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MARK BRNOVICH 

Arizona Attorney General (Firm Bar No. 014000) 

Drew C. Ensign (No. 25463) 

Oramel H. (O.H.) Skinner (No. 32891) 

Brunn (Beau) W. Roysden III (No. 28698) 

Evan G. Daniels (No. 30624) 

Keith J. Miller (No. 29885) 

Aaron Duell (No. 33450) 

Assistant Attorneys General 

2005 N. Central Avenue 

Phoenix, Arizona 85004 

Telephone: (602) 542-5200 

Drew.Ensign@azag.gov 

Attorneys for Proposed Intervenor-Defendant 

State of Arizona 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Mikkel Jordahl; Mikkel (Mik) Jordahl, 

P.C., 

 Plaintiffs, 

vs. 

Mark Brnovich, Arizona Attorney 

General; Jim Driscoll, Coconino County 

Sheriff; Matt Ryan, Coconino County 

Board of Supervisors Chair; Lena 

Fowler, Coconino County Board of 

Supervisors Vice Chair; Elizabeth 

Archuleta Coconino County Board of 

Supervisors Member; Art Babbott, 

Coconino County Board of Supervisors 

Member; Jim Parks, Coconino County 

Board of Supervisors Member; Sarah 

Benatar, Coconino County Treasurer, all 

in their official capacities, 

 Defendants. 

Case No: 3:17-cv-08263-PCT-DJH 

STATE’S MOTION TO INTERVENE 

TO DEFEND THE 

CONSTITUTIONALITY OF 

ARIZONA STATUTES 

Case 3:17-cv-08263-DJH Document 24 Filed 01/18/18 Page 1 of 6
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INTRODUCTION 

Pursuant to Federal Rule of Civil Procedure 24, the State of Arizona (the “State”) 

moves to intervene in this matter for the purpose of defending the facial constitutionality 

of A.R.S. § 35-393 et seq. (the “Act”). All existing parties consent to the State 

intervening. 

I. THE STATE IS ENTITLED TO INTERVENE IN THIS ACTION 

Rule 24(a) authorizes anyone to intervene in an action as of right when the 

applicant demonstrates that: (1) the intervention application is timely; (2) the applicant 

has a significant protectable interest relating to the property or transaction that is the 

subject of the action; (3) the disposition of the action may, as a practical matter, impair or 

impede the applicant’s ability to protect its interest; and (4) the existing parties may not 

adequately represent the applicant’s interest. Prete v. Bradbury, 438 F.3d 949, 954 (9th 

Cir. 2006). See also Fed. R. Civ. P. 24(a)(2). Rule 24(a) is to be construed broadly in 

favor of proposed intervenors. Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1179 

(9th Cir. 2011). 

A. The State’s Motion To Intervene Is Timely 

Whether a motion to intervene is timely is based on three considerations: (1) the 

stage of the proceeding at which the applicant seeks to intervene; (2) the prejudice to the 

other parties; and (3) the reason for and length of delay. See United States v. Covington 

Technologies Co., 967 F.3d 1391, 1394 (9th Cir. 1992). The Ninth Circuit has found that 

a motion to intervene filed “less than two months after the plaintiffs filed their complaint 

and before the defendants filed an answer” was timely. Fund for Animals v. Norton, 322 

F.3d 728, 735 (9th Cir. 2003). Likewise, this motion to intervene is timely. The 

complaint in this matter was filed on December 6, 2017, less than two months ago. None 

of the defendants have yet filed a responsive pleading. No prejudice would result in 

allowing the State to intervene at this time. State has occasioned no substantial delay in 

filing this motion, and it is within the sixty days contemplated by Rule 5.1(c). Fed. R. 

Civ. P. 5.1 (providing that, in an action calling into question the constitutionality of a 

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state statute, “the attorney general may intervene within 60 days after the notice [of 

constitutional question] is filed.”). 

B. The State Has A Compelling Interest In The Subject Matter Of This 

Action And Would Be Affected By An Adverse Ruling. 

The plaintiffs in this matter allege that the Act facially violates the U.S. 

Constitution. The State has an unquestionable interest in defending the constitutionality 

of its laws. See Diamond v. Charles, 476 U.S. 54, 62 (1986) (“[A] State has standing to 

defend the constitutionality of its statute.”); Yniguez v. State of Ariz., 939 F.2d 727, 735 

(9th Cir. 1991) (“[B]ecause the Article III standing requirements are more stringent than 

those for intervention under rule 24(a) . . . our determination that . . . [a party has] 

standing under Article III compels the conclusion that they have an adequate interest 

under the rule.”). Moreover, Federal Rule of Civil Procedure 5.1 provides for the 

intervention of state attorneys general in actions questioning the constitutionality of state 

statutes. 

C. The State’s Interests Are Not Adequately Represented By Existing Parties. 

To intervene as of right, the State must show that the existing parties may not

adequately represent its interests. The Ninth Circuit has held that the “burden of showing 

inadequacy of representation is ‘minimal’ and satisfied if the applicant can demonstrate 

that representation of its interests ‘may be’ inadequate.” Citizens for Balanced Use v. 

Montana Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011) (quoting Arakaki v. 

Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)). 

To assess whether a party’s interest is adequately represented, a court considers 

several factors, including: (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. 

Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 952 (9th Cir. 2009) (emphasis 

added). The “most important factor” in assessing the adequacy of representation is “how 

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the [intervenor’s] interest compares with the interests of existing parties.” Citizens for 

Balanced Use, 647 F.3d at 898. 

Here, Plaintiffs named Arizona Attorney General Mark Brnovich as defendant. 

However, as set forth in the Motion to Dismiss, the Attorney General is a misnamed 

party. Plaintiffs do not allege that the Attorney General has taken any action applying the 

Act to Plaintiffs, let alone one in violation of federal law. See Complaint ¶ 8. Similarly,

absent any actual conduct by the Attorney General, Plaintiffs lack standing to assert their 

claim against him and this Court has no subject matter jurisdiction to hear such a claim. 

However, if the claim against the Attorney General is dismissed, no existing party 

will be able to represent the State’s interests. The State seeks to defend the facial 

constitutionality of the statutes challenged by Plaintiffs’ complaint, and the State 

understands that the Coconino County Defendants may not address the constitutional 

issues at all. Cf. Fund For Animals, Inc. v. Norton, 322 F.3d 728, 736 (D.C. Cir. 2003). 

In any event, the State, charged with representing the interests of all people in Arizona, is 

better situated to advance broader, more comprehensive arguments than the specific 

individuals named in this lawsuit. See also 28 U.S.C. § 2403(b). 

II. THE STATE SHOULD BE PERMITTED TO INTERVENE 

Even if the Court finds that the State is not entitled to intervene as a matter of 

right, it should nevertheless permit the State to intervene. Federal courts may permit 

intervention by litigants who have “a claim or defense that shares with the main action a 

common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Where a litigant “timely 

presents such an interest in intervention,” the Court should consider: 

the nature and extent of the intervenors’ interest, their standing to 

raise relevant legal issues, the legal position they seek to advance, 

and its probable relation to the merits of the case[,] whether changes have 

occurred in the litigation so that intervention that was once denied 

should be reexamined, whether the intervenors’ interests are 

adequately represented by other parties, whether intervention will 

prolong or unduly delay the litigation, and whether parties seeking 

intervention will significantly contribute to full development of the 

underlying factual issues in the suit and to the just and equitable 

adjudication of the legal questions presented. 

 

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Perry v. Schwarzenegger, 630 F.3d 898, 905 (9th Cir. 2011). As explained more fully 

above, the State has a compelling interest in the outcome of this action, has standing to 

defend the constitutionality of its laws, and has interests separate and distinct from those 

of the named defendants. Furthermore, the State’s motion is timely, and its participation 

will not unnecessarily prolong, prejudice, or unduly delay the litigation. Indeed, the 

State’s participation will “significantly contribute to . . . theb just and equitable 

adjudication of the legal questions presented.” Id.

III. CONCLUSION 

For the reasons stated above, the State requests that the Court grant it leave to 

intervene for the purpose of defending the facial constitutionality of A.R.S. § 35-393 et 

seq. 

Respectfully submitted this 18th day of January, 2018. 

MARK BRNOVICH 

ATTORNEY GENERAL 

By: s/ Drew C. Ensign 

Drew C. Ensign (No. 25463) 

Oramel H. (O.H.) Skinner (No. 32891) 

Brunn (Beau) W. Roysden III (No. 28698) 

Evan G. Daniels (No. 030624) 

Keith J. Miller (No. 29885) 

Aaron M. Duell (No. 033450) 

Attorneys for Proposed Intervenor-Defendant 

State of Arizona 

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CERTIFICATE OF SERVICE 

 I hereby certify that on this 18th day of January, 2018, I caused the foregoing 

document to be electronically transmitted to the Clerk’s Office using the CM/ECF 

System for Filing and transmittal of a Notice of Electronic Filing to the following 

CM/ECF registrants: 

Kathleen E. Brody 

Darrell L. Hill 

ACLU Foundation of Arizona 

3707 North 7th Street, Suite 235 

Phoenix, AZ 85014 

Telephone: (602) 650-1854 

kbrody@acluaz.org 

dhill@acluaz.org 

Brian Hauss 

Vera Eidelman 

Ben Wizner 

Speech, Privacy & Technology Project 

125 Broad Street, 18th Floor 

New York, NY 10004 

Telephone: (212) 549-2500 

bhauss@aclu.org 

veidelman@aclu.org 

bwizner@aclu.org 

ACLU Foundation 

 s/ Drew C. Ensign 

Attorney for Proposed Intervenor-Defendant State of Arizona 

Case 3:17-cv-08263-DJH Document 24 Filed 01/18/18 Page 6 of 6