Case 1:12-cv DBH Document 21 Filed 05/09/12 Page 1 of 9 PageID #: 97 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

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1 Case 1:12-cv DBH Document 21 Filed 05/09/12 Page 1 of 9 PageID #: 97 UNITED STATES DISTRICT COURT DISTRICT OF MAINE MAINE ASSOCIATION OF RETIREES, et al. Plaintiffs, and MAINE STATE EMPLOYEES ASSOCIATION, et al. Plaintiff-Intervenors, v. Civil Action No. 1: DBH BOARD OF TRUSTEES OF THE MAINE PUBLIC EMPLOYEES RETIREMENT SYSTEM, et al. Defendants. REPLY IN RESPONSE TO PLAINTIFFS OPPOSITION AND DEFENDANTS CONDITIONAL OPPOSITION TO PLAINTIFF-INTERVENORS MOTION FOR LEAVE TO INTERVENE Plaintiff-Intervenors, by and through the undersigned counsel, hereby reply to Plaintiffs Opposition (Dkt. 17 and Defendants Conditional Opposition (Dkt to Plaintiff-Intervenors Motion for Leave to Intervene (Dkt. 4. ARGUMENT Federal Rule of Civil Procedure 24(a sets two baseline requirements for permissive intervention. First, the intervenors must have a claim or defense that shares with the main action a common question of law or fact. Rule 24(b(1(B. Second, the motion to intervene must be timely. Rule 24(b(1. Plaintiffs do not dispute that Plaintiff-Intervenors easily satisfy each of these foundational requirements. Once this threshold showing has been made, the 1 Defendants response is titled Conditional Opposition to Motion to Intervene and Motion for Entry of Stay. However, the thrust of Defendants response is that at this early juncture, it is too early for a final decision on Plaintiff-Intervenors Motion to Intervene, and therefore consideration of the Motion should be stayed. Plaintiff- Intervenors will respond to Defendants Motion for Entry of Stay in accordance with the deadline set by the Court.

2 Case 1:12-cv DBH Document 21 Filed 05/09/12 Page 2 of 9 PageID #: 98 decision whether to permit intervention is in the sound discretion of the district court. 7C Wright, Miller & Kane, Federal Practice and Procedure, 1911, at p. 453 (3d ed Contrary to Plaintiffs assertion, the relevant factors weigh in favor of granting intervention to Plaintiff-Intervenors. A. The Proposed Intervention Will Not Unduly Delay The Adjudication of Plaintiffs Claims. Plaintiffs argument that intervention by Plaintiff-Intervenors should be denied because it will serve only to complicate the efficient prosecution of Plaintiffs claims, Opp. at pp. 3-4, fails on several grounds. First, although permitting intervention by additional parties will always require some additional time, delay in and of itself does not mean that intervention should be denied. The rule requires the court to consider whether intervention will unduly delay the adjudication. Wright, Miller & Kane, supra, 1913, at pp (emphasis added. The court must remember that Rule 1 charges it with responsibility for both the just and the speedy determination of the action and it must balance whatever delay may occur against the advantages of the disposition of all the claims or defenses in one action. Id. Here, Plaintiff-Intervenors would substantially advance the development of the underlying factual issues, see Motion at pp. 8-9; Belcher Decl. 6-7 (Dkt. 5, and so would help to ensure a just determination of the important constitutional issues at stake. Plaintiffs do not even mention the Declaration of Tim Belcher or the MSEA s role in the legislative process leading to the enactment of the 1999 legislation at issue here, but instead assert that whatever information Plaintiff-Intervenors have to offer can simply be presented through participation as amici. Opp. at p. 6. However, as discussed below, as amici Plaintiff-Intervenors simply would not have the same rights and opportunities as full-fledged parties. 2

3 Case 1:12-cv DBH Document 21 Filed 05/09/12 Page 3 of 9 PageID #: 99 Second, any concerns that intervention will lead to duplicative discovery and unnecessary delay can be alleviated by the Court s exercise of its authority to set discovery deadlines and limit discovery (e.g. number of interrogatories, number of depositions to each side of the litigation, rather than to each party. Furthermore, counsel for Plaintiffs has indicated to the undersigned that Plaintiffs and Defendants do not anticipate the need for any discovery and have agreed that the case will be decided on the papers. Declaration of Jeffrey Neil Young (Young Decl., 2 & Ex. 1 thereto. If Plaintiffs anticipate conducting no discovery in the case, there can be no valid concerns about duplicative discovery or undue delay. 2 Finally, the cases relied upon by Plaintiffs are readily distinguishable. All of the cases relied on by Plaintiffs involve situations in which the would-be intervenors sought to intervene on behalf of a governmental defendant. In each instance, this Court concluded that the government was more than capable of representing the interests of Maine s citizens and defending its own laws. In Daggett v. Webster, 190 F.R.D. 12 (D. Me. 1999, the prospective intervenors, candidates for election, sought to intervene to join the Attorney General s office in defending Maine s campaign finance law. The district court expressly found that the Attorney General is the proper legal representative of the state s interest in defending the validity of its laws and that the representation was completely adequate by any imaginable measure. Id. at Similarly, in Maine v. Norton, 203 F.R.D. 22 (D. Me. 2001, the would-be intervenors, various environmental groups, moved to intervene to join two federal agencies, the National Marine Fisheries Service and Unites States Fish and Wildlife Service, in defending regulations regarding the Atlantic salmon population. Again, the court expressly concluded that the federal agencies were fully capable of defending the regulations. Id. at 29. Under these circumstances, the 2 At this early stage, Plaintiff-Intervenors cannot be certain that they will not see the need for any discovery in this case. 3

4 Case 1:12-cv DBH Document 21 Filed 05/09/12 Page 4 of 9 PageID #: 100 Daggett and Norton courts held that permitting intervention would not enhance the resolution of the case and would only serve to delay and complicate the proceedings. Here, by way of contrast, Plaintiff-Intervenors seek to intervene as plaintiffs in a class action challenging state legislation on constitutional grounds. Unlike in Daggett and Norton, Plaintiff-Intervenors have raised legitimate concerns about whether MAR will adequately represent their interests, as set forth in Plaintiff s Motion to Intervene and discussed in more detail below. Furthermore, again unlike in Daggett and Norton, if intervention is not granted, Plaintiff-Intervenors members can opt out and file their own suit(s, which would lead to delay and potentially duplicative discovery. B. Plaintiff-Intervenors Have Legitimate Concerns About Whether MAR Will Adequately Represent Their Interests. Plaintiffs incorrectly assert that Plaintiff-Intervenors do not question the adequacy of representation. Opp. p. 5. While Plaintiff-Intervenors do not question the adequacy of class counsel, they have raised legitimate concerns about whether MAR will adequately represent the interests of Plaintiff-Intervenors. In their Motion, Plaintiff-Intervenors raised concerns about MAR s ability to finance the litigation. Plaintiff-Intervenors also pointed out that MAR s interests and goals are in some respects at odds with those of Plaintiff-Intervenors, particularly given that the MSEA, MEA and MSTA together represent approximately 7,500 of the prospective class members, most of whom may not be members of MAR, and MAR has expressed hostility toward union involvement. 3 See Mtn. at pp. 7-8; Quint Decl. 2; Walker Decl. 8. Plaintiffs further assert that Plaintiff-Intervenors will have an opportunity to raise the issue of adequacy of representation at the class certification stage. However, there is no indication of when the petition for class certification will be filed. Moreover, adequacy of 3 The Motion to Intervene incorrectly stated that the Plaintiff-Intervenors represent the bulk of the retired employees affected by the 2011 Amendments. The Motion should have stated that Plaintiff-Intervenors represent the bulk of the retired employees affected by the 2011 Amendments who are not members of MAR. 4

5 Case 1:12-cv DBH Document 21 Filed 05/09/12 Page 5 of 9 PageID #: 101 representation is an important factor in the permissive intervention analysis, see Canadian Nat. Ry Co. v. Montreal Maine & Atlantic Ry., 2010 WL , at *8 (D. Me. Dec. 14, 2010, and therefore must be addressed when the court decides the Motion to Intervene. 4 Plaintiffs claim that Plaintiff-Intervenors are trying to inject additional issues and unnecessarily complicate the case (Opp. at p. 6 misunderstands Plaintiff-Intervenors argument. Plaintiff-Intervenors do not seek to expand the proposed class beyond retirees. However, retirees who were members of the MSEA, MEA and MSTA during their employment have voluntarily elected to pay dues and have their interests protected and advanced by those organizations after their retirement. Although some of Plaintiff-Intervenors retiree members are also members of MAR, most may not be; Plaintiff-Intervenors cannot know the precise numbers without knowing more about MAR s membership. Plaintiff-Intervenors retiree members arguably would prefer to be represented by the organizations to which they are paying dues and with which they have longstanding relationship, not by an organization that has expressed hostility toward unions. Moreover, here again, Plaintiffs fail to address the import of the unions role in the enactment of the legislation. See Belcher Decl., 6-7. Contrary to Plaintiff s assertion (Opp. at p. 6, n.4, collective bargaining may be relevant to this case, to the extent the unions agreed to forego wages, benefits or conditions of employment in return for the enactment of legislation on retiree benefits. Finally, the case law relied upon by Plaintiffs regarding adequacy of representation is clearly distinguishable. In Massachusetts Food Ass'n v. Massachusetts Alcoholic Beverages Control Comm'n, 197 F.3d 560, 567 (1 st Cir. 1999, would-be intervenors, several trade organizations, moved for intervention to join the Commonwealth of Massachusetts in defending a statute regarding liquor stores. The court concluded that the Commonwealth was adequately 4 Consideration of the adequacy of representation could be deferred if, as Defendants request, the consideration of the Motion to Intervene were stayed until the court s consideration of the petition for class certification. 5

6 Case 1:12-cv DBH Document 21 Filed 05/09/12 Page 6 of 9 PageID #: 102 representing the interests of everyone concerned to defend the statute, noting that courts have been quite ready to presume that a government defendant will adequately represent the interests of all private defenders of the statute or regulation unless there is a showing to the contrary. Id. at 567, 568. Thus, Mass. Food Ass n, like Daggett and Norton, reflects the general presumption that the government, in defending its own laws, will adequately represent the interests of all citizens who support the law. That presumption is wholly inapplicable in this case. 5 C. Plaintiff-Intervenors Interest In This Action Is Not Adequately Addressed By Granting Them Amici Status. Plaintiffs claim that whatever facts the Proposed Intervenors have to offer, that information can be presented through participation as amici or friendly witnesses. Opp. at p.7. However, amici simply do not have the same opportunities or status as a full-fledged party. An amicus is not a party and does not represent the parties but participates only for the benefit of the court. Alliance of Automobile Mfrs. v. Gwadowsky, 297 F.Supp.2d 305, (D. Me (internal quotation marks and citation omitted; see also New England Patriots Football Club, Inc. v. University of Colorado, 592 F.2d 1196, 1198 (1 st Cir (defining an amicus as one who, not as parties,... but, just as any stranger might, for the assistance of the court gives information of some matter of law in regard to which the court is doubtful or mistaken (internal quotation marks and citations omitted. An amicus is not afforded many of the basic rights and opportunities that a party enjoys for example, the right to participate in 5 Citing 5 M.R.S.A , Plaintiffs question Plaintiff-Intervenors ability to bring claims on behalf of the proposed class, noting that members of the MEA and MSEA occupy seats on the Board of Trustees of the Maine State Retirement System. Opp. p. 5, n.3. However, once appointed to the Board of Trustees, those trustees have an independent fiduciary obligation to administer MePERS. In other words, their duty is to the plan participants, not to the MSEA or MEA, and it is entirely inaccurate to suggest that the union intervenors would be on both sides of this case. Moreover, MAR seeks to represent a class of all 28,000 retirees receiving retirement benefits as of June 20, 2011, Complaint 30. At least one of the MePERS Board members, George Burgoyne, is a current recipient of retirement benefits and therefore is also a member of the class. Thus, to the extent there is any conflict (which Plaintiff-Intervenors contend there is not, that conflict likewise applies to the existing Plaintiffs. Finally, to alleviate any concerns about an appearance of conflict, George Burgoyne, a MePERS Board member who was also a member of the MSEA Board, and Kenneth Williams, a MePERS Board member who was also a member of the MEA Board, have resigned their memberships on the MSEA and MEA Boards. Young Decl.,

7 Case 1:12-cv DBH Document 21 Filed 05/09/12 Page 7 of 9 PageID #: 103 settlement negotiations, the right to participate in oral argument, the right to examine or crossexamine witnesses in deposition or at trial, the right to engage in written discovery, and the right to appeal an adverse decision. and the right on appeal to advance new arguments not made by a party. Weaver s Cove Energy, LLC v. Rhode Island Coastal Resources, 589 F.3d 458, 467 (1 st Cir Permitting Plaintiff-Intervenors to participate as amici is not equivalent to granting them leave to intervene as party plaintiffs. D. Plaintiff-Intervenors Ability To Opt Out Of The Class Further Counsels In Favor Of Granting Intervention. Finally, Plaintiffs acknowledge that Plaintiff-Intervenors can protect their interests by either opting out of the class or raising their concerns at a fairness hearing. Opp. at p.7. This is true, but it is an argument in favor of granting intervention, not against it. This is not a case in which Plaintiff-Intervenors represent just a few individuals, or are public policy organizations that seek to join governmental defendants in defending a state law or regulation. Compare Daggett, 190 F.R.D. 12; Norton, 203 F.R.D. 22. Rather, in this case, Plaintiff-Intervenor organizations represent approximately 7,500 individual retirees, or about one-fourth of the prospective class. If the MEA, MSEA and MTA were denied permissive intervention, then their 7,500 retiree members could opt out of this action and file their own action(s. Multiple separate and duplicative actions clearly would not serve the interests of judicial economy, nor would they promote a just adjudication of the constitutional questions at issue in this case. CONCLUSION For all of the foregoing reasons, as well as the reasons set forth in their Motion to Intervene, Plaintiff-Intervenors respectfully request that the Court grant the Motion to Intervene. 7

8 Case 1:12-cv DBH Document 21 Filed 05/09/12 Page 8 of 9 PageID #: 104 Dated: May 9, 2012 Respectfully submitted, /s/ Jeffrey Neil Young Jeffrey Neil Young McTEAGUE HIGBEE Four Union Park P.O. Box 5000 Topsham, ME Telephone: ( jyoung@mcteaguehigbee.com Attorney for Plaintiffs-Intervenors Maine State Employees Association, Rona Backstrom, Kathleen Kadi, and Robert Ruhlin; Maine Education Association, Robert Walker, and Philip Gonyar; and Maine State Troopers Association, Craig Poulin, and Timothy Culbert /s/ Carol J. Garvan Carol J. Garvan McTEAGUE HIGBEE Four Union Park P.O. Box 5000 Topsham, ME Telephone: ( cgarvan@mcteaguehigbee.com Attorney for Plaintiffs-Intervenors Maine State Employees Association, Rona Backstrom, Kathleen Kadi, and Robert Ruhlin; Maine Education Association, Robert Walker, and Philip Gonyar; and Maine State Troopers Association, Craig Poulin, and Timothy Culbert 8

9 Case 1:12-cv DBH Document 21 Filed 05/09/12 Page 9 of 9 PageID #: 105 CERTIFICATE OF SERVICE I, Jeffrey Neil Young, hereby certify that on May 9, 2012, I electronically filed Plaintiff- Intervenors Reply In Response To Plaintiffs Opposition And Defendants Conditional Opposition To Plaintiff-Intervenors Motion For Leave To Intervene and Declaration of Jeffrey Neil Young in support thereof with the Clerk of the Court using the CM/ECF system, which will send notification of such filings to the following counsel of record: James T. Kilbreth, Esq. Drummond Woodsum 84 Marginal Way, Suite 600 Portland, ME jkilbreth@dwmlaw.com Attorney for Plaintiffs Timothy C. Woodcock, Esq. Eaton Peabody P. O. Box 1210 Bangor, ME twoodcock@eatonpeabody.com Attorney for Defendants /s/ Jeffrey Neil Young Jeffrey Neil Young McTEAGUE HIGBEE Four Union Park, P.O. Box 5000 Topsham, ME ( jyoung@mcteaguehigbee.com 9