In the Gila River Indian Community v. United States litigation over proposed gaming lands benefiting the Tohono O’odham Nation, there have been numerous efforts by Arizona state politicians to intervene in the suit. No party seems to want them there, and they don’t seem to be adding a whole lot to the suit in terms of substance, and the court largely had refused to let individual politicians in the case — at first. Here are the first two orders, denying two such requests:
DCT Order Denying Sen Pearce Motion to Intervene
DCT Order Denying Scott Bundgaard Motion to Intervene
On November 19, however, Judge Campbell permitted the intervention of “Legislative Leaders” of the Arizona Legislature. Here is that order: DCT Order Permitting Intervention of Ariz Legislators.
Why?
Interestingly, the court notes that the Arizona Supreme Court has held: “legislators who ‘bring [an] action without the benefit of legislative authorization should not, except perhaps in the most exceptional circumstances, be accorded standing to obtain relief on behalf of the legislature.'” Judge Campbell holds that this case meets the “most exceptional circumstances” test:
This case is such an exceptional circumstance. Proposed intervenors contend that this case may affect key state and legislative interests, intervention must occur now if intervenors are to take part in the resolution of this case, and the Arizona Legislature is not in session to grant express authorization. The Legislative Leaders are presiding officers in both houses of the legislature, and a court may reasonably presume that if legislative authorization were granted it would apply to the presiding officers. See Karcher, 484 U.S. at 80. This is not a matter of “numerosity” as the United States contends, but arises from the positions the Legislative Leaders hold within their respective chambers.
Hmmm. All of those things are true, I suppose, but what makes this particular case so extraordinary? It has to be gaming.
In the order denying the motion of Senator Pearce to intervene, the court wrote:
Senator Pearce does not speak for the State of Arizona or theArizona legislature as a whole. The existing parties have ample incentive and more than sufficient resources to litigate the legality of DOI’s decision fully. In the interest of judicialeconomy and a prompt resolution of this case, the Court concludes that permissiveintervention should be denied. However, because none of the parties argues, as does SenatorPearce, that the DOI decision runs afoul of the Arizona statutory scheme regarding gaming,A.R.S. § 5-601 et. seq., the Court will permit Senator Pearce to address this issue in an amicus brief and will require a response from Defendants.
The about-face is interesting, and not really explained in the new court order. Maybe it’s that the court is following the dictum about the Supreme Court following the election returns. 🙂
Judge Campbell noted in his Sen. Pearce order that there is a circuit split on whether Article III standing is required in the context of permissive intervention: “DOI argues that Article III standing is required for permissive intervention. The circuits are split on this issue. See Dillard v. Chilton County Comm’n, 495 F.3d 1324, 1337n.10 (9th Cir. 2007).” that should give law review editors something to think about.
Turtle Talk 