ARIZONA SUPREME COURT PLANNED PARENTHOOD ARIZONA

ARIZONA SUPREME COURT

PLANNED PARENTHOOD ARIZONA,

INC., et al.,

Plaintiffs/Appellants,

KRISTIN MAYES, Attorney General of

the State of Arizona, et al.,

Defendants/Appellees,

and

ERIC HAZELRIGG, M.D., as guardian

ad litem of all Arizona unborn infants,

Intervenor/Appellee.

Supreme Court

No. CV-23-0005-PR

Court of Appeals

Division Two

No. 2 CA-CV 2022-0116

Pima County Superior Court

No. C127867

MOTION TO INTERVENE AND JOIN PETITION FOR REVIEW

OF INTERVENOR/APPELLEE DENNIS MCGRANE, YAVAPAI

COUNTY ATTORNEY

Kevin H. Theriot (No. 030446) John J. Bursch*

Mark A. Lippelmann (No. 036553) ALLIANCE DEFENDING FREEDOM

Jacob P. Warner (No. 033894) 440 First Street, Suite 600

ALLIANCE DEFENDING FREEDOM Washington, DC 20001

15100 N. 90th Street Telephone: (616) 450-4235

Telephone: (480) 444-0020 jbursch@adflegal.org

Facsimile: (480) 444-0028

ktheriot@adflegal.org Denise M. Harle**

mlippelmann@adflegal.org ALLIANCE DEFENDING FREEDOM

jwarner@adflegal.org 1000 Hurricane Shoals Road

Suite D-1100

Lawrenceville, GA 30043

Telephone: (770) 339-0774

[email protected]

Attorneys for Proposed Intervenor Dennis McGrane, Yavapai County

Attorney

*Application for pro hac vice admission pending

**Application for pro hac vice admission forthcoming

INTRODUCTION

Arizona has protected unborn human life longer than it has been a

state. Since 1901, starting with A.R.S. § 13-211, the Legislature has al-

ways restricted abortion except to save a mother’s life. Roe v. Wade never

changed that. Roe temporarily kept officials from fully enforcing § 13-

211. But even then, the Legislature reenacted § 13-211 as § 13-3603 and

passed more protections—careful to say these changes created no abor-

tion right, made no unlawful abortion legal, and did not repeal § 13-3603.

Not one of those laws allowed abortion. Only Roe did that.

Then federal law changed. Last year, the U.S. Supreme Court held

that States could once again fully protect unborn life. Dobbs v. Jackson

Women’s Health Org., 142 S. Ct. 2228, 2279 (2022). That revived

§ 13-3603, but a decades-old injunction kept it buried. The Attorney Gen-

eral sought to lift that injunction below, but after an adverse judgment

on appeal and new Attorney General Kristin Mayes assumed office, the

State reversed its position and did not appeal. While Petitioner Eric Ha-

zelrigg, M.D., as guardian ad litem of all Arizona unborn infants, has

petitioned for review, General Mayes’ changed position leaves no govern-

ment official defending the State’s interest in enforcing § 13-3603.

Proposed Intervenor Yavapai County Attorney Dennis McGrane

seeks to fill the void created by General Mayes’ change of position. He

seeks to join Dr. Hazelrigg’s Petition seeking reversal of the appeals

courts and lifting of the injunction so that he may fully enforce § 13-3603

as it was written. He deserves to intervene as a matter of right, or at

minimum, this Court should allow him to permissively intervene. Under

A.R.C.A.P. 6, the Yavapai County Attorney moves to intervene and to join

Dr. Eric Hazelrigg’s Petition for Review.

BACKGROUND

For over 120 years, Arizona has vigorously protected unborn human

life—forbidding abortion except to save the mother’s life. This pro-life

legacy began when Arizona was just a territory. In 1901, the Territorial

Legislature passed A.R.S. § 13-211, which prohibited any “person” from

providing “any medicine, drugs or substance” or using “any instrument

or other means … with intent … to procure [a] miscarriage” unless “nec-

essary to save [the mother’s] life.”

This law was consistently enforced

until 1973. E.g., State v. Wahlrab, 19 Ariz. 552 (App. 1973); State v.

Keever, 10 Ariz. 354 (App. 1969); State v. Boozer, 80 Ariz. 8 (1955); High-

tower v. State, 62 Ariz. 351 (1945); Kinsey v. State, 49 Ariz. 201 (1937).

In 1971, Planned Parenthood of Tucson, Inc. challenged § 13-211,

suing both the Arizona Attorney General and the Pima County Attorney

and arguing the law was unconstitutional. App.24–31. The trial court al-

lowed a Guardian ad Litem to intervene on behalf of unborn Arizona

Miscarriage means abortion. Abortion, Black’s Law Dictionary (11th ed.

2019); accord Dobbs, 142 S. Ct. 2228, App.

children. App.18–19. After a trial, the suit was dismissed, and Planned

Parenthood appealed. On remand, the trial court entered a declaratory

judgment and injunction for Planned Parenthood, declaring § 13-211 un-

constitutional. Nelson v. Planned Parenthood Ctr. of Tucson, Inc., 19

Ariz. 142, 143 (App. 1973). State officials appealed, and the court re-

versed, upholding § 13-211—but only for a few weeks. Id. at 142-50.

Roe v. Wade, 410 U.S. 113 (1973) was issued three weeks later,

holding that states could no longer fully restrict abortion. Bound by this

new rule, the appeals court vacated its prior decision solely because of

Roe. Nelson, 19 Ariz. at 152. Then the trial court entered judgment, en-

joining officials from enforcing § 13-211. App.18–22.

The Legislature was unmoved. In fact, it doubled down—reenacting

former § 13-211 as § 13-3603 a few years later. See 1977 Ariz. Sess. Laws

ch. 142, § 99 (1st Reg. Sess.). After passing a series of other restrictions,

in 2021, the Legislature repealed § 13-3604 but did not repeal neighbor-

ing § 13-3603—showing its intent to keep § 13-3603 and to protect moth-

ers from prosecution. 2021 Ariz. Sess. Laws ch. 286, § 3 (1st Reg. Sess.).

Then, in 2022, even as the Legislature enacted SB 1164 forbidding abor-

tion at 15 weeks’ gestation, it said this law “does not … [r]epeal” § 13-

3603. 2022 Ariz. Sess. Laws ch. 105, § 2 (2d Reg. Sess.).

SB 1164 was codified at §§ 36-2321–2326. The court below often used

“Title 36” when referencing § 36-2322 and related statutes.

Then came Dobbs—which held “that the Constitution does not con-

fer a right to abortion.” 142 S. Ct. at 2279. This decision overruled Roe

and Planned Parenthood v. Casey, 505 U.S. 833 (1992), and returned to

the states “the authority to regulate abortion”—including the power to

fully protect unborn life “at all stages.” 142 S. Ct. at 2279, 2284.

After this, former Attorney General Mark Brnovich, joined by Sub-

stitute Guardian ad Litem Eric Hazelrigg, moved under Rule 60(b) to set

aside the injunction on § 13-211 (now § 13-3603), because retaining it is

no longer just. App.1, 55, 69. All parties agreed the full injunction was no

longer proper, but Planned Parenthood of Arizona (successor to Planned

Parenthood Center of Tucson) and the Pima County Attorney argued a

partial injunction should remain as to physicians because Title 36 forbids

physician-performed abortions only after 15-weeks’ gestation. App.38.

Last fall, the trial court entered an order granting the Rule 60(b)

motion, fully lifting the injunction against § 13-3603. App.69–75. Planned

Parenthood and the Pima County Attorney appealed. The appeals court

reversed, holding that by prohibiting physician-performed abortions at

15-weeks’ gestation, Title 36 permits physician-performed “abortions un-

der certain circumstances”—including those illegal under § 13-3603.

Planned Parenthood Arizona, Inc. v. Brnovich, No. 2 CA-CV 2022-0116,

2022 WL 18015858, at *1 (Ariz. Ct. App. Dec. 30, 2022) (“App.”) (App.79).

Since that ruling, Arizona elected a new attorney general—Kristin

Mayes. She did not appeal the judgment below. Proposed Intervenor

Dennis McGrane, Yavapai County Attorney, seeks to fully enforce § 13-

3603 as written. That law is a valid exercise of state power. His constit-

uents are Arizona voters, and he wants to ensure their voice is heard and

a valid law is defended. He moves to intervene in this appeal and to join

Dr. Eric Hazelrigg’s Petition for Review.

ARGUMENT

The Yavapai County Attorney has an interest in enforcing valid

state laws like § 13-3603. This interest was protected before General

Mayes did not appeal, but because she will no longer defend § 13-3603,

no existing party protects this interest. The County Attorney may inter-

vene as of right, or at least permissively, to defend it.

I. The Yavapai County Attorney may intervene as of right.

To intervene as of right, the Yavapai County Attorney need only

show that (1) his motion is timely; (2) he has an interest in the subject

matter; (3) the disposition may impair his ability to protect that interest;

and (4) existing parties do not adequately represent his interest. A.R.C.P.

24(a)(2); Heritage Vill. II Homeowners Ass’n v. Norman, 246 Ariz. 567,

570 (App. 2019). The County Attorney satisfies this standard.

A. The County Attorney has an interest in enforcing

A.R.S. § 13-3603.

As state law requires, the County Attorney “shall” prosecute “public

offenses when [he] has information that” crimes “have been committed.”

A.R.S. § 11-532(A)(2). Indeed, because the County Attorney bears “the

primary responsibility for prosecuting criminal actions,” Smith v. Super.

Ct. In & For Cochise Cnty., 101 Ariz. 559, 560 (1967) (per curiam); accord

State v. Murphy, 113 Ariz. 416, 418 (1976); State ex rel. Berger v. Myers,

108 Ariz. 248 (1972), he is mainly responsible for enforcing § 13-3603, e.g.

State v. Boozer, 80 Ariz. 8, 10 (1955) (noting defendant “charged by the

county attorney” with violating § 13-3603’s statutory predecessor).

Because the County Attorney has a “right to enforce” § 13-3603, he

has a substantial interest in this case. Heritage, 246 Ariz. at 571.

B. The order below impairs the County Attorney’s inter-

est in enforcing A.R.S. § 13-3603.

The County Attorney seeks to fully enforce § 13-3603. This interest

“may be impaired” if intervention is denied. Heritage, 246 Ariz. at 573.

Indeed, this interest sits in grave jeopardy now. Unless this Court re-

verses the judgment below, the County Attorney cannot fully enforce

§ 13-3603. And no state official will defend the law. The County Attorney

risks being “bound by a judgment” enjoining a valid state law just be-

cause the Attorney General chooses not to defend it. John F. Long Homes,

Inc. v. Holohan, 97 Ariz. 31, 33 (1964). That’s not just.

This Court “liberally construe[s]” its intervention rules to promote

“justice.” Bechtel v. Rose ex rel. Dep’t of Econ. Sec., 150 Ariz. 68, 72 (1986)

(quoting Mitchell v. City of Nogales, 83 Ariz. 328, 333 (1958)). As it

stands, the only state officials here will not defend the law. The Pima

County Attorney has sided with Planned Parenthood. And while the At-

torney General defended § 13-3603 below, that was before General Mayes

assumed office. She has changed the State’s position and will not defend

it, as shown by her decision not to appeal the decision below.

The Attorney General’s refusal to defend and uphold state law di-

rectly threatens the Yavapai County Attorney’s interest in enforcing

§ 13-3603. While General Mayes may exercise lawful prosecutorial dis-

cretion, her litigation position should not alone decide whether § 13-3603

is declared constitutional or void. That position undeniably impairs the

County Attorney’s interest.

C. The existing parties do not adequately represent the

County Attorney’s interest.

Proposed intervenors need only show that representation of their

interests “‘may be’ inadequate; and the burden of making that showing

should be treated as minimal.” Trbovich v. United Mine Workers of Am.,

404 U.S. 528, 538 n.10 (1972) (quoting 3B J. Moore, Federal Practice

24.09–1(4) (1969)). The County Attorney satisfies that minimal burden

here.

As detailed above, no existing party adequately represents the Ya-

vapai County Attorney’s interest. The Attorney General has changed po-

sitions and, as shown by her decision not to appeal, will side with Planned

Parenthood. The Pima County Attorney has long sided with Planned

Parenthood. And while Dr. Hazelrigg seeks to fully defend § 13-3603, he

is not a state actor and cannot criminally prosecute offenders. So while

Dr. Hazelrigg seeks to protect unborn children, the County Attorney’s

legally cognizable interest flows not from the unborn but from his elected

office and his responsibility to represent “the interests of all people” in

his jurisdiction. Planned Parenthood Ariz., Inc. v. Am. Ass’n of Pro-Life

Obstetricians & Gynecologists, 227 Ariz. 262, 279 (App. 2011).

When a proposed intervenor’s “‘interest is similar to, but not iden-

tical with, that of one of the parties,’” courts reject any “presumption of

adequate representation.” Berger v. N.C. State Conf. of the NAACP, 142

S. Ct. 2191, 2204 (2022) (quoting 7C C. Wright, A. Miller, & M. Kane,

Federal Practice and Procedure § 1909)). Indeed, such a presumption is

wholly “inappropriate when a duly authorized state agent seeks to inter-

vene to defend a state law,” id., as is the case here. Because the interests

of the County Attorney and those of Dr. Hazelrigg are demonstrably dif-

ferent, the County Attorney is entitled to intervene.

D. The County Attorney’s motion is timely.

The Yavapai County Attorney timely moves to intervene. For time-

liness, this Court “consider[s] several factors,” including the lawsuit’s

“stage,” whether the movant “could have … intervene[d]” sooner, and

whether existing parties will be prejudiced. State ex rel. Napolitano v.

Brown & Williamson Tobacco Corp., 196 Ariz. 382, 384 (2000). These fac-

tors show that the County Attorney’s intervention is warranted.

While this suit is at a late stage, this is an obvious case “where [late]

intervention is proper.” Matter of One Cessna 206 Aircraft, FAA Registry

No. N-72308, License No. U-206-1361, 118 Ariz. 399, 401 (1978). The

County Attorney was “in no position to intervene” before receiving “no-

tice” that the Attorney General no longer “intend[ed] to prosecute the ap-

peal.” Holohan, 97 Ariz. at 34-35. When General Mayes did not appeal,

the County Attorney became aware that his interest would no longer be

adequately protected. Section I.B supra. He then moved to intervene at

the earliest time. Holohan, 97 Ariz. at 34-35; Heritage, 246 Ariz. at 571;

accord Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“The crucial

date for … timeliness … is when proposed intervenors should have been

aware that their interests would not be adequately protected….”).

The County Attorney’s intervention will prejudice no one. The brief-

ing schedule and timeline for resolving this appeal remain the same. The

County Attorney does not even seek to file a separate petition but joins

in the Petition that Dr. Hazelrigg has already filed. Additionally, the

County Attorney’s legal arguments will be the same in kind as those of

the predecessor Attorney General in the trial court and appellate court.

There will be no surprises. Indeed, Planned Parenthood and the Pima

County Attorney had to expect that this suit would reach the Arizona

Supreme Court—whether because they were appealing or someone else.

And the Attorney General should expect opposition when she reverses

the State’s position, imperiling the enforcement of a duly enacted and

valid state law. If anything, the County Attorney’s intervention will elim-

inate prejudice to Arizona voters, who deserve to have their validly en-

acted laws enforced and to be represented in court.

II. Alternatively, the Yavapai County Attorney satisfies the re-

quirements for permissive intervention.

At minimum, the Yavapai County Attorney satisfies the require-

ments for permissive intervention because he has a “defense that shares

with the main action a common question of law or fact.” A.R.C.P.

24(b)(1)(B). This Court considers many factors when asked to grant per-

missive intervention, including: (1) “whether intervention would unduly

delay or prejudice the adjudication of the rights of the original parties”;

(2) “the nature and extent of the intervenor’s interest[s]”; (3) “his or her

standing to raise relevant issues”; (4) “legal positions the proposed inter-

venor seeks to raise,” and (5) “those positions’ probable relation to the

merits of the case.” Dowling v. Stapley, 221 Ariz. 251, 272 (App. 2009).

As detailed above, the County Attorney’s intervention will prejudice

no one. Section I.D, supra. He represents the “the interests of all people”

in his jurisdiction and seeks to uphold and defend a validly enacted law,

interests that are broader and different in kind than Dr. Hazelrigg’s in-

terest in protecting unborn children. Planned Parenthood, 227 Ariz. at

279; Section I.C, supra. And the County Attorney’s interest in fully en-

forcing § 13-3603 differs dramatically from Respondents and (now) the

Attorney General. Section I.B, supra. He has standing to defend this in-

terest because he is charged with enforcing the § 13-3603. Section I.A,

supra. This Court should at least allow the County Attorney to permis-

sively intervene.

CONCLUSION

This Court should grant the Yavapai County Attorney’s motion to

intervene and to join Dr. Hazelrigg’s Petition for Review.

RESPECTFULLY SUBMITTED this 2nd day of March, 2023.

By: /s/ Jacob P. Warner

Jacob P. Warner

ALLIANCE DEFENDING FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

Telephone: (480) 444-0020

Facsimile: (480) 444-0028

jwarner@adflegal.org

Attorney for Eric Hazelrigg, M.D., interve-

nor and guardian ad litem of unborn all

Arizona unborn infants and Proposed In-

tervenor Dennis McGrane, Yavapai

County Attorney