Case 5:16-cv-07069-EJD Document 22 Filed 12/13/16 Page 1 of 8
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Brian Selden SBN 261828
JONES DAY
1755 Embarcadero Road
Palo Alto, California 94303
Telephone:
+1.650.687.4142
Facsimile:
+1.650.739.3900
Chad Readler
Pro hac application pending
JONES DAY
325 John H. McConnell Boulevard, Suite 600
Columbus, Ohio 43215
Telephone:
+1.614.469.3939
Facsimile:
+1.614.461.4198
Attorneys for Intervenors
PRESIDENT-ELECT DONALD J. TRUMP AND
DONALD J. TRUMP FOR PRESIDENT, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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VINZENZ J. KOLLER,
Plaintiff,
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v.
JERRY BROWN, in his official capacity as
Governor for the State of California, et al.,
Case No. 5:16-cv-7069
NOTICE OF MOTION AND MOTION
TO INTERVENE BY PRESIDENTELECT DONALD J. TRUMP AND
DONALD J. TRUMP FOR PRESIDENT,
INC.
Defendants.
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TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that on _____ at _____ a.m., or as soon thereafter as the
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matter may be heard in _____ of the above-entitled court located at ______________,
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Prospective Intervenors President-elect Donald J. Trump and Donald J. Trump for President, Inc.
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will respectfully move to intervene in the above-entitled action pursuant to Federal Rule of Civil
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Procedure 24. Prospective intervenors seek intervention as of right under subsection (a), or in the
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alternative permissive intervention under subsection (b). Neither Plaintiff nor Defendant Harris
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oppose this motion. As of this filing, Defendants Brown and Padilla could not be reached for a
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position on the motion.
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This motion meets the requirements of Rule 24(a) because the motion is (1) “timely,”
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having been filed just days after Plaintiff filed suit; (2) the movants have “an interest relating to
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the property or transaction” at issue, mainly ensuring state laws binding electors to vote according
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to the will of the people are upheld; (3) the movants are “so situated that the disposition of the
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action may as a practical matter impair or impede the movant’s ability to protect its interest,”
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namely in securing the office of the President; and (4) the existing parties do not “adequately
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represen[t]” the movants’ interest, because the state defendants cannot represent the interest of the
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movants in seeing the President-elect formally elected as President of the United States. Fed. R.
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Civ. P. 24(a). Prospective intervenors also meet the requirements for permissive intervention
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because this motion is timely and will not prejudice any of the parties. This Motion will be based
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upon this Notice, the accompanying Memorandum of Points and Authorities.
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Dated: December 13, 2016
Respectfully submitted,
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By: /s/ Brian Selden________
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Brian Selden
JONES DAY
1755 Embarcadero Road
Palo Alto, California 94303
Telephone:
+1.650.687.4142
Facsimile: +1.650.739.3900
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Chad Readler
Pro hac application pending
JONES DAY
325 John H. McConnell Boulevard,
Suite 600
Columbus, Ohio 43215
Telephone:
+1.614.469.3939
Facsimile: +1.614.461.4198
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Attorneys for Intervenors
PRESIDENT-ELECT DONALD J.
TRUMP AND DONALD J. TRUMP FOR
PRESIDENT, INC.
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Case No. 5:16-CV-07069
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MEMORANDUM OF POINTS AND AUTHORITIES
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Prospective Intervenors President-elect Donald J. Trump and Donald J. Trump for
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President, Inc. seek to intervene pursuant to Federal Rule of Civil Procedure 24. Prospective
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intervenors seek intervention as of right under subsection (a), or in the alternative permissive
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intervention under subsection (b).
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intervention to allow the disposal of lawsuits by involving as many concerned persons as
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compatible with efficiency and due process.
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Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011). The issue in this case is whether California
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can require presidential electors to vote for the presidential and vice-presidential candidates who
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received the highest number of votes in the general election. Because a decision from this Court
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could affect the President-elect’s and the Campaign’s rights and their participation in this case
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will not prejudice the parties, this Court should grant the motion to intervene. Indeed, in a
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cookie-cutter lawsuit filed by electors in Colorado, the district court granted the President-elect’s
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and the Campaign’s motion to intervene. Baca v. Hickenlooper, No. 1:16-cv-WYD-NYW, Dkt.
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No. 18, Order (D. Colo. filed Dec. 12, 2016).
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Federal courts broadly construe the rules governing
See Citizens for Balanced Use v. Montana
BACKGROUND
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On November 8, 2016, the several States conducted the Nation’s quadrennial presidential
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election. Citizens across the country gathered to cast their votes for the electors for President and
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Vice President of the United States. Donald Trump and Governor Mike Pence netted the most
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electoral votes nationwide. They did not, however, win California’s fifty-five electoral votes.
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Californians chose the electors for Secretary Hillary Clinton and Senator Tim Kaine. Because the
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Democratic nominees received the most votes in California, the fifty-five electors chosen by the
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California Democratic Party will vote in the Electoral College. To ensure the will of California’s
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voters is honored, California law requires its electors to vote in the Electoral College for the
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candidates who received the most votes in the presidential election. Cal. Elec. Code §§ 6906,
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18002.
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Plaintiff is one of those fifty-five electors. Despite his prior commitment to honor the
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outcome of California’s presidential election, Plaintiff now claims he might consider voting for
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people other than Secretary Clinton and Senator Kaine. Of course, President-elect Trump and
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Vice President-elect Mike Pence have more than enough electoral votes to secure their respective
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offices. Plaintiff’s lawsuit, however, threatens to undermine the many laws in other states that
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sensibly bind their electors’ votes to represent the will of the citizens, undermining the Electoral
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College in the process. That is why the President-elect and his Campaign seek to intervene in this
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case. And because the prospective intervenors meet the requirements of Rule 24, this Court
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should grant their motion.
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ARGUMENT
I.
THIS COURT SHOULD PERMIT THE PRESIDENT-ELECT AND THE CAMPAIGN TO
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INTERVENE AS OF RIGHT
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The President-elect and the Campaign satisfy all of the requirements for intervention as of
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right. Federal Rule of Civil Procedure 24(a) governs intervention as of right, and establishes that
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a motion to intervene should be granted if the motion is (1) “timely”; (2) the movant has “an
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interest relating to the property or transaction”; (3) the movant is “so situated that the disposition
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of the action may as a practical matter impair or impede the movant’s ability to protect its
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interest”; and (4) the existing parties do not “adequately represen[t]” the movant’s interest.
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First, this motion is timely. In determining timeliness, courts consider “(1) the stage of
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the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3)
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the reason for and length of the delay.”
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Technologies Co., 967 F.2d 1391, 1394 (9th Cir. 1992). Those factors clearly favor granting the
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motion. The current motion was filed just days after Plaintiff initiated his action and before
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Defendants have even made an appearance. The timing of this motion does not prejudice any of
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the existing parties to the case.
United States ex rel. McGough v. Covington
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Second, the President-elect and his Campaign have legal interests that are sufficiently
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related to the subject of this action. An applicant “demonstrates a significantly protectable
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interest when the injunctive relief sought by the plaintiffs will have direct, immediate, and
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harmful effects upon a third party’s legally protectable interests.”
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Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001). In this lawsuit, the interests of the
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Sw. Ctr. for Biological
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President-elect and his Campaign are clear. The President-elect won the majority of electoral
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votes in the several States. Many of those states (like California) require their electors to vote for
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the candidates who won the most votes on election day. Should this Court conclude (despite
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decades of legal and historical precedent to the contrary) that it is unconstitutional for California
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to bind its presidential electors, similar statutes in other states where the President-elect won may
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also be in jeopardy. Indeed, Plaintiff recognizes as much. Cmplt. ¶ 15. The President-elect and
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his Campaign therefore have a direct, substantial, and legally protectable interest in preventing
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the invalidation of California’s law requiring presidential electors to honor both their prior
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commitment and the voters’ will.
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Third, this lawsuit threatens to “impair or impede” prospective intervenors’ rights. Fed.
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R. Civ. P. 24(a). This Court “follow[s] the guidance of Rule 24 advisory committee notes that
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state that ‘[i]f an absentee would be substantially affected in a practical sense by the
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determination made in an action, he should, as a general rule, be entitled to intervene.’” Sw. Ctr.
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for Biological Diversity, 268 F.3d at 822 (quoting Fed. R. Civ. P. 24 advisory committee’s notes).
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If this Court invalidates California’s statute, similar state statutes across the land will be in
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question. Some of those laws directly affect the President-elect and the Campaign because those
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statutes bind electors to vote for the President-elect.
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Finally, the existing parties to the litigation will not adequately represent prospective
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intervenors’ interests. The burden imposed by this element of Rule 24(a) is “minimal.” Trbovich
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v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). If the “absentee’s interest is similar to,
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but not identical with, that of one of the parties, a discriminating judgment is required on the
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circumstances of the particular case, although intervention ordinarily should be allowed unless it
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is clear that the party will provide adequate representation for the absentee.” 7C Fed. Prac. &
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Proc. Civ. § 1909 (3d ed.). A party may even intervene in a case where its interests are identical
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to those of an existing party if it makes a concrete showing “of circumstances in the particular
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case that make the representation inadequate.” Id.
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In this proceeding, the state defendants are responsible for protecting the State’s interest in
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the statute. But the President-elect and his Campaign have distinct interests, among them (1)
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ensuring other states’ laws are respected, (2) ensuring that the Electoral College process is
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honored in the 50 states and the District of Columbia, and (3) ensuring that Mr. Trump is
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officially elected to the presidency. The state officials cannot represent these interests.
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For the foregoing reasons, the President-elect and his Campaign satisfy the requirements
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for intervention as of right under Rule 24(a), and this Court should grant the motion.
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II.
THIS COURT SHOULD ALLOW THE PRESIDENT-ELECT AND THE CAMPAIGN PERMISSIVE
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INTERVENTION
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Even if this Court concludes that the President-elect and the Campaign are not allowed to
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intervene as of right, the Court should nonetheless permit intervention under Federal Rule of Civil
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Procedure 24(b). That Rule provides that “upon timely motion, the court may permit anyone to
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intervene who . . . has a claim or defense that shares with the main action a common question of
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law or fact.” Fed. R. Civ. P. 24(b)(1)(B). The Rule further provides that “[i]n exercising its
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discretion the court must consider whether the intervention will unduly delay or prejudice the
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adjudication of original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
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The President-elect and his Campaign will assert defenses that relate directly to the central
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issues in this case. Indeed, they intend to argue that (1) laches bars Plaintiff’s claims, (2) Plaintiff
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lacks Article III standing, and (3) Plaintiff’s lawsuit presents a political question. If permitted to
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intervene, the President-elect and the Campaign can present evidence regarding the injury that
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could result if this Court finds California’s statute unconstitutional.
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intervention will not delay these proceedings, nor will it prejudice the existing parties. This case
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is in its infancy and this motion is filed before Defendants have appeared. Thus, if the Court
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determines that President-Elect Trump and his Campaign cannot intervene as of right, given the
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fundamental importance of the rights implicated by this litigation, this Court should exercise its
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discretion and allow permissive intervention.
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Further, allowing
CONCLUSION
For these reasons, the Court should grant the motion to intervene.
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Dated: December 13, 2016
Respectfully submitted,
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By: /s/ Brian Selden________
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Brian Selden
JONES DAY
1755 Embarcadero Road
Palo Alto, California 94303
Telephone:
+1.650.687.4142
Facsimile: +1.650.739.3900
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Chad Readler
Pro hac application pending
JONES DAY
325 John H. McConnell Boulevard,
Suite 600
Columbus, Ohio 43215
Telephone:
+1.614.469.3939
Facsimile: +1.614.461.4198
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Attorneys for Intervenors
PRESIDENT-ELECT DONALD J.
TRUMP AND DONALD J. TRUMP FOR
PRESIDENT, INC.
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CERTIFICATE OF SERVICE
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I certify that on December 13, 2016, the foregoing was electronically filed with the United
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States District Court for the Northern District of California using the CM/ECF system. All
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parties have consented to receive electronic service and will be served by the ECF system.
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Dated: December 13, 2016
By: /s/_Brian Selden________
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Brian Selden
JONES DAY
1755 Embarcadero Road
Palo Alto, California 94303
Telephone: +1.650.687.4142
Facsimile: +1.650.739.3900
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