In re the Judicial Branch, (2010)

• Decision Date: 11 March 2010
• Docket Number: 2008-0283AV
• Citation: 3 TOR3d 81
• Parties: In Re: PETITION OF THE JUDICIAL BRANCH
• Court: Judicial Court of the Tohono O'odham Nation Adult Civil Division

3 TOR3d 81

In Re: PETITION OF THE JUDICIAL BRANCH

No. 2008-0283AV

Judicial Court of the Tohono O'odham Nation Adult Civil Division

March 11, 2010

(appeal dism'd In re: Petition of the Judicial Branch, 3 TOR.3d 50(Jul. 19, 2012))

M June Harris, Counsel for Petitioner Tohono O'odham Judicial Branch Veronica Geronimo, Counsel for Respondent Tohono O'odham Executive Branch

Tohono O'odham Legislative Attorney's Office by P. Michael Ehlerman for Intervenor Tohono O'odham Legislative Council

Before Judge Robert Alan Hershey.

By amended Petition for Declaratory Judgment and Emergency Preliminary Injunction and Permanent Injunction, the Judicial Branch of the Tohono O'odham Nation seeks to enjoin the Executive Branch through the office of the Chairman of the Tohono O'odham Nation from implementing portions of Resolution 08-704 pertaining to Title 6,Chapter 1, Courts and Procedures (hereafter the "Courts and Procedures Law," or "Code").An Order Granting Emergency Preliminary Injunction was filed January 6^th2009, and modified January 28, 2009.The Legislative Council seeks to intervene in the litigation.

There are no named individual litigants.Rather, this dispute is between co-equal branches of the Tohono O'odham Nation though captioned as In Re: The Petition of the Judicial Branch.The ability of one branch of the government to sue one another is a matter of first impression.And, here the Judiciary itself is, unenviably, the litigant and arbiter of the outcome by virtue of its Constitutional Authority under Article VIII, Section 10.

This Court begins its analysis of the appropriateness of Intervention by echoing the words of former Chief Justice Hilda Manuel."The motives of the parties are not for this Court to scrutinize provided that the purposes are not expressed or sought to be enforced through means

3 TOR3d 82

that offend the Constitution."Francisco v Toro, 1 TOR3d 68, at 69(Trial Ct., Jan. 12, 1989)appeal dism'd3 TOR.3d 17 (Ct.App., Sep. 4 2008).

Choice of Law

Administrative Order 03-09 rescinds Administrative Orders III and 01-04.Nevertheless, the parties have interpreted Order 03-09, for purposes of this litigation, as adopting Tohono O'odham laws, rules, customs and traditions, the Arizona Rules of Civil Procedure, and pertinent Arizona law.This Court agrees.

Jurisdiction

The Jurisdiction of the Court to hear the Amended Petition will be discussed below.

Intervention

I

The procedure and criteria for intervention under the Arizona Rules of Civil Procedure are found in Ariz.R.Civ.Pro. Rule 24 (a)-(d).Under those provisions, any party whose interests may be affected by pending litigation can apply to intervene either as a plaintiff or as a defendant.^[1]Ariz.R.Civ.Pro Rule 24 (a)-(b).Depending upon the circumstances intervention may be a matter of right or merely permissive.Id.The party pleading to intervene has the burden of showing the propriety of and/or entitlement to intervention.Morris v. Southwest Sav. & Loan Ass'n, 449 P.2d 301(Ariz.Ct.App.1969).However, the intervener takes the case as he or she finds it.In other words, the scope of the case cannot be broadened by the intervention.Ariz. Real Estate Dept. v. Ariz. Land Title and Trust Co., 449 P.2d 71(Ariz.Ct.App.1968).

Intervention is a matter of right when a statute confers an unconditional right to intervene or when disposition of the action may impair or impede the applicant's ability to protect his or her interest in the subject matter of the action - that is, "unless the applicant's interest is adequately represented by existing parties."Ariz.R.Civ.Pro. Rule 24(a).

Intervention is permissive when a statute confers a conditional right to intervene or when a common question of law or fact exists.Ariz.R.Civ.Pro 24 (b).In exercising its discretion in permissive intervention situations, the court considers whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.Id.

In the case at hand, no statutory right to intervene exists, either permissively or as a matter of

3 TOR3d 83

right.Thus, the ability of the Tohono O'odham Legislative Council("Council") to intervene hinges on 1) whether the injunction prayed for by the Judicial Branch of the Tohono O'odham Nation ("Judicial Branch") will obstruct the Council's ability to protect its interests; 2) whether the Council's interest is adequately represented by an existent party; and 3) whether the Council's action has a question of fact or law in common with the Judicial Branch's request for an injunction.

First, it is arguable whether the injunction prayed for by the Judicial Branch-a finding of unconstitutionality as to §§ 1102(B)(1),1103(D),1106(B),1106(C)and1107(C) of 6 Tohono O'odham Code Chapter 1("Courts and Procedures Law")^[2]- will obstruct the Council's ability to protect its interests.In short, the Council argues that, because they have been granted broad power to enact laws providing for the "administration of justice" - more specifically, the power to set judicial compensation, appoint judges,^[3] and approve budgets for the expenditure of the Nation's funds, including Judicial Branch budgets - their interests are in preserving those laws.Thus, the Council argues that it has an interest warranting intervention in any suit contending the constitutionality of those laws.

However, under the rule announced in Greene v. U.S., 996 F.2d 973(9th Cir.1993), to meet the threshold permitting intervention, although no specific legal or equitable interest must be established, "the movant must demonstrate a 'significantly protectable interest'" in the matter.Id. at 976.Under this test, the "interest" threshold will not be met if "a holding 'will not affect a statute or regulation governing the applicant's actions, nor will it directly alter . . . other legally protectable rights of the proposed interveners.'"Portland Audubon Soc. v. Hodel, 866 F.2d 302, 309(9th Cir.1989);see alsoHill v. Alfalfa Seed and Lumber Co., 297 P. 868, 869(Ariz.1931)(holding that "interest" entitling a party to intervene must be in matter in litigation and of such direct character that intervener will either gain or lose by direct legal operation of judgment).Thus, the Council's assertion that a decision denying or affirming the constitutionality of the contested sections of the Courts and Procedures Law will affect its ability to enact laws begs the question: Will the Council lose or gain a protectable right by the direct operation of the judgment?The answer to this question rests with the Court, as it is the ultimate question

3 TOR3d 84

presented in the constitutional challenge.If this Court decides that the Council has the constitutional power to enact those provisions of the Courts and Procedures Law, then the Council loses nothing and gains nothing.On the other hand, if this Court decides that the Council does not have such power, the Council still loses nothing, because it did not have the power to pass the Courts and Procedures Law in the first place.The Judicial Branch asked, originally, only for an injunction declaring certain provisions of the Courts and Procedures Law unconstitutional; however, by subsequent pleading it has sought to restrain the passage of future laws affecting the subsections of the Code which might then alter the subject matter of this controversy.

The Council also argues that the disposition of the case will, as a practical matter, impair the ability to protect its interest.It argues that an unfavorable ruling on any of these constitutional issues will significantly restrict the Council's ability make any laws regulating the Judicial Branch in the future.Were the Council not to intervene, it argues, the stare decisis effect would be a serious impediment to any future litigation.As the State Bar Committee Note to Ariz.R.Civ.Pro. 24(a)(2)1966Amendment makes clear, whether "a party is in fact so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interests is a question to be determined by the court, it is not sufficient that such an impairment or impediment is pleaded."In McGough v. Insurance Co., 691 P.2d 738(Ariz.Ct.App.1984), the Arizona Court of Appeals held that where collateral estoppel prevents a party from protecting its interests in the future, the potentially estopped party has the requisite interest necessary for intervention under Ariz.R.Civ.Pro. Rule 24.Id. at 743.Likewise, in John F. Long Homes, Inc. v. Holohan, 396 P.2d 394(Ariz.Ct.App.1964), the same court held that intervention as a matter of right is absolute where an applicant may be bound by a judgment involving his or her interests.See alsoGreen, 996 F.2d at 977("Intervention may be required when considerations of stare decisis indicate that an applicant's interest will be practically impaired.");U.S. v. Oregon, 839 F.2d 635, 638(9th Cir.1998)("a stare decisis effect is an important consideration in determining the extent to which an applicant's interest may be impaired.").However, the Court need not reach this argument if it determines that the Council's interest is not "significantly protectable" in the first place.Donaldson v. United States, 400 U.S. 517, 531(1971).

Although the Council's argument in favor of intervention is questionable, a significant amount of precedent exists suggesting that intervention as of right is to be "construed broadly in favor of applications for intervention."Green, 996 F.2d at 973;see also Cascade Natural Gas Corp. v El

3 TOR3d 85

Paso Natural Gas Co., 386 U.S. 129(1967);In re Estate of Ferdinand E. Marcos Human Rights Litigation536 F.3d 980(9th Cir.2008);California ex rel. Lockyer...