1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Victor Viramontes*
Martha L. G6mez*
MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND
634 S. Spring Street, 11th Floor
Los Angeles, CA 90014
T: (213) 629-2512
F: (213) 629-0266
vviramontes@maldeforg
mgomez@maldeforg
Daniel R. Ortega, Jr. (State Bar No. 005015)
ORTEGA LAW FIRM
A PROFESSIONAL CORPORATION
361 East Coronado Road
Phoenix, Arizona 85004-1525
T: (602) 386-4455
F: (602) 340-1896
danny@ortegalaw.com
Jose de Jesus Rivera (State Bar No. 004604)
Nathan J. Fidel (State Bar No. 025136)
HARALSON, MILLER, PITT, FELDMAN &
MCANALL Y, PLC
2800 N. Central Ave., Suite 840
Phoenix, AZ 85004
T: (602) 266-5557
F: (602) 266-2223
jrivera@hmpmlaw.com
njidel@hmpmlaw.com
jlarsen@hmpmlaw.com (minute entries)
*in process of submitting pro hac vice application
Attorneys for Proposed Intervenor-Defendants
16
17
IN THE SUPERIOR COURT OF ARIZONA
18
IN AND FOR THE COUNTY OF MARICOPA
19
STATE OF ARIZONA ex reI. Attorney
Case No. CV2013-009093
20
General Thomas C. Home,
MOTION TO INTERVENE AS
INTERVENOR-DEFENDANTS
21
Plaintiff,
vs.
(Assigned to the Hon. Arthur Anderson)
22
MARICOPA COUNTY COMMUNITY
23
24
25
26
COLLEGE DISTRICT BOARD,
Defendant.
(Oral Argument Requested)
1
TABLE OF CONTENTS
Page
2
3 I.
4
5
II.
F ACTUAL BACKGROUND .................................................................................................. "1
ARGUMENT ............................................................................................................................ 2
A.
Applicants Are Entitled To Intervene As a Matter of Right Under Ariz. R. Civ.
P . Rule 24(a)(2) ................................................................................................................ 2
6
1.
7
2.
Applicants' Motion To Intervene Is Timely ......................................................... 3
Applicants Have An Interest in The Action; Their Interest May Be
Impaired If Intervention Were Denied ................................................................. 4
8
a. Applicants Have a Monetary Interest That Entitles Them To
Intervention ....................................................................................................... 4
9
10
b. Applicants Have An Interest In Maintaining Educational Opportunities
That Entitles Them To Intervention ............................................................... 5
11
12
c. Applicants Have An Interest In Avoiding The Added Burden That
Would Result From An Adverse Judgment In Their Absence .................... 6
13
14
d. Applicants Have An Interest In a Sound Educational System That Is
In Compliance With the Law, Including the Equal Protection Clause ....... 6
15
e. Applicants Have a Due Process Claim That Entitles Them To
16
Intervention ....................................................................................................... 8
17
3.
The Existing Defendants Will Not Adequately Represent Applicants'
18
Interest ..................................................................................................................... 8
19
a.
20
i. MCCCD Failed To Raise Applicants' Affirmative
Defenses ....................................................................................................... 9
21
ii. MCCCD May Not Give Applicants' Arguments the
22
Same Primacy As Applicants Would Because The Parties Have
Potentially Conflicting Interest ............................................................... 10
23
24
25
26
MCCCD and Applicants Do Not Have Identical Interest............................ 9
B.
Applicants Are Entitled To Permissive Intervention Under Ariz. R. Civ. P. Rule
2S(b)(2) .......................................................................................................................... 12
1.
Applicants' Motion To Intervene Is Timely and Will Not Prejudice Or
Delay The Existing Parties ................................................................................... 12
1
TABLE OF CONTENTS (cont'd)
2
Page
3
2. Applicants' Motion To Intervene Has Common Questions of Fact and
Law ......................................................................................................................... 13
4
3. Applicants Also Satisfy the Additional 9th Circuit Factors for Permissive
Intervention ........................................................................................................... 13
5
6
III.
COUNTERCLAIM ............................................................................................................. 14
7
IV.
CONCLUSION .................................................................................................................... 14
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
11
./
1
TABLE OF AUTHORITIES
Page
2
3
Cases
4
Am. Ass 'n of People With Disabilities v. Herrera,
257 F.R.D. 236, 247 (D.N.M. 2008) .......................... ..... .. ....... ............ ... ....... ..... ... ............. .... ....... ..... ..9
5
6
7
8
9
10
11
Ariz. DREAM Act Coalition v. Brewer ("ADAC'),
No. CV12-02546 PHX DGC, 2013 WL 2128315 (D. Ariz. May 16,2013) .... .. ............. ...................... 7
Bechtel v. Rose,
150 Ariz. 68, 722 P.2d 236 (1986) ......... ....... ..... .... ................. ..... ..... ..... ............... ....................... ... 3, 13
Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan. ,
84 F.R.D. 383 (1979) ........................... .... ................. .... ... ...... .... .. ........ ................. .. ......... ............. ..... 6, 7
Center for Biological Diversity v. Us. Bureau of Land Mgmt.,
266 F.R.D. 369 (D. Ariz. 2010) ....................................................................... ................. .. ....... ............ 3
12
13
14
15
16
17
18
David v. Smith,
431 F.Supp.1206, 1209 n.16 (S.D. N.Y. 1977) ...... ...... .............. ........... ................... .......................... 12
Day v. Sebelius,
227 F.R.D. 668, 674 (D. Kan. 2005) ................... ......... ....... ............ .. ................. ........ ... ..... .......... ...... ... 5
Dowling v. Stapley,
221 Ariz. 251 (App. 2009) ........ ...... ....... .. ........ ............ .. .. ... .... .......... ......................... .......... ..... ..... ........ 3
Forest Conservation Council v. Us. Forest Serv. ,
66 F .3d 1489 (9th Cir. 1995) .................................. ................ ............. ........ ..... .. ................................... 9
19
20
21
22
23
Fundfor Animals, Inc., v. A. Norton,
322 F.3d 728 (D.C. Cir. 2003) ................................................ .. ......... .... ....................... ........ ... ...... 10-11
Grutter v. Bollinger,
188 F.3d 394 (6th Cir. 1999) ......................... ...... ...... ...... .. ................. .. ............ ........................... ...... 5, 9
Hill v. Alfalfa Seed & Lumber Co.,
38 Ariz. 70,297 P. 868 (1931) ....... ............. ........ ................. ........... ........ .. .... .. ........................... ........... 4
24
25
In re One Cessna 206 Aircraft,
118 Ariz. 399, 577 P.2d 250 (1978) ............. .. ............ ............ ............... .. ........... .... ........ ... ... ......... ........ 4
26
111
1
TABLE OF AUTHORITIES (cont'd)
2
Page
3
Cases
4
Johnson v. San Francisco Unified Sch. Dist.,
500 F.2d 349 (9th Cir. 1974) ............................... ... .. .... ....... .... .............. ................................................ 6
5
6
7
8
9
10
11
Mich. State AFL-CIO v. Miller,
103 F.3d 1245 (6th Cir. 1997) ........................................................................................... ... .... ............. 9
Mitchell v. City ofNogales ,
83 Ariz. 328, 320 P.2d 955 (1958) ...... .......... ... .. .......... .. ............. ... ... ........... .......... ....... .... ....... ..... ........ 3
Natural Res. De! Counsel, Inc. v. Us. Nuclear Regulatory Comm 'n,
578 F.2d 1341 (10th Cir. 1978) ............................................................................................... .......... .... 4
Saunders v. Superior Court,
109 Ariz. 424, 510 P.2d 740 (1973) ............................................................ ....... .. .... .. ...... .......... .4, 6, 10
12
13
14
15
16
17
18
19
20
21
22
23
Spangler v. Pasadena City Board of Ed,
552 F.2d 1326 (9th Cir. 1977) .................. ................................ ......................... ..... ..... ................ ........ 13
State ex rei. Napolitano v. Brown & Williamson Tobacco Corp.,
196 Ariz. 382, 998 P.2d 1055 (2000) ................................................................................. .................. .3
Trbovich v. United Mine Workers ofAmerican,
404 U.S. 528 (1972) ........................................... .............................. ................. ............. ................... .. 11
us. ex rei. Frank M Sheesley Co. v. St. Paul Fire & Marine Ins. Co.,
239 F.R.D. 404 (D.C. Pa. 2006) ........... ... ............ ... ................................ ............................................... 3
us. v. Louisiana,
90 F.R.D. 358 (E.D. La. 1981) ................................................................. .. ..... ...... .. ........... ................... 7
United States v. Bd ofSch. Com 'rs, Indianapolis, Inc.,
466 F .2d 573 (7th Cir. 1972) ................................................................................................................. 7
United States v. Sch. Dist. of Omaha, State ofNeb. ,
367 F. Supp. 198 (D.C. Neb. 1973) ............... ..................................................................... ................... 7
24
25
26
IV
1
TABLE OF AUTHORITIES (cont'd)
Page
2
3
4
5
6
7
8
Cases
Utah Ass'n of Counties v. Clinton,
255 F.3d 1246 (10th Cir. 2001) ......................................................................... .. ................................ .. 9
Wi/dearth Guardians v. Salazar,
No.3 :08-CV -489(WWE), 2009 WL 179811 (D. Ariz. June 24, 2009) ......... .. ............... .................... 10
Zenith Electronics Corp. v. Ballinger,
220 Ariz. 257,204 P.3d 1106 (App. 2009) ........ ..... ... ... ........................................................... ............. 4
9
10
Statutes
11
A.R.S. § 1-502(A)(7) .............. ... ...... ... ...... ... .... ............. ............... .... ........ ......................... .. .. ... .............. 8
12
Ariz. R. Civ. P. 24(b)(2) .................. .... .. ....... ......... .. .................................................................. 1, 12-13
13
Ariz. R. Civ. P. 25(b)(2) .............................................. .. ............ .... .. .... ................ ........................ .. .. .. .. 12
14
Other Authorities
15
MCCCD' s Manner of Governance § 4.2.1.... ................................ .. .. ........................ .. .. ............... ....... 10
16
17
18
19
20
21
22
23
24
25
26
v
1
Under Ariz. R. Civ. P. 24(a)(2) and 24(b)(2), ABEL BADILLO and BIBIANA VAZQUEZ
2
(collectively "Applicants") move to intervene in defense of this case as set forth in this motion and
3
proposed Answer (Declaration of Nathan Fidel ("Fidel Decl.") ~ 2, Exhibit A). Applicants seek to
4
intervene as of right, or, in the alternative, they seek permissive intervention, in order to assert
5
defenses and counterclaims against the State of Arizona's ("Arizona") challenge against the
6
Maricopa County Community College District Governing Board ("MCCCD") for allowing students
7
who are granted Deferred Action for Childhood Arrivals ("DACA") to submit employment
8
authorization documents ("EADs") to qualify for in-state tuition. If Arizona were to prevail,
9
Applicants would lose their existing in-state tuition rate, which would require them to pay 291 %
10
more tuition for the exact same classes. The added cost would likely cause Applicants to take fewer
11
classes, drop out of school for a discrete time, or abandon their career aspirations altogether.
12
Applicants may also work longer hours to earn more money, which would severely cut into their
13
study time, hurt their grades, and undermine their prospects of transferring to competitive
14
universities.
15
This Court should grant Applicants' request to intervene because as DACA recipients, they
16
are the direct beneficiaries ofthe in-state tuition rate, and, as such, are the real parties in interest;
17
Applicants' interest is directly at stake in this lawsuit; and defendant MCCCD does not adequately
18
represent Applicants' individualized interest.
19
I.
20
FACTUAL BACKGROUND
In order to qualify for the DACA relief, young immigrants who entered the United States as
21
children must meet several educational and residency requirements, undergo extensive criminal
22
background checks, and establish that their individual circumstances justify a grant. Individuals
23
granted DACA relief are permitted to remain in the United States for a renewable period of two
24
years, are shielded from removal proceedings during that time, are eligible for federal EADs, and
25
may apply for a Social Security Number.
26
II
1
1
This dispute between the State and MCCCD concerns whether DACA participants may
2
present EADs as evidence of eligibility for in-state tuition. ABEL BADILLO and BIBIANA
3
VAZQUEZ are Maricopa residents who attend MCCCD colleges. The federal government granted
4
both Applicants DACA relief and issued them EADs. Both Applicants meet the eligibility
5
requirement for in-state tuition rate at MCCCD and currently pay the in-state tuition rate.
6
In this lawsuit, Arizona attempts to unlawfully deny Applicants access to the in-state tuition
7
rate. Applicants seek to intervene as defendants because they have an urgent and extreme interest in
8
protecting their statutory and constitutional rights.
9
On November 7,2013, Applicants met and conferred with counsel for defendant MCCCD
10
regarding this motion for intervention to defend their interests. MCCCD does not oppose this
11
motion. On November 8, 2013, Applicants further met and conferred with counsel for Arizona
12
regarding this proposed intervention. On November 11,2013, Arizona objected.
13
II.
ARGUMENT
14
15
16
17
18
19
20
21
22
23
24
25
26
A. Applicants Are Entitled To Intervene As a Matter of Right Under Ariz. R. Civ.
P.24(a)(2)
Arizona Rule of Civil Procedure ("Rule") 24(a) governs intervention as a matter of right and
provides, in pertinent part:
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 is so situated that the disposition of the action may as a practical
matter impair or impeded the applicant's ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties.
Ariz. R. Civ. P. 24(a)(2). Stated differently, intervention as of a matter of right under Rule 24(a)
involves application of a four-part test. First, the applicant's motion should be timely. Second, the
applicant should assert an interest relating to the property or transaction which is the subject of the
action. Third, the disposition of the action may, as a practical matter, impair or impedes the
applicant's ability to protect that interest. Fourth, the interests of the applicant should not be
adequately represented by the parties already involved in the action. Id.
2
1
"It is well settled in Arizona that Rule 24 'is remedial and should be liberally construed with
2
the view of assisting parties in obtaining justice and protecting their rights.'" Bechtel v. Rose, 150
3
Ariz. 68, 72, 722 P.2d 236,240 (1986) (citing Mitchell v. City ofNogales, 83 Ariz. 328, 333, 320
4
P.2d 955, 958 (1958).
5
6
In this case, Applicants satisfy Rule 24(a)(2), as discussed below. Thus, Applicants
respectfully request that this Court grant their Motion to Intervene.
7
8
9
1. Applicants' Motion To Intervene Is Timely
Applicants satisfy the timeliness prong for intervention as a matter of right under Rule
24(a)(2). "In determining whether a motion is timely, the trial court must consider several factors,
10
including the stage to which the lawsuit has progressed when intervention is sought and whether the
11
applicant could have attempted to intervene earlier." State ex rei. Napolitano v. Brown &
12
Williamson Tobacco Corp., 196 Ariz. 382, 384, 998 P.2d 1055, 1057 (2000). "The most important
13
consideration, however, is whether the delay in moving for intervention will prejudice the existing
14
parties in the case." Id
15
Here, this Court set the scheduling conference for November 13,2013. The Applicants met
16
and conferred regarding intervention prior to the scheduling hearing and before a calendar has been
17
set. Applicants made this motion 6 days after the scheduling hearing on November 13,2013, before
18
motion practice commenced, and before discovery commenced. Given Applicants' motion at the
19
early stage of this lawsuit, the existing parties will not be delayed or prejudiced if the Court permits
20
intervention. Id.; see also Center for Biological Diversity v.
21
369,373 (D. Ariz. 2010) (motion to intervene filed nine months after action commenced was timely
22
where "the stage of proceedings [wa]s early enough that the parties w[ould] not be prejudiced by the
23
intervention") I.
24
404,412 n. 9 (D.C. Pa. 2006) (granting intervention as of right where discovery had already begun).
us.
Us. Bureau ofLand Mgmt., 266 F.R.D.
ex rei. Frank M Sheesley Co. v. St. Paul Fire & Marine Ins. Co., 239 F.R.D.
25
26
1 Arizona
Rules of Civil Procedure "24(a) and (b) are essentially the same as FRCP Rules 24(a) and
(b)(1), (3)." See 2B Ariz. Prac., Civil Rules Handbook, R 24 (2013 ed.). Accordingly, the Arizona
Supreme Court and the Arizona Court of Appeals look to federal cases to determine whether a
3
1
Applicants can show timeliness here, where there are no filings beyond the initial pleadings and this
2
motion to intervene, discovery has not commenced.
3
Moreover, while Applicants here moved early in time and at the onset of this lawsuit,
4
Arizona courts have allowed intervention in cases where significant time has lapsed, including at
5
post-judgment, provided that the existing parties were not prejudiced. Zenith Electronics Corp. v.
6
Ballinger, 220 Ariz. 257, 204 P.3d 1106 (App. 2009); In re One Cessna 206 Aircraft, 118 Ariz. 399,
7
401,577 P.2d 250, 252 (1978).
8
9
10
2. Applicants Have An Interest in The Action; Their Interest May Be Impaired
If Intervention Were Denied
Applicants' financial, educational, and constitutional interests would be directly affected by
the outcome of this litigation, thus satisfying the second and third parts of the intervention test under
11
Rule 24(a)(2). The Arizona Supreme Court has held that the interest entitling a person to intervene
12
13
must be of "such direct and immediate character that the intervenor will either gain or lose by the
direct legal operation and effect of the judgment." Hill v. Alfalfa Seed & Lumber Co., 38 Ariz. 70,
14
73,297 P. 868, 869 (1931). Essentially, the prospective intervenor must have a practical interest in
15
the outcome. Saunders v. Superior Court, 109 Ariz. 424, 425-26, 510 P.2d 740, 741 (1973). The
16
question of whether Applicants' interests would be impaired is substantially similar to the question
17
of whether Applicants have a valid interest. See Natural Res. De! Counsel, Inc. v. Us. Nuclear
18
Regulatory Comm 'n, 578 F.2d 1341, 1345 (10th Cir. 1978) (The "question of impairment is not
19
separate from the question of existence of an interest.").
20
a. Applicants Have a Monetary Interest That Entitles Them To Intervention
21
22
Here, Applicants can plainly show that they would "either gain or lose by the direct legal
operation and effect of the judgment" because a judgment in Arizona' s favor would cause
23
Applicants to lose their current in-state tuition rate, but a judgment against Arizona would allow
24
Applicants to keep their in-state tuition rate. Hill, 38 Ariz. at 73; 297 P. at 869. Applicants'
25
26
motion to intervene should be granted. See, e.g., In re One Cessna 206 Aircraft, 118 Ariz. 399, 401
( 1978) (citing to Arizona and federal law in evaluating motion to intervene).
4
1
monetary loss alone, without considering the constitutional deprivations they would suffer from a
2
judgment in Arizona's favor, is sufficient to satisfy the interest requirements in intervention as of
3
right. Day v. Sebelius, 227 F.R.D. 668,674 (D. Kan. 2005) ("[I]t is well-settled that monetary
4
interest related to a case may be protected through intervention [as of right]").
5
6
7
8
b. Applicants Have An Interest In Maintaining Educational Opportunities That
Entitles Them To Intervention
Applicants also have an interest in maintaining educational opportunities for themselves and
other DACA recipients. In Grutter v. Bollinger, plaintiffs filed a lawsuit against the university's
race conscious admissions policy, alleging that the policy violated the federal Equal Protection
9
10
11
12
13
Clause and other federal statutes. 188 F.3d 394,396-97 (6th Cir. 1999). The proposed interveners
were minority applicants seeking to preserve higher education opportunities for minority students.
Id. at 398. The court granted the request for intervention, noting that the applicants' "interest in
gaining admission to the University" was "considerably more direct and substantial" than the general
interest of an organization defending a proposition that it had previously supported. Id. at 399. The
14
court further emphasized that "[t]here is little room for doubt that access to the University for
15
African-American and Latino/a students will be impaired to some extent ... ifthe University is
16
precluded from considering race as a factor in admissions." Id. at 400.
17
Similarly, the Applicants in this case seek to protect the educational opportunities for
18
19
themselves and other DACA recipients. Applicants, much like other DACA recipients, are the
actual beneficiaries of the in-state tuition benefit, and if Arizona were to prevail, Applicants would
20
21
22
lose their existing in-state tuition rate. An out-of-state tuition rate would require Applicants to pay
291 % more tuition for the exact same classes. As an example, a typical 15 unit semester would
increase from $1,214 to $4,744, meaning that tuition for one year would increase by $7,080.
23
Applicants, and others like them, will be unable to pay the additional thousands of dollars for tuition,
24
25
causing them to take fewer classes or even to drop out of school. Applicants may also work longer
hours in an effort to earn some of the difference, thus compromising their grades in school. As in
26
Gruffer, there is little doubt that ifMCCCD is precluded from providing Applicants the in-state
5
1
tuition rate, then Applicants' interest would be impaired, either through a decline in enrollment or
2
even a decline in academic performance. Id. For this reason alone, Applicants satisfy the interest
3
and impairment requirements for intervention as of right.
4
5
c. Applicants Have An Interest In Avoiding The Added Burden That Would
Result From An Adverse Judgment In Their Absence
Applicants also have an interest in influencing the outcome in this lawsuit now, rather than
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
risk an adverse judgment that would weaken their legal posture. In Saunders, a city and taxpayer
challenged the constitutionality of city employees' retirement fund. 109 Ariz. at 425, 510 P.2d at
741. The Arizona Supreme Court found that the employees had an interest at stake because if the
statute were declared unconstitutional, employees would be disadvantaged in future proceedings
relating to the constitutionality of the statute. Id.
Similarly, in this case all Applicants are DACA recipients who are paying in-state tuition at a
MCCCD college. Because the tuition rate paid by DACA recipients at MCCCD colleges is at issue,
the disposition of this action may set legal precedent that impairs Applicants' ability to protect their
interest in the tuition rate. As in Saunders, if this Court were to find that the in-state tuition rate for
DACA recipients is unlawful, "[t]he principle of stare decisis would effectively" be a "practical
disadvantage to the protection of [Applicants'] interest" such that it warrants their intervention as of
right. Id. Given Applicants' personal stake in the outcome of this lawsuit, they can satisfy the
interest requirements for intervention as of right.
d. Applicants Have An Interest In a Sound Educational System That Is In
Compliance With the Law, Including the Equal Protection Clause
21
As students, Applicants can plainly show the requisite interest to defend against Arizona's
22
challenge to MCCCD's application of the law. "[F]or purposes of [intervention as of right under]
23
Rule 24(a)(2), all students ... have an interest in a sound educational system and in the operation of
24
that system in accordance with the law." Johnson v. San Francisco Unified Sch. Dist., 500 F.2d 349,
25
356 (9th Cir. 1974). Intervention is the proper manner for a proposed student intervenor to assert or
26
defend a claim that their school district is not complying with the law. See Brown v. Bd. ofEd. of
6
1
Topeka, Shawnee Cnty., Kan., 84 F.R.D. 383, 397 (1979) ("[I]t is clear that [student] intervenors
2
who seek proper implementations of [the law by their school] have a protectable interest under Rule
3
24(a)(2).").
4
In this case, Applicants seek to ensure that MCCCD's actions are held to be "in accordance
5
with the law" because such a finding will protect their "interest in a sound educational system" as
6
manifested in the in-state tuition rate. See Johnson, 500 F.2d at 356. Further, Applicants have
7
underlying constitutional claims that would be compromised by a judgment in Arizona's favor. In
8
particular, a ruling for Arizona would violate Applicants' Equal Protection rights because they
9
would lose their in-state tuition rates, while other similarly-situated students would maintain those
10
rates. See Ariz. DREAM Act Coalition v. Brewer ("ADAC'), No. CV12-02546 PHX DOC, 2013 WL
11
2128315, at *20 (D. Ariz. May 16,2013) ("[T]he Court conclude[d] that Defendants' distinction
12
between DACA recipients and other deferred action recipients is likely to fail rational basis.").
13
Courts routinely conclude that students - including college students - seeking to protect their
14
constitutional rights in school have an interest that would be impaired absent intervention. See Us.
15
v. Louisiana, 90 F.R.D. 358, 360-361 (E.D. La. 1981) (in an action for alleged constitutional
16
violations regarding the state's higher education system, the court "acknowledge[d] at the outset that
17
the movants [met] the [interest] requirements" under Rule 24(a)(2)); United States v. Bd. o/Sch.
18
Com'rs, Indianapolis, Inc., 466 F.2d 573 (7th Cir. 1972) (in an action against the school for alleged
19
racial discrimination against the faculty and students, the court conceded that 22 students met the
20
interest requirements under Rule 24(a)(2)); United States v. Sch. Dist. o/Omaha, State o/Neb., 367
21
F. Supp. 198, 199-200 (D.C. Neb. 1973) (in an action against the school board for alleged racial
22
discrimination in operating the school system, "[t]he Court ha[d] no doubt that the claims ofthe
23
[student] applicants" satisfied Rule 24(a)(2)'s interest requirements).
24
Similarly, in this case Applicants have a constitutional interest they seek to protect that
25
would be impaired absent intervention, particularly as MCCCD has not affirmatively plead
26
Applicants' constitutional defenses.
7
1
2
e. Applicants Have a Due Process Claim That Entitles Them To Intervention
Applicants also have an interest that would be impaired absent intervention because, if
3
Arizona is successful, Applicants would lose their in-state tuition rates without minimal Due
4
Process. "It is well-established ... that education benefits created by statute are property interests
5
that cannot be taken away without adherence to the minimum procedural requirements of Due
6
Process." Sebelius, 227 F.RD. at 674.
7
In Sebelius, the state passed a law granting in-state tuition to otherwise qualified
8
undocumented aliens. 227 F.RD. 668, 674 (D. Kan. 2005). Plaintiffs challenged the legality of the
9
state statute. Undocumented student intervenors who were receiving the in-state tuition rate sought
10
to defend the statute. The Sebelius court held that the proposed intervenors had an interest in the
11
case because the in-state tuition benefit was created by statute, and as such, the applicants' "right to
12
be treated as residents for state college tuition purposes [wa]s a cognizable right for Due Process
13
purposes." Id. These applicants were granted intervention as of right. Id.
14
As in Sebelius, Applicants' right to in-state tuition is created by state statute, namely: (1)
15
A.RS. § 1-502(A)(7), which identifies an "employment authorization document," or EADs, as
16
sufficient to show that a student is qualified to be considered for in-state tuition. MCCCD has
17
accepted Applicants' EADs, as proscribed under the laws, to grant Applicants the in-state tuition
18
rate. See A.R.S. § 1-502(A)(7). Because Applicants' in-state tuition rate is derived from this statute,
19
the benefit constitutes a property interest, and the state cannot strip students of this benefit without
20
providing Due Process. Sebelius, 227 F.RD. at 674. As in Sebelius, Applicants' right to procedural
21
Due Process would be impaired absent intervention. Id.; see also Us. Nuclear Regulatory Comm 'n,
22
578 F .2d at 1345 (The "question of impairment is not separate from the question of existence of an
23
interest. ").
24
25
26
3. The Existing Defendants Will Not Adequately Represent Applicants' Interest
Finally, the existing parties will not adequately represent Applicants' interest, and, as such,
Applicants satisfy this "minimal burden." The United States Supreme Court has held that the
8
1
adequacy analysis requires the intervenor to show only that representation of its interest "may be"
2
inadequate, and the applicant's burden on showing this element should be view as "minimal."
3
Trbovich v. United Mine Workers ofAmerican, 404 U.S. 528, 538 n.10 (1972). "The possibility that
4
the interests of the applicant and the parties may diverge need not be great in order to satisfy this
5
minimal burden." Sebelius, 227 F.R.D. at 674 (D. Kan. 2005) (citing Utah Ass 'n of Counties v.
6
Clinton, 255 F.3d 1246, 1254 (lOth Cir. 2001)). The proposed intervenors are "not required to show
7
that the representation will in fact be inadequate." Mich. State AFL-CIO v. Miller, 103 F.3d 1245,
8
1247 (6th Cir. 1997). "[I]t may be enough to show that the existing party who purports to seek the
9
same outcome will not make all of the prospective intervenor's arguments." Id. (citing Forest
10
Conservation Council v. Us. Forest Serv., 66 F.3d 1489, 1498-99 (9th Cir. 1995)).
11
a. MCCCD and Applicants Do Not Have Identical Interests
12
i. MCCCD Failed To Raise Applicants' AfJirmative Defenses
13
In this case, MCCCD's only interest is to defend itself against the allegation that its in-state
14
tuition rate for DACA-recipients violates Arizona law. However, Applicants have additional
15
underlying constitutional defenses that may go unrepresented in their absence. MCCCD has no
16
obligation to represent Applicants' interests, which means that MCCCD may not raise any of the
17
affirmative constitutional defenses that Applicants have discussed in this motion. Indeed, the
18
Answer filed by MCCCD does not raise Applicants' affirmative defenses. Thus, the representation
19
of Applicants' interests is sure to be inadequate absent intervention. As such, Applicants can easily
20
rebut the minimal burden needed to establish that representation of their interest "may be"
21
inadequate. See Herrera, 257 F.R.D. at 247; see also Michigan State AFL-CIO, 103 F.3d at 1247
22
(defendant would not make all of the prospective intervenor's arguments (citing Forest Conservation
23
Council, 66 F.3d at 1498-99)); Gruffer, 188 F.3d at 401 (where "proposed intervenors ... articulated
24
specific relevant defense that the University may not present," they "established the possibility of
25
inadequate representation").
26
II
9
1
ii.
2
3
MCCCD May Not Give Applicants' Arguments the Same Primacy As
Applicants Would Because The Parties Have Potentially Conflicting
Interests
Even ifMCCCD were to undertake Applicants' affirmative defenses, it may not give those
4
arguments "the kind of primacy" that Applicants will. Fundfor Animals, Inc., v. A. Norton, 322
5
F.3d 728, 736 (D.C. Cir. 2003). If Arizona were to prevail, Applicants would lose their existing
6
tuition rate. The increased tuition rate may require Applicants drop or decrease enrollment, or to
7
work more hours to make-up the added tuition at the expense oftheir grades and extracurricular
8
involvement. In contrast, a victory for Arizona would potentially create more revenue for MCCCD
9
through the increased tuition rate for DACA recipients. Because MCCCD has an economic
10
incentive that may be directly opposed to Applicants' economic interest, it may not defend the case
11
as vigorously as Applicants will. See Saunders, 109 Ariz. at 426,510 P.2d at 742 (Where "the
12
interest of [the proposed intervener and an existing party] are in conflict, ... each should be entitled
13
to their own legal representation."). Under these facts, Applicants are entitled to their own legal
14
representation.
15
As a general rule, "[i]nadequate representation is most likely to be found when the applicant
16
asserts a personal interest that does not belong to the general public." Wildearth Guardians v.
17
Salazar, No. 3:08-CV-489(WWE), 2009 WL 179811, at *2 (D. Ariz. June 24, 2009). This is
18
particularly true here because MCCCD has "a civil trusteeship obligation" to "the residents of
19
Maricopa County[,]" see MCCCD's Manner of Governance § 4.2.1, (Fidel Decl. ~ 3, Exhibit B),
20
while Applicants do not. As such, MCCCD's governing board members have an obligation to
21
represent their constituents, some whom oppose MCCCD's current policy of providing in-state
22
tuition rate for DACA recipients. MCCCD's mission also requires that it conduct business "always
23
mindful of [its] public image." Id. at § 4.2.3. Yet, MCCCD's current policy has been publicly
24
questioned by the Arizona Attorney General's office and has received negative comments by readers
25
of media outlets. See News Articles (Fidel Decl. ~ 4, Exhibit C). Given these tensions, MCCCD
26
may not adequately represent Applicants' particularized interests. See A. Norton, 322 F.3d at 735
10
1
("a school board did not adequately represent the interest of intervening parents because the board
2
represents all parents, while the intervenors may have more parochial interests centering upon the
3
education of their own children" (internal citation omitted)); see also Trbovich v. United Mine
4
Workers, 404 U.S. 528, 539 (1972) (Secretary did not adequately represent the applicant because
5
"the Secretary has an obligation to protect the vital public interest in assuring free and democratic
6
union elections that transcends the narrower interest of the complaining union member"). In sum,
7
Applicants have a unique interest in vigorously defending against this challenge and the Applicants'
8
participation as defendants "may also be likely to serve as a vigorous and helpful supplement to [the
9
existing party's] defense." See A. Norton, 322 F.3d 737 (internal citation omitted).
10
Further, Applicants are represented by counsel with expertise in Latino issues and immigrant
11
rights. MALDEF has been the nation's leading civil rights organization for Latino issues for more
12
than 45 years, and has litigated immigration-related cases such as Valle del Sol v. State ofArizona,
13
No. CV-10-01061-PHX-SRB, and ADAC v. Brewer, No. CV12-02546 PHX DGC.
14
The law firm Haralson, Miller, Pitt, Feldman & McAnally, PLC is one of Arizona's oldest
15
plaintiff-oriented law firms. Among its distinguished partnership is Jose de Jesus Rivera, Arizona's
16
first Hispanic United States Attorney. Mr. Rivera and his associate Mr. Fidel have litigated
17
immigration-related cases such as Martin H Escobar v. Jan Brewer, No. CV-10-00249-PHX-DCB,
18
and have worked with the Florence Immigrant and Refugee Rights Project.
19
Daniel R. Ortega, Jr. has been licensed to practice law in Arizona since 1977 and currently
20
practices in the area of plaintiff's personal injury litigation. Mr. Ortega is the owner of the Ortega
21
Law Firm, P.e. His 36 year career as a lawyer includes a 20 year period in which he also practiced
22
immigration law. He is currently co-counsel in an immigration-related case, Valle del Sol v. State of
23
Arizona, No. CV-10-01061-PHX-SRB, that challenges the constitutionality of Arizona's Senate Bill
24
1070. Mr. Ortega is the immediate past Chairman of the Board of Directors of the National Council
25
of La Raza, the largest national Latino civil rights and advocacy organization in the United States.
26
Given this history, counsel is well-equipped to vigorously defend Applicants' rights.
11
1
2
B. Applicants Are Entitled To Permissive Intervention Under Ariz. R. Civ. P. Rule
2S(b)(2)
Applicants alternatively seek permissive intervention under Rule 24(b)(2). Rule 24(b) states,
3
4
5
6
7
8
9
10
11
12
13
14
15
16
in pertinent part:
Upon timely intervention anyone may be permitted to intervene in an action ... [w]hen an
applicant's claim or defense and the main action have a question oflaw 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.
Ariz. R. Civ. P. 24(b)(2). "[B]ecause courts construe Rule 24 liberally, 'the intervenor-bypermission does not even have to be a person who would have been a proper party at the beginning
of the suit.'" Dowling v. Stapley, 221 Ariz. 251, 272, 211 P.3d 1235, 1256 (App. 2009) (internal
citation omitted).
Stated differently, permissive intervention under Rule 24(a) involves a three-part test. First,
the applicant's motion should be timely. Second, the applicant's defense and the main action should
have a question of law or fact in common. Third, the intervention should not unduly delay or
prejudice the adjudication of the rights of the original parties. Id
1. Applicants' Motion To Intervene Is Timely and Will Not Prejudice Or Delay
The Existing Parties
17
Applicants satisfy the first and third part of the permissive intervention test because their
18
motion to intervene is timely and will not prejUdice or delay the existing parties, as discussed in
19
Section II. A. 1,above. In short, Applicants moved at the initial stages of this litigation, before any
20
motion practice or discovery commenced. Given Applicants' motion at the early stage of this
21
lawsuit, the existing parties will not be delayed or prejudiced if the Court permits intervention. Most
22
importantly, Applicants do not seek to disturb the scheduling order that this Court issued on
23
November 13,2013. Thus, Applicants satisfy the first and third factors for permissive intervention.
24
Moreover, Applicants' intervention cannot prejudice the existing parties because they are
25
entitled to file a separate lawsuit to vindicate their constitutional rights. See Brown., 84 F.R.D. at
26
397 (in granting permissive intervention, the court found no prejudice where the applicant had a
"right to assert their claims in another action" (citing David v. Smith, 431 F. Supp. 1206, 1209 n.l6
12
1
(S.D. N.Y. 1977)). The Ninth Circuit has also clarified that it is proper to allow intervention into a
2
case that challenges a school board's compliance with the law, rather than to require the applicants
3
to bring a new action. Spangler v. Pasadena City Board of Ed., 552 F.2d 1326,1328-329 (9th Cir.
4
1977); also see Brown, 84 F.R.D. at 404 (listing cases holding same). As such, Applicants can
5
plainly satisfy the third factor because their intervention would not prejudice the existing parties.
6
7
2. Applicants' Motion To Intervene Has Common Questions of Fact and Law
Finally, the facts and law raised in Applicants' proposed Answer are the same as those in this
8
suit against MCCCD, albeit with the different affirmative defenses described above. The central
9
common questions in this case are: (1) what is the governing law for purposes of determining
10
whether DACA recipients are entitled to in-state tuition rates in Arizona public community colleges
11
and universities; (2) whether MCCCD's in-state tuition rate policy for DACA recipients is in
12
compliance with that governing law; and (3) whether Arizona's enforcement action against MCCCD
13
violates state law. These questions would remain unchanged even if Applicants did not seek
14
intervention. The Court will need to examine the same law and the same facts to adjudicate these
15
claims. Thus, Applicants can satisfy each part of Rule 24(b)(2). At a minimum, Applicants should
16
be granted permissive intervention.
17
18
3. Applicants Also Satisfy the Additional 9th Circuit Factors for Permissive
Intervention
Courts may also consider additional factors for permissive intervention, such as "(1) the
19
20
21
22
23
24
25
26
nature and extent of the applicants' interest; (2) the applicants' standing to raise relevant legal issues;
(3) the legal position applicants seek to advance and its relation to the merits of the case; and (4)
whether the intervenors' interest are adequately represented." Bechtel, 150 Ariz. at 72, 722 P.2d at
240 (citing Spangler, 552 F.2d at 1329).
Applicants have already discussed these four factors above in Section II.A., above. In short,
as recipients of the in-state tuition rate, Applicants could lose their existing in-state tuition rate,
which would require them to pay 291 % more tuition for the exact same classes. The added cost
would likely cause Applicants to take fewer classes, drop out of school for a discrete time, or
13
1
abandon their career aspirations altogether. Applicants may also work longer hours to earn more
2
money, which would severely cut into their study time, hurt their grades, and undermine their
3
prospects of transferring to competitive universities.
4
Second, as the real parties in interest, Applicants have the standing to defend against
5
Arizona's challenge to the in-state tuition rate, and they also have standing to raise the constitutional
6
defenses underlying Arizona's action.
7
8
Third, Applicants' defense is important and inseparable from this case because their in-state
tuition rate and constitutional rights hinge on this case's conclusion.
9
10
11
Last, Applicants' interests are not adequately represented, particularly because Applicants
plead constitutional affirmative defenses that MCCCD did not include in its Answer.
III.
12
COUNTERCLAIM
Applicants also seek to file a counterclaim in order to affirmatively present the issues that
13
they defend against in this case, including claims for violations of the federal Equal Protection
14
Clause, federal Due Process Clause, and Arizona state law. (Fidel Decl. ,-r 5, Exhibit D). In
15
presenting their affirmative arguments, Applicants will not lengthen or delay this case, as these
16
claims implicate the same issues as do the underlying defenses. Indeed, Applicants do not seek to
17
disturb the scheduling order that this Court issued on November 13,2013 and are prepared to meet
18
their burden within that timeframe.
19
IV.
20
21
CONCLUSION
For all the foregoing reasons, Applicants respectfully request that this Court grant their
Motion to Intervene.
22
23
24
25
26
II
14
1
DATED this 19th day of November 2013.
2
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND
Victor Viramontes
Martha L. Gomez
3
4
5
&
6
ORTEGA LAW FIRM
Daniel R. Ortega, Jr.
7
&
8
9
HARALSON, MILLER, PITT,
FELDMAN & MCANALLY, PLC
10
lsi Nathan J Fidel
By: _ _ _ _ _ __ _ _ _ _ _ __
Jose de Jesus Rivera
Nathan J. Fidel
11
12
13
Attorneys for the Intervenor-Defendants
14
15
THE FOREGOING has been electronically
Filed this 19th day of November, 2013
16
17
18
19
20
21
22
23
24
COPY mailed and e-mailed this 19th day
of November, 2013, to:
Mary O'Grady
Lynne Adams
Grace E. Rebling
OSBORN MALEDON, P.A.
2929 N. Central Ave., 21 st Floor
Phoenix, AZ 85012
KevinD. Ray
Leslie Kyman Cooper
Jinju Park
Assistant Attorneys General
1275 W. Washington St.
Phoenix, AZ 85007
Attorneys for the State ofArizona ex rei.
Attorney General Thomas C Horne
Attorneys for M C C CD.
/s/ Jennie Larsen
25
26
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Victor Viramontes*
Martha G6mez*
MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND
634 S. Spring Street, 11 th Floor
Los Angeles, CA 90014
T: (213) 629-2512
F: (213) 629-0266
vviramontes@maldeJorg
mgomez@maldeJorg
Daniel R. Ortega, Jr. (State Bar No. 005015)
ORTEGA LAW FIRM
A PROFESSIONAL CORPORATION
361 East Coronado Road
Phoenix, Arizona 85004-1525
T: (602) 386-4455
F: (602) 340-1896
danny@ortegalaw. com
Jose de Jesus Rivera (State Bar No. 004604)
Nathan J. Fidel (State Bar No. 025136)
HARALSON, MILLER, PITT, FELDMAN &
MCANALL Y, PLC
2800 N. Central Ave., Suite 840
Phoenix, AZ 85004
T: (602) 266-5557
F: (602) 266-2223
jrivera@hmpmlaw.com
njidel@hmpmlaw.com
jlarsen@hmpmlaw.com (minute entries)
*in process ofsubmitting pro hac vice application
Attorneys for Proposed Intervenor-Defendants
16
IN THE SUPERIOR COURT OF ARIZONA
17
IN AND FOR THE COUNTY OF MARICOPA
18
19
STATE OF ARIZONA ex reI. Attorney
General Thomas C. Home,
20
21
22
23
24
25
26
Plaintiff,
vs.
MARICOPA COUNTY COMMUNITY
COLLEGE DISTRICT BOARD,
Defendant.
Case No. CV2013-009093
DECLARATION OF NATHAN J. FIDEL
IN SUPPORT OF INTERVENORDEFENDANTS' MOTION TO
INTERVENE
(Assigned to the Hon. Arthur Anderson)
1
STATE OF ARIZONA
)
2
)
3
COUNTY OF MARICOPA )
4
5
I, Nathan J. Fidel, being first duly sworn, declare and state:
1.
6
I am an attorney in good standing licensed to practice before the courts of the State of
7
Arizona. I am an attorney at the law firm of Haralson, Miller, Pitt, and Feldman & Mcanally, PLC,
8
counsel for Proposed Intervenor-Defendants. I make this declaration in support of the Motion to
9
Intervene. I have personal knowledge of the facts set forth below and, if called upon to do so, could
10
testify to these matters.
11
12
2.
Attached here as Exhibit ("Exh.") A is a true and correct copy of Proposed
Intervenor-Defendants' Answer.
13
3.
On or about November 4,2013, I retrieved the Maricopa Board's Manner of
14
Governance Policy from online. See Exh. B. Attached as Exh. B is a true copy of Maricopa Board'
15
Manner of Governance Policy.
16
4.
On or about November 11,2013, I retrieved online news articles regarding Maricopa
17
Board's in-state tuition rate, which includes readers' comments. See Exh. C. Attached as Exh. C is
18
a true copy of the newspaper articles referring to Maricopa Board's in-state tuition rate.
19
20
5.
Defendants' Counterclaim.
21
22
Attached here as Exh. D is a true and correct copy of Proposed Intervenor-
6.
I declare under penalty of perjury that the foregoing is true and correct under the laws
of the State of Arizona. Executed this 19th day of November, 2013 at Phoenix, Arizona.
23
24
25
26
II
1
1
2
Dated this
3
11·'; day of November, 2013
4
!1
5
I "
;:t)f)
BY:'_ _~
_J-=-~L...:....':""~
~'=:--'-_
6
_ _ __
Nathan J. Fidel
Attorney for the Intervenor-Defendants
7
8
9
10
SUBSCRIBED AND SWORN to before me on this
Fidel.
My Commission Seal:
11
12
'
13
14
,
••
OFFICIAL SEAL
JENNIE L. LARSEN
Notary Public· Arizona
MARICOPA COUNTY
My Commission Expires
SEPTEMBER 30, 2017
15
16
17
18
19
20
21
22
23
24
25
26
2
( l"l.., day of November, 2013 by Nathan
EXHIBIT A
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Victor Viramontes*
Martha L. G6mez*
MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND
634 S. Spring Street, 11 th Floor
Los Angeles, CA 90014
T: (213) 629-2512
F: (213) 629-0266
vviramontes@maldeforg
mgomez@maldeforg
Daniel R. Ortega, Jr., SBN 005015
ORTEGA LAW FIRM, P.C.
361 East Coronado Road
Phoenix, Arizona 85004-1525
T: (602) 386-4455
F: (602) 340-1896
danny@ortegalaw.com
Jose de Jesus Rivera, SBN. 004604
Nathan J. Fidel, SBN. 025136
HARALSON, MILLER, PITT,
FELDMAN & MCANALLY, P.L.C.
2800 N. Central Ave., Suite 840
Phoenix, AZ 85004
T: (602) 266-5557
F: (602) 266-2223
jrivera@hmpmlaw.com
nfidel@hmpmlaw.com
jlarsen@hmpmlaw.com (minute entries)
*pro hac vice pending
16
17
Attorneys for Intervenor-Defendants
18
IN THE SUPERIOR COURT OF ARIZONA
19
IN AND FOR THE COUNTY OF MARICOPA
20
21
STATE OF ARIZONA ex reI. Attorney
General Thomas C. Home,
22
Plaintiff,
23
vs.
24
MARICOPA COUNTY COMMUNITY
COLLEGE DISTRICT BOARD,
25
26
Defendant.
CASE NO. 2013-009093
[PROPOSED] INTERVENORDEFENDANTS' ANSWER
(Assigned to the Hon. Arthur Anderson)
1
2
3
4
5
Intervenor-Defendants ABEL BADILLO and BIBIANA VAZQUEZ ("IntervenorDefendants"), by and through counsel, answer the Plaintiffs Complaint as follows:
1.
Intervenor-Defendants admit the allegations in paragraphs 1-3 of the
Complaint.
2.
In response to paragraph 4 of the Complaint, Intervenor-Defendants admit that
6
the Attorney General is the chief legal officer and deny the remaining allegations in
7
paragraph 4.
8
3.
In response to paragraphs 5-8 of the Complaint, Intervenor-Defendants state
9
that the statutes cited speak for themselves, state that recipients of the Deferred Action for
10
Childhood Arrivals ("DACA") program who meet in-state tuition requirements cannot be
11
legally denied in-state tuition rates and deny the remaining allegations of paragraphs 5-8.
12
4.
In response to paragraphs 9-11 of the Complaint, Intervenor-Defendants state
13
that the statutes cited speak for themselves and that the remainder of paragraph 9-11 do not
14
state facts and instead call for a legal conclusion to which no response is required. To the
15
extent a response is required, Intervenor-Defendants affirmatively state that DACA-
16
recipients who meet in-state tuition requirements cannot be legally denied in-state tuition
17
rates and deny the remaining allegations of paragraphs 9-11.
18
5.
In response to paragraph 12 of the Complaint, Intervenor-Defendants state that
19
the statute cited speaks for itself, affirmatively state that DACA-recipients who meet in-state
20
tuition requirements cannot be legally denied in-state tuition rates and deny the remaining
21
allegations of paragraph 12.
22
6.
In response to paragraph 13 of the Complaint, Intervenor-Defendants admit
23
that Proposition 300 is protected by the Voter Protection Act of the Arizona Constitution,
24
state that the Voter Protection Act speaks for itself and that the remaining portions of
25
paragraph 13 do not state facts and instead call for a legal conclusion to which no response is
26
required. To the extent a response is required, Intervenor-Defendants affirmatively state that
1
1
DACA-recipients who meet in-state tuition requirements cannot be legally denied in-state
2
tuition rates and deny the remaining allegations of paragraph 13.
3
7.
Intervenor-Defendants admit the allegations in paragraph 14.
4
8.
In response to paragraph 15 of the Complaint, Intervenor-Defendants admit
5
that USCIS has "established a process for DACA-eligible individuals to request deferred
6
prosecution and to obtain authorization to work," state that the Forms and Form instructions
7
cited speak for themselves, affirmatively state that DACA-recipients who meet in-state
8
tuition requirements cannot be legally denied in-state tuition rates and deny the remaining
9
allegations of paragraph 15.
10
9.
In response to paragraph 16 of the Complaint, Intervenor-Defendants admit
11
that USCIS has established a process for deferring prosecution of individuals who meet
12
specific conditions, and allows those individuals to apply for employment authorization
13
documents, state that the DACA proclamation speaks for itself, and state that the remainder
14
of paragraph 16 does not state facts and instead calls for a legal conclusion to which no
15
response is required. To the extent a response is required, Intervenor-Defendants
16
affirmatively state that DACA-recipients who meet in-state tuition requirements cannot be
17
legally denied in-state tuition rates and deny the remaining allegations of paragraph 16.
18
10.
In response to paragraph 17 of the Complaint, Intervenor-Defendants state that
19
the statute speaks for itself, and state that the remainder of paragraph 17 does not state facts
20
and instead calls for a legal conclusion to which no response is required. To the extent a
21
response is required, Intervenor-Defendants affirmatively state that DACA-recipients who
22
meet in-state tuition requirements cannot be legally denied in-state tuition rates and deny the
23
remaining allegations of paragraph 17.
24
11.
In response to paragraph 18, Intervenor-Defendants do not have sufficient
25
information to admit or deny whether Maricopa County Community College District Board
26
("MCCCD") asserts that an employment authorization document permits it to ignore the law.
Intervenor-Defendants state that the remainder of paragraph 18 does not state facts and
2
1
instead calls for a legal conclusion to which no response is required. To the extent a
2
response is required, Intervenor-Defendants affirmatively state that DACA-recipients who
3
meet in-state tuition requirements cannot be legally denied in-state tuition rates and deny the
4
remaining allegations of paragraph 18.
5
12.
In response to paragraph 19 of the Complaint, Intervenor-Defendants state that
6
the statutes speak for themselves, and state that the remainder of paragraph 19 does not state
7
facts and instead calls for a legal conclusion to which no response is required. To the extent
8
a response is required, Intervenor-Defendants affirmatively state that DACA-recipients who
9
meet in-state tuition requirements cannot be legally denied in-state tuition rates and deny the
10
11
remaining allegations of paragraph 19
13.
In response to paragraph 20, Intervenor-Defendants do not have sufficient
12
information to admit or deny when the Attorney General discovered that MCCCD was
13
granting in-state tuition rates to DACA-recipients. Intervenor-Defendants state that the
14
remainder of paragraph 20 does not state facts and instead calls for a legal conclusion to
15
which no response is required. To the extent a response is required, Intervenor-Defendants
16
affirmatively state that DACA-recipients who meet in-state tuition requirements cannot be
17
legally denied in-state tuition rates and deny the remaining allegations of paragraph 20.
18
14 .
Intervenor-Defendants admit the allegations in paragraph 21 of the Complaint.
19
15.
In response to paragraph 22 of the Complaint, Intervenor-Defendants reallege
20
21
and incorporate each and every response to preceding paragraphs of the Complaint.
16.
In response to paragraph 23 of the Complaint, Intervenor-Defendants do not
22
have sufficient information to admit or deny whether an expedited declaration is warranted,
23
affirmatively state that DACA-recipients who meet in-state tuition requirements cannot be
24
legally denied in-state tuition rates and deny the remaining allegations in paragraph 23.
25
26
17.
In response to paragraph 24 of the Complaint, Intervenor-Defendants reallege
and incorporate each and every response to preceding paragraphs of the Complaint.
3
1
18.
Intervenor-Defendants deny the allegations in paragraph 25 of the Complaint
2
and affirmatively state that DACA-recipients who meet in-state tuition requirements cannot
3
be legally denied in-state tuition rates.
4
INTERVENOR-DEFENDANTS' AFFIRMATIVE DEFENSES
5
6
Intervenor-Defendants allege the following affirmative defenses:
7
A. The Complaint fails to state a claim upon which relief can be granted;
8
B. The Attorney General's decision to deny DACA-recipients in-state tuition rates
9
lO
11
violates the Equal Protection Clause of the Fourteenth Amendment;
C. The Attorney General's decision to deny DACA-recipients in-state tuition rates
violates the Due Process Clause ofthe Fourteenth Amendment;
12
D. Arizona state law allows DACA-recipients to receive in-state tuition rates;
l3
E. The Attorney General lacks statutory authority to bring this action;
14
F. A.R.S. § 12-348.01 does not provide a basis for the Plaintiff to be awarded its
15
16
attorneys' fees in this matter.
By asserting these affirmative defenses, Intervenor-Defendants do not in any way
17
waive or limit any defense that are or may be raised by its denials, allegations, and averments
18
set forth here.
PRA YER FOR RELIEF
19
20
21
22
WHEREFORE, Intervenor-Defendants pray for judgment as follows:
A.
The Plaintiff s request for expedited consideration of this case be denied;
B.
That the Court enter a declaration in favor of Intervenor-Defendants and
Defendant MCCCD in the dispute;
23
C.
That the Court permanently enjoin Plaintiff from enforcing its illegal policy of
24
restricting deferred action, EAD and DACA-recipients from receiving in-state
25
tuition rates;
26
4
1
D.
attorneys' fees and costs incurred in this matter to the extent that the Court
2
deems appropriate;
3
E.
4
That the Court award the Intervenor-Defendants and Defendant MCCCD their
That this Court order such other and further relief for Intervenor-Defendants
and Defendant MCCCD as this Court may deem just and proper.
5
6
7
8
9
10
11
12
13
14
15
16
DATED this _ _ day of _ _ _ _- ', 2013.
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND
Victor Viramontes
Martha L. Gomez
&
ORTEGA LAW FIRM
Daniel R. Ortega, Jr.
&
HARALSON, MILLER, PITT,
FELDMAN & MCANALLY, PLC
17
18
19
20
By:_ __ _ __ _ _ _ __ __ _
Jose de Jesus Rivera
Nathan J. Fidel
Attorneys for the Intervenor-Defendants
21
22
23
24
25
26
5
1
THE FOREGOING has been electronically
Filed this _ _ day of
, 2013
2
3
4
5
6
7
8
9
COpy mailed and e-mailed this _ _ day
of
, 2013, to:
Kevin D. Ray
Leslie Kyman Cooper
Jinju Park
Assistant Attorneys General
1275 W. Washington St.
Phoenix, AZ 85007
Mary O'Grady
Lynne Adams
Grace E. Rebling
OSBORN MALEDON, P.A.
2929 N. Central Ave., 21 st Floor
Phoenix, AZ 85012
Attorneys for the State ofArizona ex reI.
Attorney General Thomas C. Horne
Attorneysfor MC.C.C.D.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
6
EXHIBIT B
Maricopa Governance
01'
governance process
pol c.y ti I
4.2 manner of governing
The Board will govern lawfully, in a manner that is nonpartisan, with an emphasis on a) integrity
and truthfulness in all of its activities and practices, b) outward vision, c) encouragement of
diversity in viewpoints, d) strategic leadership, e) clear distinction between Board and Chancellor
roles, f) collective rather than individual decisions, and g) proactive leadership.
More specifically:
1. The Board will operate in all ways mindful of its civic trusteeship obligation to those who
own the organization, the residents of Maricopa County.
Governance Policies
2.
The Board will conduct itself in a manner that complies with all relevant laws and
regulations. The Board will fulfill all of its legal and fiduciary responsibilities as required by
state statutes, the Arizona Constitution, and all state administrative rules. These include
responsibilities such as approval of the budget; tuition and fees; degrees, certificates and
diplomas; graduation requirements; curriculum catalog policies; and travel regulations and
procedures upon recommendation from the Chancellor.
3.
The Board will cultivate a sense of group responsibility and shall work together
harmoniously in pursuit of this obligation. The Board will conduct its business in a respectful
and civil manner, always mindful of the Maricopa County Community College District's
public image.
4.
The Board will carefully establish performance standards and expectations for the district
through articulation of written governing policies. The Board's major focus will be on the
achievement of intended long term impacts outside the operating organization (outcomes),
not on the administrative or programmatic means of attaining those results, except as they
conflict with statutory law.
5.
The Board will observe "Policy Governance" principles as the framework for setting forth
these policy standards/expectations for the Board's own processes, as well as for articulating
performance standards and the manner of assessment of the work of the Chancellor.
Through these policies, the Board will establish and adhere to expectations for its own
conduct, addressing matters such as attendance, policy making principles, respect of roles,
respect for democratic processes, speaking to management and the public with one voice,
and ensuring the continuity of governance capability.
6.
Continual Board development will include periodic discussion of its governing performance,
orientation of new members in the Board's governance process and these policies, and
annual Board review of both the Board's and the Chancellor's progress in light of the Board's
performance expectations.
7.
The Board may use the expertise of individual members to enhance the Board's understanding
of issues, but will not substitute such expertise for the judgment of the Board .
8.
The Board will keep well-informed about relevant global and local educational trends and
other issues, by actively gathering information and attendance at appropriate workshops
and conferences to fulfill its role.
9.
The Board will govern with appreciation of the diversity of our internal and external
communities. Diversity is defined as the environment created within Maricopa that
demonstrates equity and mutual respect of each person .
D-4
Maricopa Governance
DI
governance process
pohCV
4.2 manner of governing
(cont'd)
10. All of the Board's governing policies are contained in this document, and they remain in
effect, unless amended or deleted by Board action.
11. Although the Board can change its governing policies at any time, it will conscientiously
observe those currently in effect.
12. The Board will allow no officer, individual, or Board Committee to prevent, or be an excuse
for, the Board not fulfilling its duties and commitments.
13. The Board will regularly evaluate and strive to improve its process and performance.
Self-assessment will compare Board activity and discipline to the Board's performance
criteria set forth in the "Governance Process" and "Board-Staff Relations" sections of these
governing policies.
14. The Board will reserve authority to approve the following types of agreements:
A. Cooperative agreements with outside entities requiring a significant commitment of
District funds or that may impair the District's bonding capacity.
B. Leases involving a commitment of the District's funds in excess of the annual amount
specified in Arizona Revised Statute §15-1444B-2 [or in excess of a total of $300,000 over
the original term].
C. Contracts for District-wide services for insurance, bookstores, and food service.
D. Real property leases or continuous use of District property by outside entities for
commercial activity or for any activity that substantially increases the potential liability for
the District or may impair its bonding capacity.
E. Dual enrollment agreements where an intergovernmental agreement is not required.
F. Contracts in which the legal authority to proceed is not explicit in statute or confirmed
through case law or Attorney General's opinion.
G. Purchases described below:
i.
A construction contract or construction consulting services contract, including
those for architects and engineers, exceeding $250,000.
ii. Any purchase of a single piece of information technology equipment or software
exceeding $250,000.
iii. Any purchase of services exceeding $250,000, other than recurring annual services
for support of District-wide systems or operations such as utilities, equipment, or
software maintenance.
H. Purchases or sale of real property.
I.
Agreements that by law must have Governing Board approval
MENDED October 22,2013, Motion No. 10112
AMENDED February 22, 2011, Motion No. 9781, 9782
Governance Policies
D-5
EXHIBIT C
Maricopa County Community '"
http://www.azcentral.comlnews ...
Navl1,2013 • 5:29PM' A GANNETT COMPANY
Shopping
SUBSCRIBE NOW and get
3 months for the price of 1
I
log In
News
Sports
Money
Things to do
Pol itics
Opinion
WatdldOll
My account
Travel
Register
Food & Home
Jobs
Cars
SUBSCRIBE
e-Newspaper
Hea~h
Traffic
Real Estate
Rentals
BuV & Sell
LaVozArllona.com
search: All azcentral.com
Help
Submit Que
Weather
Ahwatukee I Chandler I Gilbert I Glendale I Mesa I Peoria I Phoenix I Pinal I Queen Creek I Scottsdale I Southwest Valley I Surprise I _T_
e_
m~
pe
_ __ _ _ _ _ __ _ _ _ _•.1
Ceilings Made Beautiful
Better Than the
Real Thing!
Lightweight Faux Ceiling Beams
News » Arizon a » Article
5 Comments
Maricopa County Community College District tuition plan faces
scrutiny
In-state community college tuition for deferred-action students in question
_-
Den;',e Oliva" Z;, who came 10 the u.S. at age 3, I, awa~lnij a work
U IIder Ihe Defe"ed Acllon for Ch ildhood A,,;"al, program .
....
FONT:AAA
Recom mend
64
perm~
Tweet ~ O
By Mary Beth Faller
The Republic I azcentral com
Thu Apr 2S, 2013 10:Sl PM
The Maricopa County Community College Dislrict is seeking to avoid a lengthy
lawsuit over its policy of permitting in-slate tuition rates for undocumented
immigrants who receive work penmits through the federal deferred-action program.
I
Page 1 of 5
On Wednesday, the community colleges' attorney sent a letter to state Attorney
General Tom Horne, stating that the colleges believe they are complying with the
law by accepting the federal work penmits as a qualifier for in-state tuition. But the
district agrees there is "uncertainty" over the issue , so it proposed asking a judge to
rule on the matter, as a way to setUe the issue.
"If you are interested in a speedy, definitive and relatively inexpensive resolution to
this matter, MCCCD is willing to work cooperatively and in good faith to bring clarity
to this matter through a prompt judiCial decision, by joining and supporting a
declaratory judgment action: the letter said.
In the meantime, the lO-{;ommunity-college system will continue its policy.
Last August, President Barack Obama announced the Deferred Action for
Childhood Arrivals program that allows undocumented immigrants who are under
age 31 and who were brought to this country as minors to apply to stay in the U.S.
to work for two years without the threat of deportation.
11111/2013
Vet goes on quest to find medal's home
Plucky, lucky Cardinals are in playoff hunt
Wright's archives net millions, records indicate
Violent crime in Valley up in 2012
Tempe approves final part of Town Lake dam plan
Maricopa County Community ... http://www.azcentral.com/news ...
The community colleges' attorneys determined then that the work permits young
people received under the program are on the state's list of documents needed to
meet legal-residency requirements for in-state tuition, Maricopa's in-state tuition
rate is $76 per credit hour, compared with out-of-state tuition of $317 per credit
hour,
After Obama's action, Gov_Jan Brewer issued an executive order telling state
agencies to ensure undocumented immigrants granted deferred action and work
permits through the program were blocked from receiving state-issued driver's
licenses and public benefits. The order did not address tuition specifically, but
Brewer has said that allowing undocumented immigrants to pay in-state tuition even
if they receive deferred action and work permits would violate state law.
Tom Gariepy, spokesman for the community colleges, said the district has been in
talks with Home's office for a few months about the matter.
On Thursday, Stephanie Grisham, Horne's press secretary, said he will decide
soon what to do. She said in an e-mail:
I
". _. We appreciated receiving this long-awaited response; however, the AGO will
need some time to carefully analyze the letter. In addition, the letter itself raises
several issues that need to be discussed between the parties before the AGO
decides on an appropriate course of action,"
Most Popular
II
Top Videos
I
Mug shots in the news: Nov. 3-9
Gariepy said the district does not track how many students with deferred-action
permits are paying in-state tuition, but said administrators estimate it is more than
250 .
Carmen Cornejo, of the Arizona Dream Act Coalition, an advocacy organization,
said federal work permits are not new and have been a way to prove legal
residency since 2006, when voters passed Proposition 300, a ballot initiative that
prevents undocumented students from getting state-subsidized tuition or
scholarships.
Denisse Olivas, 25, is awaiting a deferred-action work permit. The Phoenix resident
is studying at Phoenix College and wants to transfer to Arizona State University and
become a dietitian, But she must pay about $1 ,000 a class under the community
college out-of-state rate.
Arizona DPS to crack down on texting drivers
Anthem dedicates memorial for veterans
Atheist 'mega-churches' take root across U.S" world
Top 10 Weird Stories (week of Nov 3)
New Colorado? Rural voters approve secession idea
Inmates executed in the United States in 2013
NJ man, ex-girlfriend in court over Powerball win
Woman accused of raping girlfriend after partying
NYPD: Man fatally shoots 3 bandmates, himself
PROJECT QUIT
"I'm 25 years old, and I've been in college for about five years already, and it's like a never-ending story
because I can only take one class a semester," she said.
NOTONEBACKEDDOWN
FROM THIS FIGHT.
The North High School graduate, whose parents brought her from Mexico when she was 3, said she hopes the
community colleges are able to continue offering the in-state rate to those who qualify.
"It will be a great opportunity for all the students who are in the same situation I am," she said .
While Maricopa and Pima Community College in Tucson do offer in-state rates to deferred-action students who
get work permits, Arizona's three state universi~es do not For undergraduates at ASU, that is about $23,600
this year, more than double what in-state students are charged . In recent months, the state Board of Regents,
which oversees the universities, has faced increasing pressure to review the policy_
At a recent meeting, the regents directed staff to study lower tuition costs for undocumented students who have
been granted deferred action from deportation. But the board is not considering offering them in-state tuition
rates.
Republic reporters Anne Ryman and Daniel Gonzalez contributed to this article,
YOU MAY LIKE
by labaola
YOU MIGIfT BE INTERESTED IN
Passengers give 1st-class seats to returning Marines
LAPD seeks to fire 2 officers over coerced sex
Woman who killed pimp paroled from Calif. prison
NJ man, ex-girlfriend in court over Powerball win
Contractors find woman, 83, bound in basement
Programmers Doubted
Obamacare Websile
Three Arrested in
Connection with Med
Could Be Ready On
School Murder
Time
Newborn baby's body found encased in concrete
Soldier sees wife attacked during video chat
Tiny figurine found in attic sells for $5.2 million
TOP JOBS
Casinos, pot, secession among U.s. ballot measures
Pa. woman admits to caging disabled child, 12
.ow"'o
B.careerbuilder
CUSTOMER SERVICE REP
ANOTHER GREAT COMPANY
1?1
PROJECT COORDINATOR / EXECUTIVE ASSISTANT
ANOTHER GREAT COMPANY
Matt Damon's 20Devastation
Manufacturing
Systems 3
Second Commercial
Earns Hm $3 Million
Database Administrator I Senior Database Administrator
NAU
FROM AROUND THE WEB
by Taboola
Surgical Scrub Technidan
Confidential
SPONSORED LINKS
All Top Jobs
Page 2 of 5
1111112013
Maricopa County Community... http://www.azcentra1.com/news ...
Employe~
Which Schools Offer the Easiest Onine Degrees? (Education
• Post your job now
Portal)
11 Public Universities with the Worst Graduation Rates
GET AZCENTRAL ANYWHERE
(The
Fiscal Times)
azcentral.com
mobile editions
21 smokin' hot men over SO (MRP)
Homeowners Are In
For A Big Surprise ...
Smart life Weekly
Pastor Mocked for His
'Biblical Money Code,'
Gets Last Laugh
Moneynews
Mario Lopez Takes the AncestryDNA Test With Surprising
Results (Ancestry. com)
Get azcentral com on your
phones and tablets for the
latest news, sports, video,
photos and much more
from azcentral, The
Arizona Republic and 12
News
• Get azcentl'3l .com
Praise Who? Celebrities Who Allegedly Don' t Believe In God
(Bossip)
North West Is Photographed Clear as Day, Sleeping on Kim
Kardashian
(TastyArtic/es)
Boeing's New 787-9 Dreamliner Takes to the Skies (NYSE)
mobllel
Convicted Baby Killer Released From Jail After Serving Just 5
Months (Tasty Articles)
• Android I IPad I IPhone
I iPhone Sports I AZ
Olsen Twins' Confession About 'Full House' Will Disappoint
China's Newest Hotel
Sinking to New Depths
What Will Sanla Bring?
Perfect Toddler Toys
Businessweek
Fisher-Price
from our sponsor
loyal Fans (TastyArtic/esj
Banner Children's Total Kid for IPad
OOwnloJd your free copy of
Kate Middleton's New Hairstyle Probably Shocked William
(PHOTOI (,>styMie/.s)
TOlal 'KkS, iJn inleractrve digital
pilre.odns ITliig;Jzine filled with
trctndlnl hC"~hh topics, Videos,
tips and activities. Sponsored
bV Banner Health,
~
JOIN THE DISCUSSION
azcentral.com has switched to the Facebook comment system on its blogs. Existing blog comments
will display, but new comments will only be accepted via the Facebook comment system. To begin
commenting, you must be logged into an active personal account on Facebook. Once you're logged
in, you will be able to comment. While we welcome you to join conversations, readers are
responsible for their comments and abuse of this privilege will not be tolerated. We reserve the
right, without warning or notification, to remove comments and block users judged to violate our
Term s of Service and Rules of Engagement. Faceboo k comments FAQ
Comments posted via facebook:
5
[hid'
corn ment
I
Conn.ent
Cher J enkins ' Phoenix, Arizona
And in other news on Ihis sile,
hUp:JJwww,azcenlratcominewsiarizonaJartlclesJ20130424mcccd-college-districl-proposeS-lax-hike hlml
I strongly believe citizens should not be forced to pay to enrich the lives of criminals While the liberals will bring
out their post children and tell us how deserving these poor illegals are, the fact still is that they are criminals
and whatever their reasons ror breaking the law, Ihey are not good enough for the US to turn around and say
that since you have broken the law for so long, we think we will reward you with nearly all the benefits of
cilizenshlp.
You came here illegally as a child? Tough luck. Talk to your parents!
Reply -
2 • Like .. April 29 at 1:21pm
John DiPaolo
Top Commenter
Breaking news! Federal judge in Texas Reed O'Connor announced that Obama's DACA is likely to be struck
down by court.
http://www mysanantonlo.comlnews/article/Judge-Obama-deportalion-reprieves-lacked-legal-4464726 php
Reply
1 Like April 26 8t11 :09am
Charles Chambers
Top Commenter Mesa Community College
And the community college district is going to Increase class size and cut teachers' schedules in order to comply
with the Affordable Care Act - just so Ms Olivas doesn't have to pay in state tuition?
Reply Like· April 26 at 8:37am
1I..I D. o n• ••
Ihanks to yout kllOliC repl~ I will be- aura no 0l'IO I $COO\Y usas c:abio onD! No~ QYQryono ($ as Ignex"ml
I
ilS youra.elf1
., you mU$1 know class 6lzo woold not lnOfOillliQ-ond IODdler would 001 be cut The
opposite will actually happen because more monoy is bainG put In the school sya;tom nod mol1l jobs
will become available for teachers!
Reply '
2 ~ Like April 26 al 10:24am
Diego A Morales
Charles- You're an idiot!
Reply Like April 26 at 4 :2 1pm
Facebook socia! plugln
Page 3 of 5
11/1112013
I
Maricopa County Community ... http://www.azcentral.com/news ...
YOU MIGHT BE INTERESTED IN
Injured hunter chooses to end life support
N.Y. man admits killing son for $700K insurance
Father of Bristol Palin son files custody petition
Racial harassment alleged at Tucson school
Girl, 3, goes for help after witnessing mom's death
Horne inquiring into colleges' immigrant tuition breaks
Pa . teacher charged in sex assault of student
NYU student wedged between buildings is recovering
Boy who killed neo-Nazi dad sent to state lockup
Woman gets 30 years in toddler death
[?I
SPONSORED LINKS
An Open Letter To My Son's Teacher AlThe Start OfThe
School Year (nickmom)
The 10 Worst Hotels and Motels in America
(The Fiscal Times)
This Is What Happens When You Teach High School Students
To Code (Fast Company}
Bonnie and Clyde: Surprising Facts You Don't Know
(Ancestry.com)
10 Cities to Retire In Without a Car (TheStreet)
Global MBA Rankings for 2012: Top 25 Business Schools
Worldwide (EducationBeat)
10 Worst College Majors for Your Career (Kiplinger)
How Caffeine Affects Your Heart (Health Central)
Drugs Are Bad, M'Kay? Look At How Orug Use Changed The
Way These Celebrities look (Bossip)
Hilarious Viral Video Mocks Saudi Arabia's Ban on Women
Drivers (Take Part)
[I
~
- "'0
GREAT SELECTION ,
SATISFACTION
GUARANTEED
SITEMAP
CUSTOMER SERVICE
PARTNERS
Investigations
Homepage
Mobile Apps
USA Today
Saving Arizona's Children
AZ Fact Check
Arizona Lottery
RSS feeds
Gannett Co . Inc
Immigration
Arizona's American Indians
Healthy Living
Advertise with Republic Media
Apartments: apartments.com
BoomerlO1
Economic Snapshot
Business & Entrepreneurship
Careers at The Republic
Cars: cars ,com
POPULAR TOPICS
Arizona Lottery Results
Western Jobs
City Comparison Guide
Business
FCC Online Public Inspection File
Dating: eHarmony.com
My Town
Air We Breathe
Food & Home
EEO Public File Report
Homes: Homefinder com
Fiesta Bowl Investigation
Republic 100
News
Careers at 12 News
HomeGain
Ask & Answered
AZ Storytellers
Photos
Contact The Republic
Jobs: Career Builder com
My Neighborhood
Sheriff Joe Arpaio
Sports
Media In Education
Local Businesses
Valley Home Values
Things To Do
Privacy Policy
Shopping:
Travel
Manage My Account
findnsave.azcentral .com
Getaway Tips
Subscribe to The Republic
Videos
Terms of Service
Weather
More of azcentral .com
Page 4 of 5
1111112013
Maricopa County Community ... http://www.azcentral.comlnews ...
(C
2013 azcentral com. All rights reserved..
I Users of this site agree to
the Terms of Service, Privacy Policy/Your California Priva cy Rights and Ad Choices
GANNETT
I
Page 5 of 5
1111112013
Courthouse News Service
HOME
T
ABOUT US !sACK ISSUES
~~
~~
r
COLUMNS
http://www.courthousenews.co ...
r ENVIRONMENTAL
I
DARKROOM
I
ALMANAC
I
ENTERTAINMENT
I
SECURITIES T APPELLATE
I
MASTHEAD
Courthouse News Ser'vice
Thursday. June 27, 20t3
Last Update: 8:45 AM PT
Arizona Fights In-State Tuition for Immigrants
By JAMIE ROSS
Like
Tweet
ShareThis
PHOENIX (CN) - Arizona's attorney general sued a Phoenix-area community college to
stop it from charging only in-state tuition to immigrants authorized to remain in the
United States under the Deferred Action for Childhood Arrivals.
Arizona sued the Maricopa County Community College District Board, in Maricopa
County Court,
The Maricopa County Community College District has more than 265,000 students in
10 campuses and two "skills centers" in and around Phoenix. Forty-nine percent of its
students are "non-Anglo," according to the district website.
Attorney General Tom Horne c1aims he learned in September that Maricopa County
Community College - one of the largest community college districts in the United States was granting in-state tuition to young immigrants who had applied for employment
authorization under the deferred action program.
The acronym-laden lawsuit refers to the defendant as MCCCD and the Deferred
Action for Childhood Arrivals program as DACA,
Horne complains that after the DACA program was instituted in 2012, granting legal
status to qualified people whose parents brought them to the United States as children,
the college announced "that it would accept an employment authorization document
issued to a DACA-eligible alien pursuant to the DACA policy as evidence that the alien
qualified for in-state tuition rates."
Under DACA, the U,S. Department of Homeland Security "announced that it would
exercise its prosecutorial discretion to allow certain young aliens brought to this country
as children who meet specified criteria to remain in the United States for up to two years
and to obtain a work permit," Horne says in the complaint.
He claims the college policy violates a 2006 Arizona law - Proposition 300 - passed by
voters "to prevent persons who are not eligible for state and local benefits from receiving
certain state or local benefits including in-state tuition rates."
The law, which passed with 71 percent of the vote, prohibits "a student who does not
have lawful immigration status from qualifying as an in-state student for tuition
purposes," the complaint states , It also prevents such students from receiving any
financial aid paid from state funds.
Horne claims the policy also violates the Personal ResponsibiJity and Work
Opportunity Reconciliation Act, passed by the Congress in 1996.
Arizona claims that law "limited a state's ability to grant state and local public benefits
to many aliens."
This included any post-secondary education benefits, "for which payments or
assistance are provided to an individual, household, or family eligibility unit by an
agency of a state or local government or by appropriated funds of a state or local
government' such as in-state tuition rates," according to the complaint.
The act does allow "a state to grant state or local public benefits, such as
postsecondary in-state tuition rates, to aliens who are not otherwise qualified for such
benefits ..• on1y if the state passes a 1aw after August 22, 1996, that affirmatively does
so," the complaint states.
Horne says Arizona has not passed such a law.
A federal judge ruled in May that Arizona can deny driver's licenses to immigrants
who qualify under the Deferred Action for Childhood Arrivals,
To qualify for the program, immigrants must be younger than 30, have come to the
United States before they were 16) and lived in the country for at least five years before
the program's announcement. They must also be enrolled in school or have graduated,
or be an honorably discharged veteran.
Horne seeks a declaration that state law prohibits MCCCD from "granting DACAeligible individuals in-state tuition rates."
Cqw !hQlUiP NDWtj ggrwm
Page 1 of 1
I
~
Privacy Policy
Search
1111112013
IJ m
@~ Subscribers
~,
~
Maricopa community college s... http://www.arizonadailyindepe ...
Chrie Ferrel
DNationwide'
VANISHING DEDUCTIBLE
Insurance
HOME
NEWS
BUSINESS
POLITICS
GET A FREE QUOTE i
SIOO OFF EVERY YEAR
OF SAFE DRIVING
COMICS/PUZZLES
OPINION
SPORTS
SUBSCRIBE
Maricopa community college sued for granting in-state tuition to
DACA students
June 28, 2013 By ADI News Services
EPA TARGETS WRONG CAUSE OF HAZE IN
GRAND CANYON
TUCSON DEFEAT YOURSELF
HERO CORPS BEGINS FIGHT AGAINST
CHILD EXPLOITATION
Arizona's Attorney General has filed a lawsuit against
Maricopa County Community College District Board
(MCCCD), in Maricopa County Court, to stop it from
charging only in-state tuition to immigrants authorized to
remain in the United States under the Deferred Action for
Childhood Arrivals. Maricopa County Community College,
one of the largest community college districts in the United
States, has been granting in-state tuition to applicants who
had applied for employment authorization under the
deferred action program.
VINEGAROONS AND SUN SPIDERS
DHS COMMITTEE TO EXAMINE
CYBERSECURITY OF HEALTHCARE.GOV
WEBSITE
The State is seeking a declaratory judgment that state law prohibits MCCCD from
"granting DACA-eligible individuals in-state tuition rates."
Horne claims the college policy violates a 2006 Arizona law - Proposition 300 passed by voters "to prevent persons who are not eligible for state and local benefits
from receiving certain state or local benefits including in-state tuition rates." The law,
which passed with 71 percent of the vote, prohibits "a student who does not have
lawful immigration status from qualifying as an in-state student for tuition purposes,"
the complaint states. It also prevents such students from receiving any financial aid
paid from state funds.
The State claims that after the DACA program was instituted in 2012, granting legal
status to qualified people whose parents brought them to the United States as
children, the college announced "that it would accept an employment authorization
document issued to a DACA-eligible alien pursuant to the DACA policy as evidence
that the alien qualified for in-state tuition rates." The U.S. Department of Homeland
Security "announced that it would exercise its prosecutorial discretion to allow
certain young aliens brought to this country as children who meet specified criteria to
remain in the United States for up to two years and to obtain a work permit,"
according to the complaint filed.
It is also alleged that the policy also violates the Personal Responsibility and Work
Opportunity Reconciliation Act, passed by the Congress in 1996, which "limited a
state's ability to grant state and local public benefits to many aliens." This included
any post-secondary education benefits, "for which payments or assistance are
provided to an individual, household, or family eligibility unit by an agency of a state
or local government or by appropriated funds of a state or local government' such as
in-state tuition rates," according to the complaint.
WHAT OUR READERS SAy ....
BillyB on EPA targets wrong cause of haze in
Grand Canyon
bottes kickers femme ollbotte on Chandler grocery
store ownor AJiniencod 1n fako monay ordor
scheme
rr on EPA targets wrong cause of haze in Grand
Canyon
Rat T on Tucson Defeat Yourself
powderpuff on Last primary American lead smelter
closing
r4 on Last primary American lead smelter closing
Jonalhan DuHamel on EPA targets wrong cause of
haze in Grand Canyon
Mark Finchem on EPA targets wrong cause of haze
in Grand Canyon
Mike Tyree on Tucson Defeat Yourself
The Attorney General says that the act does allow "a state to grant state or local
public benefits, such as postsecondary in-state tuition rates, to aliens who are not
otherwise qualified for such benefits .. . only if the state passes a law after August
22, 1996, that affirmatively does so," and Arizona has not passed such a law.
In May, a federal judge ruled that Arizona can deny driver's licenses to immigrants
who qualify under the Deferred Action for Childhood Arrivals.
IMinJil
Page 1 of2
Like
11/11/2013
ARCHIVES
I
Search this website ..•
Maricopa community college s... http://www.arizonadailyindepe ...
•
'I
and Work Opportunity RKonclll ..on Ad. pntpMttlon 100
,
~
- '
;
~,
!ii'I WISCONSIN DAILY
INDEPENDENT
Two sides of the Walker tax cut coin
High school students Invited to learn about
IIlsms"
Con: When a Tax Cut Is More Than a Tax Cut
Pro : Tax cut to homeowners does too HUle
Seniors White and Borland lead Badgers to
Impressive win over BYU
!ii'I OREGON DAILY INDEPENDENT
Triple shooting in Northeast Portland leaves one
dead, two injured
I'm sorry ... so sorry: Sunday's comic
Iraqi construction company pays seUlement to
U.S. government
Yakima man sentenced for felon possessing
firearm
!ii'I TENNESSEE DAILY
INDEPENDENT
Tennessee rate of interest set at 7.25 percent
Former Tennessee pollee officer pleads guilty to
assaulting handcuffed man
Walters State CC wins grant for industrial skills
training
RETURN TO TOP OF PAGE
Page 20f2
11/11/2013
EXHIBIT D
1
2
3
4
5
6
7
Victor Viramontes*
Martha L. G6mez*
MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL
FUND
634 S. Spring Street, 11 th Floor
Los Angeles, CA 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
Email: vviramontes@maldef.org
mgomez@maldef.org
Daniel R. Ortega, Jr., SBN 005015
ORTEGA LAW FIRM, P.C.
361 East Coronado Road
Phoenix, Arizona 85004-1525
Telephone: (602) 386-4455
Facsimile: (602) 340-1896
Email: danny@ortegalaw.com
8
15
Jose de Jesus Rivera, SBN. 004604
Nathan J. Fidel, SBN. 025136
HARALSON, MILLER, PITT,
FELDMAN & MCANALLY, P.L.C.
2800 N. Central Ave., Suite 840
Phoenix, AZ 85004
Telephone: (602) 266-5557
Facsimile: (602) 266-2223
Email: jrivera@hmpmlaw.com
nfidel@hmpmlaw.com
Minute Entries: jlarsen@hmpmlaw.com
16
*pro hac vice pending
9
10
11
12
13
14
17
Attorneys for Cross-Plaintiffs
18
IN THE SUPERIOR COURT OF ARIZONA
19
IN AND FOR THE COUNTY OF MARICOPA
20
21
ABEL BADILLO and BIBIANA
VAZQUEZ,
Cross-Plaintiffs,
22
23
vs.
24
STATE OF ARIZONA ex reI. Attorney
General Thomas C. Home,
25
26
Cross-Defendant.
CASE NO. 2013-009093
[PROPOSED] CROSS-COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE RELIEF
(Assigned to the Hon. Arthur Anderson)
1 Cross-Plaintiffs ABEL BADILLO and BIBIANA VAZQUEZ ("Cross-Plaintiffs") allege as
2 follows:
3
1.
This lawsuit challenges the State of Arizona's ("Cross-Defendant" or
4 "Arizona") illegal efforts to reverse its own policy of allowing federal employment
5 authorization documents ("EADs") to establish eligibility for in-state tuition rates. Arizona is
6 taking illegal actions to reverse its policy of allowing federal deferred action-recipients to
7 qualifY for in-state tuition rates. Arizona's policy reversal, enforced through court action
8 against the Maricopa County Community College District Board ("MCCCD"), is illegal under
9
both state and federal law. Cross-Plaintiffs, deferred action-recipients, are students who
presented EADs to qualifY for in-state tuition rates at MCCCD schools.
10
11
2.
This action seeks declaratory and injunctive relief for ABEL BADILLO and
BIBIANA VAZQUEZ because Cross-Defendant's acts violate state and federal law.
12
13
14
PARTIES, JURISDICTION AND VENUE
3.
This Court has jurisdiction over this case under 42 U.S.C. § 1983,42 U.S.C. §
15 1988, the Arizona Constitution, Article 6, § 14, A.R.S. § 12-123, and A.R.S. §12-1831.
16
4.
Maricopa County is the proper venue for this action under A.R.S. § 12-401 (15)
17 and (17).
18
5.
Cross-Plaintiff ABEL BADILLO resides in Maricopa County, Arizona. He was
19 granted deferred action and an EAD under the Deferred Action for Childhood Arrivals
20 ("DACA") program. Cross-Plaintiff BADILLO is a student at Glendale Community College
21 and is eligible for in-state tuition rates. He is currently paying in-state tuition rates and his
22 tuition would rise if Arizona enforced its illegal policy against MCCCD.
23
6.
Cross-PlaintiffBIBIANA VAZQUEZ resides in Maricopa County, Arizona.
She was granted deferred action and an EAD under the DACA program. Cross-Plaintiff
24
25
26
VAZQUEZ is a student at Phoenix College and is eligible for in-state tuition rates. She is
currently paying in-state tuition rates and her tuition would rise if Arizona enforced its illegal
policy against MCCCD.
1
1
7.
Cross-Defendant Arizona filed a lawsuit against MCCCD challenging its
2 practice of granting DACA-recipients in-state tuition rates. See State ofArizona v. Maricopa
3 County Community College District Board Complaint CV2013-009093.
4
STATEMENT OF FACTS
5
6
8.
On June 25, 2013, Cross-Defendant filed suit in the Maricopa County Superior
7 Court of Arizona against MCCCD for granting in-state tuition rates to DACA-recipients.
8
9
9.
eligibility for in-state tuition rates.
10.
10
11
12
Cross-Defendant seeks to enjoin MCCCD from accepting EADs as evidence of
Arizona is expending taxpayer funds in support of its policy to deny in-state
tuition rates to qualified deferred action, EAD and DACA-recipients.
11.
Cross-Plaintiff BADILLO is an individual Arizona taxpayer. He is a deferred
action and EAD-recipient under the DACA program. Cross-Plaintiff BADILLO has a property
13 right in his in-state tuition rates granted under state law.
14
12.
Cross-Plaintiff VAZQUEZ is an individual Arizona taxpayer. She is a deferred
15 action and EAD-recipient under the DACA program. Cross-Plaintiff VAZQUEZ has a
16 property right in her in-state tuition rates granted under state law.
17
13.
Cross-Defendant's action denies Cross-Plaintiffs in-state tuition rates based on
18 their alienage and indicators of their alienage, including but not limited to their deferred action,
19 EAD and DACA.
20
21
22
23
14.
Arizona's policy denies in-state tuition rates to deferred action-recipients.
15.
Arizona's policy denies in-state tuition rates to EAD-recipients.
16.
Arizona's policy denies in-state tuition rates to DACA-recipients.
17.
Cross-Defendant has not provided adequate procedure for intentionally
depriving Cross-Plaintiffs of their right to in-state tuition rates.
24
25
18.
Arizona's in-state tuition laws, including but not limited to A.R.S. § 1-502,
require Arizona to grant in-state tuition rates to individuals presenting an EAD.
26
2
1
19.
Cross-Plaintiffs plead that they are not required to exhaust administrative
2 remedies for taxpayer relief when such an effort would be futile because such exhaustion would
3 require notice to the Attorney General. Here, it would be futile to ask the Attorney General to
4 prevent illegal expenditures when the Attorney General is doing the illegal acts. Nonetheless,
5 Cross-Plaintiffs have also sent Notice of Claim to the Attorney General in order to exhaust their
6 administrative remedies.
7
FIRST CLAIM FOR RELIEF
(Equal Protection Clause, Fourteenth Amendment
of the U.S. Constitution; 42 U.S.C. §1983)
8
9
10
20.
Cross-Plaintiffs incorporate all preceding paragraphs as though fully set forth here.
11
21.
The Fourteenth Amendment of the
u.s. Constitution provides that "[n]o State
12 shall ... deny to any person within its jurisdiction the equal protection of the laws."
22.
13
Cross-Defendant is discriminating against Cross-Plaintiffs by taking action to
14 deny them in-state tuition rates based on alienage.
Cross-Defendant's action subjects Cross-Plaintiffs to differential treatment in
23.
15
16 their access to in-state tuition rates due to their alienage.
17
SECOND CLAIM FOR RELIEF
(Due Process Clause, Fourteenth Amendment
of the U.S. Constitution; 42 U.S.C. §1983)
18
19
20
24.
Cross-Plaintiffs incorporate all preceding paragraphs as though fully set forth here.
21
25.
Cross-Plaintiffs have a property right to in-state tuition rates provided under A.R.S. §
22 1-502 and the Maricopa County Community College District is allowing them to pay in-state tuition
23 rates.
24
25
26.
Cross-Defendant has acted to deprive Cross-Plaintiffs of an interest in their
property by seeking to deny Cross-Plaintiffs of in-state tuition rates without minimal procedural
due process.
26
3
1
27.
Cross-Defendant has failed to provide adequate procedure for depriving Cross-
2 Plaintiffs of their right to in-state tuition rates.
3
THIRD CLAIM FOR RELIEF
(Uniform Declaratory Judgment Act)
4
5
6
7
8
28.
Cross-Plaintiffs incorporate all preceding paragraphs as though fully set forth here.
29.
Cross-Defendant's policy of depriving Cross-Plaintiffs from in-state tuition
rates violates A.R.S. § 1-502.
30.
Cross-Defendant's policy of depriving Cross-Plaintiffs from in-state tuition
9 rates violates Cross-Plaintiffs Equal Protection Clause of the Fourteenth Amendment.
10
31.
Cross-Defendant's policy of depriving Cross-Plaintiffs from in-state tuition
11 rates violates Cross-Plaintiffs Due Process Clause of the Fourteenth Amendment.
12
FOURTH CLAIM FOR RELIEF
(Injunctive relief under A.R.S. § 12-1801)
13
14
15
32.
Cross-Plaintiffs incorporate all preceding paragraphs as though fully set forth here.
Cross-Defendant's policy of depriving Cross-Plaintiffs from in-state tuition
33.
16
17 rates violates A.R.S. § 1-502.
18
34.
Cross-Defendant's policy of depriving Cross-Plaintiffs from in-state tuition
rates violates Cross-Plaintiffs Equal Protection Clause of the Fourteenth Amendment.
19
35.
20
Cross-Defendant's policy of depriving Cross-Plaintiffs from in-state tuition rates
violates Cross-Plaintiffs Due Process Clause of the Fourteenth Amendment.
21
22
23
FIFTH CLAIM FOR RELIEF
(Arizona's expenditure on this litigation against MCCCD is illegal and actionable by
taxpayers)
24
25
26
36.
Cross-Plaintiffs incorporate all preceding paragraphs as though fully set forth here.
37.
Cross-Plaintiffs are taxpayers in the State of Arizona.
4
1
38.
Cross-Plaintiffs seek to enjoin the illegal expenditure of public monies.
2 Arizona is illegally expending taxpayer funds in support of its illegal policy denying in-state
3 tuition rates to qualified deferred action, EAD and DACA-recipients.
39.
4
Cross-Defendant's policy of depriving Cross-Plaintiffs from in-state tuition
5 rates violates A.R.S. § 1-502.
40.
6
Cross-Defendant's policy of depriving Cross-Plaintiffs from in-state tuition
7 rates violates Cross-Plaintiffs Equal Protection Clause of the Fourteenth Amendment.
41.
8
9
Cross-Defendant's policy of depriving Cross-Plaintiffs from in-state tuition
rates violates Cross-Plaintiffs Due Process Clause of the Fourteenth Amendment.
10
11
PRAYER FOR RELIEF
WHEREFORE, Cross-Plaintiffs pray for the following relief:
12
A.
A declaration that Cross-Defendant cannot deny deferred action, EAD and
13 DACA-recipients in-state tuition rates under applicable laws and that Arizona's policy is
14 unlawful and invalid;
15
B.
Permanently enjoin the State of Arizona from enforcing its illegal policy of
16 restricting deferred action, EAD and DACA-recipients from receiving in-state tuition rates.
C.
17
An order awarding Cross-Plaintiffs costs of suit, and reasonable attorneys' fees
18 and expenses pursuant to A.R.S. § 35-213(C), 42 U.S.C. § 1988, and any other applicable law;
D.
19
Such other and further relief as the Court deems equitable, just, and proper.
20
21
22
23
24
25
26
II
5
1
DATEDthis_dayof _ _ _ _ _ 2013 .
2
3
4
5
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND
Victor Viramontes
Martha L. Gomez
&
6
7
8
ORTEGA LAW FIRM
Daniel R. Ortega, Jr.
&
9
10
11
HARALSON, MILLER, PITT,
FELDMAN & MCANALLY, PLC
12
14
By:_ _ __ _ _ _ _ _ _ _ __
Jose de Jesus Rivera
Nathan J. Fidel
15
Attorneys for the Cross-Plaintiffs
13
16
THE FOREGOING has been electronically
17 Filed this
day of
2013.
18
COpy mailed and e-mailed this __ day
19 of
, 2013, to:
20 Kevin D. Ray
21 Leslie Kyman Cooper
Jinju Park
22 Assistant Attorneys General
23 1275 W. Washington st.
Phoenix, AZ 85007
Mary O'Grady
Lynne Adams
Grace E. Rebling
OSBORN MALEDON, P.A.
2929 N. Central Ave., 21 st Floor
Phoenix, AZ 85012
24
Attorneys for M C C CD.
Attorneys for the State ofArizona ex reI.
25 Attorney General Thomas C Horne
26
6