131 F.3d 1297 (9th Cir. 1997), 97-55388, League of United Latin American Citizens v. Wilson

Docket Nº:97-55388.
Citation:131 F.3d 1297
Party Name:97 Daily Journal D.A.R. 15,021 LEAGUE OF UNITED LATIN AMERICAN CITIZENS; Xavier Becerra, Congressman; Richard Polanco, Assemblyman; Mike Hernandez; Los Angeles City Councilman; Yvonne Braithwaite-Burke, Los Angeles County Supervisor; Victoria Castro, Los Angeles City Board of Education Member; Jeff Horten, Los Angeles City Board of Education Member
Case Date:December 12, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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131 F.3d 1297 (9th Cir. 1997)

97 Daily Journal D.A.R. 15,021

LEAGUE OF UNITED LATIN AMERICAN CITIZENS; Xavier Becerra,

Congressman; Richard Polanco, Assemblyman; Mike Hernandez;

Los Angeles City Councilman; Yvonne Braithwaite-Burke, Los

Angeles County Supervisor; Victoria Castro, Los Angeles

City Board of Education Member; Jeff Horten, Los Angeles

City Board of Education Member; Jackie Goldberg, Los

Angeles City Councilwoman; Edward Fortez, Pomona Mayor;

G.I. Forum; Mexican-American Political Association;

One-Stop Immigration; Fermandad Mexicana Nacional; United

Californian Mexican-American Association; La Alianza; Casa

De Alfarero; Jovenes, Inc.; Chicano Federation of San

Diego, Inc.; Jorge Alberto Hernandez and Alanca Nayeli

Hernandez, through their next-friend, Ignacio Hernandez;

Carlos Alejandro and Carla Elena Burgos, through their

next-friend, James Newton Jordan, III; Pablo

Montes-Morales, Luis Iejia-Deras, and Jose Luis Ramirez,

through their next-friend, Felipe Y. Fuentes, III; Gregorio

T., Plaintiffs-Appellees,

v.

Pete WILSON, Governor of the State of California;

California State Board of Education; Maureen Dimarco,

California Superintendent of Public Instruction; William D.

Dawson, Acting California Superintendent of Public

Instruction; Orange Unified School District; Tustin

Unified School District; San Diego Unified School District;

Eloise Anderson, Director, California Department of Social

Services; Kimberly Belshe, Director, California Department

of Health; Dan Lungren, Attorney General of California,

Defendants-Appellees,

Alan C. Nelson Foundation of Americans for Responsible

Immigration, a California Corporation, Applicant

for Intervention-Appellant.

No. 97-55388.

United States Court of Appeals, Ninth Circuit

December 12, 1997

Argued and Submitted Oct. 8, 1997.

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Sharon L. Browne, Mark T. Gallagher, Pacific Legal Foundation, Sacramento, CA, for intervenor/appellant The Alan C. Nelson Foundation of Americans for Responsible Immigration.

Peter A. Schey, Carlos Holguin, Miranda D. Junowicz, Center for Human Rights and Constitutional Law, Los Angeles, CA, for plaintiff/appellee League of United Latin American Citizens.

Mark Rosenbaum, Peter Eliasberg, ACLU Foundation of Southern California, Los Angeles, CA; Thomas A. Saenz, Mexican American Legal Defense and Educational Fund, Los Angeles, CA, for plaintiff/appellee Gregorio T.

Daniel E. Lungren, Attorney General; Charlton G. Holland, III, Senior Assistant Attorney General; Donald P. Cole, Deputy Attorney General, San Francisco, CA, for defendants/appellees Pete Wilson, Governor, et al.

Appeal from the United States District Court for the Central District of California; Mariana R. Pfaelzer, District Judge, Presiding. D.C. Nos. 94-7569 MRP, 94-7570 MRP, 94-7571 MRP, 94-7652 MRP, 94-0187 MRP.

Before O'SCANNLAIN, FERNANDEZ, and THOMAS, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide whether an applicant for intervention seeking to participate in the trial litigation surrounding California's Proposition 187 may do so.

I

On November 8, 1994, the California electorate enacted Proposition 187 by a 59% to 41% margin. In passing Proposition 187, the People of California "found and declared that they had suffered ... economic hardship caused by the presence of illegal aliens in th[e] state" and that they had "suffered ... personal injury and damage by the criminal conduct of illegal aliens in th[e] state." Californians thus "declare[d] their intention to provide for cooperation between their agencies of state and local government with the federal government, and to establish a system of required notification by and between such agencies to prevent illegal aliens in the United States from receiving benefits or public services in the State of California." The various substantive sections of Proposition 187 reflect that intention: sections 2 and 3 criminalize the manufacture, distribution, sale, and use of false citizenship or resident alien documents; sections 4 and 9 mandate the full cooperation of both State law enforcement agencies and the State Attorney General's office with the federal Immigration and Naturalization Service in apprehending aliens illegally residing in California; sections 5 and 6 preclude illegal aliens from receiving public social services or publicly funded health care; and sections 7 and 8 exclude illegal aliens from public elementary, secondary, and post-secondary schools in the State.

Shortly after the initiative passed, a number of actions challenging the constitutionality of Proposition 187 were filed in state and federal courts. The five suits filed in federal court were consolidated in the United States District Court for the Central District of California. See League of United Latin American Citizens v. Wilson, 908 F.Supp.

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755, 763 (C.D.Cal.1995). On November 16, 1994, the district court entered a temporary restraining order enjoining implementation of sections 4, 5, 6, 7, and 9 of the initiative and, on December 14, 1994, it issued a preliminary injunction preventing the enforcement of those same sections. See id. at 764.

During the early stages of the litigation, the district court permitted four additional sets of parties to intervene as plaintiffs pursuant to Federal Rule of Civil Procedure 24: (1) the City of Los Angeles; (2) the California Association of Catholic Hospitals and the Catholic Health Association of the United States; (3) the California Teachers Association, California Faculty Association, American Federation of State, County and Municipal Employees AFL-CIO, and Service Employees International Union AFL-CIO; and (4) the Islamic Center of Southern California, Muslim Public Affairs Council of Churches. See id. at 763 n. 2.

On May 1, 1995, plaintiffs brought motions for summary judgment, claiming that Proposition 187 is preempted by the federal government's exclusive authority over the regulation of immigration issues, see U.S. Const. art. I, § 8, cl. 3, and is thus invalid under the Supremacy Clause, U.S. Const. art. VI, § 2. In a published opinion filed November 20, 1995, the district court granted in part and denied in part the plaintiffs' motion. See League of United Latin American Citizens, 908 F.Supp. at 786-87. Because its decision did not finally resolve all issues presented in the case, the district court announced that the preliminary injunction issued on December 14, 1994 would remain in effect pending further order of the court. See id. at 787. Defendants subsequently filed a motion for reconsideration of the district court's November 20 decision and a motion for partial summary judgment as to two of the sections left intact by that decision.

On February 4, 1997, approximately twenty-seven months after the suits were originally filed and at least eighteen months after the four other groups had successfully intervened, The Alan C. Nelson Foundation of Americans for Responsible Immigration ("ACNFARI") filed a motion to intervene in the litigation as a matter of right pursuant to Federal Rule of Civil Procedure 24(a)(2) or, in the alternative, by permission of the court pursuant to Federal Rule of Civil Procedure 24(b)(2). In ACNFARI's memorandum in support of its motion, it explained that its members had participated in the drafting and sponsorship of Proposition 187 and that, as a result, ACNFARI had a "strong interest in the viability and constitutionality" of the initiative.

On February 10, 1997, the district court vacated ACNFARI's request for oral argument on the intervention issue, took the matter under submission, and denied the motion without elaboration: "Having considered the Motion and supporting papers, the Court denies the Motion." The district court entered the formal order denying ACNFARI's motion to intervene two days later, and this appeal followed. 1

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II

The denial of a motion to intervene as of right pursuant to Rule 24(a)(2) is an appealable "final decision" within the meaning of 28 U.S.C. § 1291. See Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1491 n. 2 (9th Cir.1995).

We review a district court's denial of a motion to intervene as of right pursuant to Rule 24(a)(2) de novo. See United States v. Washington, 86 F.3d 1499, 1503 (9th Cir.1996). Generally, we review district courts' determinations of one of the elements of the intervention-as-of-right standard--timeliness--only for abuse of discretion. See id. However, because the district court below denied ACNFARI's intervention motion in a curt, one-sentence order without specifying whether or not its denial was premised upon a finding of untimeliness, we have no way of determining whether it abused its discretion with regard to that element; consequently, we must review the timeliness issue in this case de novo. See Sierra Club v. Espy, 18 F.3d 1202, 1205 n. 2 (5th Cir.1994) ("Although the timeliness of intervention is generally reviewed for abuse of discretion, where the district court makes no finding regarding timeliness, we review this factor de novo." (citations omitted)).

III

In the absence of a statute conferring an unconditional right to intervene, Federal Rule of Civil Procedure 24(a)(2) governs a party's application for intervention as of right in the federal courts. Rule 24(a)(2) provides:

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 the applicant...

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