USAF - Memo - Motion to Intervene by oga20203

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									                        IN THE UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF NEW MEXICO

MICHAEL L. WEINSTEIN, CASEY M.      )
WEINSTEIN, PATRICK T. KUCERA,       )
ARIEL B. KAYNE, JASON A.            )
SPINDLER,                           )
                                    )
            Plaintiffs,             )
                                    )    CIVIL ACTION NO.
v.                                  )    05-cv-1064 JP/LAM
                                    )
UNITED STATES AIR FORCE and         ) ORAL ARGUMENT REQUESTED
PETE GEREN, acting Secretary of the )
Air Force                           )
                                    )
            Defendants.             )
____________________________________)

    MOTION TO INTERVENE BY MAJOR JAMES GLASS AND CAPTAIN KARL
                PALMBERG ON BEHALF OF DEFENDANTS

        COME NOW the Proposed Intervenors Major James Glass and Captain Karl

Palmberg, (collectively “Proposed Intervenors”), and pursuant to Federal Rule of

Civil Procedure 24, hereby move to intervene on behalf of the Defendants in the

above cause of action. In support thereof, Proposed Intervenors state and allege as

follows:

        1.       Plaintiffs have filed a lawsuit against the United States Air Force

(“USAF”) and Peter Geren, acting Secretary of the Air Force, seeking to silence all

religious speech at USAF.1

        2.       Specifically, Plaintiffs made the following request in their Complaint:

        No member of the USAF, including a chaplain, is permitted to evangelize,
        proselytize, or in any related way attempt to involuntarily convert,


1
 Plaintiff Michael Weinstein filed a complaint on October 6, 2005. On October 31, 2005, Casey M.
Weinstein, Patrick T. Kucera, Ariel B. Kayne, and Jason A. Spindler joined Weinstein in the lawsuit, in an
Amended Complaint filed with this Court.


               Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 1
        pressure, exhort or persuade a fellow member of the USAF to accept their
        own religious beliefs while on duty.

See Amended Complaint, ¶ 31(a).

        3.        Major Glass is a chaplain within USAF, working as the chief of the

Excellence Division, Center for Character Development, at the USAF Academy in

Colorado Springs, Colorado. Glass Affidavit, ¶ 3 (A copy of Major Glass’ Affidavit is

attached to the Motion to Intervene as Exhibit A). If Plaintiffs obtain their desired relief,

Major Glass will not be able to share his faith with his fellow co-workers, chaplains,

professors, instructors, or staff at the academy, nor will he be able to share his faith with

anyone affiliated with the military. According to Major Glass, “Plaintiffs’ requested

relief will effectively silence all religious discussion, not only at the academy, but even

on the battlefield. Any conversation that I have with another regarding religion could be

viewed as an attempt to convert or persuade another to accept my religious beliefs. Every

time I speak about my faith, I would be worried about violating this rule.” See Glass

Affidavit, ¶ 6.

        4.        In addition, Major Glass could be called upon at any time to deploy to a

location where combat operations are in progress and where his life and the lives of

others would be at risk. If Plaintiffs are successful, Major Glass will not be able to share

his faith with others, nor seek religious comfort from others as he is placing his life on the

line for this country. Id. at ¶7.

        5.        Major Glass seeks to intervene in this lawsuit to protect his Constitutional

right to share his faith. According to Major Glass, “If there were a place where it is

imperative that people be allowed to share their personal faith, it is in the military where

the bravest of men and women are putting their lives on the line for this country. To



             Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 2
deny us the right to seek answers to religious questions would be an affront to America,

and it would be an insult to the many American heroes who sacrificially gave their lives

so we can live in a free country.” Id. at ¶ 8.

       6.      Likewise, Captain Palmberg is a member of USAF, and his constitutional

rights, including free speech and free exercise, will be violated if Plaintiffs are successful.

Capt. Palmberg has an extremely dangerous job with USAF as he flies F-16 fighter jets in

Eielson Air Force Base in Eielson, Alaska. Palmberg Affidavit, ¶ 6 (A copy of Capt.

Palmberg’s Affidavit is attached to the Motion to Intervene as Exhibit B).               In his

affidavit, Capt. Palmberg testified,

       The United States Air Force trains the most capable pilots in the world.
       This training is not easy, nor does it happen overnight. Years of stressful,
       competitive training make the first two years of a pilot’s career some of
       the most mentally, physically, and emotionally challenging years of his or
       her life. After that initial qualification, upgrades, specialized training, and
       deployments continue virtually until retirement. Through these tough
       times, I have found renewed strength and continual perspective as a
       direct result of my faith. My fellow officers and pilots, many of whom
       are my closest friends, have benefited from their faith, just as I have. In
       addition to discussing military tactics, aviation techniques, and job related
       issues, of equal value are the discussions I have with those with whom I
       work regarding my faith. These discussions many times include other
       officers whose view of faith differs, sometimes vastly, from mine. I am
       confident that these discussions, in addition to bolstering my faith and
       that of those around me, make me a better officer and a more confident
       pilot, allowing me to more effectively defend our nation on the
       battlefield.

Palmberg Affidavit, ¶ 7 (emphasis added).

       7.      Capt. Palmberg desires to intervene to protect his Constitutional rights.

He stated, “After over 5 years of service and over 500 F-16 flying hours both overseas

and at home, I consider my constitutional right to discuss my faith without censorship or




             Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 3
fear of retribution as valuable to the military and the future of our nation as the aircraft,

bombs, and bullets I am trained to employ.” Id. at ¶ 10.

       8.      This Motion is timely as Plaintiffs filed this lawsuit on October 6, 2005,

and their Amended Complaint on October 31, 2005.              Defendants have not filed a

responsive pleading as of the date of this motion.

       9.      Proposed Intervenors’ interests will be significantly impaired if

Plaintiffs are successful in obtaining their desired remedy. Their ability to share their

faith and to candidly discuss religion as they put their lives on the line for this country

will be in jeopardy. They seek to intervene to protect their interests.

       10.     The current government defendants cannot adequately represent

Proposed Intervenors’ interests. Their interests are not the same as the Proposed

Interveners seek to protect their personal constitutional rights.

       11.     In addition, permissive intervention is appropriate as the Proposed

Interveners’ interests in free speech and free exercise involve a common question of

law and fact as is in the underlying complaint.

       12.     Counsel for the Proposed Intervenors attempted to contact both the

Plaintiffs and the Defendants prior to the filing of this motion, but was unable to

reach any of the parties.

       WHEREFORE, the Proposed Intervenors move that this Court grant this

Motion, and permit them to intervene on behalf of the Defendants.




             Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 4
Respectfully submitted,


                                             /s/ Joel Oster
Benjamin Bull+                               Kevin H. Theriot*
Arizona Bar No. 009940                       Kansas Bar No. 21565
ALLIANCE DEFENSE FUND LAW CENTER             Joel Oster*
15333 N. Pima Rd., Suite 165                 Kansas Bar No. 18547
Scottsdale, Arizona 85260                    ALLIANCE DEFENSE FUND
Phone: (480) 444-0020                        MIDWEST REGIONAL SERVICE CENTER
Fax: (480) 444-0025                          15660 W. 135th St.
                                             Olathe, Kansas 66062
                                             Phone: (913) 829-7755
                                             Fax: (913) 829-7780


Paul F. Becht, Esq.
Becht Law Firm
7401 Montgomery Blvd, NE
Suite 103
Albuquerque, New Mexico 87109
505-883-7311
Attorneys for Plaintiff,

ALLIANCE DEFENSE FUND LAW CENTER

*Motion pro hac vice submitted
+Of Counsel, not admitted in this jurisdiction




     Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 5
                             CERTIFICATE OF SERVICE

       I hereby certify that on November 7, 2005, the undersigned sent a copy of the

foregoing via first class mail to the following:

Sam Bergman
Eric Loman
Attorneys for Plaintiffs
111 Lomas Blvd. N.W., Ste. 230
Albuquerque, NM 87102
(505) 761-5700

Alberto R. Gonzales
Attorney General
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530-0001

Patricia Madrid
New Mexico Attorney General
407 Galisteo St.
Bataan Memorial Bldg., Rm 260
Santa Fe, NM 87501


Pete Geren
Acting Secretary of Air Force
Air Force Pentagon
Washington, D.C. 20330-1665




                                                           /s/ Joel Oster
                                                           Joel Oster




             Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 6
                        IN THE UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF NEW MEXICO

MICHAEL L. WEINSTEIN, CASEY M.      )
WEINSTEIN, PATRICK T. KUCERA,       )
ARIEL B. KAYNE, JASON A.            )
SPINDLER,                           )
                                    )
            Plaintiffs,             )
                                    )                CIVIL ACTION NO.
v.                                  )                05-cv-1064 JP/LAM
                                    )
UNITED STATES AIR FORCE and         )
PETE GEREN, acting Secretary of the )
Air Force                           )
                                    )
            Defendants.             )
____________________________________)

BRIEF IN SUPPORT OF MOTION TO INTERVENE OF MAJOR JAMES GLASS AND
                     CAPTAIN KARL PALMBERG

       Plaintiffs have filed a lawsuit against the United States Air Force and Peter Geren, the

acting Secretary of the Air Force (collectively “USAF”) seeking to silence religious speech in the

USAF. Specifically, Plaintiffs request the Court to enter the following injunction:

       No member of the USAF, including a chaplain, is permitted to evangelize,
       proselytize, or in any related way attempt to involuntarily convert, pressure,
       exhort or persuade a fellow member of the USAF to accept their own religious
       beliefs while on duty.

See Amended Complaint, 31(a) (emphasis added).

       Plaintiffs’ proposed remedy is outrageously broad and would silence essentially all

religious speech throughout USAF. Any attempt by a person to share his or her faith could be

construed as an attempt to persuade another to change religious beliefs. Plaintiffs have not

limited his request to just one academy or location, but to the entire United States Air Force.

Plaintiffs’ requested relief would silence religious speech at the academies, at all bases, as well




      Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 1
as all areas of live combat. In addition, Plaintiffs have not limited his request to just one level of

officer, but to all USAF personnel.

        The Proposed Intervenors are members of USAF whose constitutional rights, including

free speech and free exercise, will be infringed if Plaintiffs are successful. Their Motion to

Intervene should be granted as it is timely, they have interests in this litigation that will be

impaired if Plaintiffs are successful, and their interests are not adequately represented by the

existing parties.

                       STATEMENT OF FACTS AND PROCEEDINGS

         Major Glass is a chaplain within USAF, working as the chief of the Excellence

Division, Center for Character Development, at the USAF Academy in Colorado Springs,

Colorado. Glass Affidavit, ¶ 3. If Plaintiffs obtain their desired relief, Major Glass will not be

able to share his faith while on duty with his fellow co-workers, chaplains, professors,

instructors, or staff at the academy, nor will he be able to share his faith with anyone affiliated

with the military. According to Major Glass, “Plaintiffs’ requested relief will effectively silence

all religious discussion, not only at the academy, but even on the battlefield. Any conversation

that I have with another regarding religion could be viewed as an attempt to convert or persuade

another to accept my religious beliefs. Every time I speak about my faith, I would be worried

about violating this rule.” See Glass Affidavit, ¶ 6.

        In addition, Major Glass could be called upon at any time to deploy to a location where

combat operations are in progress and where his life and the lives of others would be at risk. If

Plaintiffs are successful, Major Glass will not be able to share his faith with others, nor seek

religious comfort from others as he is placing his life on the line for this country. Id. at ¶7.




       Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 2
        Major Glass seeks to intervene in this lawsuit to protect his Constitutional right to share

his faith. According to Major Glass, “If there were a place where it is imperative that people be

allowed to share their personal faith, it is in the military where the bravest of men and women are

putting their lives on the line for this country. To deny us the right to seek answers to religious

questions would be an affront to America, and it would be an insult to the many American heroes

who sacrificially gave their lives so we can live in a free country.” Id. at ¶ 8.

        Likewise, Captain Palmberg is a member of USAF, and his constitutional rights,

including free speech and free exercise, will be violated if Plaintiffs are successful. Capt.

Palmberg has an extremely dangerous job with USAF as he flies F-16 fighter jets in Eielson Air

Force Base in Eielson, Alaska. Palmberg Affidavit, ¶ 6. In his affidavit, Capt. Palmberg

testifies:

        The United States Air Force trains the most capable pilots in the world. This
        training is not easy, nor does it happen overnight. Years of stressful, competitive
        training make the first two years of a pilot’s career some of the most mentally,
        physically, and emotionally challenging years of his or her life. After that initial
        qualification, upgrades, specialized training, and deployments continue virtually
        until retirement. Through these tough times, I have found renewed strength and
        continual perspective as a direct result of my faith. My fellow officers and
        pilots, many of whom are my closest friends, have benefited from their faith,
        just as I have. In addition to discussing military tactics, aviation techniques, and
        job related issues, of equal value are the discussions I have with those with whom
        I work regarding my faith. These discussions many times include other officers
        whose view of faith differs, sometimes vastly, from mine. I am confident that
        these discussions, in addition to bolstering my faith and that of those around
        me, make me a better officer and a more confident pilot, allowing me to more
        effectively defend our nation on the battlefield.


Palmberg Affidavit, ¶ 7 (emphasis added). Capt. Palmberg desires to intervene to protect his

Constitutional rights. He states: “After over 5 years of service and over 500 F-16 flying hours

both overseas and at home, I consider my constitutional right to discuss my faith without




        Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 3
censorship or fear of retribution as valuable to the military and the future of our nation as the

aircraft, bombs, and bullets I am trained to employ.” Id. at ¶ 10.

        Plaintiffs filed this lawsuit on October 6, 2005. An amended complaint was filed on

October 31, 2005, adding the following plaintiffs: Casey M. Weinstein, Patrick T. Kucera, Ariel

B. Kayne, and Jason A. Spindler. Defendants have not filed a responsive pleading as of the date

of this motion.

        The Proposed Intervenors should be permitted to intervene so that their constitutional

rights can be protected in this case.

                                   ARGUMENT AND AUTHORITIES

        Under Federal Rule of Civil Procedure 24, a party may seek to intervene as of right or

with the permission of the district court. See San Juan County, UT v. U.S., 420 F.3d 1197 (10th

Cir. 2005). The Intervenors’ Motion should be granted because, as demonstrated below, they

satisfy all of the elements for both of these types of intervention.

I.      PROPOSED INTERVENORS HAVE A RIGHT TO INTERVENE UNDER FED.
            R. CIV. P. 24(A)(2).

        Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that a party is entitled to

intervene as of right when:

        [T]he 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 impede the applicant’s ability to protect
        that interest, unless the applicant’s interest is adequately represented by existing
        parties.

Id. Proposed Intervenors have a right to intervene in this case because (1) their application for

intervention is timely; (2) they have a sufficient interest in the litigation; (3) their interest may be

affected or impaired, as a practical matter, by the disposition of the action; and (4) their interest

is not adequately represented by an existing party in the litigation. See San Juan Count., 420



       Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 4
F.3d at 1197.

       A.       Proposed Intervenors’ Application is Timely.

       Proposed Intervenors’ Motion is timely as they just recently learned of the lawsuit, and as

the lawsuit is in its infancy stage. As of the filing of this Motion, only the Complaint has been

filed. Defendants have not answered. Discovery has not commenced. No hearings have taken

place. Consequently, this Motion to Intervene is timely.

        A motion to intervene is timely if it is brought before any “proceedings of substance on

the merits” occur.    See 6 MOORE’S FEDERAL PRACTICE, § 24.21 (2002).                For instance, in

Mountain Top Condominium Ass'n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 369-70

(3d Cir. 1995), the court found intervention was proper because, even though some discovery

had been exchanged and settlement negotiations had taken place, no “proceedings of substance

on the merits” had occurred. Although the case had been pending four years before the motion

to intervene was filed, there had been “no depositions taken, dispositive motions filed, or decrees

entered.” Id.

       There have been no proceedings of substance on the merits, nor have any depositions

been taken in this case. The Complaint was only filed a month prior to the filing of this Motion,

and the Amended Complaint just a few days ago. Consequently, this Motion is timely.

       B.       Proposed Intervenors Have Sufficient Interests in the Litigation that will be
                Impaired.

        The Tenth Circuit has required that “(t)o qualify for intervention under Rule 24(a), the

‘interest’ asserted in the subject of the litigation must be a specific legal or equitable one.” Allard

v. Frizzell, 536 F.2d 1332, 1333 (10th Cir. 1976); see also Toles v. United States, 371 F.2d 784

(10th Cir. 1967); Donaldson v. United States, 400 U.S. 517, 531 (1971)(“What is obviously

meant (in Rule 24(a)(2)) is a significantly protectable interest.”) In Coalition of Arizona/New



       Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 5
Mexico Counties v. Department of the Interior, 100 F.3d 837, 840-44 (10th Cir. 1996), the court

pointed out that this inquiry is “highly fact-specific,” and that “the ‘interest’ test is primarily a

practical guide to disposing of lawsuits by involving as many apparently concerned persons as is

compatible with efficiency and due process.” Id. at 841.

       The Proposed Intervenors have an interest in this litigation as their Constitutional rights

of free speech, free exercise, equal protection and due process are at stake. See Adair v.

England, 183 F.Supp.2d 31 (D.C. 2002)(stating that although courts should give deference to the

military in matters relating to the management of the military, such deference “does not extend to

practices that may subvert one’s inalienable constitutional rights.”)

               1.      Free Speech Rights.

       Plaintiffs’ requested relief will silence Intervenors’ religious speech and will result in

viewpoint-based speech restrictions. Intervenors have a constitutional right to free speech while

in the military. See Adair v. England, 183 F.Supp.2d 31 (D.C. 2002)(holding that military

chaplains have First Amendment right to free speech and free exercise of religion that is subject

to strict scrutiny); Goldman v. Weinberger, 475 U.S. 503 (1986)(recognizing First Amendment

rights of military personnel, but stating that regulations involving inherently operational,

strategic, or tactical matters are given deference). This includes the right to speak on religious

matters and to communicate religious viewpoints.

       If Plaintiffs obtain their desired relief, “religious viewpoints” would be separated out

from all other viewpoints and silenced solely because they are religious.             For example,

Intervenors would be able to share their political viewpoints with another serviceman, and even

try to change another’s political party affiliation. But they could not share their religious views

with them. Intervenors would be free to try to convince another serviceman that the environment




       Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 6
is wasting away, and that people should be more environmentally friendly. However, this same

person could not share a religious viewpoint on the environment without fear that it would be an

attempt to change the religious beliefs of another.

       In Adair, Navy chaplains claimed that the Navy violated their free exercise and free

speech rights by favoring liturgical Christian chaplains over non-liturgical Christian chaplains.

In holding that the Navy Chaplains had free exercise rights and free speech rights that were

protected by the Constitution, the court noted two levels of constitutional protection afforded

military personnel.    First, when a government regulation involves “inherently operational,

strategic, or tactical matters,” the government regulation is given significant deference.

However, if the regulation does not relate directly to the military’s role in conducting national

defense, but could more appropriately be characterized as “quality of life issues” for military

personnel, then the government is given no more deference than is afforded in a civilian context.

See id. at 50-51. The court then held that the Navy’s policy of favoring liturgical Christian

chaplains discriminated against non-liturgical speech, and was an unconstitutional viewpoint

based speech restriction. See id. at 66.

       Whether the regulation directly pertains to matters of national defense, or purely quality-

of-life issues, the relevant point for this analysis is that military persons possess constitutional

rights while in the military. And it is these rights that Plaintiffs will be impairing if they are

successful.   Moreover, Plaintiffs’ requested injunction would broadly prohibit persuasive

religious speech whenever USAF personnel are on duty, including times when matters of

national defense are at issue, and when they are not. Intervenors’ Motion should be granted. See

Rosenberger v. Visitors of the University of Virginia, 515 U.S. 819, 831 (1995) (allowing topics

to be discussed from any perspective except a religious one is unconstitutional:          “It is as




       Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 7
objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to

exclude one, the other, or yet another political, economic, or social viewpoint.”); and Lamb's

Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 393 (1993) (“[I]t

discriminates on the basis of viewpoint to permit school property to be used for the presentation

of all views about family issues and childrearing except those dealing with the subject matter

from a religious standpoint.”)

               2.      Free Exercise Rights

       Interveners have a constitutional right to the free exercise of their religious beliefs while

in the military. See Adair, 183 F.Supp.2d at 52. This includes the right to share their religious

beliefs with others and to seek spiritual guidance from others free from government censorship.

The Supreme Court has set forth a two-track approach in determining if a law violates the free

exercise clause.

       A law that is neutral and of general applicability need not be justified by a
       compelling governmental interest even if the law has the incidental effect of
       burdening a particular religious practice…. A law failing to satisfy these
       requirements must be justified by a compelling governmental interest and must be
       narrowly tailored to advance that interest.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993).

Plaintiffs’ requested remedy is not neutral, nor is it generally applicable. Silencing all religious

speech is not neutral towards religion, but hostile. See Rosenberger, 515 U.S. at 835. Because

USAF personnel would be able to talk about all other viewpoints without censorship, the

requested relief would not be generally applicable, but would target religious speech.

       Plaintiffs’ requested relief would need to satisfy strict scrutiny in order to be

constitutional. The government does not have a compelling governmental interest to silence

religious viewpoints and practices.     To the contrary, such action would violate viewpoint




       Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 8
neutrality required by the First Amendment. In addition, Plaintiffs’ relief is outrageous in its

reach, and is not narrowly tailored. It seeks to stop religious speech of all USAF personnel in all

reaches of the Air Force. Intervenors’ free exercise rights are threatened by Plaintiffs’ lawsuit,

and thus should be permitted to intervene to protect their interests.

               3.      Equal Protection Rights

       Plaintiffs’ requested remedy would provide for the unequal treatment of persons of faith,

and thus would violate the Equal Protection Clause. The Equal Protection Clause is “essentially

a direction that all persons similarly situated should be treated alike.” City of Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). When a person is afforded unequal

treatment by the government because of religion, the government’s actions are subjected to strict

scrutiny, i.e., they must serve a compelling interest and be narrowly tailored to achieve that

interest. See Clark v. Jeter, 486 U.S. 456, 461 (1988)(“[C]lassifications affecting fundamental

rights...are given the most exacting scrutiny.”); Adair, 183 F.Supp.2d at 31 (“because the

plaintiffs … have alleged that the Navy’s policies and practices do involve denominational

preferences, the court will apply strict scrutiny to the plaintiff’s equal-protection claims). As was

stated above, Plaintiffs’ requested remedy would not serve a compelling governmental interest,

nor would it be narrowly tailored to achieve any permissible interest.

               4.      Due Process Rights

       Under the vagueness doctrine “laws must provide explicit standards for those who apply

them.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Vague policies violate two

fundamental principles of due process: (1) they leave the public guessing as to what speech is

proscribed; and (2) they invite arbitrary and discriminatory enforcement by giving unbridled

discretion to enforcement officials. Id. at 109; see also Connally v. General Const. Co., 269 U.S.




       Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 9
385, 391 (1926). Plaintiffs’ proposed remedy is unconstitutionally vague because it would leave

USAF personnel guessing as to what was prohibited. What would qualify as an attempt to

persuade another to change their beliefs? During combat assignments, when is a person on duty

vs. off duty?    At what point would a religious conversation become involuntary?           Will a

distinction be made between religious speech and proselytization, and if so, how will it be made?

When does sharing one’s faith cease to be religious speech and become proselytization? Is

unpersuasive religious speech prohibited? Such a policy would not provide USAF members

with any concrete guidance on what is or what is not permitted, and thus it is unconstitutionally

vague.

         In addition, Plaintiffs’ proposed remedy would result in military officials having

unbridled discretion to determine what speech is permitted. Because Plaintiffs’ proposed remedy

is vague, it can be abused by officials to silence viewpoints with which they disagree.

Consequently, it leaves people guessing as to what is permitted and what is prohibited, and it

gives unfettered discretion to officials in enforcing Plaintiffs’ proposed remedy.

         C.     Proposed Intervenors Interests Will Be Impaired by a Ruling in Their
                Absence.

         Intervention is appropriate under Rule 24(a)(2) when proposed intervenors can show that

their interest may be affected or impaired, as a practical matter by the disposition of the action.

See San Juan Count., 420 F.3d at 1197. “[T]he question of impairment is not separate from the

question of existence of an interest.” Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1253

(10th Cir.2001). The court is not limited to consequences of a strictly legal nature. To satisfy

this element of the intervention test, “a would-be intervenor must show only that impairment of

its substantial legal interest is possible if intervention is denied. This burden is minimal.” Id.

(emphasis added).



      Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 10
        Proposed Intervenors have a sufficient interest in the outcome of this litigation to warrant

intervention. As was explained above, Intervenors have a constitutional right to free speech and

the free exercise of religion while on duty at the Air Force. If Plaintiffs are successful in

silencing all persuasive religious speech by USAF personnel while on duty, Intervenors’

constitutional rights will be impaired. Thus, they should be permitted to intervene to protect

their interests.

        D.         Proposed Intervenors’ Interests are Not Adequately Represented.

        Intervention as a matter of right is appropriate when the applicant shows that his interests

are not adequately represented by the existing parties. Utah Ass'n of Counties, 255 F.3d at 1254.

Representation is typically considered to be inadequate for any of the following three reasons:

        (1) Although the applicants’ interests are similar to those of a party, they are
            sufficiently diverse that there is a risk that the existing party cannot or will not
            devote proper attention to the applicant’s interest;
        (2) There is collusion between the representative party and the opposing party; or
        (3) The representative party has not been diligent in prosecuting the litigation.

Coalition of Az./N.M. Counties for Stable Economic Growth, 100 F.3d at 844-45. The Supreme

Court has stated that the burden of showing inadequacy “should be treated as minimal.”

Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972).

        “[T]he possibility of divergence of interest need not be great in order to satisfy the

[applicants’] burden.” Coalition, 100 F.3d at 845; see also Utahns for Better Transp. v. United

States Dept. of Transp., 295 F.3d 1111 (10th Cir. 2002). Satisfying the “divergence of interest”

element “is easily made when the party upon which the intervenor must rely is the government,

whose obligation is to represent not only the interest of the intervenor but the public interest

generally, and who may not view that interest as coextensive with the intervenor's particular

interest.” Utah Ass'n of Counties, 255 F.3d at 1254. In Utahns for Better Transportation, the




       Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 11
Tenth Circuit stated,

        We have repeatedly pointed out that in such a situation the government's
        prospective task of protecting not only the interest of the public but also the
        private interest of the petitioners in intervention is on its face impossible and
        creates the kind of conflict that satisfies the minimal burden of showing
        inadequacy of representation.

295 F.3d at 1117 (quotations omitted).

        In this case, intervention as of right is proper because Intervenors’ significant interests are

not adequately represented by any of the existing parties. Intervenors’ First and Fourteenth

Amendment rights are personal to them. The government defendants, although sharing similar

interests with Intervenors, do not share identical interests, and thus intervention should be

granted. Defendants are primarily concerned with defending the constitutionality of their actions

in general, but not in protecting the individual constitutional rights of Intervenors.

        [T]he government's representation of the public interest generally cannot be
        assumed to be identical to the individual parochial interest of a particular member
        of the public merely because both entities occupy the same posture in the
        litigation. In litigating on behalf of the general public, the government is obligated
        to consider a broad spectrum of views, many of which may conflict with the
        particular interest of the would-be intervenor. Even the government cannot always
        adequately represent conflicting interests at the same time. This potential conflict
        exists even when the government is called upon to defend against a claim which
        the would-be intervenor also wishes to contest.

Utah Ass'n of Counties, 255 F.3d at 1255-56. Consequently, Intervenors should be permitted to

intervene to protect their constitutional interests.

II.    Proposed Intervenors Should be Permitted to Intervene Under Fed. R. Civ. P.
24(b)(2).

        Permissive intervention may be granted under Federal Rule of Civil Procedure 24(b)(2)

when an applicant’s claim or defense and the main action have a question of law or fact in

common. If the Court does not grant the Proposed Intervenors’ Motion to Intervene as a matter

of right, it should at minimum allow them to intervene permissively as their claims share a



      Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 12
common question of law and fact with Plaintiffs’ claims. Both the current Defendants and

Proposed Intervenors will be arguing whether Plaintiffs are entitled to his requested remedy, and

whether that remedy will result in unconstitutional policies. Proposed Intervenors want to

engage in religious speech with fellow USAF members while on duty, which is at the heart of

Plaintiffs’ Complaint. Consequently, they should be permitted to intervene.

                                          CONCLUSION

       Major Glass and Captain Palmberg should be permitted to intervene as they have

interests at stake in this litigation that will be significantly impaired if Plaintiffs are successful.

Their interests are not adequately represented by the existing parties, and they should be

permitted to intervene to protect these interests.

       Respectfully submitted,

                                                       /s/ Joel Oster
       Benjamin Bull+                                  Kevin H. Theriot*
       Arizona Bar No. 009940                          Kansas Bar No. 21565
       ALLIANCE DEFENSE FUND LAW CENTER                Joel Oster*
       15333 N. Pima Rd., Suite 165                    Kansas Bar No. 18547
       Scottsdale, Arizona 85260                       ALLIANCE DEFENSE FUND
       Phone: (480) 444-0020                           MIDWEST REGIONAL SERVICE CENTER
       Fax: (480) 444-0025                             15660 W. 135th St.
                                                       Olathe, Kansas 66062
                                                       Phone: (913) 829-7755
                                                       Fax: (913) 829-7780

       Paul F. Becht, Esq.
       Becht Law Firm
       7401 Montgomery Blvd, NE
       Suite 103
       Albuquerque, New Mexico 87109
       505-883-7311
       Attorneys for Plaintiff,

       ALLIANCE DEFENSE FUND LAW CENTER

       *Motion pro hac vice submitted
       +Of Counsel, not admitted in this jurisdiction



      Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 13
                                  CERTIFICATE OF SERVICE

        I hereby certify that on November 7, 2005, the undersigned sent a copy of the foregoing

via first class mail to the following:

Sam Bergman
Eric Loman
Attorneys for Plaintiffs
111 Lomas Blvd. N.W., Ste. 230
Albuquerque, NM 87102
(505) 761-5700

Alberto R. Gonzales
Attorney General
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530-0001

Patricia Madrid
New Mexico Attorney General
407 Galisteo St.
Bataan Memorial Bldg., Rm 260
Santa Fe, NM 87501

Pete Geren
Acting Secretary of Air Force
Air Force Pentagon
Washington, D.C. 20330-1665




                                                           /s/ Joel L. Oster
                                                           Joel L. Oster




      Brief in Support of Motion to Intervene by Maj. Glass and Capt. Palmberg – Page 14

								
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