Case :-cv-00-rcj-wgc Document Filed 0// Page of JOHN P. PARRIS, ESQ. Nevada Bar No. Law Offices of John P. Parris South Third Street, Suite Las Vegas, Nevada Telephone: (0)--00 Facsimile: (0)--0 ATTORNEY FOR INTERVENOR-DEFENDANT UNITED STATES DISTRICT COURT DISTRICT OF NEVADA WENDY TOWNLEY, et al.; v. Plaintiffs, ROSS MILLER, in his official capacity as Secretary of State for the State of Nevada, Defendant. CASE NO. :-cv-00-rcj-wgc MOTION FOR INTERVENTION PURSUANT TO F.R.C.P. KINGSLEY EDWARDS ( Movant ) hereby moves this Court, by and through his counsel, to intervene in the above-entitled action pursuant to F.R.C.P. (a) and (b). The motion to intervene is supported by the pleadings and papers on file herein, the memorandum of points and authorities below, and any oral argument this Court sees fit to allow. This Court should allow Movant to intervene pursuant to F.R.C.P. (a) for the following reasons: (a) The motion to intervene is timely; no party will suffer prejudice if Movant is added as intervenor-defendant; and intervention will not unduly delay adjudication of the original parties' rights;
Case :-cv-00-rcj-wgc Document Filed 0// Page of (b) Movant has an interest in the subject of the action i.e., his continued ability to vote for None of the Candidates in Nevada statewide elections; (c) Movant is so situated that disposition of the present action could impede and impair their ability to protect their interests; and (d) Movant s interests are not already adequately represented by the current parties. Alternatively, this Court should permit Movant to intervene pursuant to F.R.C.P. (b) for the following reasons: (a) Movant has a defense to the Complaint that shares with the main action a common question of law or fact, namely, that Nevada Revised Statutes. is constitutional and does not violate the rights of those voters who voluntarily choose to exercise their right to vote for that alternative; and (b) parties rights. Intervention will not unduly delay or prejudice the adjudication of the original DATED this _th_ day of July,. LAW OFFICES OF JOHN P. PARRIS /s/ John P. Parris JOHN P. PARRIS, ESQ. Nevada Bar No. South Third Street, Suite Las Vegas, Nevada Telephone: (0)--00 Facsimile: (0)--0 Email: jparris@johnparrislaw.com ATTORNEY FOR INTERVENOR- DEFENDANT --
Case :-cv-00-rcj-wgc Document Filed 0// Page of MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs in this case challenge the constitutionality of N.R.S.., which permits Nevada voters voluntarily to choose a None of the Candidates alternative in statewide elections for federal and state office. Movant has exercised that option in the past, and desires to retain the option to cast votes for that alternative in the November, general election and/or future elections. He should be allowed to intervene as of right pursuant to F.R.C.P. (a) to protect his fundamental right to vote in accordance with the statute Plaintiffs challenge. Moreover, his interests are not adequately represented by Defendants, which must represent the interests of all Nevada citizens, including both Plaintiffs and Movant, and which are subject to political and budgetary constraints in their defense of this action that do not apply to Movant. In the alternative, Movant should be permitted to intervene by permission of the Court pursuant to F.R.C.P. (b), because the shares a defense with the main action i.e., the claim that N.R.S.. violates neither the United States Constitution nor federal law. II. DISCUSSION Movant Should Be Permitted to Intervene in This Action as of Right Because the Requirements of NRCP (a) Are Satisfied Intervention as a matter of right is governed by FRCP (a), which states as follows: (a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action:... () when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant s interest is adequately represented by existing parties. The requirements of Rule (a)() are broadly interpreted in favor of intervention. Citizens for Balanced Use v. Montana Wilderness Ass n, F.d, (th Cir. ). --
Case :-cv-00-rcj-wgc Document Filed 0// Page of Movant meets all of the requirements for intervention of right. First, this Motion is timely. Plaintiffs filed their original Complaint on June, and an Amended Complaint on June. Defendants filed an Answer and a Motion to Dismiss on July. Briefing has only just begun with respect to both of the pending motions and so far no hearing date has been set for either motion. Intervenor will not seek to delay the briefing or hearing of either motion. Accordingly, no prejudice to any party will result from allowing intervention now. Second, Movant has a substantial, legally-protectable interest in the outcome of this litigation. Under Ninth Circuit precedent, a party has a sufficient interest for intervention purposes if it will suffer a practical impairment of its interests as a result of the pending litigation. California ex rel Lockyer v. United States, 0 F.d, (th Cir. 0). Movant easily qualifies under this standard. He seeks to protect the rights afforded him under Nevada law to vote for a None of the Candidates alternative in statewide elections. His interest in voting for his preferred alternative is sufficient to justify intervention. See, e.g., United Latin American Citizens v. City of Bourne, F.d, (th Cir. ) (reversing denial of intervention as of right: voter s interest in voting for all five city council candidates in at-large election sufficient to support intervention). Third, disposition of this action may, as a practical matter, impede and impair the interest Movant claims in this action. Plaintiffs Complaint prays for an injunction prohibiting the State from allowing None of these candidates to appear on any ballots, voting machines, or other voting systems, in any future elections, including but not limited to the November, general election. Complaint. Consequently, if Plaintiffs are successful, Movant would forever lose his right under Nevada law to vote for None of these candidates, a right he has exercised previously and wishes to preserve for potential future use. Fourth, and finally, the current Defendant does not adequately represent Movant's interests. The requirement of inadequacy of representation is satisfied if the applicant shows that representation of its interests may be inadequate and... the burden of making this showing is minimal. Sagebrush Rebellion, Inc. v. Watt, F.d, (th Cir. ). Although --
Case :-cv-00-rcj-wgc Document Filed 0// Page of the current Defendant may also defend the constitutionality of N.R.S.., the Secretary of State who is being sued in his official capacity does not have the same personal stake in the outcome that Movant does. For the Secretary of State, a loss would mean that he could not enforce one of dozens of state statutes within his domain. In contrast, a loss for Movant would deprive him of an invaluable right: the opportunity to exercise a voting option currently provided by Nevada law that he has exercised in the past and intends to exercise again in the future. Defendant and Movant are also subject to different political and legal constraints. The Secretary of State s interest in defending this case is and must be tempered not only by competing claims on the public fisc, but also by concerns over how his actions will be viewed by the voters who elected him. Indeed, Defendants must represent all the State s citizens, both Plaintiffs and Movant, acting and litigating as neutral arbiters of the electoral process. Consequently, Defendant is subject to resource limitations and political constraints that do not apply to Movant, who intends to represent only his own interests. That is enough to show inadequacy of representation. For example, in Clark v. Putnam County, F.d (th Cir. ), voters sought to intervene to protect a prior judicial decree establishing a single-member district system for electing county commissioners. Even though the commissioners announced their intention also to defend the single member system, the Eleventh Circuit held that their interests were not identical to, or adequately represented by, the defendant commissioners. The court stated that because the commissioners intended to represent the interests of all Putnam County citizens, including both the plaintiffs and the proposed intervenor, the commissioners cannot adequately represent the proposed defendants while simultaneously representing the plaintiffs' interests. Id. at. Similarly, the court held that the commissioners had an interest different than the proposed intervenor because they had a duty to consider the expense of defending the current plan out of county coffers. Id. at -. Finally, the court held that the commissioners interests were distinct from those of the would-be intervenor because the commissioners are undisputably elected officials, and like all elected officials they have an interest in remaining politically popular and effective leaders. Id. at --
Case :-cv-00-rcj-wgc Document Filed 0// Page of [ (citation and internal quotation marks omitted). All these factors apply equally to the present case. See In re Sierra Club, F.d, 0 (th Cir. ) (district court erred in denying Sierra Club s motion to intervene: while state defendant should represent all of the citizens of [] the state, Sierra Club does not need to consider the interests of all South Carolina citizens"). These disparate interests could easily produce conflicting positions in the future, to Movant s prejudice. If this case resulted in a judgment that was unfavorable to the existing Defendant, political and/or budgetary constraints could influence a decision not to appeal, or not to seek to have that appeal expedited in time for a decision prior to the November general election. At that point, Movant would have to move to intervene again, in order to pursue an expedited appeal to protect their right to vote in November. It would be far easier, and far less disruptive to the orderly process of judicial administration, for intervention to occur now. Finally, intervention is warranted because Movant wishes to present an additional defense that the Secretary of State has not raised: laches. Although None of these candidates has been part of Nevada law for decades, and any voter would have known years ago that it would be an option for the November general election, plaintiffs waited to file this case until early June, ] For similar reasons, the federal courts have held in dozens of cases that governmental defendants cannot adequately represent the interests of private intervenors, even if they take the same position on the merits of the underlying litigation. See, e.g., Georgia v. U.S. Army Corps of Eng rs, 0 F.d, (th Cir. 0) (intervention as of right allowed even though litigation positions were identical, because court did not believe that a federal defendant with a primary interest in the management of a resource has interests identical to those of an entity with economic interests in the use of that resource ); Sw. Ctr. for Biological Diversity v. Berg, F.d, (th Cir. 0) (inadequacy of representation found where defendant City s range of considerations in development is broader than the profitmotives animating [intervenor] developers ); Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, F.d, 0 (th Cir. ) (affirming district court s grant of intervention where the employment interests of [intervenor s] members were potentially more narrow and parochial than the interests of the public at large ); Sierra Club v. Espy, F.d 0, 0 (th Cir. ) ( [t]he government must represent the broad public interest, not just the economic concerns of the timber industry ); Conservation Law Found., Inc. v. Mosbacher, F.d, (st Cir. ) ( the intervenors interests in protecting their industries were more narrowly focused than the governmental agency s interest in implementing the law ). --
Case :-cv-00-rcj-wgc Document Filed 0// Page of two months before the ballots must be printed and distributed. (Distribution of ballots to military and overseas voters begins on September,.) Accordingly, plaintiffs inexcusable and unexplained delay in bringing this case will inevitably result in a truncated and rushed judicial process. That is not the way supposedly important constitutional claims should be litigated. See Nader v. Keith, F.d, (th Cir. 0) (Posner, J.) ( [I]t would be inequitable to order preliminary relief in a suit filed so gratuitously late in the campaign season. It wasn t filed until June, only a little more than four months before the election. ) And because the Secretary of State has not raised this issue, the Court cannot say that the defendant will undoubtedly make all of intervenor s arguments, which is an additional factor favoring intervention. Sagebrush Rebellion, Inc., F.d at. B. In the Alternative,the Court Should Grant Permissive Intervention Under NRCP (b) As shown above, Movant meets the requirements for intervention as a matter of right. However, in the event that the Court determines that Movant does not meet the requirements of FRCP (a), permissive intervention under FRCP (b) is proper in the alternative. Rule (b) states as follows: (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: () when a statute confers a conditional right to intervene; or () 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 requirements for permissive intervention are met in this case. Movant s defense of N.R.S.. against Plaintiffs claims raises numerous questions of law in common with the main action. Moreover, permissive intervention will not unduly delay or prejudice adjudication of the rights of the original parties. Given that no issue of prejudice to any original party exists, --
Case :-cv-00-rcj-wgc Document Filed 0// Page of and that the issue at stake in this litigation is of genuine and important public interest, Movant asks this Court to permit him to intervene in the present case. III. CONCLUSION Movant s intervention is proper under both prongs of F.R.C.P., and he asks this Court to grant the present Motion. DATED this th day of July,. LAW OFFICES OF JOHN P. PARRIS /s/ John P. Parris JOHN P. PARRIS, ESQ. Nevada Bar No. South Third Street, Suite Las Vegas, Nevada Telephone: (0)--00 Facsimile: (0)--0 Email: jparris@johnparrislaw.com ATTORNEY FOR INTERVENOR- DEFENDANT --
Case :-cv-00-rcj-wgc Document Filed 0// Page of CERTIFICATE OF SERVICE th I hereby certify that on the day of July,, the foregoing MOTION TO INTERVENE was submitted and served, using the Court's ECF system, to the following parties: Catherine Cortez Masto, Esq. Attorney General Kevin Benson, Esq. Deputy Attorney General 0 North Carson Street Carson City, NV 0 Attorney for the Secretary of State Paul S. Prior, Esq. Snell & Wilmer Howard Hughes Parkway Suite 00 Las Vegas, NV Attorney for Plaintiffs Michael T. Morley, Esq. E Street, N.W. # Washington, DC 00 Attorney for Plaintiffs --