United States of America v. State of California et al

Filing 151

OPPOSITION by United States of America to 73 Motion to Intervene. (Gray, Kathryne)

16

CHAD A. READLER
Acting Assistant Attorney General
MCGREGOR SCOTT
United States Attorney
AUGUST FLENTJE
Special Counsel
WILLIAM C. PEACHEY
Director
EREZ REUVENI
Assistant Director
DAVID SHELLEDY
Civil Chief, Assistant United States Attorney
LAUREN C. BINGHAM
JOSEPH A. DARROW
JOSHUA S. PRESS
FRANCESCA GENOVA
KATHRYNE M. GRAY
Trial Attorneys
United States Department of Justice
Civil Division
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
[phone]
[e-mail]

17

Attorneys for the United States of America

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

18

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

19
20

UNITED STATES OF AMERICA,
NO. 2:18–CV–00490-JAM-KJN

21
22
23
24
25
26
27
28

Plaintiff,
v.
STATE OF CALIFORNIA, et al.,
Defendants.

PLAINTIFF’S BRIEF IN OPPOSITION TO
INTERVENTION OF THE CALIFORNIA
PARTNERSHIP TO END DOMESTIC
VIOLENCE AND THE COALITION FOR
HUMANE IMMIGRANT RIGHTS
Judge: Hon. John A. Mendez

1

This case, as is relevant to the instant motion, raises several purely legal questions about the

2

validity of certain provisions of the California Values Act enacted through Senate Bill 54 (“SB 54”).

3

Specifically, the United States has challenged three provisions of SB 54 that prohibit (1) state and local

4

officials from voluntarily providing to the United States information about the release date from state or

5
6

local custody of criminal aliens who may be subject to removal and are subject to detention by the United

7

States, or other information relevant to the alien’s immigration status, and (2) transferring aliens to the

8

United States when they are scheduled to be released from state or local custody, thus interfering with

9

the United States’ ability to carry out its responsibilities under federal law. Two non-profit entities, the

10

California Partnership to End Domestic Violence (“Partnership”) and the Coalition for Humane

11
12

Immigrant Rights (“CHIRLA”), which state that they advance the interests of immigrant survivors of

13

domestic violence and other victims and witnesses of crime, have moved to intervene as defendants

14

pursuant to Federal Rules of Civil Procedure 24(a) and (b) based on their professed support for SB 54 as

15

a whole. As explained below, the Court should deny the motion because California is presumed to

16

adequately represent their interests in this case—a presumption that the non-profits have not, and cannot,

17
18

overcome.

19

First, it is undisputed that the non-profits and California share the identical ultimate objective to

20

uphold the legality of SB 54 and, therefore, California’s adequate representation is presumed. Indeed, as

21

evidenced by the face of the law itself, which provides that a purpose of SB 54 is to promote a

22
“relationship of trust between California’s immigrant community and state and local agencies” so that
23
24

“immigrant community members [do not] fear approaching police when they are victims of, and

25

witnesses to, crimes,” the State shares the same interest as the non-profits in protecting immigrant victims

26

and witnesses of crime who fear seeking police assistance. See Cal. Gov’t Code §§ 7284.4(b), (c).

27
28

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

1

Second, the non-profits cannot demonstrate that California, its Governor, and its Attorney

1
2

General—the parties responsible for the enactment and enforcement of the law at issue, and for defending

3

its legality in this litigation—are inadequate to defend the validity of SB 54. A state defending its own

4

law against a facial challenge has at least as much incentive and ability to defend that law, and to represent

5
6

the interests of those who support it, as any member of the public. Accordingly, any member of the public

7

who seeks to intervene in defense of a law must first clear a high bar where, as here, the state and the

8

would-be intervenor share the same ultimate objective of defending the challenged law. Because the

9

applicants for intervention here have not—and cannot—clear that bar, and for the additional reasons

10

identified below, the Court should deny their requests for intervention as of right and permissive

11
12

intervention. To the extent that they wish to participate, however, they may seek leave to file briefs in

13

support of California as amici curiae—an option that nearly 100 entities that are similarly situated to the

14

putative intervenors have taken advantage of, consistent with this Court’s order governing amicus briefs.

15

BACKGROUND

16
17
18

I.

The Parties
The United States filed this action on March 6, 2018, seeking a declaration invalidating and

preliminarily and permanently enjoining the enforcement of certain provisions of California law because

19
they are preempted by federal law and impermissibly discriminate against the United States and thus
20
21

violate the Supremacy Clause of the U.S. Constitution. See ECF 1. As is relevant to the putative

22

intervenors’ motion, the United States’ claims raise pure questions of law: the facial validity of three

23

provisions of SB 54—sections 7284.6(a)(1)(C), 7284.6(a)(1)(D), and 7284.6(a)(4) of the California

24

Government Code—which limit the ability of local law enforcement officers to provide the United States

25
26

with basic information about criminal aliens who are in their custody and are subject to federal

27

immigration custody, or to transfer such individuals to immigration custody. On March 6, 2018, in order

28

to avoid the ongoing, irreparable harm to the United States and its interests, the United States moved the

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

2

1
2

Court to preliminarily enjoin enforcement of SB 54, in addition to two other California laws, Assembly
Bill 450 and Assembly Bill 103.1 ECF 2.

3
4

Defendants, the State of California; Edmund Gerald Brown Jr., Governor of California, in his
Official Capacity; and Xavier Becerra, Attorney General of California, in his Official Capacity

5
6

(collectively, “the State,” “California,” or “the State Defendants”), moved to dismiss the Complaint on

7

May 4, 2018, arguing that the challenged laws are neither unconstitutional nor contrary to federal

8

statutory law. ECF 77. On the same day, they filed an opposition to the preliminary injunction motion.

9

ECF 74. The United States’ response to the motion to dismiss and its reply in support of its preliminary

10

injunction motion are currently due on June 6, and June 8, 2018, respectively.

11
12

II.

The Putative Intervenors

13

On May 4, 2018, the California Partnership to End Domestic Violence (“Partnership”) and the

14

Coalition for Humane Immigrant Rights (“CHIRLA”) (“putative intervenors”) together moved to

15

intervene under Rule 24(a) as a matter of right and for permissive intervention under Rule 24(b). ECF

16

73. They seek to participate as defendants in this matter to defend the legality of SB 54, which they assert

17
18

protects the interests of their members by encouraging immigrant domestic violence survivors and

19

witnesses to seek police assistance and other public services. ECF 73-1 at 1, 3-4. The putative intervenors

20

argue that they have significant protectable interests in SB 54 that would be affected by this lawsuit and

21

speculated that the State Defendants may not adequately represent their interests because, essentially, the

22
State has broader interests than they do. Id. at 11-12. They filed a proposed motion to dismiss, ECF 7323
24

3, and an opposition to the motion for a preliminary injunction, ECF 73-2.

25

Other entities, individuals, states, counties, and cities have filed motions seeking leave to

26

participate as amici curiae, including over 90 entities purporting to represent the interests of immigrant

27
28

1

The putative intervenors seek intervention to defend only SB 54, not the other two laws at issue here, and thus
this brief is limited to a discussion of SB 54.
Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

3

1
2

communities similar to those advanced by the putative intervenors. See ECF 32, 36, 47-50, 55-57, 96,
98-99, 104-105, 109-116, 120, 122-124.

3

ARGUMENT

4

Neither intervention as of right under Rule 24(a) nor permissive intervention under Rule 24(b) is

5
6

warranted in this case with respect to the Partnership or CHIRLA. To the extent that the putative

7

intervenors seek to support California on the public docket before this Court, they may do so via

8

participation as amici curiae, which the United States would not oppose. But their desire to defend the

9

state law at issue in this case is an interest that is already represented adequately by the State, its Governor,

10

and its Attorney General.

11
12

I.

Intervention as of right is not warranted.

13

Pursuant to Federal Rule of Civil Procedure 24(a),

14

[a] party seeking to intervene as of right must meet four requirements: (1) the applicant
must timely move to intervene; (2) the applicant must have a significantly protectable
interest relating to the property or transaction that is the subject of the action; (3) the
applicant must be situated such that the disposition of the action may impair or impede
the party’s ability to protect that interest; and (4) the applicant’s interest must not be
adequately represented by existing parties.

15
16
17
18

Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (citing Donnelly v. Glickman, 159 F.3d 405,

19
409 (9th Cir. 1998)). Failure to satisfy any one of the requirements is fatal to an application for
20
21

intervention, and the Court need not reach the remaining elements if one of the elements is not satisfied.

22

Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009) (citing California ex rel.

23

Van de Kamp v. Tahoe Reg'l Planning Agency, 792 F.2d 779, 781 (9th Cir. 1986)). Because any interest

24
25
26

of the putative intervenors will be adequately represented by the State Defendants in this case, the motion
for intervention should be denied on that basis alone.2

27
28

2

The United States does not concede that the other three requirements for intervention are satisfied, but limits its
arguments to the issue of adequate representation because the motion can and should be denied on that basis alone.
Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

4

1

The Ninth Circuit has said that it “considers three factors in determining the adequacy of

2

representation: (1) whether the interest of a present party is such that it will undoubtedly make all of a

3

proposed intervenor’s arguments; (2) whether the present party is capable and willing to make such

4

arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding

5
6

that other parties would neglect.” Arakaki, 324 F.3d at 1086 (citing Tahoe Reg'l Planning Agency, 792

7

F.2d at 778). In practice, however, “[t]he ‘most important factor’ to determine whether a proposed

8

intervenor is adequately represented by a present party to the action is ‘how the [intervenor’s] interest

9

compares with the interests of existing parties.’” Perry, 587 F.3d at 950-51 (quoting Arakaki, 324 F.3d

10

at 1086). So “[w]here the party and the proposed intervenor share the same ‘ultimate objective,’ a

11
12

presumption of adequacy of representation applies, and the intervenor can rebut that presumption only

13

with a ‘compelling showing’ to the contrary.” Id. (quoting Arakaki, 324 F.3d at 1086) (citing League of

14

United Latin Am. Citizens (“LULAC”) v. Wilson, 131 F.3d 1297, 1305 (9th Cir. 1997)); see also Prete

15

v. Bradbury, 438 F.3d 949, 957–59 (9th Cir. 2006) (holding that a public interest organization seeking

16

intervention to defend a state constitutional ballot initiative failed to defeat the presumption of adequate

17
18

representation when the ultimate objective of both the organization and the defendant was to uphold the

19

measure’s validity). In addition, “[t]here is also an assumption of adequacy when the government is

20

acting on behalf of a constituency that it represents, which must be rebutted with a compelling showing.”

21

Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011).

22
Accordingly, the State’s representation of the putative intervenors in this case is presumed to be
23
24

adequate, as a matter of law, for two independent reasons: (1) because the State and putative intervenors

25

“share the same ‘ultimate objective,’” Perry, 587 F.3d at 951 (quoting Arakaki, 324 F.3d at 1086), that

26

is, to defend SB 54; and (2) because the defendants are the State, its Governor, and its Attorney General,

27

represented by the California Department of Justice, and the Complaint challenges only the legality of

28

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

5

1

state law, Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 841 (9th Cir. 2011). To justify

2

intervention in either of these circumstances, Ninth Circuit precedent requires a “‘very compelling

3

showing.’”3 California ex rel Lockyer v. United States, 450 F.3d 436, 443-44 (9th Cir. 2006) (quoting

4

Arakaki, 324 F.3d at 1086). In this case, however, “[t]he undisputed facts do not even begin to rebut the

5
6

presumption[;] [o]n the contrary, they bear it out.” LULAC, 131 F.3d at 1305.

7

The putative intervenors “seek to intervene to defend the Values Act in particular because of the

8

Act’s critical importance for domestic violence survivors and other victims and witnesses of crime

9

throughout the State, many of whom are immigrants or from mixed-status families.” ECF 73-1 at 1. But

10

even accepting this interest as a “significant,” “legally protectable” one under Rule 24(a), Lockyer, 450

11
12

F.3d at 441—a debatable proposition given that SB 54 creates no private right of action—there is nothing

13

to suggest that the State Defendants, whose ultimate objective is identical to that of the putative

14

intervenors, will not adequately protect that interest in defending the validity of its own law. The putative

15

intervenors have thus failed to make a “very compelling showing” to overcome either presumption in

16

this case. Id. at 443-44.

17
As an initial matter, it cannot be disputed, and does not appear to be disputed, that the putative

18
19

intervenors share the same ultimate objective as the State to defend the validity of SB 54 and, indeed,

20

make similar, if not identical, arguments in pursuance of that objective. Compare ECF 77 (Defs.’ R.

21

12(b)(6) Mot. Dismiss), and ECF 74 (Defs.’ Opp. to Prelim. Inj.), with ECF 73-3 (Prop. R. 12(b)(6) Mot.

22
Dismiss), and ECF 73-2 (Prop. Opp. to Prelim. Inj.). Not only do the putative intervenors and the State
23
24
25
26
27
28

3

The putative intervenors suggest that their “burden to establish inadequate representation is ‘minimal,’ and is
satisfied whenever representation of their interests ‘may be’ inadequate.” ECF 73-1 at 11 (quoting Trbovich v.
United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). This standard, however, changes “when the would-be
intervenor shares the same interest as a government entity party,” as in this case. Nooksack Indian Tribe v. Zinke,
321 F.R.D. 377, 381-82 (W.D. Wash. 2017). In such circumstances, the burden of the proposed intervenor increases
to the point of being presumptively unmet “absent a ‘very compelling showing to the contrary.’” Id. (citations
omitted); see also Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013).
Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

6

1

share the same ultimate objective, seek the same relief, and advance the same arguments, but they also

2

offer much of the same reasoning in support of their arguments. Compare, e.g., ECF 77-1 at 5 (arguing

3

SB 54 does not conflict with 8 U.S.C. § 1373), with ECF 73-3 at 2 (same); compare ECF 74 at 14 (arguing

4

the Tenth Amendment mandates that “the state must have a legitimate choice to decline to administer the

5
6

federal program”), with ECF 73-2 at 1 (same); compare ECF 74 at 22, with ECF 73-2 at 19.

7

Moreover, that the putative intervenors might as a policy matter have narrower interests than

8

California is of no moment. Courts have held that a proposed intervenor with more specialized interests

9

than the existing party is nonetheless not entitled to intervene when it and the existing party share the

10

same ultimate goal. See, e.g., Blake v. Pallan, 554 F.2d 947, 954-55 (9th Cir. 1997) (adequate

11
12

representation despite different purposes in litigation and different relief sought and notwithstanding

13

intervenor’s specialized knowledge contributing to law and facts); United Nuclear Corp. v. Cannon, 696

14

F.2d 141, 144 (1st Cir. 1982) (“[A]lthough CLF may have a more specialized interest, the state and CLF

15

have the same ultimate goal of upholding and defending the constitutional validity of the [state] statute”

16

and thus their “practical litigation posture” would be identical); Stuart, 706 F.3d at 353 (“[S]tronger,

17
18

more specific interests do not adverse interests make—and they surely cannot be enough to establish

19

inadequacy of representation since would-be intervenors will nearly always have intense desires that are

20

more particular than the state’s.”). Additionally, this presumption exists “even though a party seeking

21

intervention may have different ‘ultimate motivation[s]’ from the governmental agency.” Tri-State Gen.

22
& Trans. Ass’n v. New Mexico Pub. Reg. Comm’n, 787 F.3d 1068, 1072-73 (10th Cir.). The burden is
23
24

on the would-be intervenor to overcome the presumption with “a concrete showing of circumstances”

25

that would render the government entity’s representation inadequate. Id. at 1073; see also NW Forest

26

Res. Council v. Glickman, 82 F.3d 825, 838 (9th Cir. 1996).

27
28

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

7

The putative intervenors here do not attempt to make the concrete showing required to overcome

1
2

the presumption that California will adequately represent their interests. LULAC, 131 F.3d at 1307.

3

Instead, through pure speculation, they offer three interrelated reasons for why the State may not

4

adequately represent their interests in defending the State’s own law: first, that California is charged with

5
6

protecting a broader public interest than the putative intervenors; second, that the State has a broader

7

interest in maintaining its relationship with the federal government and with its localities; and third, that

8

the State seeks to defend all three challenged laws whereas the putative intervenors only seek to defend

9

SB 54. ECF 73-1 at 11-12. Although cast as three, they can be boiled down to one argument: it is possible

10

that California may not adequately represent their interests because it may have additional interests to

11
12

represent as well. Such speculation, without the support of evidence or even reasoning for why the State’s

13

interests are such that it will not be an adequate representative here, does not amount to a sufficiently

14

concrete or compelling showing to overcome the presumption of adequacy. See LULAC, 131 F.3d at

15

1307 (that the intervenor’s interest “might … diverge from the interest of the governor and attorney

16

general is purely speculative, and does not justify intervention”). The putative intervenors offer only

17
18

abstract arguments that could theoretically be true in any case in which a state defends its own laws, and

19

they fail to connect these theories to the specific circumstances of this case. For instance, it is hard to

20

imagine a case in which it would not be true that California “represents a wide range of constituencies.”4

21

ECF 73-1 at 11. The proposed intervenors fail to explain why this makes the State an inadequate

22
representative in this case, let alone every case as their argument would suggest.
23
To the contrary, the named defendants in this case, California Governor Brown and Attorney

24
25

General Becerra, have publicly and ardently supported SB 54 and the interests the putative intervenors

26

state they want to protect in this case. See, e.g., Attorney General Becerra Issues Law Enforcement

27
28

4

The putative intervenors’ theory would render the presumption of adequate representation by a government entity
meaningless. See, e.g., Prete, 438 F.3d at 957.
Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

8

1

Bulletins Providing Guidance to California’s Public Safety Authorities Under the Values Act, AG Press

2

Release

3

https://oag.ca.gov/news/press-releases/attorney-general-becerra-issues-law-enforcement-bulletins-

4

(“We’re

in

the

business

of

public

safety,

not

deportation.”),

available

at

providing-guidance; compare LULAC, 131 F.3d at 1305 (Defendant Governor’s “forceful, persistent,

5
6

and proactive support” for the challenged law, and the ardent defense of the constitutionality of the law

7

by Defendant Attorney General since the onset of litigation made them adequate representatives), with

8

Yniguez v. Arizona, 939 F.2d 727, 733 (9th Cir. 1991), vacated sub nom., 520 U.S. 43, 117 S. Ct. 1055

9

(1997) (inadequate representation where Defendant Governor “had publicly opposed the adoption of [the

10

ballot initiative at issue] ... and announced her decision not to appeal the district court's opinion and

11
12

order”), and Sagebrush Rebellion v. Watt, 713 F.2d 525 (9th Cir. 1983).

13

Moreover, the State Defendants are particularly well-suited to defend the putative intervenors’

14

interests in this case, in light of SB 54’s stated purpose to protect “immigrant community members [who]

15

fear approaching police when they are victims of, and witnesses to, crimes.” Compare SB 54, ch. 17.25,

16

§ 7284.2(c) (preamble), with ECF 73-1 (requesting intervention to defend SB 54 “because of the Act’s

17
18

critical importance for domestic violence survivors and other victims and witnesses of crimes throughout

19

the State, many of whom are immigrants or from mixed-status families”). It is Defendant Attorney

20

General Becerra, not the Partnership or CHIRLA, who is charged by the State Legislature with the

21

responsibility of defending state laws. See Cal. Gov’t Code §§ 12510, 12511, 12512; Cal Const. art. 5, §

22
13. There is nothing to indicate, nor have the putative intervenors offered anything to indicate, that the
23
24

Attorney General will not faithfully execute his duties in defending SB 54.

25

Further, while the putative intervenors theorize that the State may be an inadequate representative

26

because it represents a broader public interest, they fail to “make[] a showing of distinct ‘parochial

27

interests’” to overcome the presumption that the State will adequately represent them. Nooksack Indian

28

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

9

1

Tribe, 321 F.R.D. at 381-82 (quoting Citizens for Balanced Use, 647 F.3d at 899) (emphasis added).

2

Nowhere do they explain how California’s interests are specifically “distinct” or adverse to their own in

3

seeking to uphold SB 54; to the extent that the State has “broader” interests, which the putative

4

intervenors have alleged exist only in theory, they fail to explain how such interests overcome the

5
6

presumption that their shared ultimate objective with the State makes the State an adequate

7

representative. Cf. ECF 73-1 at 13 (acknowledging their defense of SB 54 “shares numerous questions

8

of law and fact in common with the [State’s] claims”). The test is not, as the putative intervenors would

9

have it, whether the State has the same narrow policy interests in the law that it shares exclusively with

10

the Partnership and CHIRLA. Rather, courts have consistently focused on the ultimate objective in

11
12

litigation. See LULAC, 131 F.3d at 1301 & 1305 (rejecting intervention of public interest group who had

13

participated in drafting and sponsorship of challenged California law because it sought same ultimate

14

objective as the state to defend the constitutionality of the challenged law); Prete, 438 F.3d at 957-58

15

(denying intervention where “the ultimate objective for both defendant and intervenor-defendants is

16

upholding the validity of [challenged law]”); NW Forest Res. Council, 82 F.3d at 838 (“Because

17
18
19
20
21

[intervenor] alleges only minor differences in opinion with the Secretaries, it fails to demonstrate
inadequacy of representation” where they seek the same interpretation of the law at issue).
Moreover, the putative intervenors can point to nothing demonstrating “a likelihood” that the
State will “abandon or concede a potentially meritorious” interpretation of SB 54. Lockyer, 450 F.3d at

22
444; Dep’t of Fair Emp’t & Hous. v. Lucent Tech., Inc., 642 F.3d 728, 740-41 (9th Cir. 2011) (rejecting
23
24

as falling “‘far short of a ‘very compelling showing’” an applicant’s “‘vague speculation’” that

25

government “‘will abandon or concede a potentially meritorious position’”). This is presumably because

26

the State’s 41-page preliminary injunction opposition and 13-page memorandum in support of its motion

27

to dismiss already show that it has not conceded any argument that the putative intervenors consider

28

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

10

1

meritorious. See ECF 74 & 77-1. Thus, whether the putative intervenors’ speculation as to whether the

2

State would offer a less than zealous defense due to “broader interest[s]” (ECF 73-1 at 11-12) was ever

3

justified, it has now proven to be misguided. California has moved to dismiss the Complaint in its entirety

4

and that motion included every overarching substantive argument advanced in the proposed motion to

5
6

dismiss filed by the putative intervenors. Accordingly, as to the “ultimate objective” of this litigation—

7

that is, a successful legal defense of SB 54—there is no daylight between the State and the putative

8

intervenors. Perry, 587 F.3d at 951. That alone is sufficient reason for the Court to conclude that the

9

State’s representation is adequate, and that intervention is unwarranted.

10

Finally, it is an error to urge that intervention is needed to protect the interests of victims of and

11
12

witnesses to crime. Here, the United States challenges only certain provisions of SB 54 that restrict local

13

law enforcement from sharing basic information about aliens already in local custody because they were

14

arrested for criminal violations, and from transferring custody of those aliens arrested for or convicted

15

of a crime to federal immigration authorities. The challenged provisions of SB 54 do not serve to protect

16

victims or witnesses to crime, but the criminals who harmed those victims. See § 7284.6(1)(C)

17
18

(prohibiting the sharing of a “release date” of a criminal or person arrested for a crime). The putative

19

intervenors go a step further and state that they have an interest, which they suggest may be narrower

20

than California’s, in protecting domestic violence perpetrators because if those violent criminals are not

21

protected from the immigration consequences of their actions, their abuse might go unreported. ECF 73-

22
1 at 3. It is not clear how their interests diverge from the State’s on this score – in both cases, SB 54’s
23
24
25

operative provisions work the same to prevent, in certain circumstances, immigration enforcement
against aliens who have engaged in criminal activity, like domestic violence perpetrators.5 Additionally,

26
27
28

5

SB 54 does not protect certain perpetrators of domestic violence when there has been a prior conviction. See
§ 7282.5(a)(3)(B) (excluding felony and some misdemeanor batteries from the cooperation restrictions, including
domestic abuse under Cal. Penal Code § 273.5). The fact that SB 54 does not prevent local authorities from

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

11

1

this is a very limited aspect of SB 54, and while it would warrant amicus participation to share views on

2

the issue, it does not warrant intervention in a challenge to the law – which broadly applies to prevent

3

cooperation with respect to all criminals in state custody, not just those accused of domestic violence.

4

Taking a step back, the putative intervenors’ theory – whereby perpetrators of domestic violence

5
6

must be protected from the immigration consequences of their violent criminal activity – is

7

fundamentally flawed. First, the argument proves too much: under this theory, the potential criminal

8

penalties themselves would work to discourage reporting in difficult situations, but states still properly

9

treat domestic violence as a serious crime. Moreover, domestic violence is a horrible evil, and a

10

deportation risk would serve an important incentive to reduce incidents of that crime in the first place.

11
12

Congress was certainly entitled to conclude that aliens who are violent perpetrators of domestic violence

13

could be subject to removal from the country, and that the discretionary enforcement judgments with

14

respect to those issues belong to DHS, not California. In any event, to the extent SB 54 protects

15

perpetrators of domestic violence from the immigration consequences of their heinous actions, the State

16

is situated to vigorously defend the law and protect the interests cited by the putative intervenors.

17
18

II.

Permissive intervention is not warranted.

19

The putative intervenors have alternatively moved for permissive intervention under Federal

20

Rule of Civil Procedure 24(b). ECF 73-1 at 13-15. Pursuant to Rule 24(b), a court may grant permissive

21

intervention where the applicant shows “(1) independent grounds for jurisdiction; (2) the motion is

22
timely; and (3) the applicant’s claim or defense, and the main action, have a question of law or a question
23
24
25

of fact in common.” LULAC, 131 F.3d at 1308. “Even if an applicant satisfies those threshold
requirements, the district court has discretion to deny permissive intervention.” Donnelly, 159 F.3d at

26
27
28

cooperating with federal immigration authorities for these domestic violence perpetrators weakens the putative
intervenors’ theory that, without SB 54, domestic violence survivors will be discouraged from reporting their abuse
to local police. ECF 73-1 at 3-4.
Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

12

1

412. In exercising its discretion, the Court is “require[d]” to “consider whether the intervention will

2

unduly delay or prejudice the adjudication of the original parties’ rights.” Perry, 587 F.3d at 955. It may

3

also consider relevant factors such as “the nature and extent of the intervenors’ interest, their standing to

4

raise the relevant legal issues, the legal position they seek to advance, and its probable relation to the

5
6

merits of the case,” as well as “whether the intervenors’ interests are adequately represented by other

7

parties,” and “whether parties seeking intervention will significantly contribute to full development of

8

the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions

9

presented.” Spangler v. Pasadena City Bd. of Ed., 552 F.2d 1326, 1329 (9th Cir. 1977).

10

The Court should deny permissive intervention for many of the same reasons intervention as of

11
12

right is not warranted in this case – most importantly because the interests of the non-profits can be fully

13

and adequately vindicated by the State. The Ninth Circuit has upheld the denial of permissive intervention

14

“based on the identity of interests of the [intervenors] and the [existing parties] and the [existing parties’]

15

ability to represent those interests adequately.” Perry, 587 F.3d at 955.

16

Further, the putative intervenors have no “claim or defense” that is “in common” with either

17
18

Plaintiff or Defendants. Fed. R. Civ. P. 26(b). They have no affirmative “claim” at all, as they seek to

19

intervene only as defendants and have not otherwise asserted any counterclaim. And they have no

20

“defense” that is common to the State, as the United States could not could bring, for example,

21

constitutional preemption claims against any entity other than the state government. Indeed, neither the

22
United States – nor Orange County if it is permitted to intervene – has a cause of action to challenge the
23
24

legality of a state law against anyone other than the state and its officials or representatives. In these

25

circumstances, the proper role for the putative intervenors is as amici. Moreover, the litigation is likely

26

to be complicated by the introduction of litigants who seek to advance interests that are not necessary to

27

the determination of whether SB 54 is facially lawful. And because the putative intervenors take positions

28

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

13

1

on the legal issues actually at stake in this case that are identical to the existing party-defendants, their

2

participation would only add unnecessary redundancy. See United States v. California, No. 2:18-cv-490-

3

JAM-KJN, 2018 WL 1993937, at *3 (E,D, Cal. April 27, 2018) (J. Mendez).

4

Finally, the Court should refrain from exercising its discretion to permit the Partnership and

5
6

CHIRLA to intervene because adding them as defendants does nothing to further judicial efficiency. The

7

putative intervenors suggest that they have important interests that are implicated by litigation over SB

8

54, but their proposed arguments seek to advance the interests of California, not their own, and, as

9

explained, those interests are described in SB 54 and adequately protected by the State. See ECF 73-1 at

10

10 (acknowledging they cannot litigate their interests related to SB 54 in a separate case). In contrast,

11
12

Orange County has separate interests that it has put forth because it is directly regulated by SB 54, it is

13

concerned about the impact of SB 54 on public safety in its local community, it is concerned about a

14

potential loss of federal grant funds due to SB 54, and it has faced enforcement threats from the State

15

Attorney General – interests that are notably distinct from those presented by the United States.

16

The non-profits, on the other hand, do not present a unique case for participation as intervenor-

17
18

defendants. They express concerns about State recourse expenditures – but that interest is identical to

19

what the State itself will have an interest in addressing. See ECF 73-2 at 4 (intervenor arguing that “state

20

officers must divert limited time, energy, and jail space away from pressing local needs”). And they

21

advocate for “California’s constitutional prerogative to decline to help administer federal programs,”

22
under the Tenth Amendment, noting that the State is an “‘independent political entit[y]’ who ‘represent[s]
23
24

and remain[s] accountable to [its] own citizens.’” Id. But these are obviously interests identical to those

25

protected here by the State. And the non-profits would not, as they concede, have a cause of action to

26

assert the State’s interests or advance the arguments they attempt to make here. See Armstrong v.

27
28

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

14

1

Exceptional Child Center, Inc., 135 S. Ct. 1378, 1383 (2015) (holding the Supremacy Clause does not

2

create a private cause of action). Permissive intervention is thus not warranted as a discretionary matter.

3

In sum, the Court does not need the putative intervenors—who raise no necessary element to the

4

issue of whether SB 54 is facially valid and would otherwise not be able to litigate the issues at stake

5
6
7

here—to decide this case, and it is not otherwise assisted by their proposed participation.
III.

The United States would consent to motions for leave to file briefs as amici curiae.

8

Although they advance the same substantive arguments in their proposed briefings as the State,

9

to the extent that the Partnership or CHIRLA wish to offer views on the issues presented by this case,

10

those views can be provided to the Court through an amicus brief. The “Ninth Circuit has held that ‘a

11
12

district court has broad discretion in the appointment of amici curiae.’” California v. U.S. Dep’t of Labor,

13

2014 WL 12691095, at *1 (E.D. Cal. Jan. 14, 2014) (citations omitted). The “classic role of amicus

14

curiae” is to “assist[] in a case of general public interest, supplementing the efforts of counsel, and

15

drawing the court’s attention to law that escaped consideration.” Id. Amicus is the proper role here – just

16

as is the case with the over 90 similarly-situated organizations who have sought leave to file amicus

17
18
19

briefs. The United States would consent to amicus participation here, as it has with the other
organizations.

20
21

CONCLUSION
For the foregoing reasons, the motion for intervention should be denied.

22
23
24
25
26
27
28

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

15

1

DATED: May 22, 2018

CHAD A. READLER
Acting Assistant Attorney General

2
MCGREGOR SCOTT
United States Attorney

3
4

AUGUST FLENTJE
Special Counsel

5
6

WILLIAM C. PEACHEY
Director

7

EREZ REUVENI
Assistant Director

8
9

DAVID SHELLEDY
Civil Chief, Asst. United States Attorney

10
11

LAUREN C. BINGHAM
JOSEPH A. DARROW
JOSHUA S. PRESS
FRANCESCA GENOVA
KATHRYNE M. GRAY

12
13
14
15

/s/ Kathryne M. Gray
KATHRYNE M. GRAY
Trial Attorney
United States Department of Justice
Civil Division
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Phone: [phone]
[e-mail]

16
17
18
19
20
21
22

Attorneys for the United States of America
23
24
25
26
27
28

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

16

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 22, 2018, I electronically transmitted the foregoing document to

3

the Clerk’s Office using the U.S. District Court for the Eastern District of California’s Electronic

4

Document Filing System (ECF), which will serve a copy of this document upon all counsel of record.

5
By: /s/ Kathryne M. Gray
KATHRYNE M. GRAY
Trial Attorney
United States Department of Justice
Civil Division

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff’s Opposition to Intervention
of Partnership and CHIRLA

17