition to the Motion at

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this time.

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Contrary to Defendants’ assertions, allowing Intervenors to file an opposition to

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the pending Motion to Dismiss will not prejudice the remaining parties.

From a

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procedural standpoint, this case is still in its very early stages. Indeed, because there is a

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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’

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has been undertaken.

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opposition, which would delay the Court’s ruling by a short time.

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In addition, as explained above, Intervenors have good reason for seeking to file

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an opposition at this time. Because of their non-party status, filing an opposition during

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the initial briefing seemed improper, and Intervenors had a reasonable expectation that

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the Court might rule on their Motion to Intervene before ruling on the Motion to Dismiss.

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That did not happen. Now, based on what occurred at the December 12, 2011 hearing on

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Non-Government Defendants’ Motion to Dismiss, Intervenors have confirmed that the

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State of Arizona cannot adequately represent or defend the interests of the County and its

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employees, and Intervenors realize there is a pressing need to independently brief the

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Court on their position.

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Finally, Non-Government Defendants’ citation to Kastl v. Maricopa County

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Community College Dist., No., 2006 WL 2460636 at *2 (D. Ariz. Aug. 22, 2006) does

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not support denial of Intervenors’ request for additional briefing in this case. There, the

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plaintiff had a history of missing other deadlines in the case, and also had filed her

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pleading late without seeking leave of the Court. Those factors are not present here so

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Kastl is readily distinguishable. In addition, the other factors considered by the Court in

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Kastl – “length of the delay and its potential impact on judicial proceedings, the reason

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for the delay, including whether it was within the reasonable control of the movant, and

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whether the movant acted in good faith” – all favor allowing Intervenors to be heard on

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the Motion to Dismiss, even though Intervenors’ request comes late and would result in a

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slight delay. Intervenors seek additional briefing in good faith in order to protect their

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unique position as implementer of the AMMA that could face federal criminal liability

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for simply complying with state law. The Court should hear what Intervenors have to

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say.
Intervenors’ Position is Not Futile

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C.

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Non-Government Defendants claim that the relief Intervenors seek “would be

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futile” even though Defendants have no idea how the Court will rule on their Motion to

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Dismiss and have not seen the brief Intervenors intend to file. Defendants mistakenly

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assume that it is a foregone conclusion that the State of Arizona’s case will be dismissed

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for lack of subject matter jurisdiction. But that is precisely the reason Intervenors wish to

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be heard. Intervenors wish to bring a different, and as yet unargued, perspective to the

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case. Contrary to Defendants’ assertions, dismissal of the underlying complaint is not

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appropriate, and the so called “jurisdictional flaws” that Defendants point out are

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addressed by Intervenors’ proposed arguments.

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Intervenors have taken the position that the AMMA is preempted by the federal

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anti-narcotics laws, and this position will be reflected in their proposed complaint in

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intervention. Because Intervenors have also taken the position (supported by case law)

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that County employees who are tasked with implementing the AMMA do not have to

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wait to be prosecuted by the federal government before getting an answer as to whether

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their actions would be legal, the issue of ripeness remains to be determined. In addition,

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it is Intervenors’ position that the circumstances presented by the irreconcilable conflict

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between the state and federal laws pertaining to marijuana distribution and use require

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court intervention, and that such intervention would not result in the Court issuing an

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advisory opinion.

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Defendants would have Intervenors’ employees break the law and suffer

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consequences before being allowed to litigate the correctness of their actions in federal

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court. In Intervenors’ view, that is unacceptable, and also unnecessary given the clearly

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established legal precedent that does not require those who are innocently implementing

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state approved marijuana laws to first be arrested before gaining access to the courts.

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Further, Defendants cannot credibly argue that Intervenors’ efforts will be for naught

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because they have somehow foreseen that the State of Arizona’s case will be dismissed.

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Defendants, and the Court, should first be able to hear and evaluate the merits of

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Intervenors’ position on these issues in order that a fully informed decision can be made

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in this important case. All Intervenors ask for is the chance to be heard.

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RESPECTFULLY SUBMITTED this

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23rd

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

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CERTIFICATE OF SERVICE

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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:

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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
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
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

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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: [e-mail]

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/s/

Nadxiely Valerio

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