Doe v. Horne

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Helen Doe, et al., No. CV-23-00185-TUC-JGZ 10 Plaintiffs, ORDER 11 v. 12 Thomas C Horne, et al., 13 Defendants. — 14 — 15 Plaintiffs filed this action on April 17, 2023, challenging A.R.S. § 15-120.02, which 16 provides that interscholastic or intramural “[a]thletic teams or sports designated for 17 ‘females’, ‘women’ or ‘girls’ may not be open to students of the male sex.” The law went 18 into effect on September 23, 2022. Plaintiffs challenge the implementation of A.R.S. § 1519 120.02 by Defendants Horn, State Superintendent of Public Instruction; Laura Toenjes, 20 Superintendent of the Kyrene School District; the Kyrene School District; the Gregory 21 School, and the Arizona Interscholastic Association (AIA). 22 On June 12, 2023, the Court granted the Intervenor Legislator Defendants 23 permissive intervention, not intervention as a right, because the Legislators failed to show 24 that their interests will not be adequately represented by Defendant Horne. The Court 25 found, however, that Defendant Horn’s reliance on expert declarations submitted by the 26 Legislators in opposition to the motion for preliminary injunction meant that intervention 27 by the legislators for the adjudication of the preliminary injunction would likely contribute 28 to the full development of the record for resolving the Motion for Preliminary Injunction. 1 The Court granted intervention but limited the proposed filings by the Intervenor Legislator 2 Defendants to the Objection to the Plaintiffs’ Motion for Preliminary Injunction. See Order 3 (Doc. 79) at 8-9 (citing Dep’t of Fair Employment & Hous. v. Lucent Techs., Inc., 642 F.3d 4 728, 741 (9th Cir. 2011) (explaining authority to grant or deny permissive intervention 5 “includes discretion to limit intervention to particular issues.”)) 6 To be clear, Warren Peterson, President Arizona Senate, and Ben Toma, Speaker of 7 the House, have been added to the case as Intervenor Legislator Defendants. The Court did 8 not grant leave for the Intervenor Legislators to file their proposed Motion to Dismiss. The 9 matter of the preliminary injunction being fully briefed, it is set for oral argument on 10 Monday, July 10, 2023. (Min. Entry (Doc. 80)), with the full participation of the Intervenor 11 Legislator Defendants. 12 On June 30, 2023, Arizona Women of Action (AWA) (Anna Van Hoek, Lisa Fink, 13 and Amber Zenczak) filed a Motion to Intervene as mothers of biologically born girls, who 14 play girls’ sports at public and private schools in Arizona. The motion is not fully briefed 15 but the Court notes that these women participated, including presenting testimony, before 16 the Arizona legislature in favor of the passage of A.R.S. § 15-120.02. They propose filing 17 a Motion to Dismiss. They do not seek intervention on the issue of the preliminary 18 injunction. The Court finds that intervention as to the preliminary injunction would be 19 untimely. See Order (Doc. 79) at 3, 8 (citing Dep’t of Fair Employment & Hous. v. Lucent 20 Techs., Inc., 642 F.3d 728, 741 (9th Cir. 2011) (identifying timeliness as one factor 21 favoring intervention if it will not unduly delay or prejudice the adjudication of the original 22 parties’ rights)); see also Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326 , 1329 23 (9th Cir. 1977). 24 The Court notes that the AWA proposed Motion to Dismiss (Doc. 98-1) is 26 pages 25 long (the argument is approximately 17 pages, with additional pages for the Table of 26 Contents and Table of Authorities). The motion exceeds the allowed page limit under the 27 Local Rules of Practice, Rule 7.2(e), which provides the length of a motion, “unless 28 otherwise permitted by the Court, [] including its supporting memorandum, and the 1 response including its supporting memorandum, [to] not exceed seventeen (17) pages, 2 exclusive of attachments and any required statement of facts.” It is not this Court’s practice 3 to treat the Table of Contents or Table of Cases as attachments. 4 Additionally, the Court, in the interest of judicial economy and efficiency, may 5 exercise its broad discretion by ordering intervenor defendants to join in the same brief. 6 Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 383 (1987) (Brennan, J., 7 concurring) (finding restrictions on participation may be placed on an intervenor, 8 intervening as of right); Res. Renewal Inst. v. Nat’l Park Serv., 2016 WL 11673178 , at *2 9 (N.D. Cal. Sept. 2, 2016) (finding where intervention of right is warranted, district court 10 retains broad discretion to set scope of intervention); U.S. v. Blue Lake Power, LLC, 215 11 F. Supp. 3d 838, 844 (N.D. Cal. 2016); Ctr. for Biological Diversity v. Jewell, 2015 WL 12 13707289, at *2 (D. Ariz. May 7, 2015) (placing restrictions on intervention of right to 13 facilitate efficient proceedings)); see also Ellis v. Bradbury, 2013 WL 4777201 (N.D. Cal. 14 Sept. 6, 2013) (requiring different pesticide companies to file joint briefs in EPA pesticide 15 challenge); Cal. Sea Urchin Comm’n v. Jacobson, 2013 WL 12114517 , at *6 (C.D. Cal. 16 Oct. 2, 2013) (same). 17 Likewise, the Court may require intervenor defendants “to take special efforts” to 18 ensure that their briefing and arguments are not redundant with those of the Defendants. 19 W. Watersheds Project v. Zinke, 2018 WL 6816048 , at *3 (D. Idaho Dec. 27, 2018), see 20 also Picayune Rancheria of Chukchansi Indians v. Yosemite Bank, No. 1:13–cv–0831– 21 LJO–MJS, 2013 WL 5154258 , at *5 (E.D. Cal. Sept. 10, 2013) (conditioning intervention 22 “upon the requirement that proposed intervenor coordinate in detail with the existing 23 parties to avoid duplicative briefing”); Bark v. Northrop, No. 3:13–cv–01267–HZ, 2013 24 WL 6576306 , at *8 (D. Or. Dec. 12, 2013) (ordering that the intervenor “must not duplicate 25 any arguments made by the Forest Service”). 26 In the Motion to Intervene, AWA asserts various reasons why Defendant Horn will 27 not adequately represent their interests but ignores the commonality between AWA and 28 the Intervenor Legislator Defendants. In the Reply, the AWA should address this issue and || propose how the two Intervenor Defendants can combine briefing to not overwhelm □□ Plaintiffs with an unfair advantage by using their briefs to pile-on more than one bite at 3 || arguments presented in this case. 4 Accordingly, 5 IT IS ORDERED that within 14 days of the filing date of this Order, the Plaintiffs || shall file a Response to the AWA Motion to Intervene (Doc. 98). AWA shall file a Reply pursuant to LRCiv. 7.2(d) and (e)(2). 8 IT IS FURTHER ORDERED that the Reply shall address the scope of 9|| intervention, if granted, for the purpose of briefing the Court regarding issues arising in || this action, including jointly filed Intervenor Defendant briefs, limited in total to the same 11 || page lengths as the Plaintiffs’ briefs, subject to requests for extended pages if necessary. || The parties are not precluded from seeking leave to file over-length briefs, pursuant to a 13 || stipulation. 14 Dated this 7th day of July, 2023. — 15 — 16 □ 17 pote Spe 18 ; Honorable Jennife Me Zfpps United States District Judge — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -4-