IN THE SUPREME COURT
STATE OF ARIZONA
STATE OF ARIZONA, ex rel.
MARK BRNOVICH, Attorney
General,

Arizona Supreme Court
No. CV–20–0019–SA

Petitioner,
v.
CITY OF PHOENIX, Arizona,
Respondent.

RESPONSE IN OPPOSITION TO ROWE, ET AL.’S
MOTION TO INTERVENE
Jean-Jacques Cabou (#022835)
JCabou@perkinscoie.com
Alexis E. Danneman (#030478)
ADanneman@perkinscoie.com
Matthew R. Koerner (#035018)
MKoerner@perkinscoie.com
Margo R. Casselman (#034963)
MCassleman@perkinscoie.com
PERKINS COIE LLP
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: 602.351.8000
Facsimile: 602.648.7000
Attorneys for Respondent
City of Phoenix
January 29, 2020

 Special actions under A.R.S. § 41-194.01 are unique creatures of
statute—actions between the Attorney General and one of the State’s
political subdivisions, which are designed to be resolved expeditiously.
See A.R.S. § 41-194.01 (requiring the Attorney General to file actions and
the Supreme Court to hear matters and to give them docketing
precedence). The City therefore respectfully opposes the Motion to
Intervene (“Motion”) filed by the Goldwater Institute on behalf of various
individual rideshare passengers and drivers (“the Passengers and
Drivers”).
I.

The Passengers and Drivers Are Not Entitled To Intervene
On Any Grounds.
The Passengers and Drivers do not satisfy the requirements for

intervention as of right under Arizona Rule of Civil Procedure 24 (“Rule
24”) (a), even assuming such intervention is authorized in special action
proceedings. See Ariz. Spec. Act. Rule 2(b) (providing only that the Court
“may” allow persons to intervene in this special action “subject to the
provisions of [Rule 24],” and nowhere referencing intervention as of right
under Rule 24(a)). Additionally, the Passengers and Drivers do not
satisfy the requirements for permissive intervention under Rule 24(b).
A.

Movants Are Not Entitled to Intervention as of Right.

First, the Passengers and Drivers do not satisfy, as they must, each
of the four parts of the test Arizona courts apply to determine whether
an applicant is entitled to intervene in an action as a matter of right. See
Woodbridge Structured Funding, LLC v. Ariz. Lottery, 235 Ariz. 25, 28
¶ 13 (App. 2014) (establishing four-part test and requiring that each part
be satisfied). At a minimum, the Passengers and Drivers do not (1)

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 adequately “assert an interest relating to the property or transaction
which is the subject of the action” nor do they (2) “show that the other
parties would not adequately represent [their] interests.” Id.
1.

The Passengers and Drivers Do Not Have a
Sufficient Interest in this Proceeding.

Any interests of the Passengers and Drivers do not justify
intervention. To satisfy the interest requirement, an intervenor must
have “direct and immediate interest in the case, so that the judgment to
be rendered would have a direct and legal effect upon his rights, and not
merely a possible and contingent equitable effect.” Miller v. City of
Phoenix, 51 Ariz. 254, 263 (1938). Put differently, the “interest”
requirement is not met unless the proposed 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, 72 (1931) (emphasis added). That
is not the case here.
Any ability of the Passengers and Drivers to use or drive rideshare
services will not be directly impacted by this Court’s judgment on the
constitutionality of City of Phoenix Ordinance G-6650 (Dec. 18, 2019) (the
“Ordinance”). In part, the Ordinance alters the fees paid by rideshare
companies; it requires nothing of passengers or drivers. [See Ex. A
(Ordinance) § 4-78 (requiring authorized providers, including rideshare
companies, to pay certain amounts)].
The Passengers and Drivers nonetheless argue (at 9–10) that, if
this Court upholds the Ordinance, several outcomes might occur: the
rideshare companies might stop operating at Phoenix Sky Harbor Airport
(“Airport”), that the ridesharing companies might pass the fees on to
drivers or passengers, that the fees might cause a decrease in rideshare

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 business, or that other transportation companies might fail to provide
alternative services to passengers. Maybe. But none of these things will
happen as a direct consequence of the judgment of this Court. Hill, 38
Ariz. at 72.
At most, any judgment in this case will have merely a “possible and
contingent” effect on any interests of the Passengers and Drivers. Miller,
51 Ariz. at 263; see also Dowling v. Stapley, 221 Ariz. 251, 270 ¶ 58 (App.
2009) (“[A] prospective intervenor must have such an interest in the case
that the judgment would have a direct legal effect upon his or her rights
and not merely a possible or contingent effect.”). This possibility does not
support intervention as of right. Dowling, 221 Ariz. at 270 ¶ 63; see also
In re Benny, 791 F.2d 712, 721 (9th Cir. 1986) (“This possibility that our
decision could affect [the applicants’] interests is too tenuous to entitle
them to intervene [as] of right.”); Heritage Vill. II Homeowners Ass’n v.
Norman, 246 Ariz. 567, 572 ¶ 19 (App. 2019) (“Federal Rule of Civil
Procedure 24 is substantively indistinguishable from Arizona Rule 24,
and we may look for guidance to federal courts’ interpretations of their
rules.”).
Finally, a proposed intervenor has no interest in, and cannot
intervene to introduce, additional issues in a case. See Donnelly v.
Glickman, 159 F.3d 405, 412 (9th Cir. 1998) (“The intervention rule
is . . . not intended to allow the creation of whole new lawsuits by the
intervenors.”) (alteration in original) (quoting Deus v. Allstate Ins. Co.,
15 F.3d 506, 525 (5th Cir. 1994)). In this action, Arizona law required the
Attorney General to “file a special action in [the] supreme court to resolve
the issue” of whether the Ordinance “[m]ay violate a provision” of the
Arizona Constitution. A.R.S. § 41-194.01(B)(2). Accordingly, the issue

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 before the Court is narrow and limited to that expressly authorized by
statute.
While the Passengers and Drivers have not identified any specific
claims or arguments in their brief, see infra I.C, intervention is generally
inappropriate to allow a third party to expand the issues in a limited,
statutory action, such as this one. Cf. Ute Distribution Corp. v. Norton,
43 F. App’x 272, 278 (10th Cir. 2002) (noting that in case under the
Administrative

Procedure

Act,

judicial

review

is

limited,

and

introduction of new issues by an intervenor was inappropriate); Friends
of the Wild Swan, Inc. v. U.S. Fish & Wildlife Serv., 896 F. Supp. 1025,
1027 (D. Or. 1995) (“Because the Intervenors[] merely seek to interject
their interests and concerns, outside of the administrative record, in
defense of the [agency’s] decision, they do not have legally protectable
interests at this stage in this litigation.”).
2.

Other Parties Will Adequately Represent the
Interests of the Passengers and Drivers.

Finally, any interest that the Passengers and Drivers have is
adequately represented by the Attorney General. In general, “[w]hen an
applicant for intervention and an existing party have the same ultimate
objective, a presumption of adequacy of representation arises.” Arakaki
v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003); see also § 1909
Intervention

under

the

1966

Amended

Rule—Adequacy

of

Representation, 7C Fed. Prac. & Proc. Civ. § 1909 (3d ed.) (“The most
important factor in determining adequacy of representation is how the
interest of the absentee compares with the interests of the present
parties.”).

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 Here, the Passengers and Drivers and the Attorney General have
stated that they have the same ultimate objective—to invalidate the
Ordinance. In the Petition for Special Action (at 6), the Attorney General
“requests that this Court declare the Ordinance violates the Arizona
Constitution and is therefore null and void.” 1 In their Motion (at 2, 12),
the Passengers and Drivers assert the same ultimate objective. Indeed,
there is nothing in the record to suggest that the Attorney General will
not adequately pursue all arguments in support of its position that the
Ordinance violates the Arizona Constitution.
The Passengers and Drivers nonetheless persist in arguing (at 11)
that they somehow have a “more narrow” interest than the State and the
Attorney General due to the theoretical possibility that the State might
interpret the constitutional provision differently in some respect. See
Motion at 12 (“The state may . . . prefer an interpretation of article IX,
Section 25 that is different or more permissive of government taxes, fees,
and assessments than Movants’.”). Again, this is not enough to justify
intervention. “Where parties share the same ultimate objective”—in this
case, invalidating the Ordinance—“differences in litigation strategy do
not normally justify intervention.” Arakaki, 324 F.3d at 1086. 2
The Attorney General has also stated publicly that he is
“requesting that the Supreme Court declare the Ordinance in Violation
of the Arizona Constitution and therefore null and void.” Press Release,
Mark Brnovich, Arizona Attorney General, AG Brnovich Files Special
Action with AZ Supreme Court to Overturn Unconstitutional City of
Phoenix
Sky
Harbor
Rideshare
Fee
(Jan.
21,
2020),
https://mailchi.mp/azag/rideshare-special-action-phoenix?e=[UNIQID].
2 In any event, the Passengers and Drivers can fully present their
interests by filing an amicus curiae brief. Indeed, that is effectively what
they are asking to do. See Motion at 15–16 (requesting that the Court
1

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 Furthermore, representation is also presumed adequate when, as
in this case, “the government is acting on behalf of a constituency that it
represents.” Id. The Attorney General asserts that he represents the
public interest, including that of rideshare drivers and passengers. See
Petition for Special Action at 26 (“[T]o the extent any constitutional
provisions conflict, the rights of the people of Arizona must govern.”); id.
at 23 (citing impact on rideshare passengers and role of rideshare
drivers). Again, there is no evidence that the Attorney General will not
represent the interests of the Passengers and Drivers, with whom he
shares the same stated objective of invalidating the Ordinance. See
Saunders v. Super. Ct. In & For Maricopa Cty., 109 Ariz. 424, 426 (1973)
(noting the general rule that “there is no right to intervene unless the
[government] official is not adequately representing the taxpayers”).
In sum, the Passengers and Drivers have not made the showing
necessary for intervention as of right under Rule 24(a) because they have
only an indirect, contingent interest in the subject of this case and the
Attorney General will adequately represent their interests pursuant to
his statutory duty to do so.
B.

Movants Should Not Be Permitted to Intervene under
Rule 24(b).

The Passengers and Drivers alternatively argue that the Court
should permit them to intervene under Rule 24(b)(1)(B) because they
have “a claim or defense that shares with the main action a common

allow Movants “to file a separate brief in support of the State of Arizona’s
Petition for Special Action”).

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 question of law or fact.” Ariz. R. Civ. P. 24(b). Permissive intervention,
however, is also inappropriate in this case.
First, the Passengers and Drivers have not identified their claims
or defenses—other than the general claim that the City’s Ordinance
violates the Arizona Constitution. See Motion at 15. But even assuming
Movants’ claims share common questions of law or fact with the State’s
claims, as required by Rule 24(b)(1)(B), prudential considerations
strongly weigh against allowing the Passengers and Drivers to intervene.
See Dowling, 221 Ariz. at 272 ¶ 68 (noting that courts may consider other
prudential factors in determining whether to permit intervention under
Rule 24(b)).
For instance, the “nature and extent of the intervenors’ interest,” if
any, does not support permissive intervention. Bechtel v. Rose In & For
Maricopa Cty., 150 Ariz. 68, 72 (1986) (quoting Spangler v. Pasadena City
Bd. of Ed., 552 F.2d 1326, 1329 (9th Cir. 1977)). At most, the disposition
of this case will have only a possible effect on any interests of the
Passengers and Drivers and does not warrant their intervention.
Moreover, this case is a unique creature of statute, which
commands the filing of special actions in the first instance in this Court
to adjudicate purely legal issues of public importance on an expedited
basis. See A.R.S. § 41-194.01(B)(2). The nature of this action does not
contemplate, or accommodate, the intervention of any third parties,
particularly those with indirect, contingent interests in the subject of the
litigation.
Further, intervention is inappropriate because the interests of the
Passengers and Drivers are adequately represented by the Attorney
General in this matter, for the reasons explained above. See Bechtel, 150

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 Ariz. at 72 (noting that adequacy of representation is reason for denying
permissive intervention); see also Perry v. Proposition 8 Official
Proponents, 587 F.3d 947, 955 (9th Cir. 2009) (denying permissive
intervention when parties were otherwise adequately represented).
Additionally, the inclusion of the Passengers and Drivers as parties
to this action would delay these proceedings. See Ariz. R. Civ. P. 24(b)(3)
(requiring consideration of “delay or prejudice” in granting permissive
intervention). The Attorney General has already filed his Petition; the
City’s Response is due February 18, 2020. And while the deadline for
amicus briefing follows thereafter, the addition of more parties would
require a new, necessarily longer, briefing schedule.
As a result, their participation necessarily further complicates and
delays the “adjudication of the original parties’ rights” under A.R.S. § 41–
194.01. See Ariz. R. Civ. P. 24(b)(3). These proceedings must be expedited
pursuant to A.R.S. § 41–194.01 and should not be, in any way, extended
by the participation of third parties.
C.

The Passengers and Drivers Have Not Followed the
Proper Procedure for Intervention Under Rule 24(c).

Finally, even assuming the Passengers and Drivers could satisfy
the substantive requirements for intervention under Rule 24, their
Motion should further be denied because they failed to comply with the
procedure required under Rule 24(c). The Passengers and Drivers needed
to attach to their Motion their proposed brief to allow the parties and the
Court to better understand the nature of their claims. See Ariz. R. Civ. P.
24(c)(1)(B); see also Lebrecht v. O’Hagan, 96 Ariz. 288, 289 (1964)
(affirming denial of motion to intervene that failed to comply with Rule
24(c) because that provision is “mandatory”).

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 But the Passengers and Drivers did not follow this mandatory
requirement, nor have they otherwise provided any information about
any claims they would make. For this additional reason, the Passengers
and Drivers should not be allowed to become parties to this action. See
Miami Cty. Nat. Bank of Paola, Kan. v. Bancroft, 121 F.2d 921, 926 (10th
Cir. 1941) (“The purpose of the rule requiring . . . accompanying the
motion with a pleading setting forth the claim or defense is to enable the
court to determine whether the applicant has the right to intervene, and,
if not, whether permissive intervention should be granted.”).
II.

Conclusion.
In the end, the Passengers and Drivers have not satisfied the

requirements of Rule 24(a), (b), or (c). Where, as here, intervention is
inappropriate under Rule 24, the Special Action rules specifically
contemplate that the Court may instead allow persons “to participate [as]
amicus curiae.” Ariz. Spec. Act. Rule 2(b). The City has no objection to
the Court allowing the Passengers and Drivers to file an amicus curiae
brief by March 3, 2020, in accordance with the Court’s schedule. But the
City respectfully requests that the Court deny the Motion to Intervene.

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 January 29, 2020

Respectfully submitted,
PERKINS COIE LLP
By:/s/ Jean-Jacques Cabou
Jean-Jacques Cabou
JCabou@perkinscoie.com
Alexis E. Danneman
ADanneman@perkinscoie.com
Matthew R. Koerner
MKoerner@perkinscoie.com
Margo R. Casselman
MCassleman@perkinscoie.com
2901 N. Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: 602.351.8000
Facsimile: 602.648.7000
Attorneys for Respondent
City of Phoenix

147018118.3

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