United States of America v. Arizona, State of, et al, No. 2:2010cv01413 - Document 132 (D. Ariz. 2010)
Court Description: ORDER denying Jesse Hernandez and the Arizona Latino Republican Association's 68 Motion to Intervene. Signed by Judge Susan R Bolton on 12/07/10.(ESL) (Entered: 12/07/2010)
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United States of America v. Arizona, State of, et al Doc. 132 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) The State of Arizona; Janice K. Brewer,) Governor of the State of Arizona, in her) ) Official Capacity, ) ) Defendants. ) ) United States of America, No. CV 10-1413-PHX-SRB ORDER 16 17 The Court now resolves Jesse Hernandez and the Arizona Latino Republican 18 19 Association’s (“ALRA”) Motion to Intervene (“ALRA Mot.”) (Doc. 68). 20 I. BACKGROUND 21 This case concerns the constitutionality of Arizona’s Senate Bill 1070, as modified 22 by House Bill 2162 (collectively, “S.B. 1070”), which had an effective date of July 29, 2010. 23 Plaintiff moved for a preliminary injunction on July 7, 2010. (See Doc. 27.) Oral argument 24 on Plaintiff’s Motion was heard on July 22, 2010. (See Doc. 84.) The Court ruled on 25 Plaintiff’s Motion on July 28, 2010, and preliminarily enjoined some portions of S.B. 1070. 26 (See Doc. 87.) Applicants moved to intervene on July 21, 2010. (See Doc. 68.) Mr. 27 Hernandez is President and CEO of the ALRA, an organization with about 230 members. 28 (ALRA Mot. at 2-3.) In the alternative, Applicants request permission to file an amicus Dockets.Justia.com 1 curiae brief. (Id. at 9.) 2 II. LEGAL STANDARDS AND ANALYSIS 3 A. 4 Federal Rule of Civil Procedure 24(a) permits intervention as a matter of right on a 5 timely motion. While the Ninth Circuit Court of Appeals construes Rule 24(a) liberally in 6 favor of potential intervenors, the applicant for intervention bears the burden of 7 demonstrating that he has satisfied the elements for intervention. See Ctr. for Biological 8 Diversity v. U.S. Bureau of Land Mgmt., 266 F.R.D. 369, 372 (D. Ariz. 2010); see also Prete 9 v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006). Applicants are required to satisfy a four-part 10 11 12 13 Standards for Intervention test for intervention by right: “(1) the motion must be timely; (2) the applicant must claim a ‘significantly protectable’ interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action.” 14 United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir. 2010) (quoting Cal. ex 15 rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006)). “Failure to satisfy any one 16 of the requirements is fatal to the application . . . .” Perry v. Proposition 8 Official 17 Proponents, 587 F.3d 947, 950 (9th Cir. 2009) (citation omitted). 18 Federal Rule of Civil Procedure 24(b) governs permissive intervention. An applicant 19 seeking to intervene under Rule 24(b) must demonstrate three things: “‘(1) independent 20 grounds for jurisdiction; (2) [that] the motion is timely; and (3) [that] the applicant’s claim 21 or defense, and the main action, have a question of law or a question of fact in common.’” 22 S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) (quoting United States v. City 23 of L.A., 288 F.3d 391, 403 (9th Cir. 2002)). Even where those three elements are satisfied, 24 however, the district court retains the discretion to deny permissive intervention. Id. (citing 25 Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998)). In exercising its discretion, a court 26 must consider whether intervention will unduly delay or prejudice the original parties and 27 should consider whether the applicant’s interests are adequately represented by the existing 28 -2- 1 parties and whether judicial economy favors intervention. Venegas v. Skaggs, 867 F.2d 527, 2 530-31 (9th Cir. 1998); see also Fed. R. Civ. P. 24(b)(3) (requiring courts to consider undue 3 delay or prejudice to original parties). 4 B. 5 Applicants argue that they satisfy the standard to intervene as a matter of right because 6 they “worked long and hard to ensure” that S.B. 1070 would pass, and those efforts will be 7 for naught “if the Court rules in favor of the United States.” (ALRA Mot. at 5-6.) Applicants 8 further argue that they are concerned that Defendants might not adequately represent 9 ALRA’s interests and might “agree to manipulate Senate Bill 1070 in a manner unfavorable 10 to Applicants’ interests in order to reach a settlement with Plaintiff.” (Id. at 7.) Applicants 11 point out that Defendants are represented by private attorneys, not the Arizona Attorney 12 General. (Id.) As an example, Applicants state that they worry that Governor Brewer will not 13 adequately address the issue of severability. (Id.) Intervention as a Matter of Right 14 Applicants have not demonstrated that they have a significantly protectable interest 15 relating to this matter. See Aerojet Gen. Corp., 606 F.3d at 1148 (quoting Lockyer, 450 F.3d 16 at 440). “The requirement of a significantly protectable interest is generally satisfied when 17 ‘the interest is protectable under some law, and . . . there is a relationship between the legally 18 protected interest and the claims at issue.’” Arakaki v. Cayetano, 324 F.3d 1078, 1084 (9th 19 Cir. 2003) (quoting Sierra Club v. U.S. Envtl. Prot. Agency, 995 F.2d 1478, 1484 (9th Cir. 20 1993)). The Ninth Circuit Court of Appeals has found that a significantly protectable interest 21 exists where, for example, contractual rights or pollution permits were implicated. See, e.g., 22 Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001) (a bare 23 expectation is not a strong enough economic interest to justify intervention as of right, but 24 “[c]ontract rights are traditionally protectable interests”); Sierra Club, 995 F.2d at 1482-83 25 (finding Clean Water Act pollution permits to be significant protectable interests); Forest 26 Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1497 (9th Cir. 1995) (finding legal 27 duty to maintain state lands adjacent to national forests sufficient protectable interests). 28 The Ninth Circuit Court of Appeals has observed that “‘[i]t is settled beyond -3- 1 peradventure . . . that an undifferentiated, generalized interest in the outcome of an ongoing 2 action is too porous a foundation on which to premise intervention as of right.’” United 3 States v. Alisal Water Corp., 370 F.3d 915, 920 (9th Cir. 2004) (quoting Pub. Serv. Comp. 4 of N.H. v. Patch, 136 F.3d 197, 205 (1st Cir. 1998)). In this case, Applicants’ interest in 5 supporting the enforcement of S.B. 1070 consistent with their interpretation of the law is too 6 generalized to be a significantly protectable interest. Applicants share that interest with many 7 other members of the public who participated in or worked in support of the passage of S.B. 8 1070.1 9 Because the Court finds that Applicants have not established a significantly 10 protectable interest that would support intervention as a matter of right, which is the second 11 required element, it follows that Applicants also do not meet the third element of the test: 12 “the applicant must be so situated that the disposition of the action may as a practical matter 13 impair or impede its ability to protect that interest.” See Aerojet Gen. Corp., 606 F.3d at 1148 14 (quoting Lockyer, 450 F.3d at 440). The failure to establish these elements is fatal to 15 ALRA’s Motion pursuant to Rule 24(a). See Perry, 587 F.3d at 950. 16 Even if the Court had found that Applicants had satisfied the second and third 17 elements of the test for intervention as a matter of right, it would still find that Applicants 18 have not met the fourth element: that “the applicant’s interest must be inadequately 19 represented by the parties to the action.” Aerojet Gen. Corp., 606 F.3d at 1148 (quoting 20 Lockyer, 450 F.3d at 440). “The ‘most important factor’ to determine whether a proposed 21 intervenor is adequately represented by a present party to the action is ‘how the [intervenor’s] 22 23 1 24 25 26 27 28 Applicants’ reliance on Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (9th Cir. 1983), does not alter this conclusion. In Sagebrush, the Ninth Circuit Court of Appeals permitted a public interest group that had supported a ballot initiative and worked actively during the administrative process to intervene in a lawsuit challenging the measure’s legality. Id. at 526-27. However, in Sierra Club, the Ninth Circuit Court of Appeals clarified that such a public interest group must assert an interest that is “protectable under some law.” 995 F.2d at 1482-84. Applicants here are not similarly situated to the proposed intervenors in Sagebrush. -4- 1 interest compares with the interests of existing parties.’” Perry, 587 F.3d at 950-51 (quoting 2 Arakaki, 324 F.3d at 1086). If the proposed intervenor and the current party “share the same 3 ultimate objective, a presumption of adequacy of representation applies,” which can only be 4 rebutted by a “compelling showing to the contrary.” Id. (internal quotation and citation 5 omitted). Where the government is acting on behalf of a constituency that it represents, there 6 is also an assumption of adequacy in the absence of a “very compelling showing” that it is 7 inadequate; when the parties’ objectives are the same, “differences in litigation strategy do 8 not normally justify intervention.” Arakaki, 324 F.3d at 1086 (citations omitted). Arakaki set 9 out three factors to assess adequacy of representation: 10 12 (1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect. 13 Id. (citing California v. Tahoe Reg’l Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986)). 14 Applicants have not made a showing that is either compelling or very compelling in 15 support of inadequacy of current representation. Applicants’ concern that Defendants might 16 not adequately represent ALRA’s interests and might “agree to manipulate Senate Bill 1070 17 in a manner unfavorable to Applicants’ interests in order to reach a settlement with Plaintiff” 18 is not sufficient to demonstrate that Defendants are not adequately representing ALRA’s 19 interests in this matter. (Id. at 7.) Applicants’ argument that Defendants’ private counsel will 20 not provide an adequate defense, considering in particular the issue of severability, is equally 21 unavailing. Governor Brewer’s interest in defending this piece of legislation is aligned with 22 Applicants’ interests, and Governor Brewer has thus far vigorously argued in favor of S.B. 23 1070’s constitutionality. Applicants have not shown that they can supply any “necessary 24 elements to the proceeding” that the current Defendants cannot. Arakaki, 324 F.3d at 1086 25 (emphasis added). 11 26 Applicants’ Motion to Intervene as a matter of right is denied. 27 C. 28 Applicants also seek permission to intervene, pursuant to Rule 24(b). (ALRA Mot. Permissive Intervention -5- 1 at 8-9.) Applicants must demonstrate: “‘(1) independent grounds for jurisdiction; (2) [that] 2 the motion is timely; and (3) [that] the applicant’s claim or defense, and the main action, have 3 a question of law or a question of fact in common.’” S. Cal. Edison Co., 307 F.3d at 803 4 (quoting City of L.A., 288 F.3d at 403). The Court should also consider whether the 5 applicant’s interest is adequately represented by the existing parties. Venegas, 867 F.2d at 6 530-31; Tahoe Reg’l Planning Agency, 792 F.2d at 779. As explained above, Applicants’ 7 interests are aligned with those of the present Defendants. The Complaint filed by the United 8 States seeks no relief against Mr. Hernandez or ALRA, nor would they be tasked with 9 enforcing S.B. 1070 were it to fully go into effect. (See Compl. ¶¶ 61-68.) Further, the Court 10 has already concluded that Applicants have not demonstrated that the Governor’s defense of 11 S.B. 1070 is inadequate. See United States ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 12 756 (9th Cir. 1993) (denying permissive intervention to group of taxpayers where governor 13 made same arguments and adequately represented their interests). 14 The Court further concludes that permitting Applicants to intervene could unduly 15 delay this action, thus prejudicing the original parties. This case is already procedurally 16 complex, and there are also numerous legal actions challenging the constitutionality of S.B. 17 1070 proceeding in tandem. Even if Applicants had met the criteria for permissive 18 intervention, the Court would exercise its discretion to deny their Motion. 19 D. 20 Applicants request, in the alternative, to be permitted “to file appropriate briefs” as 21 amicus curiae. (ALRA Mot. at 9.) No proposed brief was lodged with Applicants’ Motion, 22 so the Court cannot evaluate what subjects such a brief would address, particularly in light 23 of the fact that the only pending Motions at present are two Motions to Consolidate and a 24 Motion to Dismiss for failure to state a claim. (See Docs. 44, 69, 81.) The Court therefore 25 denies Applicant’s request to proceed as amicus curiae. Permission to Proceed as Amicus Curiae 26 27 28 -6- 1 2 IT IS ORDERED denying Jesse Hernandez and the Arizona Latino Republican Association’s Motion to Intervene (Doc. 68). 3 4 DATED this 7th day of December, 2010. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-
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