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SOS Motion to Intervene

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SOS Motion to Intervene Clerk of the Superior Court *** Electronically Filed *** T. Hays, Deputy 4/27/2021 9:34:01 AM Filing ID 12822354 1 Mary R. O’Grady, 011434 Joshua D. Bendor, 031908 2 Emma J. Cone-Roddy, 034285 OSBORN MALEDON, P.A. 3 2929 North Central Avenue, 21st Floor Phoenix, Arizona 85012-2793 4 (602) 640-9000 [email protected] 5 [email protected] [email protected] 6 Attorneys for Secretary of State Katie Hobbs 7 8 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 9 IN AND FOR THE COUNTY OF MARICOPA 10 ARIZONA DEMOCRATIC PARTY, an 11 Arizona political party and political action No. CV2021-006646 12 committee; and STEVE GALLARDO, a qualified elector, MOTION TO INTERVENE 13 Plaintiffs, 14 (Assigned to the Honorable vs. Daniel G. Martin) 15 KAREN FANN, in her official capacity as 16 President of the Arizona Senate; WARREN PETERSEN, in his official capacity as 17 Chairman of the Senate Judiciary Committee; KEN BENNETT, in his official 18 capacity as the liaison of the Arizona Senate; and CYBER NINJAS, INC., a 19 Florida corporation, 20 Defendants. 21 Secretary of State Katie Hobbs moves to intervene as a plaintiff in this action. A 22 proposed Complaint is attached to this motion as Exhibit A. 23 I. Introduction 24 As Arizona’s Chief Election Officer, the Secretary is charged with developing 25 rules to ensure the “maximum degree of correctness, impartiality, uniformity and 26 efficiency on the procedures for early voting and voting, and of producing, distributing, 27 collecting, counting, tabulating, and storing ballots.” A.R.S. § 16-452. The Secretary is 28 1 also charged with certifying election equipment and canvassing election results. A.R.S. 2 §§ 16-442, 16-645(B) . The Secretary is interested in ensuring that the Senate’s audit at 3 issue in this case does not violate the procedures she has carefully established or 4 undermine the administration of elections in Arizona, such as by damaging election 5 equipment, intimidating voters, or revealing confidential voter information. 6 Given this interest, the Secretary may intervene as of right in this action under 7 Rule 24(a). Additionally, two separate provisions of Rule 24(b) authorize the Court to 8 permit the Secretary to intervene, and permissive intervention is appropriate under the 9 liberal standard set forth in Bechtel v. Rose, 150 Ariz. 68, 72 (1986). The Secretary is 10 the State’s Chief Election Officer and allowing her to participate in this action will 11 promote the just and efficient resolution of this important dispute while providing 12 valuable assistance to the Court. 13 II. Rule 24(a) provides for intervention as of right. 14 “On timely motion, the court must permit anyone to intervene who: . 15 (2) claims an interest relating to the subject of the action, and is so situated that 16 disposing of the action in the person’s absence may as a practical matter impair or 17 impede the person’s ability to protect that interest, unless existing parties adequately 18 represent that interest.” Ariz. R. Civ. P. 24(a). The Secretary easily meets this four-part 19 standard. 20 First, the Secretary’s motion is timely, as this action was commenced three 21 business days ago and no evidence has been heard. 22 Second, the Secretary has an interest in the subject matter of this action, which is 23 whether Cyber Ninjas (1) is bound by the election rules that the Secretary has lawfully 24 promulgated and (2) is violating those rules, and state and federal election statutes, on a 25 massive scale. See Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967) (“[A] state 26 official directly concerned in effectuating the state policy has an ‘interest’ in a legal 27 controversy . which concerns the nature and protection of the state policy.”) 28 (interpreting the substantively identical federal rule). 2 1 Third, if the Secretary is not allowed to participate in this action as a party, these 2 important issues of public law will be resolved based on arguments and evidence put 3 forward by a political party, a voter,1 two Senators, and a private contractor, without 4 adequate input from any government officer responsible for the conduct of elections. 5 See id. at 702(“[W]e must recognize the practical consequences of the failure to allow 6 [the responsible government official] an opportunity to advance (his) own theories both 7 of law and fact in the trial (and appeal) of the pending case.”) (citation omitted). 8 Fourth, the Plaintiffs may not adequately represent the Secretary’s interests. The 9 Secretary’s interest is in ensuring the “maximum degree of correctness, impartiality, 10 uniformity and efficiency” in the administration of elections. A.R.S. § 16-452. By 11 contrast, Plaintiffs represent the interests of a political party and an individual voter. 12 See Nuesse, 385 F.2d at 703 (noting the potential divergence between the interests of a 13 Wisconsin bank and Commissioner of Banks of the State of Wisconsin). Not only are 14 the Secretary’s interests broader than and distinct from the Plaintiffs, but the Secretary 15 has access to expertise that will allow the Secretary to present evidence and arguments 16 that the other parties to this lawsuit may not be able to present. See id. at 704 (“In 17 adducing evidence on this issue, the state banking commissioner may be in a better 18 position than a single state bank to provide full ventilation of the legal and factual 19 context of this critical definition.”) 20 Accordingly, the Court should “hold there is a serious possibility that the 21 Secretary’s interest may not be adequately represented by any existing party, and that 22 [s]he is entitled to participate as a party and not merely as a friend of court.” Id. 23 III. In the alternative, Rule 24(b) provides for permissive intervention. 24 In the alternative, the Court should permit the Secretary to intervene under the 25 permissive intervention provisions of Rule 24(b). As a general matter, “intervention to 26 27 1 Plaintiff Steve Gallardo serves on the Maricopa County Board of Supervisors, which has responsibility for the conduct of Maricopa County elections, but he is a party to this 28 action solely in his capacity as a qualified elector of Maricopa County. 3 1 promote a relevant public interest is permissible when the public official charged with 2 primary responsibility for vindicating that interest seeks to defend it.” Id. at 705 (citing 3 SEC v. United States Realty & Improvement Corp., 310 U.S. 434 (1940)). Moreover, 4 “[i]t is well settled in Arizona that Rule 24 is remedial and should be liberally construed 5 with the view of assisting parties in obtaining justice and protecting their rights.” 6 Bechtel, 150 Ariz. at 72 (citation omitted). “Under this liberal standard, the intervenor- 7 by-permission does not even have to be a person who would have been a proper party at 8 the beginning of the suit.” Id. (citation and quotation marks omitted). 9 A. The requirements for permissive intervention are satisfied. 10 “When determining whether permissive intervention should be granted, the trial 11 court must first decide whether the statutory conditions promulgated in Rule 24(b)(1) or 12 24(b)(2) have been satisfied.” Id. A party need not satisfy both Rule 24(b)(1) and 13 24(b)(2); they are alternatives. But in this case, the Secretary satisfies both conditions. 14 Rule 24(b)(1) allows “anyone to intervene who . (B) has a claim or defense 15 that shares with the main action a common question of law or fact.” The Secretary’s 16 claims and the original Complaint share the same fundamental questions: whether the 17 Elections Procedures Manual and other election laws apply to Defendants’ audit and 18 whether Defendants’ audit is violating those laws. 19 In addition, Rule 24(b)(2) allows “a state governmental officer or agency to 20 intervene if a party’s claim or defense is based on: (A) a statute administered by the 21 officer or agency; or (B) any regulation, order, requirement, or agreement issued or 22 made under a statute administered by the officer or agency.” Plaintiffs’ claims rest on 23 the Elections Procedures Manual, see Compl. ¶¶ 57-58, 62-71, which is a regulation or 24 requirement made under a statute administered by the Secretary. See A.R.S. § 16-452 25 (directing the Secretary to develop the Elections Procedures Manual and providing that 26 violations of the Manual constitute a class 2 misdemeanor). 27 28 4 1 B. The Court should permit the Secretary to intervene in this action. 2 In deciding whether to permit intervention, “relevant factors include the nature 3 and extent of the intervenors’ interest, their standing to raise relevant legal issues, the 4 legal position they seek to advance, and its probable relation to the merits of the case.” 5 Bechtel, 150 Ariz. at 72 (citation omitted). All those factors weigh in support of 6 permitting the Secretary to intervene. The Secretary has a strong interest in ensuring 7 that the provisions of the Elections Procedures Manual and state and federal election 8 law are not violated on a massive scale during Defendants’ handling of 2.1 million 9 ballots and associated electronic voting equipment. And as the State’s Chief Elections 10 Officer, the Secretary is well-positioned to raise these issues, which go to the core of the 11 merits of this case. 12 The court may also consider “whether the intervenors’ interests are adequately 13 represented by other parties, whether intervention will prolong or unduly delay the 14 litigation, and whether parties seeking intervention will significantly contribute to full 15 development of the underlying factual issues in the suit and to the just and equitable 16 adjudication of the legal questions presented.” Id.
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