Isaacson v. Mayes ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Paul A Isaacson, et al., No. CV-21-01417-PHX-DLR 10 Plaintiffs, ORDER 11 v. 12 Kris Mayes, et al., 13 Defendants. 14 15 16 At issue is a motion to intervene filed by Putative Intervenors Warren Petersen, 17 President of the Arizona State Senate, and Ben Toma, Speaker of the Arizona House of 18 Representatives. (Doc. 155.) Plaintiffs oppose the motion (Doc. 159), and Defendants have 19 taken no position on the request (Docs. 158, 160, 161). For reasons explained below, the 20 Court finds Putative Intervenors have a right to intervene and therefore grants the motion. 21 Under Federal Rule of Civil Procedure 24(a), the Court must allow intervention if 22 the Putative Intervenors (1) timely move to intervene, (2) have a significantly protectable 23 interest in the subject of the action, (3) are situated such that disposition of the action may 24 impair their ability to protect that interest, and (4) are not adequately represented by 25 existing parties. Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). No one contests 26 timeliness. And, assuming Putative Intervenors have a significantly protectable interest in 27 the subject of this action, no one contests that disposition of this action may impair Putative 28 Intervenors’ ability to protect that interest, or that the existing parties do not adequately 1 represent Putative Intervenors’ interest. Instead, Plaintiffs dispute whether Putative 2 Intervenors have a significantly protectable interest in the subject of this action. 3 Putative Intervenors argue they have a right to intervene and assert Arizona’s 4 sovereign interest in the validity and continued enforcement of its laws under A.R.S. § 12- 5 1841(D) and the Supreme Court’s recent decision in Berger v. North Carolina State 6 Conference of the NAACP, 142 S.Ct. 2191 (2022). Section 12-1841(A) provides: “In any 7 proceeding in which a state statute, ordinance, franchise or rule is alleged to be 8 unconstitutional, the attorney general and the speaker of the house of representatives and 9 the president of the senate shall be served with a copy of the pleading, motion or document 10 containing the allegation at the same time the other parties in the action are served and shall 11 be entitled to be heard.” Subsection (D) then gives these individuals discretion to intervene 12 and file briefs in such an action. Though Plaintiffs highlight ways in which the language 13 of this provision differs from the North Carolina law at issue in Berger, § 12-1841 14 nonetheless demonstrates Arizona has made a policy decision to vest in its legislative 15 leaders an interest in defending the constitutionality of the legislature’s enactments. To be 16 sure, this state policy does not supersede Rule 24(a)’s requirements, which is why this 17 Court has previously denied intervention where, for example, the state legislative leaders’ 18 interests were adequately represented by other parties. See Arizonans for Fair Elections v. 19 Hobbs, 335 F.R.D. 269, 275 (D. Ariz. 2020); Miracle v. Hobbs, 333 F.R.D. 151, 155 (D. 20 Ariz. 2019). But in this case, there is no dispute that all other Rule 24(a) factors are 21 satisfied. If Putative Intervenors are not permitted to intervene, the challenged laws will go 22 undefended, which “risk[s] turning a deaf ear to the voices the State has deemed crucial to 23 understanding the full range of its interests.” Berger, 142 S.Ct. at 2201. 24 To avoid this result, Plaintiffs argue § 12-1841 is inapplicable for two reasons. First, 25 they contend this section at least arguably applies only in state court. But nothing in the 26 language of § 12-1841 imposes such a limitation. To the contrary, § 12-1841(A) says it 27 applies “in any proceeding in which a state statute, ordinance, franchise or rule is alleged 28 to be unconstitutional[.]” (Emphasis added.) Any means any. 1 Second, Plaintiffs argue intervention in cases challenging the constitutionality of the 2 laws at issue in this case is governed by a separate provision. Namely, the senate bill which 3 enacted the challenged laws contains a provision authorizing “[t]he Legislature, by 4 concurrent resolution, [to] appoint one or more of its members who sponsored or 5 cosponsored this act in the member’s official capacity to intervene as a matter of right in 6 any case in which the constitutionality of this act is challenged.” S.B. 1457 § 16, 55th Leg., 7 1st Reg. Sess. (Ariz. 2021). Plaintiffs argue that, as the later enacted and more specific 8 provision, § 16 governs to the exclusion of § 12-1841(D), and Putative Intervenors do not 9 satisfy § 16’s prerequisites to intervention because they have not been appointed by 10 concurrent resolution to intervene, and Speaker Toma is ineligible for such an appointment 11 because he did not sponsor or cosponsor S.B. 1457. 12 The Court agrees Putative Intervenors do not satisfy the prerequisites to intervention 13 under § 16 but disagrees that § 16 governs to the exclusion of § 12-1841(D). Canons of 14 statutory construction provide when two statutes conflict, specific or recent statutes can 15 govern over more general or older statutes. United States v. Hernandez-Garcia, 44 F.4th 16 1157, 1164 (9th Cir. 2022). But there is no conflict between § 16 and § 12-1841(D). The 17 latter statute authorizes intervention only by the attorney general, the senate president, and 18 the house speaker, and applies in any proceeding where the constitutionality of any state 19 law is challenged. The former permits a different slate of legislators—sponsors and 20 cosponsors—to intervene, and only under more limited circumstances; the proceeding has 21 to pertain to S.B. 1457 and the sponsors or cosponsors have to be appointed by the 22 legislature via concurrent resolution. Though the senate president and house speaker might 23 sometimes also be sponsors and cosponsors of legislation, they are not always so, as this 24 case demonstrates. Instead of an irreconcilable conflict, the interplay between § 16 and § 25 12-1841(D) is more like a Venn diagram with some narrow overlap. 26 In sum, the Court finds Putative Intervenors’ motion is timely, § 12-1841 confers 27 upon them a significantly protectable interest in the validity and enforcement of the 28 challenged laws, disposition of this action would impair the ability of Putative Intervenors 1 || to protect that interest, and their interest no longer is adequately represented by the existing 2|| parties because Attorney General Mayes has notified this Court that she does not intend to || defend the challenged laws. Accordingly, 4 IT IS ORDERED that Putative Intervenors’ motion to intervene (Doc. 155) is 5|| GRANTED. 6 Dated this 8th day of March, 2023. 7 8 : 10 _- Ch 11 Ubited States Dictric Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-