United States of America v. State of California et al
Filing
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MOTION to INTERVENE by Coalition for Humane Immigrant Rights, California Partnership to End Domestic Violence. Attorney Amdur, Spencer E. W. added. Motion Hearing set for 6/5/2018 at 01:30 PM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Attachments: # 1 Memorandum, # 2 Proposed Opposition to Motion for Preliminary Injuction, # 3 Proposed Motion to Dismiss, # 4 Declaration of Kathy Moore, # 5 Declaration of Angelica Salas, # 6 Proposed Order)(Amdur, Spencer) Modified on 5/7/2018 (Fabillaran, J).
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SPENCER E. AMDUR (SBN 320069)
CODY H. WOFSY (SBN 294179)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
Tel: (415) 343-0770
Fax: (415) 395-0950
Email: samdur@aclu.org
cwofsy@aclu.org
JULIA HARUMI MASS (SBN 189649)
ANGÉLICA H. SALCEDA (SBN 296152)
ACLU FOUNDATION OF NORTHERN
CALIFORNIA
39 Drumm Street
San Francisco, CA 94111
Tel: (415) 621-2493
Fax: (415) 255-8437
Email: jmass@aclunc.org
asalceda@aclunc.org
JESSICA KARP BANSAL (SBN 277347)
NATIONAL DAY LABORER
ORGANIZING NETWORK
674 S. La Fayette Park Place
Los Angeles, CA 90057
Tel: (213) 380-2214
Fax: (213) 380-2787
Email: jbansal@ndlon.org
MICHAEL KAUFMAN (SBN 254575)
JENNIFER PASQUARELLA (SBN 263241)
ACLU FOUNDATION OF SOUTHERN
CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
Tel: (213) 977-5232
Fax: (213) 977-5297
Email: mkaufman@aclusocal.org
jpasquarella@aclusocal.org
Attorneys for Intervenor-Defendants
Additional counsel on next page
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
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THE UNITED STATES OF AMERICA,
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Plaintiff,
v.
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,
Defendants.
Case No. 2:18-cv-00490-JAM-KJN
Hon. John A. Mendez
MEMORANDUM IN SUPPORT OF
MOTION TO INTERVENE OF THE
CALIFORNIA PARTNERSHIP TO
END DOMESTIC VIOLENCE AND
THE COALITION FOR HUMANE
IMMIGRANT RIGHTS
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OMAR C. JADWAT*
LEE GELERNT*
MAHRAH TAUFIQUE*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
Tel: (212) 549-2660
Fax: (212) 549-2654
Email: ojadwat@aclu.org
lgelernt@aclu.org
irp_mt@aclu.org
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ANGELA CHAN (SBN 250138)
ASIAN AMERICANS ADVANCING JUSTICE ASIAN LAW CAUCUS
55 Columbus Avenue
San Francisco, CA 94404
Tel: (415) 848-7719
Fax: (415) 896-1702
Email: angelac@advancingjustice-alc.org
BARDIS VAKILI (SBN 247783)
ACLU FOUNDATION OF SAN DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
Tel: (619) 398-4485
Email: bvakili@aclusandiego.org
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*pro hac vice application forthcoming
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Memorandum in Support of
Motion to Intervene
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TABLE OF CONTENTS
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INTRODUCTION ...........................................................................................................................2
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BACKGROUND .............................................................................................................................2
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I. The Proposed Intervenor-Defendants. ..............................................................................2
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II. The Values Act’s Importance to Intervenor-Defendants. ...............................................3
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ARGUMENT ...................................................................................................................................4
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I. Intervenor-Defendants Are Entitled to Intervene as of Right...........................................4
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A. This Motion Is Timely. ...............................................................................................5
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B. Intervenor-Defendants Have Protectable Legal Interests in this Case. ......................6
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1. The Partnership and CHIRLA are entitled to intervene to defend the
Values Act as organizations that advocated its passage. ...................................7
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2. Intervenor-Defendants have a protectable interest because their
members are among the class of beneficiaries the Values Act is meant
to protect. ...........................................................................................................8
C. Intervenor-Defendants’ Interests May Be Impaired as a Result of the Litigation. .....9
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D. California May Not Adequately Represent Intervenor-Defendants’ Interests. ........11
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II. Alternatively, the Court Should Grant Permissive Intervention. ..................................13
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CONCLUSION ..............................................................................................................................15
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Memorandum in Support of
Motion to Intervene
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INTRODUCTION
Pursuant to Federal Rule of Civil Procedure 24, proposed Intervenor-Defendants the
California Partnership to End Domestic Violence (“Partnership”) and the Coalition for Humane
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Immigrant Rights (“CHIRLA”) (collectively “Intervenor-Defendants”) respectfully seek to
intervene in this matter to defend the challenged portions of the California Values Act.
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The federal government seeks to enjoin several California statutes, including parts of the
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Values Act that limit the State’s participation in immigration enforcement. While Intervenor-
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Defendants do not believe that any of the United States’ claims has merit, they seek to intervene
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to defend the Values Act in particular because of the Act’s critical importance for domestic
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violence survivors and other victims and witnesses of crime throughout the State, many of whom
are immigrants or from mixed-status families.
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The Partnership is a statewide organization representing hundreds of domestic violence
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shelters and service providers, which in turn serve thousands of immigrant survivors and
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witnesses across California. CHIRLA is a membership organization that organizes and serves
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thousands of immigrant members across the State, including many who have been or will be
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victims or witnesses of crimes. For Intervenor-Defendants’ members and their clients, the stakes
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of this litigation could hardly be higher: The government’s challenge seriously threatens their
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ability to access justice and safety without fear that they or their loved ones will instead be
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caught up in the federal deportation system.
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Because the Values Act is so critical for their members, the Partnership and CHIRLA
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played key roles supporting its passage, and thus have significant interests in its survival.
Moreover, if the Act were enjoined, Intervenor-Defendants would face serious impediments to
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their work, including the need to divert scarce resources to address the resulting erosion of
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members’ and clients’ trust in law enforcement and local government. Thus, because they have
Memorandum in Support of
Motion to Intervene
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a concrete stake in the case that may not be adequately represented by the existing parties, and
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because their perspective on behalf of the directly affected communities will substantially
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contribute to the Court’s consideration of this case, the Partnership and CHIRLA respectfully
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request that they be permitted to intervene.
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BACKGROUND
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I.
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The Partnership is a statewide nonprofit organization that leads a diverse coalition of
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organizations and individuals working toward a safe, healthy, and violence-free California. The
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The Proposed Intervenor-Defendants.
Partnership is California’s federally-designated State Domestic Violence Coalition, which makes
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it the “information clearinghouse, primary point of contact, and resource center on domestic
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violence for the State.” 42 U.S.C. § 10402(11); see Decl. of Kathy Moore ¶ 3. The Partnership’s
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members include survivors, advocates, mental health counselors, domestic violence shelters,
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family resource centers, legal service providers, and local government entities. Its members rely
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on relationships of trust with domestic violence survivors and witnesses, and many serve heavily
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immigrant clienteles. Id. ¶ 6. As detailed below, an injunction of the Values Act would severely
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harm the Partnership and its members.
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CHIRLA is a nonprofit organization whose mission is to advance the human and civil
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rights of immigrants and refugees, and to empower immigrants and their allies to build a more
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just and humane society. It has thousands of members across California, including immigrants,
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mixed-status families, and allies. Decl. of Angelica Salas ¶ 2-6. Numerous members have been,
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or will be, victims of crimes, including gender crimes like sexual assault and domestic violence.
Id. ¶ 9, 11. CHIRLA’s members’ ability to access police protection other critical public services
would be severely harmed by an injunction.
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Memorandum in Support of
Motion to Intervene
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II.
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The California Values Act was signed into law on October 5, 2017. The Act limits
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The Values Act’s Importance to Intervenor-Defendants.
California’s participation in the federal deportation system in a variety of ways. As relevant
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here, it created Sections 7284.6(a)(1)(C)-(D) and 7284.6(a)(4) of the California Government
Code, which limit the circumstances in which California police can (1) transfer physical custody
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of noncitizens to the Department of Homeland Security (“DHS”), and (2) provide DHS with the
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release date or address of a person held in local custody.
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The Partnership and CHIRLA have long recognized that drawing a clear dividing line
between local police and the federal deportation scheme is critical to engendering trust between
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crime victims, witnesses, domestic violence survivors, and law enforcement.
For years,
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Intervenor-Defendants have been aware that some crime victims and witnesses could not rely on
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local police and court systems because of fear that they or their loved ones will be swept up in
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the deportation system. Moore Decl. ¶ 9-20; Salas Decl. ¶ 9-11. That pattern is particularly
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severe in the context of domestic violence and sexual assault, because survivors, perpetrators,
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and witnesses are often members of the same family.
As a result, attaching immigration
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consequences to police interactions can leave survivors with the impossible choice of continuing
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to endure abuse or risking permanent family separation.
Moore Decl. ¶ 9.
And because
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domestic violence victims are sometimes mistakenly arrested along with perpetrators, victims
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must often choose between seeking protection or risking their own deportation. 1 Salas Decl. ¶ 9.
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Examples of these dynamics in California are legion. See, e.g., Domestic Violence Victims
Urge SF to Opt Out of Undocumented Immigrant Custody Program, CBS News, Oct. 13, 2015
(domestic violence survivor turned over to DHS after reporting abuse),
https://cbsloc.al/2jr6MyX; Ellen Tumposky, Los Angeles Woman Who Called 911 to Report
Abuse Gets Reprieve from Deportation, ABC News, May 13, 2011 (domestic violence survivor
turned over to DHS after calling 911), https://abcn.ws/2IaTFQl; Stephen Magagnini, Mexican
Couple’s Deportation Leaves Behind Two Small Children, Sac. Bee, Nov. 2, 2010 (survivor
deported after her sister calls police to report her partner’s abuse), https://bit.ly/2rhXv0w.
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Memorandum in Support of
Motion to Intervene
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The Values Act, like similar policies in hundreds of jurisdictions nationwide, offers a
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third way for victims and witnesses. With its assurance that state and local officials will not act
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as immigration agents, victims and witnesses are able to cooperate with police, prosecutors,
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government social workers, and other officials to obtain the justice and services they need.
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Because this policy is so important for their work, the Partnership and CHIRLA were proud to be
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major advocates for the Values Act. Both undertook a variety of organizing, public awareness,
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and advocacy efforts in support of the Act. Moore Decl. ¶ 22-24; Salas Decl. ¶ 8.
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Indeed, the Values Act was specifically meant to protect CHIRLA’s members and those
served by the Partnership and its members. Its text and legislative history show that one of its
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primary purposes is to increase trust with victims and witnesses in general, and survivors of
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gender violence in particular.
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“relationship of trust between California’s immigrant community and state and local agencies”);
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infra Part I.B.2 (describing statements by the bill’s author about gender violence).
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See Cal. Gov’t Code § 7284.2(b)-(c) (purpose to foster a
The United States filed this suit on March 6, 2018, asserting that these critical Values Act
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provisions are preempted. The same day, it filed a motion to preliminarily enjoin them.
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ARGUMENT
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Intervenor-Defendants are entitled to intervene as of right. Their motion is timely, and,
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as major proponents of the Values Act working on behalf of the Act’s intended beneficiaries,
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they have vital interests in this litigation that may not be fully represented by the existing parties.
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In the alternative, permissive intervention is warranted because Intervenor-Defendants’ directly-
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affected members will bring useful factual expertise to bear without burdening any party.
I.
Intervenor-Defendants Are Entitled to Intervene as of Right.
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Pursuant to Federal Rule of Civil Procedure 24(a)(2), “the court must permit anyone to
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intervene” who, on a “[1] timely motion, . . . [2] claims an interest relating to the property or
Memorandum in Support of
Motion to Intervene
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transaction that is the subject of the action, and [3] is so situated that disposing of the action may
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as a practical matter impair or impede the movant’s ability to protect its interest, [4] unless
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existing parties adequately represent that interest.” Id.
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Rule 24(a) is construed “broadly in favor of proposed intervenors.” United States v. City
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of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002) (quoting United States ex rel. McGough v.
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Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992)).
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intervention is appropriate, courts are guided primarily by practical and equitable
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considerations.” United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). “A
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“In determining whether
liberal policy in favor of intervention serves both efficient resolution of issues and broadened
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access to the courts.” City of Los Angeles, 288 F.3d at 397-98 (internal citations omitted).
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As the Ninth Circuit has explained, courts should “allow[] parties with a practical interest
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in the outcome of a particular case to intervene,” in order to “allow an additional interested party
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to express its views before the court.” Id. (quotation marks omitted). This interest test “is
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primarily a practical guide to disposing of lawsuits by involving as many apparently concerned
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persons as is compatible with efficiency and due process.” County of Fresno v. Andrus, 622 F.2d
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436, 438 (9th Cir. 1980) (internal quotation marks and citation omitted). The Partnership and
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CHIRLA have clear practical interests in this case and readily satisfy all four requirements for
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intervention as of right.
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A. This Motion Is Timely.
There is no question this motion is timely.
Intervenor-Defendants are seeking to
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intervene shortly after the commencement of the case. See United States v. Aerojet Gen. Co.,
606 F.3d 1142, 1149 (9th Cir. 2010) (motion to intervene was timely four months after
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applicants learned of proposed consent decree); Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d
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1392, 1397 (9th Cir. 1995) (motion was timely four months after the complaint because it was
Memorandum in Support of
Motion to Intervene
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“filed at a very early stage, before any hearings or rulings on substantive matters”); Blake v.
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Pallan, 554 F.2d 947, 952 (9th Cir. 1977) (motion “clearly” timely when filed eleven months
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after initial complaint).
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Intervention will not delay any proceedings in this case. Intervenor-Defendants are
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lodging their proposed opposition to the motion for preliminary injunction and proposed motion
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to dismiss together with this motion to intervene. 2 Because the date of this filing is the same day
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that California’s opposition to the preliminary injunction motion and response to the complaint
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are due, no modification to the existing schedule is required in order to give the United States a
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full opportunity to address Intervenor-Defendants’ arguments in reply.
And Intervenor-
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Defendants do not intend to promulgate any discovery requests in defending the motion for
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preliminary injunction. Thus, the timing of their intervention request will not prejudice any
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party. See Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir.
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2011) (motion to intervene was timely because it was made “at an early stage of the proceedings,
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the parties would not have suffered prejudice from the grant of intervention at that early stage,
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and intervention would not cause disruption or delay in the proceedings”).
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B. Intervenor-Defendants Have Protectable Legal Interests in this Case.
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“No specific legal or equitable interest need be established” to intervene as of right.
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Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993). In other words, the Ninth Circuit has
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established a common-sense approach, asking if proposed intervenors have a “practical interest”
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in the litigation. City of Los Angeles, 288 F.3d at 398 (quotation marks omitted).
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The proposed opposition and motion to dismiss set forth the defenses of the Values Act which
the Partnership and CHIRLA seek to assert in intervention. Cf. Fed. R. Civ. P. 24(c);
Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1188 (9th Cir. 2009).
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Memorandum in Support of
Motion to Intervene
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1. The Partnership and CHIRLA are entitled to intervene to defend the
Values Act as organizations that advocated its passage.
In keeping with their work on behalf of immigrants and domestic violence survivors in
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California, the Partnership and CHIRLA were major proponents of the Values Act.
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devoted significant resources in support of the bill, including through advocacy with lawmakers,
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mobilizing their members, and raising public awareness about the harms to members and clients
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that the Values Act would alleviate. Moore Decl. ¶ 22-24; Salas Decl. ¶ 8, 12. This advocacy
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alone gives the Partnership and CHIRLA a sufficient interest to intervene in this litigation. See
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Nw. Forest Resource Council v. Glickman, 82 F.3d 825, 837 (9th Cir. 1996) (explaining that the
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Ninth Circuit has “allowed public interest groups to intervene” where they “were directly
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involved in the enactment of the law”).
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Indeed, the Ninth Circuit has frequently held that “a public interest group is entitled as a
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matter of right to intervene in an action challenging the legality of a measure it has supported.”
Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995) (granting
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intervention to environmental group to defend agency’s action that the group had advocated); see
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also, e.g., Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 526-27 (9th Cir. 1983) (granting
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intervention to wildlife organization to defend Department of Interior’s creation of a wildlife
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habitat area, where the group had participated in the administrative process); Yniguez v. State of
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Ariz., 939 F.2d 727, 735 (9th Cir. 1991) (finding a “virtual per se rule that the sponsors of a
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ballot initiative have a sufficient interest in the subject matter of the litigation to
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intervene”); Idaho v. Freeman, 625 F.2d 886 (9th Cir.1980) (granting intervention to women’s
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rights organization to help a federal agency defend a policy that the organization had supported).
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In all of these cases, the court had no “difficulty determining that the organization seeking to
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intervene had an interest in the subject of the suit.” Sagebrush Rebellion, 713 F.2d at 527.
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Memorandum in Support of
Motion to Intervene
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As in those cases, Intervenor-Defendants were “active in the process” of getting the
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Values Act enacted. Babbitt, 58 F.3d at 1398. Accordingly, “there can be no serious dispute”
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that they have a protectable interest in this litigation. Sagebrush Rebellion, 713 F.2d at 528.
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2. Intervenor-Defendants have a protectable interest because their members
are among the class of beneficiaries the Values Act is meant to protect.
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Even apart from their advocacy in support of the Act, Intervenor-Defendants have a
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protectable interest in this case because their members are among the class of beneficiaries the
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Values Act was enacted to protect. That interest is sufficient to warrant intervention as of right.
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See Fresno Cty., 622 F.2d at 438 (granting intervention to organization of small farmers because
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its members were among “those Congress intended to protect” by enacting the challenged
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measure); cf. United Food & Comm. Workers Union Local 751 v. Brown Grp., Inc., 517 U.S.
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544, 551-53 (1996) (describing associational standing on behalf of an organization’s members).
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As explained above, CHIRLA’s members include thousands of immigrants and their
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families across the State, including many who have been or will be victims of crime in general
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and gender violence in particular. Salas Decl. ¶ 3, 9, 11. And the Partnership’s members include
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survivors, counselors, domestic violence shelters, legal service providers, and local government
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entities. Moore Decl. ¶ 2, 6. Every day, those members rely on the trust and cooperation that the
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Values Act is designed to foster.
Id.; Cal. Gov’t Code § 7284.2(b)-(c) (describing this
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“relationship of trust”). Indeed, on the Senate floor, the Act’s author cited a 25 percent decrease
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in sexual assault reports among the Los Angeles Latino population as evidence of the “harmful
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effects of entangling local law enforcement agencies with immigration enforcement.”
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Comments of Bill Authors Sen. De León, et al., Senate Floor Analysis, at 6, Sept. 15, 2017. 3
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Because of that entanglement, he explained, “[c]rimes go unreported for fear of deportation.” Id.
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3
https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201720180SB54.
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Memorandum in Support of
Motion to Intervene
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The Values Act was therefore designed to “keep [local law enforcement] focused on community
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policing, rather than rounding up hardworking, honest immigrants who in many instances assist
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police in solving crimes.” Id. at 7.
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Thus, because they represent the Act’s “intended beneficiaries,” Intervenor-Defendants
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have a protectable interest in this case. California ex rel. Lockyer v. United States, 450 F.3d 436,
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441 (9th Cir. 2006) (granting health care providers intervention to defend a federal statute
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alongside federal defendants); see Texas v. United States, 805 F.3d 653, 660 (5th Cir. 2015)
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(granting intervention to “the intended beneficiaries” of an agency’s policy, even though the
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agency was also defending its policy).
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C. Intervenor-Defendants’ Interests May Be Impaired as a Result of the
Litigation.
Intervenor-Defendants also easily satisfy the requirement that the disposition of the
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action “may as a practical matter impair or impede [their] ability to protect [their] interest.” Fed.
R. Civ. P. 24(a)(2) (emphasis added). This requirement is construed liberally. “If any absentee
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would be substantially affected in a practical sense by the determination made in an action, [the
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absentee] should, as a general rule, be entitled to intervene.” Sw. Ctr. for Biological Diversity v.
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Berg, 268 F.3d 810, 822 (9th Cir. 2001) (quoting Fed. R. Civ. P. 24(a)(2), Advisory Comm.
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Note) (quotation marks omitted).
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CHIRLA’s members and the clients of the Partnership’s members would face devastating
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consequences if the United States prevails in this litigation: An injunction would seriously
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impair their access to critical—and at times life-saving—public services. As explained above,
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domestic violence survivors and other crime victims need to be able to trust police and other
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government entities in order to report abuse, cooperate in prosecutions, and avail themselves of
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local services for survivors. An injunction of the Values Act would dramatically undermine that
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Memorandum in Support of
Motion to Intervene
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trust, leaving victims and witnesses in the position of either staying silent or risking that they,
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their family, or their friends could be deported. Salas Decl. ¶ 11; Moore Decl. ¶ 9.
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The Partnership’s member organizations would also be impacted in tangible ways. Some
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would lose significant numbers of clients. Moore Decl. ¶ 13-14, 16-20. Many would need to
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divert resources to outreach, in order to serve immigrants and their communities who would be
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driven into the shadows by an injunction of the Values Act. Id. ¶ 28. The damage would be
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particularly severe for members based in locations with large immigrant communities. For
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example, in southern California, increased fear of police entanglement with immigration
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enforcement prior to the Values Act reduced one member organization’s immigrant clients to
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zero. Id. ¶ 16. An injunction would thus have a dramatic effect on the Partnership’s members.
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Additionally, Intervenor-Defendants’ own interests would be concretely harmed by a
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ruling in the United States’ favor. Were the Values Act enjoined, the Partnership would be
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forced to develop new outreach efforts to immigrant communities, create new immigrant-focused
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training programs, implement a new communications strategy, mobilize a state-wide policy
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campaign, and raise money to hire new staff—all to address the fallout from an injunction.
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Moore Decl. ¶ 29-30. Likewise, CHIRLA would need to redirect its resources to education,
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legal and other services, and new forms of advocacy to address members’ fear of police and
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inability to safely access certain public services. Salas Decl. ¶ 13-15.
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Were the United States to prevail, Intervenor-Defendants and their members would be
unable to vindicate these interests in subsequent litigation. They could not ask another court to
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reinstate the Values Act; they can only advance their arguments against the United States’ claims
in this case. For all these reasons, the Intervenor-Defendants satisfy the impairment prong.
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Memorandum in Support of
Motion to Intervene
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D. California May Not Adequately Represent Intervenor-Defendants’ Interests.
Intervenor-Defendants’ burden to establish inadequate representation is “minimal,” and is
satisfied whenever representation of their interests “may be” inadequate. Trbovich v. United
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Mine Workers, 404 U.S. 528, 538 n.10 (1972). Moreover, representation cannot be presumed
adequate unless Intervenor-Defendants’ interests and the interests of the State “align precisely.”
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Brumfield v. Dodd, 749 F.3d 339, 345 (5th Cir. 2014) (although both State and intervenors
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vigorously supported a school voucher program, the State had more extensive interests that “may
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not align precisely” with intervenors’); see also Berg, 268 F.3d at 823 (city government did not
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have “sufficiently congruent interests” with construction contractors). California’s interests do
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not “precisely” align with Intervenor-Defendants’ in this case. Brumfield, 749 F.3d at 345.
First, the State of California is charged with protecting a broader public interest than the
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Intervenor-Defendants.
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keeping immigrant survivors of domestic violence safe from their abusers, and (2) protecting its
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The Partnership’s interests in this litigation are very specific: (1)
members and itself from losing clients and diverting resources. CHIRLA similarly seeks to
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protect its members, who come overwhelmingly from immigrant and mixed-status communities,
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including victims and witnesses of crime. California, by contrast, represents a wide range of
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constituencies—including state police, sheriff’s offices, police departments, probation
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departments, and all California residents. In similar circumstances, the Ninth Circuit has held
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that the government, which must take a “broader view,” may not adequately represent the
23
“narrow, parochial” interests of intervenors. Forest Conservation Council v. U.S. Forest Service,
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25
26
66 F.3d 1489, 1499 (9th Cir. 1995) (collecting cases). The Supreme Court, too, has found
inadequate representation where a government agency had “the duty to serve two distinct
27
interests, which are related, but not identical,” and the intervenor only shared one of those
28
interests. Trbovich, 404 U.S. at 538-39; see also Chiles v. Thornburgh, 865 F.2d 1197, 1214-15
Memorandum in Support of
Motion to Intervene
11
1
(11th Cir. 1989) (finding inadequate representation based on the possibility that a governmental
2
party “may decide not to emphasize” the intervenor’s interests, “but focus instead” on those of
3
other constituencies); 3B Moore’s Federal Practice, ¶ 24.07[4] at 24-78 (2d ed. 1995)
4
(“Inadequate representation is most likely to be found when the applicant asserts a personal
5
6
interest that does not belong to the general public.”).
7
Second, California has a broader interest in maintaining its relationship with the federal
8
government and with its own localities, including some that oppose the Values Act. See Orange
9
Cty. Compl., ECF No. 59-2. Courts have held that this unique feature of litigation between
10
States and the federal government is enough to show that the representation of an intervenor’s
11
12
interests may be inadequate. See, e.g., Texas, 805 F.3d at 663 (granting intervention because
13
federal defendant had to “maintain[] its working relationship with the States,” many of whom
14
were plaintiffs) (quotation marks omitted); Brumfield, 749 F.3d at 345-46 (divergent interests
15
where state defendant had to maintain “its relationship with the federal government”). Third, the
16
State “seeks to defend all portions of the litigation,” whereas the Partnership and CHIRLA only
17
seek to intervene to defend the Values Act. Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage
18
19
20
Comm’n, 834 F.3d 562, 569 (5th Cir. 2016) (finding inadequate representation on this basis).
The Partnership and CHIRLA should be permitted to intervene in order to ensure that
21
these divergences in interests do not lead any of their arguments to go unpresented.
22
*
23
*
*
Thus, in sum, the Partnership and CHIRLA satisfy all the requirements for intervention
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25
26
27
as of right. They were instrumental in supporting the Values Act, they represent a different and
narrower set of interests than the State, including the intended beneficiaries of the Act, and those
interests will be seriously harmed if the Values Act is enjoined. Intervention should be granted.
28
Memorandum in Support of
Motion to Intervene
12
1
2
3
II.
Alternatively, the Court Should Grant Permissive Intervention.
In the alternative, the Partnership and CHIRLA respectfully request that they be
permitted to intervene pursuant to Federal Rule of Civil Procedure 24(b)(1)(B). A court may
4
5
6
grant permissive intervention if “the applicant for intervention shows (1) independent grounds
for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main
7
action, have a question of law or a question of fact in common.” City of Los Angeles, 288 F.3d at
8
403 (quotation marks omitted).
9
10
Those requirements are easily met here. Jurisdiction is clear under the federal-question
statute, see 8 U.S.C. § 1331, and Intervenor-Defendants are not advancing any additional claims.
11
12
13
Intervention is timely, as discussed above. And Intervenor-Defendants’ defense of the Values
Act shares numerous questions of law and fact in common with the government’s claims.
14
There are, moreover, good reasons for the Court to grant intervention in its discretion
15
under Rule 24(b). See United States v. $129,374 in U.S. Currency, 769 F.2d 583, 586 (9th Cir.
16
1985) (“[P]ermissive intervention is committed to the broad discretion of the district court.”). In
17
granting permissive intervention, courts consider a number of factors, such as “the nature and
18
19
extent of the intervenors’ interest” and “whether parties seeking intervention will significantly
20
contribute to full development of the underlying factual issues in the suit and to the just and
21
equitable adjudication of the legal questions presented.” Spangler v. Pasadena City Bd. of
22
Educ., 552 F.2d 1326, 1329 (9th Cir. 1977).
23
Here, the Partnership, CHIRLA, their members, and their members’ clients are among
24
25
26
those who have the strongest interests in this litigation, because their interests are directly tied to
the purpose of the challenged law. The Values Act was enacted specifically to ensure that
27
immigrant witnesses and victims of crime—especially gender violence survivors—can
28
confidently access police and other local services without fear that they or their loved ones will
Memorandum in Support of
Motion to Intervene
13
1
be deported as a result.
2
beneficiaries should be given a say in whether their hard-won legal protections remain in force.
3
See supra Parts I.B.2, I.C.
The law’s champions and intended
In addition, the Partnership and CHIRLA would bring unique factual knowledge to the
4
litigation. They have the experience and expertise to provide the Court with concrete and
5
6
detailed information about the Values Act’s effect on immigrants, survivors, and witnesses,
7
along with the costs that local entities and public service providers bear when constituents are
8
afraid to seek available services. See Moore Decl. ¶ 9-20, 28; Salas Decl. ¶ 7, 9-11. Intervenor-
9
Defendants’ perspective on behalf of the directly affected communities will allow this Court to
10
more fully consider the issues in this case. See, e.g., NRDC v. Costle, 561 F.2d 904, 912-13
11
12
(D.C. Cir. 1977) (finding chemical companies’ intervention would be a helpful supplement to the
13
EPA’s defense, because they offered knowledge of the policy’s “impact . . . upon their
14
operations”).
15
16
Intervenor-Defendants’ factual expertise will bear on multiple legal issues in this case.
For instance, based on their immigrant membership and organizational members’ experience
17
serving immigrant communities, Intervenor-Defendants are well placed to illustrate the harms
18
19
that an injunction of the Values Act would inflict. See Winter v. NRDC, 555 U.S. 7, 20 (2008)
20
(holding that a court considering a motion for preliminary injunction must weigh “the balance of
21
equities” and “the public interest”). They are also well placed to explain concretely how DHS’s
22
enlistment of state resources puts state officials and local service providers “in the position of
23
taking the blame” for deportations and “diminish[es] the accountability of state [and] federal
24
25
26
officials.” Printz v. United States, 521 U.S. 898, 930 (1997). See, e.g., Salas Decl. ¶ 8, 12;
Moore Decl. ¶ 23-24.
27
The burdens of granting intervention, if any, are greatly outweighed by Intervenor-
28
Defendants’ important interests in this litigation, the additional arguments they will offer, and the
Memorandum in Support of
Motion to Intervene
14
1
benefit their unique perspective will bring to resolving the issues before this Court. As explained
2
above, they are seeking to intervene at an early date, they are submitting a proposed opposition
3
to the preliminary injunction motion and a proposed motion to dismiss on the existing schedule,
4
and they do not intend to seek discovery in opposing the preliminary injunction motion. Thus,
5
6
the Partnership and CHIRLA will significantly contribute to the resolution of this case without
7
burdening the existing parties or the Court. Nor is the mere fact of adding an additional party a
8
reason to deny intervention. As the Ninth Circuit has made clear, “the idea of ‘streamlining’ the
9
litigation . . . should not be accomplished at the risk of marginalizing those—such as the [the
10
Partnership and CHIRLA]—who have some of the strongest interests in the outcome.” City of
11
12
13
Los Angeles, 288 F.3d at 404. At a minimum, therefore, the Court should grant permissive
intervention.
CONCLUSION
14
15
16
For the foregoing reasons, the Partnership and CHIRLA respectfully request that the
Court grant intervention as of right, or, in the alternative, permissive intervention.
17
Dated: May 4, 2018
Respectfully submitted,
Julia Harumi Mass (SBN 189649)
Angelica H. Salceda (SBN 296152)
ACLU FOUNDATION OF NORTHERN
CALIFORNIA
39 Drumm Street
San Francisco, CA 94111
(415) 621-2493
jmass@aclunc.org
asalceda@aclunc.org
/s/ Spencer E. Amdur
Spencer E. Amdur (SBN 320069)
Cody H. Wofsy (SBN 294179)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
(415) 343-0770
samdur@aclu.org
cwofsy@aclu.org
Jessica Karp Bansal (SBN 277347)
NATIONAL DAY LABORER
ORGANIZING NETWORK
674 S. La Fayette Park Place
Los Angeles, CA 90057
(213) 380-2214
Michael Kaufman (SBN 254575)
Jennifer Pasquarella (SBN 263241)
ACLU FOUNDATION OF SOUTHERN
CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
18
19
20
21
22
23
24
25
26
27
28
Memorandum in Support of
Motion to Intervene
15
1
jbansal@ndlon.org
2
Angela Chan (SBN 250138)
ASIAN AMERICANS ADVANCING
JUSTICE ASIAN LAW CAUCUS
55 Columbus Avenue
San Francisco, CA 94404
(415) 848-7719
angelac@advancingjustice-alc.org
3
4
5
6
7
8
9
10
11
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN DIEGO
& IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
(619) 398-4485
bvakili@aclusandiego.org
12
(213) 977-5232
mkaufman@aclusocal.org
jpasquarella@aclusocal.org
Omar C. Jadwat*
Lee Gelernt*
Mahrah Taufique*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2660
ojadwat@aclu.org
lgelernt@aclu.org
irp_mt@aclu.org
Counsel for Intervenor-Defendants
*pro hac vice application forthcoming
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25
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28
Memorandum in Support of
Motion to Intervene
16
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