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Judicial Watch • JW v Logan opposition 08948

JW v Logan opposition 08948

JW v Logan opposition 08948

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Date Created:May 29, 2018

Date Uploaded to the Library:June 01, 2018

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Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:805
BELL, MCANDREWS HILTACHK, LLP
CHARLES BELL, JR. (SBN 60553)
Email: cbell@bmhlaw.com
PAUL GOUGH (SBN 75502)
Email: pgough@bmhlaw.com
BRIAN HILDRETH (SBN 214131)
Email: bhildreth@bmhlaw.com
13406 Valleyheart Drive North
Sherman Oaks, 91423
Tel.: (818) 971-3660/(916) 442-7757
Facs.: (818) 986-2581/(916) 442-7759
[Additional counsel listed subsequent page]
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT CALIFORNIA
WESTERN DIVISION
JUDICIAL WATCH, INC., al.
Plaintiffs,
DEAN LOGAN, al.
Defendants.
Case No. 2:17-cv-08948-R-SK
MEMORANDUM POINTS
AND AUTHORITIES
OPPOSITION MOTION
INTERVENE (ECF No. 43)
Hon. Manuel Real
Hearing Date: June 2018
Time: 10:00 a.m.
Crtrm: 880
Action Filed: December 13, 2017
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:806
[Additional counsel]
JUDICIAL WATCH, INC.
ROBERT POPPER*
Email: rpopper@judicialwatch.org
RAMONA COTCA*
Email: rcotca@judicialwatch.org
ERIC LEE*
Email: elee@judicialwatch.org
425 Third Street SW, Suite 800
Washington, D.C. 20024
Tel.: (202) 646-5172
Facs.: (202) 646-5199
LAW OFFICE CHRISTOPHER COATES CHRISTOPHER COATES*
Email: curriecoates@gmail.com
934 Compass Point
Charleston, South Carolina 29412
Tel.: (843) 609-0800
*Admitted pro hac vice
Attorneys for Plaintiffs Judicial Watch, Inc., Election Integrity Project California,
Inc., Wolfgang Kupka, Rhue Guyant, Jerry Griffin, and Delores Mars
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:807
TABLE CONTENTS
Introduction ..........................................................................................................................
Argument..............................................................................................................................
THE COURT SHOULD DENY MOVANT REQUEST
FOR INTERVENTION RIGHT ...................................................................
Movant Has Significantly Protectable Interest the Subject Matter this Case ...................................................................
Movant Has Interest that Will Impaired this Case without Its Participation ..............................................................
Movant Has Not Overcome the Presumption
Adequate Representation the Government Defendants .............................
II.
THE COURT SHOULD DENY MOVANT REQUEST
FOR PERMISSIVE INTERVENTION ..................................................................
Conclusion .........................................................................................................................
iii
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:808
TABLE AUTHORITIES
CASES
PAGE NO.
Allied Concrete Supply Co. Brown,
2016 U.S. Dist. LEXIS 191495 (C.D. Cal. Sept. 26, 2016) ....................................
American Title Ins. Co. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988) .........................
Arakaki Cayetano, 324 F.3d 1078 (9th Cir. 2003) .............................................. 10,
Beckman Industries, Inc. International Ins. Co.,
966 F.2d 470 (9th Cir. 1992) ...................................................................................
Bellitto Snipes, 2016 U.S. Dist. LEXIS 128840 (S.D. Fla. Sept. 21, 2016) ................
California Tahoe Reg Planning Agency, 792 F.2d 775 (9th Cir. 1986) ........... 14,
Californians for Safe Competitive Dump Truck Transp. Mendonca,
152 F.3d 1184 (9th Cir. 1998) .................................................................................
Citizens for Balanced Use Montana Wilderness Ass
647 F.3d 893 (9th Cir. 2011) ...................................................................................
Daggett Commission Gov. Ethics, 172 F.3d 104 (1st Cir. 1999) .............................
Dep Fair Employment and Housing Lucent Tech., Inc.,
642 F.3d 728 (9th Cir. 2011) ...................................................................................
Diamond Charles, 476 U.S. (1986) ..........................................................................
Donahoe Arpaio, 2012 U.S. Dist. LEXIS 93497 (D. Ariz. July 2012) .....................
Donnelly Glickman, 159 F.3d 405 (9th Cir. 1998) .............................................. 16,
Earth Island Inst. Evans, 136 App 34, (9th Cir. 2005) .....................................
Fair Political Practices Comm U.S. Postal Serv.,
2012 U.S. Dist. LEXIS 58759 (E.D. Cal. Apr. 26, 2012) .......................................
Greene United States, 996 F.2d 973 (9th Cir. 1993) .......................................................
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:809
Hawaii Trump, 859 F.3d 741 (9th Cir. 2017) ................................................................
Hawaii-Pacific Venture Capital Corp. Rothbard,
564 F.2d 1343 (9th Cir. 1977) ...................................................................................
Jones City Cty. San Francisco, 976 Supp. 896 (N.D. Cal. 1997) .......................
Kootenai Tribe Idaho Veneman, 313 F.3d 1094 (9th Cir. 2002)...............................
Lac Courte Oreilles Band Lake Superior Chippewa Indians Wisconsin,
116 F.R.D. 608 (W.D. Wis. 1987)...........................................................................
Lamb-Weston, Inc. McCain Foods, Ltd., 941 F.2d 970 (9th Cir. 1991) ..........................
Laube Campbell, 215 F.R.D. 655 (M.D. Ala. 2003) .....................................................
League United Latin Am. Citizens Wilson,
131 F.3d 1297 (9th Cir. 1997) ..................................................................... 13, 14,
Lee The Pep Boys-Manny Moe Jack Cal.,
2016 U.S. Dist. LEXIS 9753 (N.D. Cal. Jan. 27, 2016)...........................................
Maine Dir., United States Fish Wildlife Serv.,
262 F.3d (1st Cir. 2001)......................................................................................
Northwest Forest Resource Council Glickman, F.3d 825 (9th Cir. 1996) .......................................................................................
Oregon Envtl. Council Oregon Dep Envtl. Quality,
775 Supp. 353 (D. Or. 1991) ...............................................................................
Parklane Hosiery Co. Shore, 439 U.S. 322 (1979) .........................................................
Perry Proposition Official Proponents, 587 F.3d 947 (9th Cir. 2009)...................
Pest Comm. Miller, 648 Supp. 1202 (D. Nev. 2009) ...........................................
Prete Bradbury, 438 F.3d 949 (9th Cir. 2006)......................................................... 10,
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:810
SEC Private Equity Mgmt. Grp., Inc.,
2009 U.S. Dist. LEXIS 135683 (C.D. Cal. Aug. 2009) ......................................
Southwest Center for Biological Diversity Berg,
268 F.3d 810 (9th Cir. 2001) ............................................................................. 15,
Stuart Huff, 706 F.3d 345 (4th Cir. 2013)......................................................................
Texas United States, 805 F.3d 653 (5th Cir. 2015)....................................................
Trbovich United Mine Workers, 404 U.S. 528 (1972)...................................................
True the Vote Hosemann, Supp. 693 (S.D. Miss. 2014)..................................
United States Alisal Water Corp., 370 F.3d 915 (9th Cir. 2004).....................................
United States Brooks, 164 F.R.D. 501 (D. Or. 1995) ....................................................
United States California,
2018 U.S. Dist. LEXIS 71403 (E.D. Cal. April 27, 2018) ......................................
United States City Los Angeles, 288 F.3d 391 (9th Cir. 2002) ....................................
United States Hooker Chems. Plastics Corp.,
749 F.2d 968 (2nd Cir. 1984) ..................................................................................
Statutes and Rules
Cal. Elec. Code 10...........................................................................................................
Cal. Elec. Code 2404 ......................................................................................................
Cal. Gov. Code 26802 .....................................................................................................
Cal. Gov. Code 12172.5 .................................................................................................. U.S.C. 10301 ................................................................................................................ U.S.C. 20507 ....................................................................................................... passim U.S.C. 20510 ................................................................................................................
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:811
Federal Rule Civil Procedure ............................................................................ passim
Other Wright, Miller Kane, 1909 ....................................................................................
Robert Conquest, THE GREAT TERROR: REASSESSMENT (1990) ......................................
vii
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:812
PLAINTIFFS OPPOSITION MOTION INTERVENE
Following motion intervene three political organizations, yet another,
California Common Cause Movant now seeks intervene and participate alongside
state and local government Defendants.
This action brought four residents Los Angeles, Judicial Watch, Inc., and
Election Integrity Project California, Inc. (collectively Plaintiffs vindicate
violations the National Voter Registration Act 1993 NVRA Los Angeles
County and the State California, relating the County failure implement
appropriate list maintenance procedures remove ineligible voters from its rolls. [Doc.
No. 1.]
Named official-capacity Defendants are Dean Logan, the Registrar-
Recorded/County Clerk Los Angeles County, and Alex Padilla, California Secretary State. Id.
Plaintiffs claim (1) that Defendants have violated Section 8(a)(4) the NVRA
failing conduct general program that makes reasonable effort cancel the
registrations persons who are ineligible vote California federal elections; and
(2) that Defendants have violated Section 8(i) the NVRA failing make available Plaintiffs all records within the past two years concerning Defendants programs and
activities intended ensure that its voter lists are accurate and current. [Doc. No.
11-26.] Defendants were served January 2018 [Doc. No. 22], and both filed
Answers January 23, 2018. [Doc. Nos. 24, 25.] Defendants Logan and Secretary
Padilla have denied any violations the NVRA. Id. Discovery ongoing. [See Doc.
No. 38.] The primary questions these proceedings are whether Defendants have
program remove ineligible voters and, so, does the program satisfy Section the
NVRA.
minimal requirements. Defendants deny the same.
The Plaintiffs contend Defendants programs not satisfy the NVRA Order issued March 21, 2018, the discovery deadline was set for October
15, 2018, and trial was set for December 2018. [Doc. No. 28.] Due the complexity
and scale discovery required, including approximately thirty (30) anticipated witness
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:813
depositions, Plaintiffs and Defendants have requested ninety-day extension these
deadlines. [Doc. No. 38.] April 17, 2018 Familia Vota Education Fund, Rock the Vote, and League Women Voters Los Angeles filed motion intervene. [Doc. No. 32.] Plaintiffs
opposed that motion response dated May 14, 2018. [Doc. No. 47.] Movant has now
filed the instant motion intervene and proposed Answer. [Doc. No. 43.] Movant now
seeks intervene matter right under Federal Rule Civil Procedure 24(a)(2) or, the alternate, permissively under Rule 24(b)(1)(B). Movant (as well the other
proposed intervenors) seek intervene order assert the same legal positions taken the current state and local Defendants.
Both forms requested intervention should denied. discussed below,
Movant has significantly protectable interest that would impaired the claims
Plaintiffs bring.
representation defending against Plaintiffs claims. Movant proposed answer shows
that its intervention would effectively reopen issues already resolved these
proceedings. intervention granted, the already-cumbersome nature the extensive
discovery this case would compounded significantly. new scheduling order likely
will needed address all the interests and concerns the new parties. This added
time and expense unnecessary because the government Defendants are providing
vigorous representation, they are presumed the case authority the Ninth
Circuit.
There basis for Movant intervene right with permission. Therefore,
the motion should denied.
ARGUMENT
The government Defendants are providing more than adequate
THE COURT SHOULD DENY MOVANT REQUEST FOR
INTERVENTION RIGHT.
Movant first seeks intervene right under Federal Rule Civil Procedure
24(a)(2), which permits intervention only four elements are satisfied: (1) the request
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:814
intervene must timely; (2) Movant must show significantly protectable interest
related the property transaction that the subject the action; (3) Movant must
demonstrate situated such that disposition the action may impair impede its
ability protect the interest stake; and (4) the protectable interest must not
adequately represented existing parties. Perry Proposition Official Proponents,
587 F.3d 947, 950 (9th Cir. 2009) (emphasis added) (citations omitted).
Failing demonstrate just one these elements dooms motion intervene right under Rule 24(a)(2). Id.
Movant Has Significantly Protectable Interest the Subject
Matter this Case. show significantly protectable interest, Movant must (1) assert interest
protected law, and (2) prove relationship between the legally protected interest
and Plaintiffs claims this litigation. Donnelly Glickman, 159 F.3d 405, 409 (9th
Cir. 1998), citing Northwest Forest Resource Council Glickman, F.3d 825, 837 (9th
Cir. 1996); see also United States Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004)
(citations omitted). Movant will satisfy this relationship requirement only resolving
Plaintiffs claims actually will affect it. Donnelly, 159 F.3d 410 (citations and
quotation marks omitted).
The required connection between Movant legally protected interests and
Plaintiffs claims missing. Unlike the other political organizations seeking intervene this case, Movant does not endeavor show that its own members state and federal
voting rights will violated government Defendants compliance with the NVRA
reasonable list maintenance requirements. Instead, Movant emphasizes its organizational
efforts, claiming has worked tirelessly assist people register voters, assist
registered voters voting-eligible people and ensure that all eligible persons have
equal opportunity vote. Mov. Br. (emphasis added). sure, eligible voters
Los Angeles County, whose behalf Movant claims work, have panoply federal
and state voting rights. But Plaintiffs have alleged that Los Angeles County not
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:815
identifying and removing the registrations ineligible voters. [Doc. No. 11-26.]
concern are voters who have moved elsewhere but whose inactive registrations are never
cancelled the NVRA requires. Id., 16-17, 34-37. Taking voters who have moved another jurisdiction off the rolls Los Angeles County simply does not affect the
voting rights eligible voters. provision the U.S. Constitution, the Voting Rights
Act, California law guarantees that person who not legal resident particular
jurisdiction has some sort protected legal right vote there. While Movant may have
political preferences how the NVRA should enforced, these cannot justify
intervention. See Texas U.S., 805 F.3d 653, 657 (5th Cir. 2015) [A]n intervenor fails show sufficient interest when seeks intervene solely for ideological reasons;
that would-be intervenor merely prefers one outcome the other. (citations omitted).
Relying conjecture and speculation, Movant fears that unidentified eligible
voters could removed from the rolls certain list maintenance activities which
Movant does not specifically identify are ordered. Thus, the declaration submitted
support the motion intervene worries that Plaintiffs will seek voting roll purges
that are sweeping and wide-ranging and expansive and improper and
wrongful. [Doc. No. 43-2, 11-15.] This declarant simply heaping speculation
top speculation, arguing without shred evidence that presently unknown measures
that might imposed the remedial stage this litigation might flawed. pure
speculation suggest that Plaintiffs would ask for sweeping expansive purging,
All proposed intervenors repeatedly use the inflammatory word purging
describe the removal ineligible voters. Presumably meant suggest the political
arrests, show trials, and summary executions the totalitarian regime Joseph Stalin.
See, e.g., Robert Conquest, THE GREAT TERROR: REASSESSMENT (1990) Book The
Purge Begins Aside from the obvious hyperbole implicit any such comparison, note
that cancelling the voter registrations those who have died moved out state
expressly mandated federal law under the NVRA; that eminently sensible policy
that, among other things, reduces the opportunities for fraud; and that voters whose
registrations are cancelled because they live and vote elsewhere have lost rights.
Removing person from registration list who not legally entitled vote
jurisdiction not totalitarian act, but the responsible act constitutional republic.
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:816
that Defendants would agree such things, that this Court would order them. Even
if, like other proposed intervenors, Movant finds anecdotes about eligible voters other
states being removed pursuant allegedly improper procedures, these say nothing about
the relief Plaintiffs seek here and what measures this Court would order approve.
Movant worst fears, unsupported relevant facts, not establish relationship
between its alleged legally protected interests and Plaintiffs claims this case. the case the supporting declaration, id., Movant brief speculates when
argues that Plaintiff seeks relief that would require aggressive purging Los Angeles
County and California voter rolls. Mov. Br. 12. fact, Plaintiffs complaint only
seeks judgment enjoining Defendants from violating the NVRA and ordering them develop and implement general program that makes reasonable effort remove
from Los Angeles County rolls the registrations ineligible registrants. [Doc. No. (Prayer for Relief).]
The cases Movant cites granting intervention voting cases not support their
motion here. See Mov. Br. 11. The only decision Movant cites granting intervention list maintenance case brought under Section the NVRA Bellitto Snipes, Case
No. 16-cv-61474, 2016 U.S. Dist. LEXIS 128840 (S.D. Fla. Sept. 21, 2017). But that
case, the plaintiffs proposed specific list maintenance techniques not found the NVRA.
Thus, they alleged their complaint that
One example Defendant failure reasonably maintain voter rolls
that Defendant undertakes absolutely effort whatsoever use data
available from the Broward County Circuit Court Clerk obtained from jury
excusal forms. This data identifies numerous Broward County residents who
self-identify, under oath, that they are non-citizens non-residents
Broward County. [I]t would simple cross-check the excusal forms
other data regarding jurors who have moved, died, declared non-United
States citizenship
Popper Decl., Ex. (Bellitto plaintiffs first amended complaint) 19; see id.,
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:817
(citing failure access[] readily available data regarding domicile and citizenship
Broward County residents those circumstances, was plausible for the court, its
decision initially granting intervention, credit intervenors assertion that the the court-
ordered voter list maintenance sought Plaintiffs Count their Amended
Complaint could itself violate the NVRA. Bellitto, 2016 U.S. Dist. LEXIS 128840
*6. Indeed, the final decision granting judgment for the defendants specifically rejected
that and other list maintenance techniques not required the NVRA. Popper Decl.,
Ex. (Bellitto order) 38-41 (internal page nos. 36-39). contrast, Plaintiffs complaint
here does not ask the Court order any particular list maintenance program technique,
let alone non-statutory one. Certainly Movant has failed identify any specific list
maintenance technique that objects to. sum, Movant has not explained how its mission will imperiled Defendants
are compelled comply with federal and state law concerning voter list maintenance.
Movant has offered nothing show relationship between Movant speculative interest
and the subject matter this suit. For this reason alone, the instant motion should
denied.
Movant Has Interest that Will Impaired this Case without Its
Participation.
For all the same reasons that Movant cannot show legally protectable interest,
Movant cannot show any impairment its ability protect its interests. See FED.
CIV. 24. Plaintiffs simply seek compel Defendants develop and implement
general program that makes reasonable effort remove ineligible registrants from Los
Angeles County voter rolls, required the NVRA. [Doc. No. 26.] Movant
speculates its interests may harmed Plaintiffs prevail and this Court grants, not the
relief sought the complaint, but purging, which labels aggressive and sweeping
and wide-ranging, not mention wrongful and improper. Notwithstanding its fact, the only specific list maintenance technique objected either
intervenor the use address confirmation postcards which specifically authorized the NVRA. See Doc. No. 31-4, U.S.C. 20507(d)(2).
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:818
flair for the dramatic, Movant has failed show protectable legal interest related the
Plaintiffs claims that will impaired without Movant participation. addition its failure establish the required nexus, Movant own moving
papers acknowledge avenues for their members protect any voting rights through
independent action. the rights Movant its members ever were violated, the NVRA
affords private right action for person who aggrieved violation the Act. U.S.C. 20510(b). addition, U.S.C. Section 10301(b) provides Movant with
basis federal law sue officials they discriminate the basis race their
removal voter registrants from voting lists.
Freestanding private remedies counsel against finding any impairment under
existing Ninth Circuit precedent. United States City Los Angeles, 288 F.3d 391,
396 (9th Cir. 2002), for example, the federal government sought enjoin certain police
practices and, after filing, entered proposed consent decree with the City Los
Angeles, the Board Police Commissioners the City Los Angeles, and the Los
Angeles Police Department LAPD Community groups and private individuals
sought intervention protect their members rights free from unconstitutional
police practices. Id. 397. The Ninth Circuit found doubtful that the community
intervenors interests would impaired because the litigation did not prevent any
individual from initiating suit against LAPD officers who engage unconstitutional
practices against the City defendants for engaging unconstitutional patterns
practices.
community organizations from continuing work police reform. Id. Here too,
member the Movant will precluded from bringing private right action, and
nothing this litigation would preclude Movant from working achieve its legitimate
voter registration goals. Movant wants challenge Congress authority require list
maintenance programs related federal elections, they are certainly free file their own
complaint here elsewhere litigate the propriety and necessity list maintenance
mandated the NVRA. For now, the questions raised these proceedings are whether
Id. 402.
Further, aspect the litigation [would] prevent the
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:819
Defendants have list maintenance program and, so, does satisfy the NVRA.
Other cases are accord with the principle that independent action precludes
finding potential impairment. See Hawaii-Pacific Venture Capital Corp. Rothbard,
564 F.2d 1343, 1346 (9th Cir. 1977) (noting that third element was not met because, inter
alia, movants were free bring their individual claims independent actions); Lee
The Pep Boys-Manny Moe Jack Cal., Case No. 12-CV-5064-JSC, 2016 U.S. Dist.
LEXIS 9753, *9-10 (N.D. Cal. Jan. 27, 2016) (ability file independent action
weighed against finding impairment interest).
Movant suggests that Court-ordered resolution this action would preempt
later challenge. Mov. Br. 16. But everyone who believes they have cognizable claim
under the NVRA any other federal voting statute free pursue their own remedies.
Due process would not allow forfeiture rights persons (yet unidentified) not parties this action. Parklane Hosiery Co. Shore, 439 U.S. 322, 327 n.7 (1979) (citations
omitted).
Given the interest Movant has described, its concerns about Court-ordered
resolution must mean that believes the Court could require aggressive purges that
are improper and wrongful and must further concerned that the Ninth Circuit
will uphold this Court error. Again, there basis for assuming that Plaintiffs would
seek that this Court would order improper list maintenance activities that threaten
citizens voting rights.
Defendants are incapable remediating any NVRA violations without also purging
marginalized communities eligible voters. Courts fashion appropriate injunctive
relief variety circumstances remedy violations federal law all the time, and
there basis contend this Court cannot the same here should find violation.
See Lamb-Weston, Inc. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991)
(citations omitted) (noting that injunctive relief must tailored remedy the specific
harms shown).
proceedings, the current parties are certainly mindful that the remedy will narrow and
Movant cannot contend that the Plaintiffs, the Court, and
Despite the Court broad discretion fashioning relief these
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:820
that such injunction does more and less than correct the particular violation. Jones City Cty. San Francisco, 976 Supp. 896, 916 (N.D. Cal. 1997) (citation omitted) properly strike balance between remedying the constitutional violation and
minimizing judicial intrusion into jail management, courts typically require the
development and implementation narrowly tailored remedial plan. Movant
concerns about the impact erroneous court order are, thus, another level
unsupported conjecture, too speculative warrant intervention. Greene United
States, 996 F.2d 973, 977 (9th Cir. 1993).
Movant
Has
Not
Overcome
the
Presumption
Adequate
Representation the Government Defendants.
The Ninth Circuit considers three factors determining the adequacy
representation: (1) whether the interest present party such that will undoubtedly
make all proposed intervenor arguments; (2) whether the present party capable
and willing make such arguments; and (3) whether proposed intervenor would offer
any necessary elements the proceeding that other parties would neglect. California
Tahoe Reg Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986) (citations omitted).
other types cases, proposed intervenors are faced with minimal burden show
inadequacy, and enough show that representation may inadequate. Arakaki Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) (citation omitted).
This standard gives way presumption adequacy representation two
kinds circumstances. First, [w]hen applicant for intervention and existing party
have the same ultimate objective, presumption adequacy representation arises.
Arakaki, 324 F3d 1086. (citation omitted). Furthermore, [i]f the applicant interest identical that one the present parties, compelling showing should required demonstrate inadequate representation. Id. (citation omitted). Where parties share
the same ultimate objective, differences litigation strategy not normally justify
intervention. Id. (citation omitted).
Second, there assumption adequacy when the government acting
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:821
behalf constituency that represents. Prete Bradbury, 438 F.3d 949, 956 (9th
Cir. 2006) (citation omitted). Furthermore, [i]n the absence very compelling
showing the contrary, will presumed that state adequately represents its citizens
when the applicant shares the same interest. Arakaki, 324 F.3d 1086, citing
Wright, Miller Kane, 1909, 332; see Pest Comm. Miller, 648 Supp. 1202,
1213-14 (D. Nev. 2009) (applying heightened standard where the Nevada Secretary
State and the intervenors shared the same interest).3 this case, must presumed that Defendant Logan, the Registrar-
Recorder/County Clerk Los Angeles County, and Defendant Padilla, California
Secretary State, government officials charge voting laws who share the same
interest the Movant, adequately represent it, absent very compelling showing the
contrary. Arakaki, 324 F.3d 1086. The Secretary State the chief elections
officer the state, responsible law for administer[ing] the provisions the
Elections Code and for see[ing] that state election laws are enforced. CAL. GOV.
CODE 12172.5(a). County clerks and registrars voters are responsible for voter
registration and for all duties that relate and are part election procedure.
CAL. GOV. CODE 26802. The Secretary State also directed law make
reasonable efforts [p]romote voter registration eligible voters and [e]ncourage
eligible voters vote. CAL. ELEC. CODE 10(b); see also CAL. ELEC. CODE 2404(a)
(Secretary State and county election officials must coordinate regarding voter
Stated another way, Arakaki really sets forth four different circumstances which presumption adequacy representation arises: (1) ordinary presumption that
applies when applicant and any party have the same ultimate objective (2)
compelling presumption when applicant and any party have identical interests (3)
ordinary presumption when the government acting behalf its constituents; and
(4) compelling presumption when the government and applicant share[] the same
interest. Arakaki, 324 F3d 1086 (citations omitted). Note that the requirement that
applicant and party have identical interests only applies one these circumstances
not all four. Thus, misstates the holding Arakaki insist that every presumption
adequate representation depends identical interests. The first set proposed
intervenors made this mistake. [See Doc. No. 14.]
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:822
registration agencies). Note that the Secretary State particularly charged law with
promoting the voter registration interests the same marginalized communities
Movant claims specially represent: undertaking these efforts, the Secretary State
shall prioritize communities that have been historically underrepresented voter
registration voting. CAL. ELEC. CODE 10(b)(2). equally evident that Movant and Defendants share the same interest with
respect the outcome this case. Secretary Padilla response the instant motion intervene, states:
Defendant Padilla takes position [Movant motion for intervention right under Rule 24(a), but notes that vigorously disputes the factual and
legal bases Plaintiffs claims and will actively defend this case such
manner that maximizes eligible voter engagement and participation.
[Doc. No. 2.] See also Doc. No. (responding prior motion intervene, stating that actively defending the case, and will not accept terms
that could jeopardize anyone statutory constitutional rights
Furthermore, Secretary Padilla has repeatedly pledged defend the voting
interests Movant claims concerned about. Secretary Padilla has elaborated this
point numerous public statements made online tweets. Consider the tweets has
made just this calendar year. January 2018, said:
Let make this clear: will not tolerate any efforts this administration
undermine the voting rights eligible citizens. Every vote matters, and
prepared stand for every eligible Californian right register and cast ballot free unnecessary obstacles.
Popper Decl., This same theme emphasized many similar tweets. See id., Voting not use-it-or-lose-it right. Not California, anywhere else our
See Hawaii Trump, 859 F.3d 741, 773 fn. (9th Cir. 2017), cert. granted sub
nom., Trump Int Refugee Assistance Project, 137 Ct. 2080 (2017), vacated and
remanded other grounds, 138 Ct. 377 (2017) (relying tweets from government
account official statements).
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:823
country. id., was firm refusal hand over Californians personal voter
info id., more committed than ever continue serving the state
striving increase voter registration and participation and protect our voting rights.
id., must continue defend free and fair elections. id., Proud defend
the rights California voters. the same vein, the front page Secretary Padilla election website identifies
one issue voting rights: hard believe that this day and age, are working hard protect
voting rights the United States America. But are and must.
thankful serve California Chief Elections Officer such critical
time. would honored continue serving you defending and
expanding voting rights here California.
Popper Decl.,
For its part, Movant has publicly recognized Secretary Padilla for his voting rights
advocacy. December 2017, Movant honored Secretary Padilla with its Champion
Democracy award. Movant executive director, who submitted declaration support the instant motion, praised Secretary Padilla for advancing bold policies modernize
elections and eliminate unnecessary burdens Californians right vote, calling him
and his staff breath fresh air and urgency expanding our democracy. See
Popper Decl., 12. Thus, only few days before Plaintiffs filed this action, Movant
publicly praised Secretary Padilla for protecting the very interests seeks intervention now. One can reasonably expect that Secretary Padilla will continue protect
Movant legitimate interests.
Defendant-Secretary Padilla not the only Defendant publicly aligning himself
with Movant interests. The website for the Registrar-Recorder/County Clerk, Dean
Logan, represents that partners with citizen, community, and advocacy organizations committee designed facilitate communication and collaboration about ways educate, engage and provide quality service ensure accessibility for all voters.
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:824
Popper Decl., 11. One the organizations the list groups that Defendant Logan
office frequently works with Movant. Id. Proposed intervenors Rock the Vote and
League Women Voters also appear that list. Id. every other organization Defendant Logan list were follow suit and seek intervene, the proposed intervenors will grow from four sixteen. And there are likely
other people and entities that did not make the list but that may wish participate. But
merely having opinions voting laws and their interpretations not grounds for turning
the courtroom into policy forum. See Texas, 805 F.3d 657 (5th Cir. 2015) (rejecting
notion that ideological reasons preferences qualify sufficient interest)
(citations omitted). Adding defendants who agree with Defendants and disagree with
Plaintiffs would not serve any worthwhile purpose, especially given the Defendants
public stances. contrast this concrete display vigorous representation, Movant offers only
theories about how government interests might, generally speaking, diverge from its own.
Such vague speculation falls far short very compelling showing. Dep Fair
Employment and Housing Lucent Tech., Inc., 642 F.3d 728, 740-41 (9th Cir. 2011)
(citations omitted); League United Latin Am. Citizens Wilson, 131 F.3d 1297, 1307
(9th Cir. 1997).
For example, Movant argues that Defendants may seek unsatisfactory
resolution avoid the distraction and expense litigation light their substantial
public responsibilities and limited resources tied the public treasury Mov. Br.
14. The assertion that California and its Justice Department are not financially equipped litigate this case without merit. The California Department Justice had $894-
million-dollar budget for 2017-2018. See Popper Decl., 10. Certainly, does not need rely intervenors cover expenses related defending itself against alleged
violations federal law.
Even these concerns had grounding reality (they not), they would,
accepted, swallow the general rule that government representation presumed
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:825
adequate. See Prete, 438 F.3d 957-58 (citations omitted) (rejecting argument that
budget constraints overcame government-representation presumption, reasoning that
[v]irtually all governments face budget constraints and movants argument would
eliminate the presumption); see also Wilson, 131 F.3d 1307 (arguments about the
nature government generally were insufficient, otherwise proposed intervenors could
always satisfy the third prong Rule 24(a)(2) the defendant were government
entity).
The assertion that Movant would defend more vigorously than existing parties does
not amount showing inadequate representation. Tahoe Reg Planning Agency,
792 F.2d 779. Speculation that Movant might stress different facts and make different
arguments likewise not enough. See Daggett Commission Gov. Ethics, 172 F.3d
104, 112 (1st Cir. 1999) (holding that speculation not enough show state Attorney
General would soft-pedal arguments clearly helpful his cause (citation omitted).
Bald claims that Movant interests might otherwise diverge from those government
defendants, may involve different motivations, speculative and does not justify
intervention. Wilson, 131 F.3d 1307 (citation omitted); United States California,
Case No. 2:18-CV-490-JAM, 2018 U.S. Dist. LEXIS 71403, *6-7 (E.D. Cal. April 27,
2018), quoting Oregon Envtl. Council Oregon Dep Envtl. Quality, 775 Supp.
353, 359 (D. Or. 1991) The interest putative intervenor not inadequately
represented party lawsuit simply because the party the lawsuit has motive litigate that different from the motive litigate the intervenor. (citation
omitted); see also Earth Island Inst. Evans, 136 App 34, (9th Cir. 2005) associations different motives litigate did not constitute neglected necessary
element (citations omitted); SEC Private Equity Mgmt. Grp., Inc., Case No. 09-CV-
2901-PSG, 2009 U.S. Dist. LEXIS 135683, *13 (C.D. Cal. Aug. 2009) (denying
intervention where proposed intervenor only established that seeks intervene
because apparently disagrees with the strategy taken existing party). deny
intervention, the Government representation does not have align perfectly with
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:826
what Movant previous applicants want. The question one adequacy which
more than established here.
Movant cites Southwest Center for Biological Diversity Berg, 268 F.3d 810, 823
(9th Cir. 2001), but that case distinguishable because the City San Diego had bluntly
acknowledge[d] that will not represent proposed intervenors interests this action.
And Citizens for Balanced Use Montana Wilderness Ass 647 F.3d 893, 898-99
(9th Cir. 2011), applicants made compelling showing that the Forrest Service did not
adequately represent its interests, where was being sued over restrictions order
issued comply with court decision litigation originally brought the applicants,
which the Forest Service was the process appealing. Finally, Californians for Safe Competitive Dump Truck Transp. Mendonca, 152 F.3d 1184, 1185-86 (9th Cir.
1998), granted intervention right the Teamsters Union challenge public
works contractors California prevailing wage law. The employment interests the
union that case obviously were more narrow and parochial than the interests the
public large (id. 1190) including, for example, the interests those who sued
have the law struck down.
The Supreme Court case Movant cites, Trbovich United Mine Workers, 404 U.S.
528 (1972), likewise distinguishable. There, the Secretary Labor was statutorily
required serve two distinct interests and his ultimate objective was not the same
that the proposed intervenor begin with. Stuart Huff, 706 F.3d 345, 352 (4th Cir.
2013) (quoting and analyzing Trbovich). Thus, Trbovich stands for the unremarkable
proposition that where the existing party and proposed intervenor seek divergent
objectives the presumption adequate representation has less warrant. Id. proposed
intervenor here has been able identify one area actual disagreement between the
Movant and Defendants regarding this case. Trbovich inapposite. See id.; Maine
Dir., United States Fish Wildlife Serv., 262 F.3d 13, 18-19 (1st Cir. 2001) (like Stuart,
distinguishing Trbovich its unique facts); United States Hooker Chems. Plastics
Corp., 749 F.2d 968, 985-87 (2nd Cir. 1984) (same).
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:827
Finally, the fact that Movant has, the past, filed lawsuit challenging Secretary
Padilla (and others) regarding different provision the NVRA irrelevant.
evaluating whether representation adequate, the focus should the subject the
action. Berg, 268 F.3d 823 (citation omitted); see FED. CIV. 24(a)(2) (allowing
intervention where interest related property transaction that the subject the
action not adequately represented).
The simple fact that Movant, Defendant Padilla, and Defendant Logan all
maintain that Los Angeles County and the State California have properly conducted
list maintenance under the applicable laws, and all agree that Plaintiffs claims are
meritless. Because Defendants Padilla and Logan are government officials who share the
same interest Movant, must make very compelling showing defeat the
presumption that Defendants adequately represent its interests. Arakaki, 324 F.3d
1086. This Movant fails do. The facts here not even begin rebut the presumption adequacy. the contrary, they bear out. Wilson, 131 F.3d 1305.
II.
THE COURT SHOULD DENY MOVANT REQUEST FOR
PERMISSIVE INTERVENTION. applicant who seeks permissive intervention must prove that meets three
threshold requirements: (1) shares common question law fact with the main
action; (2) its motion timely; and (3) the court has independent basis for jurisdiction
over the applicant claims. Donnelly, 159 F.3d 412 (citation omitted); see FED.
CIV. 24(b). Yet [e]ven applicant satisfies those threshold requirements, the
district court has discretion deny permissive intervention. Donnelly, 159 F.3d 412
(citations omitted). exercising its discretion, the district court must consider whether
intervention will unduly delay the main action will unfairly prejudice the existing
parties. Id., citing, inter alia, FED. CIV. 24(b)(2). the case law indicates, timeliness threshold condition that must met
before the Court exercises its discretion consider the possibility undue delay the
action prejudice existing parties. Thus, timeliness separate legal issue from delay the action prejudice parties. The first set proposed intervenors simply
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:828
The permissive intervention Movant seeks only available where applicant
demonstrates claim defense that shares with the main action common question
law fact. FED. CIV. 24(b)(2). the asserted claim defense contains
question law fact that also raised the main action, intervention under Rule
24(b)(2) must denied. Kootenai Tribe Idaho Veneman, 313 F.3d 1094, 1111
(9th Cir. 2002), abrogated other grounds Wilderness Soc. U.S. Forest Service,
630 F.3d 1173 (9th Cir. 2011); see also Fair Political Practices Comm U.S. Postal
Serv., Case No. 2:12-CV-93-GEB, 2012 U.S. Dist. LEXIS 58759, *11 (E.D. Cal. Apr.
26, 2012). Only there common question claim defense the Court vested
with discretion consider permissive intervention. Kootenai Tribe, 313 F.3d 1111.
Movant identifies not asserted claim defense that hopes litigate.
apparently seeks only defend the maintenance procedures current Defendants. But
defenses about what Los Angeles County has and has not done are not the Movant
raise. See True the Vote Hosemann, Supp. 693, 709 (S.D. Miss. 2014) (holding
that the Republican Party was improper defendant under the NVRA). Plaintiffs have
not sued Movant for failing maintain reasonable list maintenance procedures, nor could
they here anywhere else. Movant not the one charged the NVRA conduct list
maintenance. Defendants are. Justice Connor explained, while there requirement that the intervenor
have direct personal pecuniary interest the subject the litigation, the
permissive-intervention Rule plainly does require interest sufficient support legal
claim defense which founded upon [that] interest. Diamond Charles, 476 U.S.
54, (1986) Connor, J., concurring) (citation omitted). The primary focus Rule
24(b) intervention for the purpose litigating claim the merits. Beckman
Industries, Inc. International Ins. Co., 966 F.2d 470, 472 (9th Cir. 1992).
Other federal cases addressing the meaning claim defense within the
misapprehend this point, when they suggest that Plaintiffs agreement not raise
timeliness somehow includes agreement not raise those other matters. [Doc. No. 9.]
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:829
meaning Rule 24(b) are accord. Donahoe Arpaio, Case No. CV10-2756-PHX,
2012 U.S. Dist. LEXIS 93497, *14 (D. Ariz. July 2012) (denying permissive
intervention where movant had claim defense all and asked the Court resolve question law untethered any claim defense United States Brooks, 164
F.R.D. 501, 506 (D. Or. 1995) (intervenor has claim defense common with the
main action. The tax refund check was made payable the [personal representatives],
and they are the only proper defendants against whom the United States may obtain
judgment. aff 163 F.R.D. 601, 605 (D. Or. 1995); Laube Campbell, 215 F.R.D.
655, 659 (M.D. Ala. 2003) (adopting and applying Justice Connor reasoning from
Diamond); Lac Courte Oreilles Band Lake Superior Chippewa Indians Wisconsin,
116 F.R.D. 608, 611 (W.D. Wis. 1987) (finding permissive intervention inapplicable
where the movant does not articulate claim defense per se, but rather recites
number aspects its interest the [subject the action]
Even the criteria for permissive intervention were met, intervention would not automatic, and the Court would have discretion deny Movant application.
Donnelly, 159 F.3d 412 (citations omitted). exercising such discretion, the Court
would required consider whether intervention will unduly delay the main action
will unfairly prejudice the existing parties. Id. (citations omitted); FED. CIV.
24(b)(3). The Court could also consider the nature and extent the intervenor[
interest and whether intervenor[ interests are adequately represented other
parties. Perry, 587 F.3d 955 (citation omitted). the intervention motions were both granted, the case would expand from two
defendants six. The inevitable inefficiency that would accompany such expansion
necessarily entails degree delay and expense. See Perry, 587 F.3d 955 (affirming
finding delay where district court found that, intervention were allowed, each group
would need conduct discovery substantially similar issues This especially the
situation here, this NVRA Section 8(a)(4) litigation, which data driven and requires
significant discovery.
[Doc. No. 38-2, 4.] fact, the parties expect take
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:830
approximately thirty (30) depositions. Even Movant sought schedule additional
depositions (which not guaranteed), coordinating the planned depositions with another
set lawyers would become much more difficult. Allied Concrete Supply Co.
Brown, Case No. 2:16-CV-4830, 2016 U.S. Dist. LEXIS 191495, (C.D. Cal. Sept.
26, 2016) (denying permissive intervention because, inter alia, would ultimately delay
the proceedings and force all parties conduct additional discovery (citation
omitted). addition, Movant proposed Answer intervention will have the effect
revisiting factual matters that had been resolved the current parties pleadings.
Defendants Logan and Secretary Padilla have jointly admitted, whole part, seven
allegations Plaintiffs complaint.
regarding the identities persons living Los Angeles County, the number registered
inactive voters Los Angeles County, and correspondence exchanged between Judicial
Watch and Defendants. [Doc. No. 24, 5-8, 35, 69, 74; Doc. No. 25, 5-8, 35, 69,
74.] These admitted facts are conclusively established for purposes this litigation.
American Title Ins. Co. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). However,
Movant Answer denies, insufficient information, all these allegations. [Doc. No.
43-1, 5-8, 35, 69, 74.] Because these allegations would now dispute Movant
were allowed intervene and file its proposed Answer, granting Movant intervention
motion would have the effect reopening issues that the current parties have resolved.
See Tahoe Reg Planning Agency, 792 F.2d 779 (affirming district court conclusion
that intervention those with interests adequately represented would redundant and
would impair the efficiency the litigation.
These include partial complete admissions
For all these reasons, permissive intervention unwarranted and unnecessary. conclusion, both Movant this motion and the first set proposed intervenors
bring nothing new useful this litigation. The proposed intervenors and Defendants all
share identical view this lawsuit and Plaintiffs claims. Indeed, they work together
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:831 voter registration projects and boards; they publicly voice their agreement voting-
related issues; and they lavish praise and awards upon one another for their voting-related
work. Both legally (given the responsibilities Defendants, government officials, are
charged with) and practical matter, the current Defendants will amply represent
proposed intervenors interests this case moves forward. the same time, allowing these movants intervene will hinder the progress
this action. Discovery, motion practice, stipulations, mediation and settlement, and trial
all become that much harder coordinate. simple demonstration the kind
complications expected afforded the proposed intervenors varying Answers,
which seem reopen issues that the current pleadings had effectively closed. the proposed intervenors add anything, overtly ideological approach
voting law that not helpful. Thus, they accuse Plaintiffs intending conduct purges
that they characterize expansive, sweeping, wrongful, and improper, and
generally are quick question Plaintiffs motives.6
maintenance techniques expressly authorized federal law,7 and all their papers they
fail identify list maintenance program they favor. This litigation should not
transformed into ideologically charged policy hearings the propriety the NVRA list
maintenance mandate. Congress settled that matter enacting the list maintenance
requirements Section the NVRA.
CONCLUSION
Strikingly, they oppose list
For the foregoing reasons, the Court should deny the pending motion intervene.
Dated:
May 29, 2018
Respectfully Submitted,
/s/ Robert Popper
ROBERT POPPER*
Email: rpopper@judicialwatch.org
RAMONA COTCA*
Email: rcotca@judicialwatch.org
See Doc. No.
See Doc. No. 31-4,
Case 2:17-cv-08948-R-SK Document Filed 05/29/18 Page Page #:832
ERIC LEE*
Email: elee@judicialwatch.org
425 Third Street SW, Suite 800
Washington, D.C. 20024
Tel.: (202) 646-5172
Facs.: (202) 646-5199
CHARLES BELL, JR. (SBN 60553)
Email: cbell@bmhlaw.com
PAUL GOUGH (SBN 75502)
Email: pgough@bmhlaw.com
BRIAN HILDRETH (SBN 214131)
Email: bhildreth@bmhlaw.com
13406 Valleyheart Drive North
Sherman Oaks, 91423
Tel.: (818) 971-3660/(916) 442-7757
Facs.: (818) 986-2581/(916) 442-7759 CHRISTOPHER COATES*
Email: curriecoates@gmail.com
934 Compass Point
Charleston, South Carolina 29412
Tel.: (843) 609-0800
*Admitted pro hac vice
Attorneys for Plaintiffs Judicial Watch, Inc.,
Election Integrity Project California, Inc.,
Wolfgang Kupka, Rhue Guyant, Jerry
Griffin,and Delores Mars