Hairr v. First Jud. Dist. Ct.

132 Nev., Advance Opinion l ie
IN THE SUPREME COURT OF THE STATE OF NEVADA
AIMEE HAIRR; AURORA ESPINOZA; No. 69580
ELIZABETH ROBBINS; LARA ALLEN;
JEFFREY SMITH; AND TRINA SMITH,
Petitioners,
vs.
THE FIRST JUDICIAL DISTRICT FILED
COURT OF THE STATE OF NEVADA, IN MAR 1 0 2016
AND FOR THE COUNTY OF CARSON
Tii,C1s K. LINDEMAN
CITY; AND THE HONORABLE JAMES CL
mn,
E. WILSON, DISTRICT JUDGE, BY
CHIE Pll
Respondents,
and
HELLEN QUAN LOPEZ, INDIVIDUALLY
AND ON BEHALF OF HER MINOR
CHILD, C.Q.; MICHELLE GORELOW,
INDIVIDUALLY AND ON BEHALF OF
HER MINOR CHILDREN, A.G. AND
H.G.; ELECTRA SKRYZDLEWSKI,
INDIVIDUALLY AND ON BEHALF OF
HER MINOR CHILD, L.M.; JENNIFER
CARR, INDIVIDUALLY AND ON
BEHALF OF HER MINOR CHILDREN,
W.C., A.C., AND E.C.; LINDA JOHNSON,
INDIVIDUALLY AND ON BEHALF OF
HER MINOR CHILD, K.J.; SARAH
SOLOMON AND BRIAN SOLOMON,
INDIVIDUALLY AND ON BEHALF OF
THEIR MINOR CHILDREN, D.S. AND
K.S.; AND DAN SCHWARTZ, NEVADA
STATE TREASURER, IN HIS OFFICIAL
CAPACITY,
Real Parties in Interest.
Original petition for a writ of mandamus challenging a district
court order denying a motion to intervene.
Petition denied.
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Kolesar & Leatham, Chtd., and Matthew T. Dushoff and Lisa J. Zastrow,
Las Vegas,
for Petitioners.
Adam Paul Laxalt, Attorney General, and Lawrence J.C. VanDyke,
Solicitor General, Joseph Tartakovsky, Special Assistant Attorney
General, and Ketan D. Bhirud, Chief Deputy Attorney General, Carson
City,
for Real Party in Interest Dan Schwartz, Nevada State Treasurer.
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Don Springmeyer,
Justin C. Jones, and Bradley S Schrager, Las Vegas; Education Law
Center and David G. Sciarra and Amanda Morgan, Newark, New Jersey;
Munger, ToIles & Olson LLP, and Tamerlin J. Godley, Thomas Paul
Clancy, and Samuel T. Boyd, Los Angeles, California,
for Real Parties in Interest Hellen Quan Lopez, Michelle Gorelow, Electra
Skryzdlewski, Jennifer Carr, Linda Johnson, Sarah Soloman, and Brian
Soloman.
BEFORE HARDESTY, SAITTA and PICKERING, JJ.
OPINION
By the Court, HARDESTY, J.:
In this original petition for a writ of mandamus, we must
determine whether the district court abused its discretion in denying
petitioners' motion to intervene as defendants in the underlying action as
a matter of right under NRCP 24(a), or alternatively, through permissive
intervention under NRCP 24(b). We conclude, as the district court found,
that petitioners' "interest is adequately represented" by real party in
interest Dan Schwartz, Nevada Treasurer, in his official capacity (State).
NRCP 24(a)(2). Petitioners and the State share the same goal of having
the education grant program created by Senate Bill 302 declared
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constitutional. The State, in defending S.B. 302's validity, is presumed to
be adequately representing the interests of citizens who support the bill,
including petitioners. Petitioners failed to overcome the presumption
when they could not show any conflict of interest with the State's position
or cite an argument they would make that the State would not. As for the
denial of permissive intervention, such decisions are given particular
deference, including considerations of potential delay and increased costs
in adding parties. Petitioners' failed to provide any supportable reasons
why a writ should issue to reverse that discretionary decision. Moreover,
while the district court did not perceive any benefit to petitioners'
intervention, it invited them to brief the determinative issue as amici
curiae, which, under the circumstances, is an adequate alternative to
permissive intervention. As we perceive no abuse of discretion in the
district court's decision, we deny writ relief.
BACKGROUND
This petition arises out of a district court action in which
several parents are challenging the constitutionality of S.B. 302 on their
own behalf and on behalf of their minor children who attend Nevada
public schools. Senate Bill 302
establish[es] a program by which a child who
receives instruction from a certain entity rather
than from a public school may receive a grant of
money in an amount equal to the statewide
average basic support per-pupil [and] provid[es]
for the amount of each grant to be deducted from
the total apportionment to the school district.
2015 Nev. Stat., ch. 332, at 1824. Plaintiffs filed their suit against
defendant Dan Schwartz, in his official capacity as the Treasurer of the
State of Nevada.
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Petitioners, who are parents seeking to apply for the grants,
moved to intervene in district court as defendants, arguing that they
satisfy the requirements for intervention of right under NRCP 24(a), or
alternatively that they should be permitted to intervene under NRCP
24(b) to assist the court "in focusing on the effect of the challenged law on
its real beneficiaries, parents and children." Plaintiffs opposed the motion,
and the State did not. After the district court denied the motion,
petitioners filed this petition for a writ of mandamus to compel the district
court to grant their application to intervene.
DISCUSSION
A writ of mandamus is available to compel the performance of
an act that the law requires as a duty resulting from an office, trust, or
station or to control an arbitrary or capricious exercise of discretion. NRS
34.160; Int? Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193,
197, 179 P.3d 556, 558 (2008). Because petitioners are not parties to the
underlying action and cannot appeal the district court's order denying
intervention, a mandamus petition is an appropriate method to seek
review of such an order. Am. Home Assurance Co. v. Eighth Judicial Dist,
Court, 122 Nev. 1229, 1234, 147 P.3d 1120, 1124 (2006). Petitioners have
the burden of demonstrating that writ relief is warranted. Pan v. Eighth
Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004); see Am.
Home Assurance Co., 122 Nev. at 1234, 147 P.3d at 1124 (recognizing the
district court's considerable discretion in deciding a motion to intervene
and declining to grant writ relief where petitioners failed to demonstrate a
clear abuse of that discretion).
Intervention of right
Petitioners first argue that the district court was required to
grant their application for intervention of right because they met the rule's
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prerequisites for rightful intervention and the district court applied the
wrong legal standard in determining that they did not. As the district
court's discretionary judgment rested on the words of NRCP 24(a), we
disagree that the rule mandates a different outcome.
NRCP 24(a) provides that
[u]pon timely application anyone shall be
permitted to intervene in an action: (1) when a
statute confers an unconditional right to
intervene; or (2) when the applicant claims an
interest relating to the property or transaction
which is the subject of the action and the applicant
is so situated that the disposition of the action
may as a practical matter impair or impede the
applicant's ability to protect that interest, unless
the applicant's interest is adequately represented
by existing parties.
We have previously held that an applicant for intervention of right must
show "(1) that it has a sufficient interest in the litigation's subject matter,
(2) that it could suffer an impairment of its ability to protect that interest
if it does not intervene, (3) that its interest is not adequately represented
by existing parties, and (4) that its application is timely." Am. Home
Assurance Co., 122 Nev. at 1238, 147 P.3d at 1126. "Determining whether
an applicant has met these four requirements is within the district court's
discretion." Id.
Here, the district court found that although petitioners
arguably met requirements 1, 2, and 4 for intervention of right, they failed
to satisfy requirement 3 by demonstrating that their interest in upholding
the constitutionality of S.B. 302 would not be adequately represented by
the State. The district court determined that where, as here, the original
defendant in a suit is a state official represented by the state attorney
general, the applicant seeking intervention must make a "very compelling
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showing" to overcome a presumption that the government will adequately
represent the applicant's interests.
Petitioners contend that the district court applied the wrong
standard in resolving their motion, as they were required to show only
that the State's representation "may be" inadequate in order to overcome
the presumption. According to petitioners, they met this minimal burden
by arguing that the State has broader interests than they do on a
theoretical level and that they might, without actually identifying any,
make different arguments than the State. In that regard, petitioners
assert that in finding that petitioners had no independent legal interest in
seeing the constitutionality of S.B. 302 upheld, the district court failed to
recognize their "liberty interest in the educational upbringing of their
children." Petitioners' understanding of their burden to overcome the
presumption of the State's adequate representation does not accurately
reflect the legal standard that applies when the State and the intervention
applicant share the same goal in the litigation, and therefore these
arguments do not provide a basis for writ relief.
"The most important factor in determining the adequacy of
representation is how the interest compares with the interests of existing
parties . . . . [and] when an applicant for intervention and an existing
party have the same ultimate objective, a presumption of adequacy of
representation arises." Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.
2003). Although the Ninth Circuit explained that "[t]he burden on
proposed intervenors in showing inadequate representation is minimal,
and would be satisfied if they could demonstrate that representation of
their interests 'may be' inadequate," it also recognized that there is an
"assumption of adequacy when the government is acting on behalf of a
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constituency it represents," and "[i]n the absence of a 'very compelling
showing to the contrary,' it will be presumed that a state adequately
represents its citizens when the applicant shares the same interest." Id.
(quoting 7C Charles Alan Wright et al., Federal Practice and Procedure
§ 1909 (3d ed. 2007)); see also Lundberg v. Koontz, 82 Nev. 360, 362-63,
418 P.2d 808, 809 (1966) (denying a motion to intervene of right on the
basis that the interests of the intervenor applicants were adequately
represented by the State because the single issue raised was an issue of
law on which the applicants and the State sought the same outcome).
Consistent with the Ninth Circuit's reasoning, we held in
American Home Assurance Co. that although the applicant's burden to
prove the inadequacy of representation "has been described as 'minimal,'
when the [applicant's] interest or ultimate objective in the litigation is the
same as the [existing parts/]'s interest or subsumed within [that existing
party's] objective, the . . . representation should generally be adequate,
unless the [applicant] demonstrates otherwise." 122 Nev. at 1241, 147
P.3d at 1128. We concluded that unless the applicant "can show that the
[existing party] has a different objective, adverse to its interest," or can
show that the existing party "may not adequately represent their shared
interest, the [existing party's] representation is assumed to be adequate."
Id. at 1242, 147 P.3d at 1129.
In this case, petitioners and the State have the same ultimate
objective—a determination that S.B. 302 is constitutional—and petitioners
did not identify any conflicting interest or point to any arguments that the
State was refusing to make in support of the bill's constitutionality. To
the contrary, the State has shown its willingness to fully defend the bill,
including through appeal. As for petitioners' argument that the State's
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interest in upholding the bill is broader than the liberty interest
petitioners identified in seeking intervention, the only issue in this case is
the constitutionality of S.B. 302, and petitioners do not indicate how
protecting their right to choose where to educate their children would
result in their assertion of different defenses in support of the
determinative issue. Although petitioners cite to school voucher litigation
in other states to support their contention that the State's arguments may
differ from their own, use of different legal arguments and strategies is
not per se inadequate representation. Perry v. Proposition 8 Official
Proponents, 587 F.3d 947, 954 (9th Cir. 2009). Regardless, petitioners
failed to identify any such differing arguments in this case, although they
presumably could have done so, and they likewise did not provide
examples of how the defenses raised by the intervenor parents in the cases
cited were different from the state's defenses in those cases. Instead,
petitioners note that the intervenor-parents in those cases pursued
different litigation strategies, which does not justify intervention of right.
On this record, the district court had no reason to conclude that the State's
representation would be inadequate.
Because petitioners have not shown that they have a different
legal interest than the State in the outcome of the litigation or that their
interests in defending the suit are adverse to the State's interests, the
district court correctly determined that petitioners failed to make the
required compelling showing to overcome the presumption that the State
will adequately represent their interest. Am. Home Assurance Co., 122
Nev. at 1234, 147 P.3d at 1124; Arakaki, 324 F.3d at 1086. Thus,
petitioners have failed to meet their burden to demonstrate that a writ
should issue to compel the district court to grant intervention of right.
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Permissive intervention
Petitioners next argue that the district court abused its
discretion by denying their request for permissive intervention under
NRCP 24(b), pointing to two alleged legal errors. First, petitioners argue
that the district court did not adequately consider "whether the
intervention will unduly delay or prejudice the adjudication of the rights of
the original parties" as is required by NRCP 24(b)(2). Second, petitioners
contend that the district court's decision was based on an erroneous
finding that petitioners did not comply with NRCP 24(c)'s requirement
that a motion for intervention "be accompanied by a pleading setting forth
the claim or defense for which intervention is sought."
NRCP 24(b) provides that
[u]pon timely application anyone may be
permitted to intervene in an action: (1) when a
statute confers a conditional right to intervene; or
(2) when an applicant's claim or defense and the
main action have a question of law or fact in
common. In exercising its discretion the court
shall consider whether the intervention will
unduly delay or prejudice the adjudication of the
rights of the original parties.
The district court's concerns in denying permissive intervention centered
on the potential for delay and increased costs, which it determined would
come with no measurible benefit to the court's ability to determine the
legal and factual issues in the case. The district court also found that
petitioners failed to comply with NRCP 24(c)'s procedural requirements
and instead filed numerous documents, including an opposition to
plaintiffs' preliminary injunction motion, a filing in support of the State's
motion to dismiss, and notices to substitute and associate counsel even
though they were not parties and had no legal basis to do so. The district
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court therefore declined to exercise its discretion to grant permissive
intervention.
A district court's ruling on permissive intervention is subject
to "particularly deferential" review. United States v. City of New York, 198
F.3d 360, 367 (2d Cir. 1999). Permissive intervention "is wholly
discretionary with the [district] court. . . and even though there is a
common question of law or fact, or the requirements of Rule 24(b) are
otherwise satisfied, the court may refuse to allow intervention." 7C
Charles Alan Wright et al., Federal Practice and Procedure §1913 (3d ed.
2007). Thus, on review, the question "is not whether the factors which
render permissive intervention appropriate under [Rule] 24(b) were
present,' but is rather 'whether the trial court committed a clear abuse of
discretion in denying the motion?" New Orleans Pub. Serv., Inc. v. United
Gas Pipe Line Co., 732 F.2d 452, 471 (5th Cir. 1984) (quoting Korioth v.
Briscoe, 523 F.2d 1271, 1278 (5th Cir. 1975)).
The district court properly considered the potential for delay
and increased costs to the parties, as required by NRCP 24(b)(2), and
although petitioners argue that the district court merely mentioned
generalized concerns in this regard, this is precisely the type of fact-based
judgment determination entitled to particular deference by a reviewing
court. Thus, petitioners have not demonstrated that the district court
clearly abused its discretion in denying permissive intervention on this
score.
Providing further reason to deny the writ petition as to
permissive intervention, the district court invited petitioners to submit
briefs on determinative issues as amici curiae. See Bush v. Viterna, 740
F.2d 350, 359 (5th Cir. 1984) (recognizing that an appeals court may
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consider the fact that the intervention applicant has been granted amicus
curiae status in the case in reviewing a challenge to an order denying
permissive intervention). Under the circumstances, amicus participation
is an adequate alternative to permissive intervention. See McHenry v.
Comm'r, 677 F.3d 214, 227 (4th Cir. 2012) ("Numerous cases support the
proposition that allowing a proposed intervenor to file an amicus brief is
an adequate alternative to permissive intervention." (citing Ruthardt v.
United States, 303 F.3d 375, 386 (1st Cir. 2002); Mumford Cove Ass'n v.
Town of Groton, 786 F.2d 530, 535 (2d Cir. 1986); Bush, 740 F.2d at 359;
and Brewer v. Republic Steel Corp., 513 F.2d 1222, 1225 (6th Cir. 1975))).
As one court has observed, "[w]here he presents no new questions, a third
party can contribute usually most effectively and always most
expeditiously by a brief amicus curiae and not by intervention." Bush, 740
F.2d at 359 (quotation omitted). Although there may be instances in
which amicus curiae status would not be an adequate substitute for
permissive intervention, petitioners have not shown or argued that this is
such a case.
We therefore deny the petition for a writ of mandamus.
Hardesty
We concur:
J.
Saitta
, J.
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