Case 2:17-cv-01422-SPL Document 1 Filed 05/08/17 Page 1 of 16

1 Kathleen E. Brody (Bar No. 026331)

Brenda Muñoz Furnish (Bar No. 027280) 2 ACLU Foundation of Arizona

3 3707 North 7th Street, Suite 235 Phoenix, AZ 85014

4 Telephone: 602-650-1854

5

Email: kbrody@acluaz.org Email: bmfurnish@acluaz.org

6 David A. Lane (pro hac vice application to be submitted) 7 Andrew McNulty (pro hac vice application to be submitted)
Kilmer, Lane & Newman, LLP 8 1543 Champa Street
9 Denver, Colorado 80202 Telephone: 303-571-1000
10 Email: dlane@kln-law.com
11 Email: amcnulty@kln-law.com

12 Attorneys for Plaintiffs

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE DISTRICT OF ARIZONA

15

16 Arizona Attorneys for Criminal Justice;
17 Christopher Dupont; Rich Robertson; Richard L. Lougee; Richard D. Randall;
18 Jeffrey A. Kirchler; John Canby,

19

Plaintiffs,

No.:
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

20 v.

21 Doug Ducey, in his official capacity as
22 Governor of the State of Arizona; Mark Brnovich, in his official capacity as
23 Attorney General of the State of Arizona,

24

Defendants.

25

26

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1

INTRODUCTION

2

1. This action challenges the constitutionality of Arizona Revised Statutes

3 (“A.R.S.”) § 13-4433(B), which prohibits a criminal defendant’s attorney and others

4 working on a criminal defendant’s defense team from initiating contact with the victim of

5 the crime, including second-degree relatives of a crime victim who is killed or

6 incapacitated, except through the office of the prosecutor who is prosecuting the

7 defendant.

8

2. Because A.R.S. § 13-4433(B) prohibits and restricts speech by criminal-

9 defense lawyers, defense investigators, and others working on the defense team by

10 limiting to whom they may speak, with whom they may communicate, and how, the

11 statute implicates the free-speech rights protected by the First Amendment to the United

12 States Constitution.

13

3. In particular, A.R.S. § 13-4433(B) is an unlawful content-based and

14 overbroad prior restraint on the speech of criminal-defense lawyers and others on the

15 defense team that inhibits and outlaws speech fully protected by the First Amendment.

16 Plaintiffs bring this action to have A.R.S. § 13-4433(B) declared unconstitutional, and its

17 enforcement enjoined.

18

4. A.R.S. § 13-4433(B) is part of the statutory scheme that the Arizona

19 legislature enacted to protect the rights of crime victims as part of legislative efforts to

20 implement the Arizona Constitution’s Victims’ Bill of Rights, Ariz. Const. art. 2, § 2.1.

21

5. However, A.R.S. § 13-4433(B) goes beyond the protections afforded to

22 crime victims in the Victims’ Bill of Rights and is not appropriately tailored to the state’s

23 legitimate purpose of protecting a victim’s right to “be treated with fairness, respect, and

24 dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal

25 justice process.” Ariz. Const. art. 2, § 2.1(A)(1).

26

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1

6. For criminal-defense lawyers and others working on the defense team,

2 attempting to contact victims and their family members is a crucial part of the effective

3 representation of the defendant. It is an essential part of pre-trial investigation regarding

4 culpability, other possible perpetrators, and potential mitigation evidence for sentencing

5 purposes. Likewise, contact with victims and their family members can be crucial for

6 post-conviction work on behalf of a defendant, including when investigating claims of

7 actual innocence. All criminal-defense attorneys, but particularly capital-defense teams,

8 have constitutional obligations to their clients to fully investigate possible defenses to

9 culpability and to seek out information that could mitigate a sentence, including sparing

10 the defendant from the death penalty.

11

7. Speech directed at crime victims is not only important for its implications

12 for attorneys representing the criminally accused and their ethical and constitutional

13 duties; it is also of grave public importance because of the crime victim’s role in the

14 political campaign to abolish the death penalty, whether through active or passive means.

15 Victims are often the most important advocates for a sentence less than death, which is a

16 topic with significant political importance in modern America.

17

8. Moreover, past experiences in Arizona, and current practice in other states,

18 show that crime victims and their family members do not always wish to shut off contact

19 from the defense team; in fact, sometimes they welcome such contact. Rather than

20 allowing these potentially helpful and desirable discussions between the victim, the

victim’s family, and the defense team, A.R.S. § 13-4433(B) places the defendant’s 21

litigation adversary – the prosecutor – in the middle and shuts them down before they can 22
happen. 23
9. Criminal-defense lawyers and investigators have been subjected to 24
professional discipline and criminal charges for alleged violations of A.R.S. § 1325
4433(B), and these adverse actions against members of the criminal-defense community 26

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1 have chilled constitutionally protected speech and hindered the ability of criminal-

2 defense teams to effectively represent criminal defendants and vindicate the rights

3 afforded them in the criminal-justice process.

4

10. Plaintiffs include an association of criminal-defense professionals,

5 criminal-defense lawyers, and investigators. Plaintiffs (including members of the

6 organizational Plaintiff Arizona Attorneys for Criminal Justice) work on behalf of

7 criminal defendants in trial and post-conviction cases, in all types of criminal matters,

8 including capital and non-capital murder cases, sex cases, and cases with claims of

9 innocence. A.R.S. § 13-4433(B) directly infringes the free-speech rights of Plaintiffs

10 because Plaintiffs are chilled from attempting to speak to victims and, if they do

11 undertake the risk of attempting to contact a crime victim, such speech may subject them

12 to professional discipline or criminal prosecution for violating the law.

13

11. Plaintiffs seek declaratory and injunctive relief against enforcement of

14 A.R.S. § 13-4433(B) on the grounds that: (1) the law is a content-based restriction on

15 constitutionally protected speech not narrowly tailored to a compelling government

16 interest, and (2) the law is overbroad, in violation of the First Amendment to the United

17 States Constitution.

18

JURISDICTION AND VENUE

19

12. This case arises under the United States Constitution and presents a federal

20 question within this Court’s jurisdiction under Article III of the Constitution and 28

21 U.S.C. § 1331 and 28 U.S.C. § 1343(3). This action is brought pursuant to 42 U.S.C.

22 § 1983.

23

13. The Court has the authority to grant declaratory relief pursuant to the

24 Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.

25

14. The Court has the authority to award costs and attorneys’ fees under 42

26 U.S.C. § 1988.

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1

15. Venue is proper in this District under 28 U.S.C. § 1391(b). Defendants are

2 sued in their official capacities, and their official places of business are located within

3 this District. The event giving rise to this complaint is the enactment, within this District,

4 of an unconstitutional statute of the state of Arizona.

5

PARTIES

6

Arizona Attorneys for Criminal Justice

7 16. Plaintiff Arizona Attorneys for Criminal Justice is a statewide not-for-profit

8 membership organization of criminal-defense lawyers, law students, and associated

9 professionals dedicated to protecting the rights of the accused in the courts and in the

10 legislature, promoting excellence in the practice of criminal law through education,

11 training, and mutual assistance, and fostering public awareness of citizens’ rights, the

12 criminal-justice system, and the role of the defense lawyer.

13

17. Arizona Attorneys for Criminal Justice counts among its membership more

14 than 500 lawyers and allied professionals who work in private law practice, in public

15 practice in the state’s indigent-defense agencies, and as private investigators retained to

16 assist criminal-defense teams. Members of Arizona Attorneys for Criminal Justice work

17 on behalf of clients in all types of cases, including capital and non-capital murders, sex

18 crimes, other serious felonies, and misdemeanors, in all courts in the state of Arizona.

19

Individual Plaintiffs

20 18. Plaintiff Christopher R. Dupont is a lawyer who has been licensed to

21 practice law in Arizona since 1992. He is a criminal-defense attorney who defends clients

22 accused of both capital and non-capital crimes. As part of his practice, Mr. Dupont also

23 represents crime victims.

24

19. Plaintiff Rich Robertson is a private investigator who works with criminal-

25 defense lawyers on cases throughout Arizona, including capital and non-capital cases. He

26

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1 is licensed as a private investigator by the Arizona Department of Public Safety and owns

2 R3 Investigations.

3

20. Plaintiff Richard L. Lougee, Jr., is lawyer who has been licensed to practice

4 law in Arizona since 1989. He was first admitted to the practice of law in Connecticut in

5 1977, and was also licensed to practice law in New Mexico, but is currently on inactive

6 status in those states. Mr. Lougee practices in the area of criminal defense, including

7 handling sex crimes and capital defense.

8

21. Plaintiff Richard Randall is a lawyer who has been licensed to practice law

9 in Arizona since 1991. He practices in the area of capital defense and is trial counsel for

10 capital cases in Maricopa County.

11

22. Plaintiff Jeffrey Kirchler is a lawyer who has been licensed to practice law

12 in Arizona since 2002. He practices in the area of capital defense and is trial counsel for

13 capital cases in Maricopa County.

14

23. Plaintiff John A. Canby is a lawyer who has been licensed to practice law

15 in Arizona since 1986. He practices in the area of capital defense and is resource counsel

16 for capital cases in Maricopa County.

17

Defendants

18

24. Defendant Doug Ducey is the Governor of Arizona and, as chief executive

19 of the state, is responsible for the enforcement of all laws in Arizona, including A.R.S.

20 § 13-4433(B). Governor Ducey is sued in his official capacity.

21

25. Defendant Mark Brnovich is the Attorney General of Arizona, is the chief

22 legal officer of the state, and has general supervisory authority over county and local

23 prosecutors. Attorney General Brnovich is also responsible for the administration of the

24 victims’ rights program, which administers a plan for assisting and monitoring state and

25 local entities that are required to implement and comply with victims’ rights laws,

26

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1 including A.R.S. §13-4433(B). See A.R.S. § 41-191.06. Attorney General Brnovich is

2 sued in his official capacity.

3

FACTUAL BACKGROUND

4

The Statute

5 26. In 1990, Arizona voters approved Proposition 104, the Victims’ Bill of
6 Rights, as an amendment to the state Constitution. The Victims’ Bill of Rights is codified
7 at Arizona Constitution, Article 2, § 2.1.

8 27. Among the provisions of the Victims’ Bill of Rights is the right of a crime

9 victim “[t]o be treated with fairness, respect, and dignity, and to be free from

10 intimidation, harassment, or abuse, throughout the criminal justice process.” Ariz. Const.

11 art. 2, § 2.1(A)(1).

12

28. Under the Victims’ Bill of Rights, a crime victim also has the right “[t]o

13 refuse an interview, deposition, or other discovery request by the defendant, the

14 defendant’s attorney, or other person acting on behalf of the defendant.” Ariz. Const. art.

15 2, § 2.1(A)(5).

16

29. The Victims’ Bill of Rights also provides that the legislature has “the

17 authority to enact substantive and procedural laws to define, implement, preserve and

18 protect the rights guaranteed to victims” by the constitutional amendment. Ariz. Const.

19 art. 2, § 2.1(D).

20

30. In 1991, the Arizona legislature passed, and the governor signed into law,

21 House Bill 2412, the Crime-Victims’ Rights Implementation Act, which included in its

22 provisions legislation intended to implement the Victims’ Bill of Rights, including an

23 earlier, but substantially similar version of A.R.S. § 13-4433(B).

24

31. The legislative intent for the Crime-Victims’ Rights Implementation Act, as

25 expressed in House Bill 2412, was as follows:

26

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1

The legislature recognizes that many innocent persons suffer economic loss

and personal injury or death as a result of criminal acts. It is the intent of

2

the legislature of this state to:

3 1. Enact laws that define, implement, preserve and protect the rights

4

guaranteed to crime victims by article II, section 2.1, Constitution of

5

Arizona.

6

2. Ensure that article II, section 2.1, Constitution of Arizona, is fully and

fairly implemented and that all crime victims are provided with basic

7

rights of respect, protection, participation and healing of their ordeals.

8

3. Ensure at all stages of the criminal justice process that the duties

9

established by article II, section 2.1, Constitution of Arizona, are fairly

apportioned among all law enforcement agencies, prosecution agencies,

10

courts and corrections agencies in this state.

11 4. Ensure that employees of this state and its political subdivisions who

12

engage in the detention, investigation, prosecution and adjudication of

crime use reasonable efforts to see that crime victims are accorded the

13

rights established by article II, section 2.1, Constitution of Arizona.

14 32. A.R.S. § 13-4433(B) currently reads:

15 The defendant, the defendant’s attorney or an agent of the defendant shall

16

only initiate contact with the victim through the prosecutor’s office. The

prosecutor’s office shall promptly inform the victim of the defendant’s

17

request for an interview and shall advise the victim of the victim’s right to

18

refuse the interview.

19

33. A.R.S. § 13-4401(19) defines “victim”:

20

“Victim” means a person against whom the criminal offense has been

21

committed, including a minor, or if the person is killed or incapacitated, the person’s spouse, parent, child, grandparent or sibling, any other person

22

related to the person by consanguinity or affinity to the second degree or

any other lawful representative of the person, except if the person or the

23

person’s spouse, parent, child, grandparent, sibling, other person related to

24

the person by consanguinity or affinity to the second degree or other lawful

representative is in custody for an offense or is the accused.

25

26

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34. Thus, A.R.S. § 13-4433(B) prohibits criminal defense lawyers and others

2 working on the defense team from speaking to the victim of a crime without using the

3 prosecutor’s office as a conduit for the communication. When a victim is killed or

4 incapacitated, the defense team may not speak to anyone within two degrees of

5 consanguinity or affinity to the victim without using the prosecutor’s office as a conduit.

6 And when a victim is a minor child, the defense team may not speak with the child victim

7 or the child’s parents or guardians.

8

35. In addition, A.R.S. § 13-4433 was amended in 1997 to add a provision that

9 allows a prosecutor to refuse to forward correspondence from the defense team to victims

10 and their families, further limiting the speech of defense lawyers and the defense team.

11 That provision, codified at A.R.S. § 13-4433(C), currently reads:

12

The prosecutor shall not be required to forward any correspondence from

the defendant, the defendant’s attorney or an agent of the defendant to the

13

victim or the victim’s representative.

14

36. Thus, A.R.S. § 13-4433(B) operates to prohibit defense lawyers and

15 defense teams from contacting crime victims or their family members without the consent

16 of the prosecutor, the defense team’s litigation adversary.

17

A.R.S. § 13-4433(B) Violates the First Amendment

18 37. A.R.S. § 13-4433(B) is an unlawful restraint on defense attorneys, their
19 investigators, and others working on behalf of a criminal defendant, precluding them
20 from engaging in constitutionally protected speech. It acts as an unconstitutional
21 licensing requirement and prior restraint on speech because defense lawyers and defense
22 teams must initiate contact with crime victims through the defense’s litigation adversary, 23 the prosecutor, and must get permission from the government before engaging in the
24 protected speech.

25

26

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1

38. The attorney members of Arizona Attorneys for Criminal Justice and the

2 individual Plaintiffs are professionally obligated to render effective assistance of counsel

3 to all of their criminally accused clients by the Sixth Amendment.

4

39. In a capital case, the United States Supreme Court deems it imperative that

5 the attorney representing the accused at the very least reach out and attempt to make 6 contact with any and all witnesses in the case.1

7

40. In a capital case, the defense team’s duty to investigate often includes

8 making overtures to the family of the deceased in an effort to understand whether they

9 desire the death penalty for the perpetrator or would be satisfied with a lesser sentence,

10 such as life imprisonment without parole. Victim impact testimony is often critical to the

11 jury’s determination of the appropriate sentence in a capital case and if defense counsel

12 can persuade the victim’s family not to desire the death penalty, it can literally save the

13 life of a defendant. In addition, prosecutors will sometimes acquiesce to the wishes of the

14 victim’s family and drop their demand for death. A.R.S. § 13-4433(B) prevents the

15 defense team from engaging in these efforts.

16

41. In capital cases where a relative of the defendant is the victim, often the

17 best source of evidence regarding mitigation critical to saving a defendant’s life is found

18 with the defendant’s family, which is also the victim’s family. A.R.S. § 13-4433(B)

19 precludes the Plaintiffs from speaking to those crucial witnesses except by using the

20 prosecutor as an intermediary. 42. In non-capital cases, interviewing victims whenever possible is deemed an
21 essential duty of a conscientious criminal-defense attorney as part of efforts to ascertain
22 the facts of the case. A.R.S. § 13-4433(B) prevents the defense team from conducting this
23 type of thorough investigation.
24

25

26 1 See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003). 10

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1

43. In engaging with the family of the victim in a capital case, it is incumbent

2 upon defense counsel to discuss with any willing member of the victim’s family why the

3 death penalty is not the best option for the good of the surviving family members and

4 why an option of life imprisonment may better achieve the ends they seek. This

5 discussion frequently includes such wide ranging topics as closure, vengeance,

6 rehabilitation, cost, deterrence, remorse, the impact on the victim’s family, the impact of

7 an execution on the defendant’s family, as well as the politics and morality of the death

8 penalty. There are innumerable other areas of discussion with victims’ families relevant

9 to the death penalty. It is the goal of defense counsel to attempt to change the hearts and

10 minds of victims’ families through a quiet, respectful discussion about the appropriate

11 resolution of the case without the death penalty being sought.

12

44. Contacting victims and their family members is not only a crucial part of

13 effectively representing a capital defendant, it is also critical to lobbying for the passive

14 repeal of the death penalty. In a number of states, the unofficial repeal of the death
15 penalty has been achieved by criminal-defense attorneys who convince family members
16 of victims in capital crimes to speak out in opposition to the death penalty, thereby 17 pressuring prosecutors and the public to abandon capital prosecution. Ultimately, this can 18 lead to the official, legislative repeal of the death penalty.2 Without this important speech 19 on a matter of grave public concern, the political campaign for the passive repeal of the 20 death penalty can be significantly hampered.
45. From a free-speech perspective, discussions between the defense team and 21
the victim’s family in a capital case are the highest form of protected speech as they 22

23 2 See Cornell Law School Death Penalty Worldwide International Human Rights Clinic, 24 Pathways to Abolition of the Death Penalty (June 2016),
https://www.deathpenaltyworldwide.org/pdf/Pathways%20to%20Abolition%20Death%2 25 0Penalty%20Worldwide%202016-07%20FINAL.pdf (detailing how the passive repeal of
26 the death penalty in the state of Maryland, where no death sentences were imposed for almost a decade, led to the official, legislative abolition of the death penalty in 2013).
11

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1 clearly involve matters of grave public concern and may only be suppressed if the

2 government can show a compelling reason for such suppression.

3

46. In a more routine criminal case, defense lawyers and members of the

4 defense team should be able to approach crime victims to at least attempt to discuss the

5 facts and circumstances of the alleged crime. It is essential for a defense attorney to

6 attempt to ascertain a clear picture of the facts of a case and to determine the credibility

7 of a complaining witness, including whether the victim has accurately perceived the facts

8 and circumstances of the event in question.

9

47. A.R.S. § 13-4433(B) essentially makes it less likely, if not nearly

10 impossible, that defense lawyers and others on defense teams, including Plaintiffs, will be

11 able to speak with the individuals most necessary to interview in any criminal case.

12 Experience has shown that Plaintiffs are most frequently thwarted in their attempts to

13 speak with crime victims and their families when communications must be initiated

14 through the prosecutor.

15

48. Because Plaintiffs have a First Amendment right to attempt to speak with

16 any and all witnesses and other persons connected with a criminal case, including the

17 persons precluded from direct contact by A.R.S. § 13-4433(B), and because Plaintiffs

18 have a right to attempt these interviews unfettered by the compulsion to use a government

19 go-between, A.R.S. § 13-4433(B) violates the First Amendment.

20

49. Moreover, A.R.S. § 13-4433(B) is overbroad because it stops not only

speech that would be deemed criminal or unethical, such as harassing, abusive, or 21

threatening speech, but also eliminates all speech of any kind, including that which is 22

afforded the highest protections under the First Amendment. 23

STATEMENT OF CLAIMS FOR RELIEF 24

25

Count I: First Amendment

26

50. Plaintiffs repeat and re-allege the foregoing paragraphs.

12

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1

51. The prohibition against Plaintiffs contacting victims or their families

2 pursuant to A.R.S. § 13-4433(B) is an unlawful restraint on protected speech.

3

52. The members of Arizona Attorneys for Criminal Justice and the individual

4 Plaintiffs seek to engage in speech involving matters of great public concern that goes to

5 the heart of the functioning of the criminal-justice system, such as:

6

x In capital murder cases, explaining to victims’ families why the death

7

penalty should not be imposed by discussing factors at issue in current

8 public debate, including the possibility of mistaken identity, the public cost
9 of imposing the death penalty, the lack of deterrence resulting from death
10

11

sentences, the lack of finality for victims because the death penalty extends

12

criminal proceedings by decades, the cruelty of the death penalty, and

13

innumerable other reasons for the victims’ families to oppose its

14 imposition;
15

16

x In non-capital cases, the victim’s observation of the facts of the alleged

17

criminal incident, the victim’s ability to have adequately observed the key

18

circumstances of the incident, and the victim’s credibility, all for various

19 purposes related to conducting a thorough investigation, including to
20
prevent and remedy wrongful convictions; 21

22

x Engaging in speech designed to ensure the proper functioning of the

23

criminal-justice system in Arizona as a true and fair adversarial system so

24 that convictions will be reliable and the innocent will not be convicted or
25 will be exonerated.
26

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53. Because other defense lawyers and members of defense teams have been

2 threatened with professional and criminal sanctions based on violations of A.R.S. § 13-

3 4433(B), it carries with it a chilling effect which precludes Plaintiffs and other persons of

4 ordinary firmness from engaging in the First Amendment protected speech activity of

5 contacting and communicating with victims and their families.

6

54. Because the functioning of the criminal-justice system is a matter of

7 utmost public importance, the government must advance a compelling reason for the

8 prohibition on protected speech.

9

55. A.R.S. § 13-4433(B) is a prior restraint that authorizes suppression of

10 speech in advance of its expression by requiring defense lawyers and members of a

11 defense team to initiate contact with a crime victim only through a prosecutor’s office

12 and allowing the prosecutor unfettered discretion to communicate whatever he or she

13 wants to the crime victim at the same time he or she communicates to the victim the right

14 to refuse an interview with the defense team.

15

56. A.R.S. § 13-4433(B) is not a permissible prior restraint because it regulates

16 speech based on the viewpoint of the speaker and based on the content of the speech, it is

17 not narrowly tailored to the government’s interest in protecting victims against

18 harassment (or any other important, significant, or compelling government interest), and

19 does not leave open ample channels for communication between the defense team and

20 crime victims.

Count II: Overbreadth 21

22

57. Plaintiffs repeat and re-allege the foregoing paragraphs.

23

58. A.R.S. § 13-4433(B) is overbroad and thus unconstitutional because it

24 prohibits any and all speech by defense lawyers and defense teams aimed at crime

25 victims and their families, not just speech that would be unlawful, harassing, threatening,

26 or obscene.

14

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1

59. A.R.S. § 13-4433(B) is not narrowly tailored to achieve the government

2 interest in protecting crime victims and their families against intimidation, harassment, or

3 abuse, or to achieve any other legitimate government interest.

4

60. The state could put in place a more narrowly tailored rule that would

5 address the government interest in protecting crime victims and their families against

6 intimidation, harassment, or abuse, without restricting the speech of Plaintiffs and other

7 criminal-defense lawyers and defense teams.

8

61. A.R.S. § 13-4433(B) also fails to leave open ample alternatives for

9 Plaintiffs’ expression.

10

62. A.R.S. § 13-4433(B) prevents a substantial amount of protected speech

11 from occurring and due to its overbreadth and chills people of ordinary firmness,

12 including Plaintiffs, from engaging in protected speech.

13

CONCLUSION

14 WHEREFORE, Plaintiffs respectfully request that the Court:

15

A. Declare that A.R.S. § 13-4433(B) violates the First Amendment of the

16 United States Constitution;

17

B. Preliminarily and permanently enjoin Defendants, their officers, agents,

18 servants, employees, and attorneys, and those persons in active concert or participation

19 with them from enforcing A.R.S. § 13-4433(B);

20

C. Award Plaintiffs reasonable costs and attorneys’ fees pursuant to 42 U.S.C.

21 § 1988; and

22
D.
23 proper.
24

Grant Plaintiffs such other and further relief as the Court deems just and

25

26

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1

Dated this 8th day of May, 2017.

2

By /s/Kathleen E. Brody

3

Kathleen E. Brody

Brenda Muñoz Furnish

4

ACLU Foundation of Arizona

5

David A. Lane (pro hac vice application to be submitted)

6

Andy McNulty (pro hac vice application to be submitted)

Kilmer, Lane & Newman, LLP

7

8

Attorneys for Plaintiffs

9

10

11

12

13

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 Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 1 of 26
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:17−cv−01422−SPL

MIDP,STD

Arizona Attorneys for Criminal Justice et al v. Ducey et al Assigned to: Judge Steven P Logan Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/08/2017 Jury Demand: None Nature of Suit: 950 Other Statutes: Constitutionality of State Statutes Jurisdiction: Federal Question

Arizona Attorneys for Criminal Justice

represented by Andrew McNulty Killmer Lane & Newman LLP 1543 Champa St., Ste. 400 Denver, CO 80202 303−571−1000 Fax: 303−571−1001 Email: amcnulty@kln−law.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brenda Munoz Furnish ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−650−1854 Email: bmfurnish@acluaz.org TERMINATED: 06/13/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan W Goldfine Lewis Roca Rothgerber Christie LLP − Phoenix Office 201 E Washington St., Ste. 1200 Phoenix, AZ 85004 602−262−5311 Email: Dan.goldfine@huschblackwell.com TERMINATED: 07/31/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A Lane Killmer Lane & Newman LLP 1543 Champa St., Ste. 400 Denver, CO 80202 303−571−1000 Fax: 303−571−1001 Email: dlane@kln−law.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathleen E Brody Mitchell Stein Carey Chapman PC 1 Renaissance Sq. 2 N Central Ave., Ste. 1450 Phoenix, AZ 85004 602−388−8958 Fax: 602−358−0291 Email: kathy@mscclaw.com

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 2 of 26

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roy Herrera , Jr. Lewis Roca Rothgerber Christie LLP − Phoenix Office 201 E Washington St., Ste. 1200 Phoenix, AZ 85004 602−262−5742 Email: rherrera@lrrc.com TERMINATED: 09/07/2018 LEAD ATTORNEY

Daniel Abraham Arellano Lewis Roca Rothgerber Christie LLP − Phoenix Office 201 E Washington St., Ste. 1200 Phoenix, AZ 85004 602−262−0860 Email: arellanod@ballardspahr.com TERMINATED: 09/07/2018

Ian Matthew Fischer Lewis Roca Rothgerber Christie LLP − Phoenix Office 201 E Washington St., Ste. 1200 Phoenix, AZ 85004 602−262−5724 Fax: 602−262−5747 Email: ian.fischer@huschblackwell.com TERMINATED: 07/31/2019 ATTORNEY TO BE NOTICED

Jared G Keenan ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−650−1854 Email: jkeenan@acluaz.org ATTORNEY TO BE NOTICED

Martin Lieberman ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−773−6011 Email: mlieberman@acluaz.org TERMINATED: 12/09/2019 ATTORNEY TO BE NOTICED

Plaintiff Christopher Dupont

represented by Andrew McNulty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brenda Munoz Furnish (See above for address) TERMINATED: 06/13/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan W Goldfine

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 3 of 26

(See above for address) TERMINATED: 07/31/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A Lane (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathleen E Brody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roy Herrera , Jr. (See above for address) TERMINATED: 09/07/2018 LEAD ATTORNEY

Daniel Abraham Arellano (See above for address) TERMINATED: 09/07/2018

Ian Matthew Fischer (See above for address) TERMINATED: 07/31/2019 ATTORNEY TO BE NOTICED

Jared G Keenan (See above for address) ATTORNEY TO BE NOTICED

Martin Lieberman (See above for address) TERMINATED: 12/09/2019 ATTORNEY TO BE NOTICED

Plaintiff Rich Robertson

represented by Andrew McNulty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brenda Munoz Furnish (See above for address) TERMINATED: 06/13/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan W Goldfine (See above for address) TERMINATED: 07/31/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A Lane (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 4 of 26

Kathleen E Brody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin Lieberman (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roy Herrera , Jr. (See above for address) TERMINATED: 09/07/2018 LEAD ATTORNEY

Daniel Abraham Arellano (See above for address) TERMINATED: 09/07/2018

Ian Matthew Fischer (See above for address) TERMINATED: 07/31/2019 ATTORNEY TO BE NOTICED

Jared G Keenan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Richard L Lougee

represented by Andrew McNulty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brenda Munoz Furnish (See above for address) TERMINATED: 06/13/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan W Goldfine (See above for address) TERMINATED: 07/31/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A Lane (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathleen E Brody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roy Herrera , Jr. (See above for address) TERMINATED: 09/07/2018 LEAD ATTORNEY

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 5 of 26

Daniel Abraham Arellano (See above for address) TERMINATED: 09/07/2018

Ian Matthew Fischer (See above for address) TERMINATED: 07/31/2019 ATTORNEY TO BE NOTICED

Jared G Keenan (See above for address) ATTORNEY TO BE NOTICED

Martin Lieberman (See above for address) TERMINATED: 12/09/2019 ATTORNEY TO BE NOTICED

Plaintiff Richard D Randall

represented by Andrew McNulty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brenda Munoz Furnish (See above for address) TERMINATED: 06/13/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan W Goldfine (See above for address) TERMINATED: 07/31/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A Lane (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathleen E Brody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roy Herrera , Jr. (See above for address) TERMINATED: 09/07/2018 LEAD ATTORNEY

Daniel Abraham Arellano (See above for address) TERMINATED: 09/07/2018

Ian Matthew Fischer (See above for address) TERMINATED: 07/31/2019 ATTORNEY TO BE NOTICED

Jared G Keenan (See above for address)

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 6 of 26

ATTORNEY TO BE NOTICED

Martin Lieberman (See above for address) TERMINATED: 12/09/2019 ATTORNEY TO BE NOTICED

Plaintiff Jeffrey A Kirchler

represented by Andrew McNulty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brenda Munoz Furnish (See above for address) TERMINATED: 06/13/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dan W Goldfine (See above for address) TERMINATED: 07/31/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A Lane (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathleen E Brody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roy Herrera , Jr. (See above for address) TERMINATED: 09/07/2018 LEAD ATTORNEY

Daniel Abraham Arellano (See above for address) TERMINATED: 09/07/2018

Ian Matthew Fischer (See above for address) TERMINATED: 07/31/2019 ATTORNEY TO BE NOTICED

Jared G Keenan (See above for address) ATTORNEY TO BE NOTICED

Martin Lieberman (See above for address) TERMINATED: 12/09/2019 ATTORNEY TO BE NOTICED

Plaintiff John Canby

represented by Andrew McNulty (See above for address) LEAD ATTORNEY

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 7 of 26
PRO HAC VICE ATTORNEY TO BE NOTICED
Brenda Munoz Furnish (See above for address) TERMINATED: 06/13/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dan W Goldfine (See above for address) TERMINATED: 07/31/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Lane (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathleen E Brody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roy Herrera , Jr. (See above for address) TERMINATED: 09/07/2018 LEAD ATTORNEY
Daniel Abraham Arellano (See above for address) TERMINATED: 09/07/2018
Ian Matthew Fischer (See above for address) TERMINATED: 07/31/2019 ATTORNEY TO BE NOTICED
Jared G Keenan (See above for address) ATTORNEY TO BE NOTICED
Martin Lieberman (See above for address) TERMINATED: 12/09/2019 ATTORNEY TO BE NOTICED

V.
Defendant
Doug Ducey In his official capacity as Governor of the State of Arizona TERMINATED: 05/30/2017

represented by Oramel Horace Skinner Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−8327 Fax: 602−542−4377 Email: o.h.skinner@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Lim Baek Office of the Attorney General − Phoenix

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 8 of 26

2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−7932 Email: richard.baek@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brunn Wall Roysden , III Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−798−5400 Fax: 602−798−5595 Email: beau.roysden@azag.gov ATTORNEY TO BE NOTICED

Defendant
Mark Brnovich In his official capacity as Attorney General of the State of Arizona TERMINATED: 02/27/2020

represented by Oramel Horace Skinner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lim Baek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brunn Wall Roysden , III (See above for address) ATTORNEY TO BE NOTICED

Kate Blakeley Sawyer Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−8304 Email: kate.sawyer@azag.gov ATTORNEY TO BE NOTICED

Defendant
State Bar of Arizona TERMINATED: 02/27/2020

represented by Carrie Ann Laliberte Bonnett Fairbourn Friedman & Balint PC − Phoenix, AZ 2325 E Camelback Rd., Ste. 300 Phoenix, AZ 85016 602−274−1100 Email: claliberte@bffb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Tewksbury Hauser Bonnett Fairbourn Friedman & Balint PC − Phoenix, AZ 2325 E Camelback Rd., Ste. 300 Phoenix, AZ 85016 602−274−1100 Email: lhauser@bffb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Frank Milstead TERMINATED: 04/01/2020

represented by Eryn Marie McCarthy Office of the Attorney General

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 9 of 26

− 1275 W Washington Phoenix, AZ 85007 602−542−7723 Fax: 602−542−4385 Email: adminlaw@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy M Bonnell Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−7728 Fax: 602−542−9088 Email: nancy.bonnell@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Maret Vessella Chief Bar Counsel of the State Bar of Arizona

represented by Carrie Ann Laliberte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Tewksbury Hauser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Heston Silbert

represented by Nancy M Bonnell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Arizona Voice for Crime Victims

represented by Colleen Clase Arizona Voice for Crime Victims P.O. Box 877906 Tempe, AZ 85287 480−727−7465 Email: cclase@voiceforvictims.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul George Cassell University of Utah College of Law 383 S University St. Salt Lake City, UT 84112 801−585−5202 Fax: 801−585−0050 Email: cassellp@law.utah.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Pamela Marchant

represented by Colleen Clase (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 10 of 26

Movant Johniesha Smith
Amicus Arizona Prosecuting Attorneys Advisory Council also named as APAAC
Amicus Pima County Attorney's Office
Amicus Arizona Crime Victim Rights Law Group
Amicus Arizona Coalition to End Domestic Violence
Amicus

Paul George Cassell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Colleen Clase (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul George Cassell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Sheila Sullivan Polk Yavapai County Attorney's Office 255 E Gurley St. Prescott, AZ 86301−3868 (928)771−3344 Email: sheila.polk@yavapai.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jacob R Lines Pima County Attorneys Office 32 N Stone Ave., Ste. 2100 Tucson, AZ 85701 520−740−5750 Fax: 520−620−6556 Email: Jacob.Lines@pcao.pima.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Randall Scott Udelman Udelman Law Firm PLC 7150 E Camelback Rd., Ste. 415 Scottsdale, AZ 85251 480−970−5600 Fax: 480−970−5626 Email: info@udelmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jamie A Balson P.O. Box 2156 Sun City, AZ 85372 480−788−5810 Email: jamiebalson@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 11 of 26

National Crime Victim Law Institute

represented by Randall Scott Udelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/08/2017 05/08/2017 05/08/2017 05/08/2017 05/08/2017
05/08/2017 05/08/2017
05/09/2017 05/09/2017 05/09/2017 05/09/2017

# Docket Text
1 COMPLAINT. Filing fee received: $ 400.00, receipt number 0970−14204274 filed by Christopher Dupont, Rich Robertson, Arizona Attorneys for Criminal Justice, Richard D Randall, Richard L Lougee, Jeffrey A Kirchler, John Canby. (Submitted by Kathleen Brody) (Attachments: # 1 Civil Cover Sheet)(KAS) (Entered: 05/09/2017)
2 Corporate Disclosure Statement by Arizona Attorneys for Criminal Justice. (Submitted by Kathleen Brody) (KAS) (Entered: 05/09/2017)
3 SUMMONS Submitted by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Submitted by Kathleen Brody) (Attachments: # 1 Summons)(KAS) (Entered: 05/09/2017)
4 MOTION for Leave to File Excess Pages by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Submitted by Kathleen Brody) (Attachments: # 1 Text of Proposed Order)(KAS) (Entered: 05/09/2017)
5 * Filed at (Doc. 11 ) LODGED Proposed Motion for Preliminary Injunction. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall. (Submitted by Kathleen Brody). (Attachments: # 1 Text of Proposed Order)(KAS) Modified on 5/10/2017 (KAS). (Entered: 05/09/2017)
6 Filing fee paid, receipt number 0970−14204274. This case has been assigned to the Honorable Judge Steven P Logan. All future pleadings or documents should bear the correct case number: CV−17−1422−PHX−SPL. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (KAS) (Entered: 05/09/2017)
7 NOTICE TO THE PARTIES − The Court is participating in the Mandatory Initial Discovery Pilot (MIDP) and this case is subject to that pilot. The key features and deadlines are set forth in the attached Notice which includes General Order 17−08. Also attached is a checklist for use by the parties. All parties must respond to the mandatory initial discovery requests set forth in the General Order before initiating any further discovery in this case. Please note: The discovery obligations in the General Order supersede the disclosures required by Rule 26(a)(1). Any party seeking affirmative relief must serve a copy of the attached documents (Notice to Parties, including General Order 17−08 and MIDP Checklist) on each new party when the Complaint, Counterclaim, Crossclaim, or Third−Party Complaint is served. (KAS) (Entered: 05/09/2017)
Remark: Pro hac vice motion granted for David Lane on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 05/09/2017)
8 Summons Issued as to All Defendants. (Attachments: # 1 Summons)(KAS). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 05/09/2017)
Remark: Pro hac vice motion granted for Andrew McNulty on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 05/09/2017)
9 PRELIMINARY ORDER that motions pursuant to Fed. R. Civ. P. 12(b) are discouraged if the defect can be cured by filing an amended pleading. The parties must meet and confer prior to the filing of such motions to determine whether it can be avoided. Unless the Court orders otherwise, on August 7, 2017, the Clerk of Court shall terminate without further notice any Defendant in this action that has not been

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 12 of 26

05/10/2017 05/10/2017 05/11/2017
05/11/2017
05/15/2017 05/15/2017 05/16/2017 05/17/2017 05/18/2017
05/25/2017 05/30/2017 05/30/2017 05/30/2017

served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. See attached Order for complete details. Signed by Judge Steven P. Logan on 5/9/17. (Attachments: # 1 Notice)(CLB) (Entered: 05/09/2017)
10 ORDER granting 4 Motion for Leave to File Excess Pages; the Clerk shall file the lodged proposed Motion for Preliminary Injunction. IT IS FURTHER ORDERED that Defendants' response shall be limited to 27 pages and that Plaintiffs' reply shall be limited to 11 pages. Signed by Judge Steven P Logan on 05/09/2017.(KAS) (Entered: 05/10/2017)
11 MOTION for Preliminary Injunction by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (KAS) (Entered: 05/10/2017)
12 SERVICE EXECUTED filed by John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson: Affidavit of Service re: Summons, Complaint, Civil cover sheet, Corporate disclosure statement, Motion to Exceed Page Limits and Proposed Order re Motion to Exceed Page Limits, Plaintiffs Motion for Preliminary Injunction and Proposed Order granting Plaintiffs Motion for Preliminary Injunction, Notice of Availability of Magistrate Judge and Notice to Parties re Mandatory Initial Discovery Pilot Project upon Doug Ducey on May 9, 2017. (Brody, Kathleen) (Entered: 05/11/2017)
13 SERVICE EXECUTED filed by John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson: Affidavit of Service re: Summons, Complaint, Civil cover sheet, Corporate disclosure statement, Motion to Exceed Page Limits and Proposed Order re Motion to Exceed Page Limits, Plaintiffs Motion for Preliminary Injunction and Proposed Order granting Plaintiffs Motion for Preliminary Injunction, Notice of Availability of Magistrate Judge and Notice to Parties re Mandatory Initial Discovery Pilot Project. upon Mark Brnovich on May 9, 2017. (Brody, Kathleen) (Entered: 05/11/2017)
14 NOTICE of Appearance by Brunn Wall Roysden, III on behalf of Mark Brnovich, Doug Ducey. (Roysden, Brunn) (Entered: 05/15/2017)
15 NOTICE of Appearance by Oramel Horace Skinner on behalf of Mark Brnovich, Doug Ducey. (Skinner, Oramel) (Entered: 05/15/2017)
16 STIPULATION Regarding Briefing Schedule by Mark Brnovich, Doug Ducey. (Attachments: # 1 Text of Proposed Order)(Roysden, Brunn) (Entered: 05/16/2017)
17 ORDER SETTING RULE 16 CASE MANAGEMENT CONFERENCE: A Rule 16 Case Management Conference set for 6/27/2017 at 10:30 AM in Courtroom 501, 401 West Washington Street, Phoenix, AZ 85003 before Judge Steven P Logan.. Signed by Judge Steven P. Logan on 5/17/17. (Attachments: # 1 Proposed Case Management Order)(CLB) (Entered: 05/17/2017)
18 ORDER that the Stipulation 16 is granted in part and denied in part as set forth. Defendants shall have until June 22, 2017 to file a Motion to Dismiss and a Response to the Preliminary Injunction 11 . Plaintiffs shall have until July 31, 2017 to file a Response to the Motion to Dismiss and a Reply to the Motion for Preliminary Injunction 11 Defendants shall file a Reply in Support of any Motion to Dismiss no later than August 14, 2017. Signed by Judge Steven P. Logan on 5/18/17. (CLB) (Entered: 05/18/2017)
19 NOTICE of Appearance by Richard Lim Baek on behalf of Mark Brnovich, Doug Ducey. (Baek, Richard) (Entered: 05/25/2017)
20 STIPULATION Stipulated Motion to Drop Doug Ducey as a Party Pursuant to Rule 21 by Mark Brnovich, Doug Ducey. (Attachments: # 1 Text of Proposed Order)(Roysden, Brunn) (Entered: 05/30/2017)
21 ORDER granting the parties' 20 Stipulation. Defendant Doug Ducey is dismissed without prejudice. Signed by Judge Steven P. Logan on 5/30/17. (CLB) (Entered: 05/30/2017)
22 ANSWER to 1 Complaint by Mark Brnovich.(Skinner, Oramel) (Entered: 05/30/2017)

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 13 of 26

05/31/2017 06/01/2017 06/15/2017 06/19/2017
06/19/2017 06/20/2017 06/20/2017 06/21/2017 06/26/2017 06/26/2017 06/29/2017 06/29/2017 06/29/2017 06/29/2017

23 Consent MOTION to Continue Case Management Conference set for June 27, 2017 at 10:30 AM by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of Proposed Order)(Brody, Kathleen) (Entered: 05/31/2017)
24 ORDER denying 23 Motion to Continue Case Management Conference. Signed by Judge Steven P. Logan on 6/1/17.(CLB) (Entered: 06/01/2017)
25 Rule 26(f) Report for Mandatory Initial Discovery Pilot (MIDP) filed by Plaintiffs Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Lane, David) (Entered: 06/15/2017)
26 *ADDITIONAL ATTACHMENT to 25 Rule 26(f) Report for Mandatory Initial Discovery Pilot re: Joint Proposed Case Management Order by Arizona Attorneys for Criminal Justice, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson . (Attachments: # 1 Exhibit Exhibit 1 − Joint Proposed Case Management Order)(Brody, Kathleen) *Modified to correct event and document links on 6/20/2017 (KAS). (Entered: 06/19/2017)
27 First MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Preliminary Injunction and Extension for Time to File Motion to Dismiss by Mark Brnovich. (Attachments: # 1 Text of Proposed Order [proposed] Order)(Roysden, Brunn) (Entered: 06/19/2017)
28 IT IS ORDERED the Rule 16 Case Management Conference, presently set for 6/27/2017 before Judge Steven P. Logan, is VACATED. Case Management Order to issue. Ordered by Judge Steven P. Logan. (SPL, jm) ( This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.) (Entered: 06/20/2017)
29 RULE 16 CASE MANAGEMENT ORDER: Discovery due by 12/8/2017. Dispositive motions due by 6/21/2018. Signed by Judge Steven P. Logan on 6/20/17. (CLB) (Entered: 06/20/2017)
30 ORDER granting Defendant Mark Brnovich's 27 Motion for Extension of Time. Defendant Mark Brnovich shall have until June 26, 2017, to file a Response to the Motion for Preliminary Injunction and a Motion to Dismiss. Signed by Judge Steven P. Logan on 6/21/17.(CLB) (Entered: 06/21/2017)
31 *MOTION to Dismiss for Failure to State a Claim by Mark Brnovich. (Attachments: # 1 Exhibit Exhibits to Defendant's Motion to Dismiss (1 of 2), # 2 Exhibit Exhibits to Defendant's Motion to Dismiss (2 of 2))(Skinner, Oramel) *Modified on 8/1/2017 to correct motion type to Rule 12(b)(6) motion (ATD). (Entered: 06/26/2017)
32 RESPONSE to Motion re: 11 MOTION for Preliminary Injunction filed by Mark Brnovich. (Attachments: # 1 Exhibits to Defendant's Response to Motion for Preliminary Injunction (1 of 2), # 2 Exhibits to Defendant's Response to Motion for Preliminary Injunction (2 of 2))(Skinner, Oramel) (Entered: 06/26/2017)
33 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Plaintiffs Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Brody, Kathleen) (Entered: 06/29/2017)
34 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendant Mark Brnovich. (Skinner, Oramel) (Entered: 06/29/2017)
35 First MOTION to Intervene by Arizona Voice for Crime Victims, Pamela Marchant, Johniesha Smith. (Attachments: # 1 Exhibit Exhibits supporting motion to intervene, # 2 Text of Proposed Order Proposed order for motion to intervene)(Clase, Colleen) Modified to correct filers on 6/30/2017 (SLQ). (Entered: 06/29/2017)
36 *LODGED Proposed Answer to Complaint re: 35 First MOTION to Intervene. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Arizona Voice for Crime Victims, Pamela Marchant, Johniesha Smith. (Clase, Colleen) Modified to correct filers on 6/30/2017 (SLQ). Modified on 3/30/2018 (DXD) (Entered: 06/29/2017)

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 14 of 26

06/29/2017 06/30/2017 06/30/2017
07/03/2017 07/03/2017
07/06/2017 07/06/2017 07/12/2017 07/13/2017 07/17/2017 07/31/2017 07/31/2017 08/03/2017 08/08/2017

37 *LODGED Proposed Proposed Response to Motion for Preliminary Injunction re: 35 First MOTION to Intervene. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Arizona Voice for Crime Victims, Pamela Marchant, Johniesha Smith. (Clase, Colleen) Modified to correct filers 6/30/2017 (SLQ). Modified on 3/30/2018 (DXD). (Entered: 06/29/2017)
38 **STRICKEN per Order (Doc. 119 ) BRIEF amicus curiae brief in support of Defendants by Defendant Doug Ducey. (Prather, Robert) Modified on 3/30/2018 (DXD). (Entered: 06/30/2017)
39 NOTICE TO FILER OF DEFICIENCY re: 38 Brief (Non Appeal) filed by Doug Ducey. Document not in compliance with LRCiv 5.5(g) − Documents signed by an attorney shall be filed using that attorney's ECF log−in and password and shall not be filed using a log−in and password belonging to another attorney. Document(s) signed by attorney Sheila Polk but submitted using the log−in and password belonging to attorney Robert Prather. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (SLQ) (Entered: 07/03/2017)
40 **STRICKEN per Order (Doc. 119 ) BRIEF of Amicus Curiae Pima County Attorney's Office by Amicus Pima County Attorney's Office. (Lines, Jacob) Modified on 3/30/2018 (DXD). (Entered: 07/03/2017)
41 **STRICKEN per Order (Doc. 119 ) *Amici Curiae BRIEF of the National Crime Victim Law Institute, the Arizona Crime Victim Rights Law Group and the Arizona Coalition to End Domestic Violence in Support of Defendants Doug Ducey and Mark Brnovich entered by Randall Scott Udelman on behalf of Arizona Crime Victim Rights Law Group. (Udelman, Randall) *Modified to correct event type on 7/5/2017 (KAS). Modified on 3/30/2018 (DXD). (Entered: 07/03/2017)
Remark: Pro hac vice motion granted for Paul G Cassell on behalf of intervenors. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/06/2017)
42 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendant Mark Brnovich. (Roysden, Brunn) (Entered: 07/06/2017)
43 First MOTION for Extension of Time Extension of Time to Respond to Motion to Intervene 35 by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of Proposed Order)(Brody, Kathleen) *Modified to add document link on 7/13/2017 (SLQ). (Entered: 07/12/2017)
44 ORDER granting 43 Motion for Extension of Time to Respond as to 35 First Motion to Intervene . Plaintiffs shall have until August 3, 2017, to file a Response. Signed by Judge Steven P. Logan on 7/13/17.(CLB) (Entered: 07/13/2017)
45 NOTICE of Appearance by Ian Matthew Fischer on behalf of Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 07/17/2017)
46 RESPONSE in Opposition re: 31 MOTION to Dismiss Case filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Exhibit Index and Exhibits 1−7)(Brody, Kathleen) (Entered: 07/31/2017)
47 REPLY to Response to Motion re: 11 MOTION for Preliminary Injunction filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Brody, Kathleen) (Entered: 07/31/2017)
48 RESPONSE in Opposition re: 35 First MOTION to Intervene Plaintiffs' Response to Motion of Pamela Marchant, Johniesha Smith, and Arizona Voice for Crime Victims for Leave to Intervene filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 08/03/2017)
49 *First MOTION for Extension of Time to File Response/Reply re: 35 Motion to Intervene by Arizona Voice for Crime Victims, Johniesha Smith, Pamela Marchant.

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 15 of 26

08/08/2017 08/10/2017 08/14/2017 08/18/2017 08/18/2017 08/28/2017 09/01/2017 09/07/2017 09/08/2017 09/13/2017
09/15/2017 09/15/2017
09/18/2017 09/18/2017

(Attachments: # 1 Text of Proposed Order Proposed Order)(Clase, Colleen) *Modified on 8/9/2017 to correct motion type, add additional filers and add document linkage (ATD). (Entered: 08/08/2017)
50 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendant Mark Brnovich. (Baek, Richard) (Entered: 08/08/2017)
51 ORDER granting proposed Interveners' 49 Motion for Extension of Time to File Reply; Pamela Marchant, Johniesha Smith and Arizona Voice for Crime Victims shall have until August 18, 2017, to file a Reply to the 35 Motion for Leave to Intervene. Signed by Judge Steven P Logan on 8/9/2017. (ATD) (Entered: 08/10/2017)
52 REPLY to Response to Motion re: 31 MOTION to Dismiss for Failure to State a Claim filed by Mark Brnovich. (Attachments: # 1 Exhibit package to Defendant's Reply ISO Motion to Dismiss)(Skinner, Oramel) (Entered: 08/14/2017)
53 REPLY to Response to Motion re: 35 First MOTION to Intervene filed by Arizona Voice for Crime Victims, Pamela Marchant, Johniesha Smith. (Clase, Colleen) (Entered: 08/18/2017)
54 First MOTION for Joinder of Additional Parties by Arizona Voice for Crime Victims, Pamela Marchant, Johniesha Smith. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Clase, Colleen) (Entered: 08/18/2017)
55 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) First Supplemental Discovery Responses filed by Plaintiffs Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Brody, Kathleen) (Entered: 08/28/2017)
56 RESPONSE in Opposition re: 54 First MOTION for Joinder of Additional Parties filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 09/01/2017)
57 NOTICE of Service of Discovery filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 09/07/2017)
58 REPLY to Response to Motion re: 43 First MOTION for Extension of Time Extension of Time to Respond to Motion to Intervene, 54 First MOTION for Joinder of Additional Parties filed by Arizona Voice for Crime Victims, Pamela Marchant, Johniesha Smith. (Clase, Colleen) (Entered: 09/08/2017)
59 *MOTION for Leave to Supplement the Record regarding Defendant's Motion to Dismiss by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Exhibit Exhibits 1−3, # 2 Text of Proposed Order proposed order)(Fischer, Ian) *Modified to correct event; attorney noticed on 9/14/2017 (SLQ). (Entered: 09/13/2017)
60 ORDER granting Plaintiffs' 59 Motion for Leave to Supplement the Record Regarding Defendant's Motion to Dismiss. Plaintiffs shall file the supplemental exhibits (Doc. 59−1) no later than September 15, 2017. Signed by Judge Steven P. Logan on 9/14/17.(CLB) (Entered: 09/15/2017)
61 NOTICE re: Notice of Filing Supplemental Exhibits by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson re: 60 Order on Motion for Leave to File, 31 MOTION to Dismiss for Failure to State a Claim . (Attachments: # 1 Exhibit Exhibits 1−3)(Fischer, Ian) (Entered: 09/15/2017)
62 NOTICE of Attorney Withdrawal John Heyhoe−Griffiths filed by Brunn Wall Roysden, III. (Roysden, Brunn) (Entered: 09/18/2017)
63 NOTICE of Service of Discovery filed by Mark Brnovich. (Skinner, Oramel) (Entered: 09/18/2017)

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 16 of 26

09/25/2017
10/02/2017 10/06/2017
10/06/2017 10/20/2017 10/23/2017 10/24/2017 10/24/2017
10/27/2017 11/03/2017 11/06/2017 11/06/2017 11/15/2017 11/17/2017
11/17/2017 11/20/2017 11/21/2017 11/22/2017

64 SUPPLEMENT Notice of Supplemental Authority re: 52 Reply to Response to Motion, 31 MOTION to Dismiss for Failure to State a Claim, 61 Notice (Other), 32 Response to Motion by Defendant Mark Brnovich. (Attachments: # 1 Exhibit A)(Roysden, Brunn) (Entered: 09/25/2017)
65 NOTICE of Service of Discovery filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Brody, Kathleen) (Entered: 10/02/2017)
66 *RESPONSE to Notice of Supplemental Authority re: 64 Supplement by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson . (Fischer, Ian) *Modified on 10/10/2017 to correct event (ATD). (Entered: 10/06/2017)
67 NOTICE of Service of Discovery filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 10/06/2017)
68 NOTICE of Service of Discovery filed by Mark Brnovich. (Skinner, Oramel) (Entered: 10/20/2017)
69 NOTICE of Service of Discovery filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 10/23/2017)
70 NOTICE of Appearance by Daniel Abraham Arellano on behalf of Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Arellano, Daniel) (Entered: 10/24/2017)
71 *NOTICE re: Notice of Intent to Serve Subpoenas Duces Tecum by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson . (Arellano, Daniel) *Modified on 10/25/2017 (KAS).docket text (Entered: 10/24/2017)
72 NOTICE of Service of Discovery filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 10/27/2017)
73 NOTICE of Service of Discovery filed by Mark Brnovich. (Skinner, Oramel) (Entered: 11/03/2017)
74 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendant Mark Brnovich. (Skinner, Oramel) (Entered: 11/06/2017)
75 NOTICE of Service of Discovery filed by Mark Brnovich. (Skinner, Oramel) (Entered: 11/06/2017)
76 NOTICE of Service of Discovery filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 11/15/2017)
77 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) Plaintiffs' Notice of Service of Second Supplemental Discovery Responses filed by Plaintiffs Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Arellano, Daniel) (Entered: 11/17/2017)
78 MOTION for Extension of Time Certain Deadlines in Rule 16 Case Management Order by Arizona Attorneys for Criminal Justice, John Canby. (Attachments: # 1 Text of Proposed Order Proposed Order)(Fischer, Ian) (Entered: 11/17/2017)
79 First MOTION for Ruling on Motions for Intervention by Arizona Voice for Crime Victims, Pamela Marchant, Johniesha Smith. (Clase, Colleen) (Entered: 11/20/2017)
80 NOTICE of Service of Discovery filed by Mark Brnovich. (Roysden, Brunn) (Entered: 11/21/2017)
81 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) (Third) filed by Plaintiff Arizona Attorneys for Criminal Justice. (Arellano, Daniel) (Entered: 11/22/2017)

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 17 of 26

11/22/2017 11/22/2017 11/22/2017 11/29/2017 12/01/2017 12/05/2017 12/06/2017 12/07/2017 12/08/2017
12/08/2017 12/18/2017 12/27/2017 12/28/2017 01/04/2018 01/05/2018
01/10/2018 01/17/2018 01/22/2018
01/26/2018

82 ORDER granting 78 Joint Motion to Extend. Fact Depositions shall be completed by 2/7/2018. Expert depositions must be completed by 2/21/2018. Signed by Judge Steven P Logan on 11/22/2017. (MMO) (Entered: 11/22/2017)
83 NOTICE of Service of Discovery filed by Mark Brnovich. (Skinner, Oramel) (Entered: 11/22/2017)
84 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendant Mark Brnovich. (Roysden, Brunn) (Entered: 11/22/2017)
85 NOTICE of Service of Discovery filed by Mark Brnovich. (Roysden, Brunn) (Entered: 11/29/2017)
86 NOTICE of Service of Discovery filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Arellano, Daniel) (Entered: 12/01/2017)
87 NOTICE of Service of Discovery filed by Mark Brnovich. (Roysden, Brunn) (Entered: 12/05/2017)
88 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Jamie A Balson. (Balson, Jamie) (Entered: 12/06/2017)
89 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendant Mark Brnovich. (Roysden, Brunn) (Entered: 12/07/2017)
90 *NOTICE OF ATTORNEY'S CHANGE OF ADDRESS by Mark Brnovich: Arizona Attorney General's Office, 2005 N. Central Avenue, Phoenix, AZ 85004. (Baek, Richard) *Modified to correct event; attorney noticed on 12/11/2017 (SLQ). (Entered: 12/08/2017)
91 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendant Mark Brnovich. (Roysden, Brunn) (Entered: 12/08/2017)
92 REPORT of Settlement Talks/Discussions (Joint) by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 12/18/2017)
93 NOTICE of Service of Discovery filed by Mark Brnovich. (Skinner, Oramel) (Entered: 12/27/2017)
94 NOTICE of Service of Discovery filed by Mark Brnovich. (Skinner, Oramel) (Entered: 12/28/2017)
95 NOTICE of Service of Discovery filed by Mark Brnovich. (Baek, Richard) (Entered: 01/04/2018)
96 *NOTICE re: Notice of Service of Subpoenas by Arizona Attorneys for Criminal Justice, John Canby, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson, Christopher Dupont . (Lane, David) *Modified on 1/8/2018 to add additional filer (ATD). (Entered: 01/05/2018)
97 NOTICE of Service of Discovery filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Arellano, Daniel) (Entered: 01/10/2018)
98 NOTICE re: of Service by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson Notice of Service. (Fischer, Ian) (Entered: 01/17/2018)
99 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) Notice of Service of Third Supplemental Discovery Responses filed by Plaintiffs Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 01/22/2018)
100 STIPULATION re Depositions of Proposed Intervenors by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of Proposed Order)(Goldfine, Dan) (Entered: 01/26/2018)

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 18 of 26

01/29/2018
01/29/2018 01/29/2018 02/01/2018
02/01/2018 02/12/2018 02/13/2018 02/13/2018 02/13/2018 02/16/2018
03/02/2018
03/03/2018 03/04/2018 03/06/2018
03/07/2018

101 SUPERSEDED by Doc. 104 − ORDER granting the parties' 100 Stipulation. If the motion to intervene is granted, the parties shall have thirty (30) days after the filing of this Court's Order on the Motion to Intervene to complete fact depositions of proposed intervenors Pamela Marchant, Johniesha Smith, Jessica Gattuso, Evelyn Davis, Steve Ronnebeck and Marceanne Lee Woodruff. Signed by Judge Steven P Logan on 1/29/18. (CLB) Modified on 2/1/2018 (CLB). (Entered: 01/29/2018)
102 NOTICE re: Supplemental Authority by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson re: 46 Response in Opposition to Motion . (Attachments: # 1 Supplemental Authority)(Fischer, Ian) (Entered: 01/29/2018)
103 *MOTION for Clarification re: 100 Stipulation, 101 Order on Stipulation by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Exhibit A)(Fischer, Ian) *Modified language on 1/30/2018 (SLQ). (Entered: 01/29/2018)
104 ORDER (superseding Doc. 101 ) that the Stipulation 100 is granted. The parties shall have thirty (30) days after the filing of this Court's Order on the Motion to Intervene to complete fact depositions of proposed intervenors Pamela Marchant, Johniesha Smith, Jessica Gattuso, Evelyn Davis, Steve Ronnebeck and Marceanne Lee Woodruff only. Signed by Judge Steven P Logan on 1/31/18. (CLB) (Entered: 02/01/2018)
105 ORDER denying as moot 103 Motion for Clarification. Signed by Judge Steven P Logan on 2/1/18. (CLB) (Entered: 02/01/2018)
106 *LRCiv 7.2(n) Inquiry − re: 31 by Defendant Mark Brnovich. (Roysden, Brunn) *Modified to correct event; attorney noticed on 2/13/2018 (SLQ). (Entered: 02/12/2018)
107 NOTICE of Deposition of Cecil B. Patterson, filed by Mark Brnovich. (Roysden, Brunn) (Entered: 02/13/2018)
108 NOTICE of Deposition of H. Ellis Armistead, filed by Mark Brnovich. (Roysden, Brunn) (Entered: 02/13/2018)
109 NOTICE of Deposition of Richard Burr, filed by Mark Brnovich. (Roysden, Brunn) (Entered: 02/13/2018)
110 MOTION to Supplement Motion to Supplement the Record on Plaintiffs' Motion for Preliminary Injunction (Doc 11) and Defendant's Motion to Dismiss (Doc 31) by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Exhibit Exhibits 1−5, # 2 Text of Proposed Order Proposed Order)(Fischer, Ian) (Entered: 02/16/2018)
111 *Cross MOTION to Supplement Defendant's Motion to Dismiss and RESPONSE to Motion re: 110 MOTION to Supplement Motion to Supplement the Record on Plaintiffs' Motion for Preliminary Injunction (Doc 11 ) and Defendant's Motion to Dismiss (Doc 31 ) filed by Mark Brnovich. (Skinner, Oramel) *Modified to correct event on 3/19/2018 (SLQ). (Entered: 03/02/2018)
112 DECLARATION of Brunn W. Roysden III re: 111 Response to Motion by Defendant Mark Brnovich. (Skinner, Oramel) (Entered: 03/03/2018)
113 DECLARATION of Brunn W. Roysden III re: 111 Response to Motion CORRECTED by Defendant Mark Brnovich. (Roysden, Brunn) (Entered: 03/04/2018)
114 *MOTION for Extension of Time to File Reply in Support of Motion to Supplement the Record 110 by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of Proposed Order)(Fischer, Ian) *Modified to correct event; attorney noticed on 3/7/2018 (SLQ). (Entered: 03/06/2018)
115 ORDER − IT IS ORDERED that the Motion to Extend Deadline (Doc. 114 ) is granted. Plaintiffs shall have until March 16, 2018, to file a Reply in Support of Motion to Supplement the Record (Doc. 110 ) in a combined brief with their Response to Defendant's Cross−Motion to Supplement Defendant's Motion to Dismiss (Doc. 111 ). Signed by Judge Steven P Logan on 3/7/18. (SLQ) (Entered: 03/07/2018)

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 19 of 26

03/16/2018
03/23/2018 03/26/2018 03/30/2018
04/12/2018
04/13/2018 05/04/2018 05/04/2018 05/16/2018 05/21/2018 05/25/2018

116 *REPLY to Response to Motion re: 110 MOTION to Supplement Motion to Supplement the Record on Plaintiffs' Motion for Preliminary Injunction (Doc 11) and Defendant's Motion to Dismiss (Doc 31) Plaintiffs' Response / Reply in Support of Motion to Supplement the Record on Plaintiffs' Motion for Preliminary Injunction (Doc. 11) and Defendant's Motion to Dismiss (Doc. 31), RESPONSE to 111 Cross MOTION to Supplement Defendant's Motion to Dismiss filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Exhibit Exhibits 1−4)(Fischer, Ian) *Modified to add document link per attorney phone call on 3/19/2018 (SLQ). (Entered: 03/16/2018)
117 STIPULATION re: 111 Cross MOTION to Supplement by Mark Brnovich. (Attachments: # 1 Text of Proposed Order Order Granting Stipulation)(Roysden, Brunn) (Entered: 03/23/2018)
118 REPLY to Response to Motion re: 111 Cross MOTION to Supplement filed by Mark Brnovich. (Attachments: # 1 Exhibit)(Roysden, Brunn) (Entered: 03/26/2018)
119 ORDER granting and deeming admitted 110 Motion to Supplement, 111 Motion to Supplement and 117 Stipulation. Denying 11 Motion for Preliminary Injunction. Denying without prejudice 35 Motion to Intervene, 54 Motion for Joinder of Additional Parties and 79 Motion for Ruling. Striking without prejudice the Amicus Curiae Briefs (Docs. 38 , 40 , 41 ). Granting in part 31 Motion to Dismiss for Failure to State a Claim and dismissing without prejudice Mark Brnovich. Plaintiff shall have until 4/20/18 to file an amended complaint. This action will be dismissed prejudice for lack of jurisdiction on 4/23/2018. Signed by Judge Steven P Logan on 3/29/18. (DXD) (Entered: 03/30/2018)
120 MOTION for Extension of Time to Amend 119 Order on Motion to Dismiss for Failure to State a Claim, Order on Motion to Intervene, Order on Motion for Joinder of Additional Parties, Order on Motion for Ruling, Order on Motion to Supplement, Order on Motion for Preliminary Injunction Unopposed Motion to Extend Deadline to File Amended Complaint by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of Proposed Order proposed Order)(Fischer, Ian) (Entered: 04/12/2018)
121 ORDER granting 120 Plaintiffs' Unopposed Motion to Extend. Plaintiffs shall have until 5/4/2018 to file an Amended Complaint. IT IS FURTHER ORDERED that if Plaintiffs elect not to file an Amended Complaint in accordance with the Court's Order (see Doc. 119 ) this action will be dismissed without prejudice for lack of jurisdiction on 5/7/2018. Signed by Judge Steven P. Logan on 4/13/2018. (RMW) (Entered: 04/13/2018)
122 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson Notice of Filing First Amended Complaint for Declaratory and Injunctive Relief. (Attachments: # 1 First Amended Complaint − Redlined)(Fischer, Ian) (Entered: 05/04/2018)
123 AMENDED COMPLAINT First Amended Complaint for Declaratory and Injunctive Relief against Mark Brnovich filed by Rich Robertson, Richard D Randall, Jeffrey A Kirchler, Arizona Attorneys for Criminal Justice, Richard L Lougee, Christopher Dupont, John Canby.(Fischer, Ian) (Entered: 05/04/2018)
124 MOTION for Extension of Time to File Answer to First Amended Complaint by Mark Brnovich. (Attachments: # 1 Text of Proposed Order)(Roysden, Brunn) (Entered: 05/16/2018)
125 ORDER that the Unopposed Motion to Extend Deadline to File an Answer to Amended Complaint 124 is granted. Defendants shall have until May 25, 2018, to file an answer to the Amended Complaint and otherwise respond as provided by Rule 12 of the Federal Rules of Civil Procedure. Signed by Judge Steven P Logan on 5/21/18. (CLB) (Entered: 05/21/2018)
126 MOTION to Dismiss Case by Mark Brnovich. (Roysden, Brunn) (Entered: 05/25/2018)

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 20 of 26

05/25/2018 06/04/2018 06/05/2018 06/13/2018 06/21/2018 06/21/2018
06/21/2018
06/21/2018 06/25/2018 06/28/2018 06/29/2018 06/29/2018

127 NOTICE TO FILER OF DEFICIENCY re: 126 MOTION to Dismiss Case filed by Mark Brnovich. Document not in compliance with LRCiv 7.1(a)(3) which states that party names must be capitalized using proper upper and lower case type. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (SLQ) (Entered: 05/29/2018)
128 First MOTION for Extension of Time to File Response/Reply as to 126 MOTION to Dismiss Case by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of Proposed Order)(Brody, Kathleen) (Entered: 06/04/2018)
129 ORDER granting 128 Motion for Extension of Time to File Response re: 126 MOTION to Dismiss Case. Plaintiffs shall have until June 22, 2018, to file a Response to the Motion to Dismiss. Signed by Judge Steven P Logan on 6/5/18. (CLB) (Entered: 06/05/2018)
130 NOTICE of Attorney Withdrawal Brenda Munoz Furnish filed by Kathleen E Brody. (Brody, Kathleen) (Entered: 06/13/2018)
131 Second MOTION for Extension of Time to File Response/Reply to Motion to Dismiss First Amended Complaint by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of Proposed Order)(Stanton, Heather) (Entered: 06/21/2018)
132 NOTICE TO FILER OF DEFICIENCY re: 131 Second MOTION for Extension of Time to File Response/Reply to Motion to Dismiss First Amended Complaint filed by Jeffrey A Kirchler, Richard D Randall, Rich Robertson, John Canby, Arizona Attorneys for Criminal Justice, Richard L Lougee, Christopher Dupont. Document not in compliance with LRCiv 5.5(g) − Documents signed by an attorney shall be filed using that attorney's ECF log−in and password and shall not be filed using a log−in and password belonging to another attorney. Document(s) signed by attorney Ian Fischer but submitted using the log−in and password belonging to attorney Heather Stanton. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (SLQ) (Entered: 06/21/2018)
133 *WITHDRAWAL of Document re: 131 Second MOTION for Extension of Time to File Response/Reply to Motion to Dismiss First Amended Complaint by Plaintiffs Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson..(Fischer, Ian) *Modified to correct event; attorney noticed on 6/22/2018 (SLQ). (Entered: 06/21/2018)
134 Second MOTION for Extension of Time to File Response/Reply as to 126 MOTION to Dismiss Case by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of Proposed Order)(Fischer, Ian) (Entered: 06/21/2018)
135 ORDER granting 134 Motion for Extension of Time to File Response re: 126 MOTION to Dismiss Case. Response due 6/29/2018. Signed by Judge Steven P Logan on 6/22/18. (CLB) (Entered: 06/25/2018)
136 RESPONSE in Opposition re: 126 MOTION to Dismiss Case Response to Motion to Dismiss First Amended Complaint filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 06/28/2018)
137 *MOTION for Extension of Time To Reply to Plaintiffs' Response to Motion to Dismiss First Amended Complaint by Mark Brnovich. (Attachments: # 1 Text of Proposed Order Text of Proposed Order)(Baek, Richard) *Modified to correct event; attorney noticed on 7/2/2018 (SLQ). (Entered: 06/29/2018)
138 NOTICE TO FILER OF DEFICIENCY re: 137 MOTION for Extension of Time to File Response/Reply filed by Mark Brnovich. Document not in compliance with LRCiv 7.1(a)(3) − Party names must be capitalized using proper upper and lower case type. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (SLQ) (Entered: 07/02/2018)

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 21 of 26

07/09/2018 07/19/2018 09/07/2018 11/21/2018 02/08/2019 02/08/2019 02/15/2019 02/15/2019 03/15/2019
04/10/2019 04/11/2019 04/26/2019 04/26/2019

139 ORDER granting 137 Motion for Extension of Time to File Reply re: 126 Motion to Dismiss Case. Reply due 7/19/2018. Signed by Judge Steven P Logan on 7/5/18. (CLB) (Entered: 07/09/2018)
140 REPLY to Response to Motion re: 126 MOTION to Dismiss Case filed by Mark Brnovich. (Skinner, Oramel) (Entered: 07/19/2018)
141 NOTICE of Attorney Withdrawal of Roy Herrera and Daniel Arellano filed by Ian Matthew Fischer. (Fischer, Ian) (Entered: 09/07/2018)
142 NOTICE re: Notice of Supplemental Authority by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson re: 136 Response in Opposition to Motion . (Attachments: # 1 Exhibit Exhibit 1)(Brody, Kathleen) (Entered: 11/21/2018)
143 NOTICE re: Supplemental Authority by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson re: 136 Response in Opposition to Motion . (Attachments: # 1 Exhibit)(Fischer, Ian) (Entered: 02/08/2019)
144 NOTICE re: of Pending Motion to Dismiss by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson . (Fischer, Ian) (Entered: 02/08/2019)
145 *NOTICE re: Notice of Supplemental Authority by Mark Brnovich . (Attachments: # 1 Exhibit Exhibits to Supplemental Authority)(Roysden, Brunn) *Document not in compliance with LRCiv 7.1(a)(3). Attorney noticed on 2/19/2019 (RMV). (Entered: 02/15/2019)
146 NOTICE TO FILER OF DEFICIENCY re: 145 Notice (Other) filed by Mark Brnovich. Document not in compliance with LRCiv 7.1(a)(3) − Party names must be capitalized using proper upper and lower case type. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RMV) (Entered: 02/19/2019)
147 ORDER − Attorney General Mark Brnovich's Motion to Dismiss (Doc. 126 ) is granted, and he is dismissed without prejudice from this action. Plaintiffs shall have until April 12, 2019 to file a second amended complaint consistent with this Order and the local rules. If Plaintiffs elect not file a second amended complaint in accordance with this Order, this action will be dismissed without prejudice for lack of jurisdiction on April 15, 2019. See document for further details. Signed by Judge Steven P Logan on 3/15/2019. (RMV) (Entered: 03/15/2019)
148 MOTION for Extension of Time to File Unopposed Motion to Extend Deadline to File Second Amended Complaint, First Request by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of Proposed Order proposed order)(Fischer, Ian) (Entered: 04/10/2019)
149 ORDER granting Plaintiffs' 148 Motion for Extension of Time. Plaintiffs shall have until April 26, 2019 to file their Second Amended Complaint. If Plaintiffs elect not file a Second Amended Complaint in accordance with this Order, this action will be dismissed without prejudice for lack of jurisdiction on April 30, 2019. Signed by Judge Steven P Logan on 4/11/19. (CLB) (Entered: 04/11/2019)
150 AMENDED COMPLAINT Second Amended Complaint for Declaratory and Injunctive Relief against Mark Brnovich, State Bar of Arizona, Mark Vessella, Frank Milstead filed by Rich Robertson, Richard D Randall, Jeffrey A Kirchler, Arizona Attorneys for Criminal Justice, Richard L Lougee, Christopher Dupont, John Canby.(Fischer, Ian) (Entered: 04/26/2019)
151 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson Notice of Filing Second Amended Complaint for Declaratory and Injunctive Relief. (Attachments: # 1 Second Amended Complaint, redlined)(Fischer, Ian) (Entered: 04/26/2019)

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04/26/2019 04/26/2019 04/26/2019 04/29/2019 05/03/2019 05/06/2019 05/14/2019 05/16/2019 05/30/2019 06/20/2019 06/20/2019 06/20/2019 06/20/2019 07/02/2019
07/03/2019 07/10/2019

152 SUMMONS Submitted by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 04/26/2019)
153 SUMMONS Submitted by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 04/26/2019)
154 SUMMONS Submitted by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 04/26/2019)
155 Summons Issued as to Frank Milstead, State Bar of Arizona, Maret Vessella. (Attachments: # 1 Summons, # 2 Summons)(BAS). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 04/29/2019)
156 *MOTION for Extension of Time TO FILE ANSWER OR RULE 12 MOTION TO SECOND AMENDED COMPLAINT by Mark Brnovich. (Attachments: # 1 Text of Proposed Order Proposed Order)(Roysden, Brunn) *Modified to correct event on 5/6/2019 (RMV). (Entered: 05/03/2019)
157 *NOTICE of Appearance by Lisa Tewksbury Hauser and Carrie Laliberte on behalf of State Bar of Arizona, Maret Vessella. (Hauser, Lisa) *Modified to add attorney Laliberte and clarify text on 5/7/2019 (RMV). (Entered: 05/06/2019)
158 STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT (First Request) by State Bar of Arizona, Maret Vessella. (Attachments: # 1 Text of Proposed Order Order re extending time for State Bar of Arizona, et al. to answer)(Hauser, Lisa) (Entered: 05/14/2019)
159 ORDER: The Stipulations to Extend 156 , 158 are granted. Defendants shall have until June 20, 2019 to file an answer to the Second Amended Complaint. Signed by Judge Steven P Logan on 5/15/2019. (LMR) (Entered: 05/16/2019)
160 NOTICE of Appearance by Nancy M Bonnell on behalf of Frank Milstead. (Bonnell, Nancy) (Entered: 05/30/2019)
161 MOTION Request for Judicial Notice by State Bar of Arizona, Maret Vessella. (Attachments: # 1 Exhibit 1 − Roysden Decl (part 1), # 2 Exhibit 1 − Roysden Decl (part 2), # 3 Exhibit 2 − Hauser Decl, # 4 Text of Proposed Order Order)(Hauser, Lisa) (Entered: 06/20/2019)
162 MOTION to Dismiss Party State Bar of Arizona and Maret Vessella, MOTION to Dismiss for Lack of Jurisdiction, MOTION to Dismiss for Failure to State a Claim by State Bar of Arizona, Maret Vessella. (Hauser, Lisa) (Entered: 06/20/2019)
163 DECLARATION of Brunn W. Roysden III by Defendants Mark Brnovich, Frank Milstead. (Roysden, Brunn) (Entered: 06/20/2019)
164 MOTION to Dismiss for Lack of Jurisdiction by Mark Brnovich, Frank Milstead. (Skinner, Oramel) (Entered: 06/20/2019)
165 MOTION for Extension of Time to File Response/Reply as to 164 MOTION to Dismiss for Lack of Jurisdiction , 162 MOTION to Dismiss Party State Bar of Arizona and Maret VessellaMOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim Unopposed Motion to Extend Deadline to File Response to Defendants' Motions to Dismiss by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of Proposed Order proposed order)(Fischer, Ian) (Entered: 07/02/2019)
166 ORDER: The Motion to Extend 165 is granted. Plaintiffs shall have until July 19, 2019, to file their Responses to the pending Motions to Dismiss (Docs. 162 , 164 ). Signed by Judge Steven P Logan on 7/3/2019. (LMR) (Entered: 07/03/2019)
167 NOTICE of Appearance by Martin Lieberman on behalf of Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Lieberman, Martin) (Entered:

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 23 of 26

07/15/2019 07/18/2019 07/18/2019
07/22/2019 07/22/2019 07/25/2019 07/31/2019 08/06/2019
08/06/2019
08/08/2019 08/12/2019

07/10/2019)
168 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Kathleen E Brody. (Brody, Kathleen) (Entered: 07/15/2019)
169 RESPONSE in Opposition re: 164 MOTION to Dismiss for Lack of Jurisdiction , RESPONSE to Motion re: 164 MOTION to Dismiss for Lack of Jurisdiction filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 07/18/2019)
170 RESPONSE in Opposition re: 162 MOTION to Dismiss Party State Bar of Arizona and Maret VessellaMOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim , RESPONSE to Motion re: 162 MOTION to Dismiss Party State Bar of Arizona and Maret VessellaMOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Fischer, Ian) (Entered: 07/18/2019)
171 STIPULATION re: 164 MOTION to Dismiss for Lack of Jurisdiction , 162 MOTION to Dismiss Party State Bar of Arizona and Maret VessellaMOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim by State Bar of Arizona, Maret Vessella. (Attachments: # 1 Text of Proposed Order Order extending time for Defendants to reply in support of motions to dismiss)(Hauser, Lisa) (Entered: 07/22/2019)
172 ORDER − IT IS ORDERED that the Stipulation (Doc. 171 ) is granted. Defendants shall have until August 8, 2019 to file Replies to their Motions to Dismiss (Docs. 162 , 164 ). Signed by Judge Steven P Logan on 7/22/19. (SLQ) (Entered: 07/22/2019)
173 EX PARTE MOTION to Withdraw as Attorney Ex Parte Motion to Withdraw as Counsel of Record for Plaintiffs, With Consent by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order proposed Order)(Fischer, Ian) (Entered: 07/25/2019)
174 ORDER: The Ex Parte Motion to Withdraw as Counsel of Record for Plaintiffs with Consent 173 is granted. Dan Goldfine, Ian Fischer, and the law firm of Lewis Roca Rothgerber Christie LLP are hereby withdrawn as counsel for Plaintiffs in this action. Signed by Judge Steven P Logan on 7/30/2019. (LMR) (Entered: 07/31/2019)
175 *STIPULATION re: 170 Response in Opposition to Motion, Response to Motion to Dismiss for Lack of Jurisdiction, 164 MOTION to Dismiss for Lack of Jurisdiction , 169 Response in Opposition to Motion, Response to Motion to Dismiss for Lack of Jurisdiction, 162 MOTION to Dismiss Party State Bar of Arizona and Maret VessellaMOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim by Mark Brnovich. (Attachments: # 1 Text of Proposed Order Proposed Order)(Roysden, Brunn) *Modified to correct filer and to reflect Local Rule violation on 8/7/2019 (SST). (Entered: 08/06/2019)
176 NOTICE TO FILER OF DEFICIENCY re: 175 Stipulation filed by Mark Brnovich, State Bar of Arizona, Maret Vessella, Frank Milstead. Document not in compliance with LRCiv 5.5(g) − Documents signed by an attorney shall be filed using that attorney's ECF log−in and password and shall not be filed using a log−in and password belonging to another attorney. Document signed by attorney Oramel Skinner but submitted using the log−in and password belonging to attorney Brunn Roysden. No further action is required. Please do not refile. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (SST) (Entered: 08/07/2019)
177 ORDER: The Stipulation 175 is granted. Defendants shall haveuntil August 14, 2019 to file Replies in Support of their Motions to Dismiss (Docs. 162 , 164 ). Signed by Judge Steven P Logan on 8/7/2019. (LMR) (Entered: 08/08/2019)
178 Joint MOTION Request for Clarification Regarding MIDP Obligations by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Text of

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 24 of 26

08/14/2019 08/14/2019 08/23/2019 08/27/2019
08/28/2019 09/19/2019 09/19/2019 10/03/2019 12/09/2019 12/09/2019 12/09/2019 02/27/2020
02/27/2020 03/12/2020

Proposed Order Order)(Brody, Kathleen) (Entered: 08/12/2019)
179 REPLY to Response to Motion re: 162 MOTION to Dismiss Party State Bar of Arizona and Maret VessellaMOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim filed by State Bar of Arizona, Maret Vessella. (Hauser, Lisa) (Entered: 08/14/2019)
180 REPLY to Response to Motion re: 164 MOTION to Dismiss for Lack of Jurisdiction filed by Mark Brnovich, Frank Milstead. (Skinner, Oramel) (Entered: 08/14/2019)
181 ORDER: The Joint Request for Clarification 178 is granted. The initial MIDP Order remains in effect. See order for additional details. Signed by Judge Steven P Logan on 8/23/2019. (LMR) (Entered: 08/23/2019)
182 MOTION Unopposed Joint Motion of Defendants State Bar of Arizona, Vessella, and Milstead to Defer Time to Answer Under General Order 17−08 (Doc. 7) re: 150 Amended Complaint by Frank Milstead, State Bar of Arizona, Maret Vessella. (Attachments: # 1 Text of Proposed Order Order Granting Unopposed Joint Motion)(Hauser, Lisa) (Entered: 08/27/2019)
183 ORDER: The Motion to Defer 182 is granted. The deadline for filing an Answer and exchanging Mandatory Initial Discovery Responses shall be deferred pending resolution of the Motions to Dismiss 162 , 164 . Signed by Judge Steven P Logan on 8/28/2019. (LMR) (Entered: 08/28/2019)
184 NOTICE of Appearance by Kate Blakeley Sawyer on behalf of Mark Brnovich. (Sawyer, Kate) (Entered: 09/19/2019)
185 NOTICE re: Notice of Supplemental Authority by Mark Brnovich . (Attachments: # 1 Exhibit)(Sawyer, Kate) (Entered: 09/19/2019)
186 NOTICE re: Response to Notice of Supplemental Authority by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson re: 185 Notice (Other) . (Brody, Kathleen) (Entered: 10/03/2019)
187 NOTICE of Appearance by Jared G Keenan on behalf of Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Keenan, Jared) (Entered: 12/09/2019)
188 NOTICE of Attorney Withdrawal Marty Lieberman filed by Jared G Keenan. (Keenan, Jared) (Entered: 12/09/2019)
189 ORDER: Defendants' Request for Judicial Notice in Support of Their Motion to Dismiss Plaintiffs' Second Amended Complaint for Declaratory and Injunctive Relief 161 is granted. Signed by Judge Steven P Logan on 12/9/2019. (LMR) (Entered: 12/09/2019)
191 ORDER − IT IS ORDERED: 1. That the Attorney General's Third Motion to Dismiss (Doc. 164 ) is granted in full and with prejudice because any amendment would be futile; 2. That the State Bar of Arizona and Defendant Vessella's Motion to Dismiss (Doc. 162 ) is granted in part, only dismissing the State Bar of Arizona with prejudice based on Eleventh Amendment immunity. IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action with respect to the Attorney General and the State Bar of Arizona defendants and enter judgment accordingly as to those two defendants only. (See document for complete details). Signed by Judge Steven P Logan on 2/27/20. (SLQ) (Entered: 02/27/2020)
192 CLERK'S JUDGMENT − IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed February 27, 2020, judgment of dismissal is entered. This action is terminated with respect to the Attorney General and the State Bar of Arizona defendants only. (SLQ) (Entered: 02/27/2020)
193 First MOTION for Reconsideration re: 191 Order, Terminate Motions, Add and Terminate Parties by Frank Milstead. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(McCarthy, Eryn) (Entered: 03/12/2020)

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03/12/2020 03/12/2020 03/12/2020 03/12/2020 03/12/2020 03/13/2020 03/26/2020 03/26/2020
03/27/2020
03/31/2020 03/31/2020 04/02/2020 04/07/2020 04/09/2020 05/06/2020

194 *MOTION for CONDITIONAL REQUEST FOR CERTIFICATION FOR APPELLATE REVIEW by Frank Milstead. (Attachments: # 1 Text of Proposed Order)(McCarthy, Eryn) *Modified to correct event on 3/13/2020 (GMP). (Entered: 03/12/2020)
195 ORDER: Plaintiffs shall have until March 26, 2020 to file a response to Defendant Milstead's Motion for Reconsideration 193 . No reply shall be permitted unless otherwise ordered by the Court. Signed by Judge Steven P Logan on 3/12/2020. (LMR) (Entered: 03/12/2020)
196 REQUEST re: Defendant Vessella's Request for Judicial Notice , Exhibits A and B, and Proposed Order by Defendant Maret Vessella. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Text of Proposed Order Proposed Order)(Hauser, Lisa) (Entered: 03/12/2020)
197 First MOTION for Reconsideration re: 191 Order, Terminate Motions, Add and Terminate Parties by Maret Vessella. (Attachments: # 1 Text of Proposed Order Proposed Order)(Hauser, Lisa) (Entered: 03/12/2020)
198 *MOTION for CONDITIONAL REQUEST FOR CERTIFICATION FOR APPELLATE REVIEW by Maret Vessella. (Attachments: # 1 Text of Proposed Order Proposed Order)(Hauser, Lisa) *Modified to correct event on 3/13/2020 (GMP). (Entered: 03/12/2020)
199 ORDER: Plaintiffs shall have until March 27, 2020 to file a response to Defendant Vessella's Motion for Reconsideration 197 . No reply shall be permitted unless otherwise ordered by the Court. See order for additional details. Signed by Judge Steven P Logan on 3/13/2020. (LMR) (Entered: 03/13/2020)
200 RESPONSE to Motion re: 193 First MOTION for Reconsideration re: 191 Order, Terminate Motions, Add and Terminate Parties filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Brody, Kathleen) (Entered: 03/26/2020)
201 RESPONSE to Motion re: 194 MOTION, 198 MOTION Combined Response to Milstead's and Vessella's Conditional Requests for Certification for Appellate Review filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Brody, Kathleen) (Entered: 03/26/2020)
202 *RESPONSE to 197 First MOTION for Reconsideration re: 191 Order Response to Defendant Maret Vessella's Motion for Reconsideration filed by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson. (Attachments: # 1 Exhibit 1)(Brody, Kathleen) *Modified on 3/30/2020 to remove duplicative docket text (MSA). (Entered: 03/27/2020)
203 NOTICE re: Substitution of Defendant by Frank Milstead . (Bonnell, Nancy) (Entered: 03/31/2020)
204 MOTION for Extension of Time to File Response/Reply as to 194 MOTION by Heston Silbert. (Attachments: # 1 Proposed Order)(Bonnell, Nancy) (Entered: 03/31/2020)
205 ORDER: The Motion to Extend 204 is granted. Defendants shall have until April 9, 2020 to file their reply in support of their Motion to Certify. Signed by Judge Steven P Logan on 4/1/2020. (LMR) (Entered: 04/02/2020)
206 REPLY to Response to Motion re: 198 MOTION for Conditional Request for Certification for Appellate Review filed by State Bar of Arizona, Maret Vessella. (Hauser, Lisa) (Entered: 04/07/2020)
207 REPLY to Response to Motion re: 194 MOTION Reply in Support of Defendant Silbert's Conditional Request for Certification of Appellate Review filed by Heston Silbert. (Bonnell, Nancy) (Entered: 04/09/2020)
208 NOTICE re: Supplemental Authority by Heston Silbert re: 193 First MOTION for Reconsideration re: 191 Order, Terminate Motions, Add and Terminate Parties , 194 MOTION . (Attachments: # 1 Exhibit)(McCarthy, Eryn) (Entered: 05/06/2020)

Case: 2:17-cv-1422 As of: 06/05/2020 08:04 PM MST 26 of 26

05/14/2020

209 *RESPONSE to Notice of Supplemental Authority by Arizona Attorneys for Criminal Justice, John Canby, Christopher Dupont, Jeffrey A Kirchler, Richard L Lougee, Richard D Randall, Rich Robertson re: 208 Notice (Other) . (Brody, Kathleen) *Modified to correct event; attorney noticed on 5/14/2020 (SLQ). (Entered: 05/14/2020)

 
 Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 1 of 13

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Arizona Attorneys for Criminal Justice, ) No. CV-17-01422-PHX-SPL

9 et al.,

) )

10

Plaintiffs,

) ORDER )

11 vs.

) )

12 Doug Ducey, et al.,

) )

13

)

Defendants.

)

14

)

15

In 1990, voters approved an amendment to the Arizona constitution, the Victims’

16 Bill of Rights (“VBR”), which grants crime victims twelve enumerated rights designed

17 “[t]o preserve and protect [their] rights to justice and due process.” Ariz. Const. art. II, §

18 2.1(A). In 1991, Arizona enacted the Victims’ Rights Implementation Act (“VRIA”), a

19 set of statutory amendments implementing the VBR. 1991 Ariz. Sess. Laws Ch. 229

20 (H.B. 2412) (codified at Ariz. Rev. Stat. §§ 13-4401 to 4442). Among those statutes

21 includes Arizona Revised Statute § 13-4433, which implements a victim’s right under the

22 VBR to refuse an interview. See Ariz. Const. art. II, § 2.1(A)(5). The statute reads in

23 relevant part:

24

A. Unless the victim consents, the victim shall not be

compelled to submit to an interview on any matter, including

25

any charged criminal offense witnessed by the victim and that

occurred on the same occasion as the offense against the

26

victim, or filed in the same indictment or information or

consolidated for trial, that is conducted by the defendant, the

27

defendant’s attorney or an agent of the defendant.

28

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 2 of 13

1

B. The defendant, the defendant’s attorney or an agent of the

2

defendant shall only initiate contact with the victim through

the prosecutor’s office. The prosecutor’s office shall promptly

3

inform the victim of the defendant’s request for an interview

and shall advise the victim of the victim’s right to refuse the

4

interview.

5

C. The prosecutor shall not be required to forward any

correspondence from the defendant, the defendant’s attorney

6

or an agent of the defendant to the victim or the victim’s

representative.

7

D. If the victim consents to an interview, the prosecutor’s

8

office shall inform the defendant, the defendant’s attorney or

an agent of the defendant of the time and place the victim has

9

selected for the interview... The victim has the right to

terminate the interview at any time or to refuse to answer any

10

question during the interview. The prosecutor has standing at

the request of the victim to protect the victim from

11

harassment, intimidation or abuse and, pursuant to that

standing, may seek any appropriate protective court order.

12

13 Ariz. Rev. Stat. § 13-4433(A)-(D).

14

On May 8, 2017, Plaintiffs, individual criminal-defense lawyers, investigators, and

15 non-profit organization Arizona Attorneys for Criminal Justice, filed a complaint

16 challenging the constitutionality of Ariz. Rev. Stat. § 13-4433(B), which prohibits the

17 defense from initiating contact with a victim. (Doc. 1 ¶ 1, 16-23.) They allege that

18 “[c]riminal-defense lawyers and investigators have been subjected to professional

19 discipline and criminal charges for alleged violations of A.R.S. § 13-4433(B), and these

20 adverse actions against members of the criminal-defense community have chilled

21 constitutionally protected speech and hindered the ability of criminal-defense teams to

22 effectively represent criminal defendants and vindicate the rights afforded them in the

23 criminal-justice process.” (Doc. 1 ¶ 9; see also Doc. 1 ¶ 53 (alleging “other defense

24 lawyers and members of defense teams have been threatened with professional and

25 criminal sanctions based on violations of A.R.S. § 13-4433(B)”).)

26

Plaintiffs bring two claims for relief under 42 U.S.C. § 1983 against Arizona

27 Attorney General Mark Brnovich in his official capacity as “the chief legal officer of the

28 state,” who “has general supervisory authority over county and local prosecutors,” and “is

2

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 3 of 13

1 responsible for the administration of the victims’ rights program, which administers a plan

2 for assisting and monitoring state and local entities that are required to implement and

3 comply with victims’ rights laws, including A.R.S. § 13-4433(B).” (Doc. 1 ¶ 25 (citing 4 Ariz. Rev. Stat. § 41-191.06).)1 (Doc. 1.) They seek injunctive and declaratory relief,

5 asking that enforcement of Ariz. Rev. Stat. § 13-1433(B) be enjoined, and that § 13-

6 1433(B) be declared unconstitutional “on the grounds that: (1) the law is a content-based

7 restriction on constitutionally protected speech not narrowly tailored to a compelling

8 government interest, and (2) the law is overbroad, in violation of the First Amendment to

9 the United States Constitution.” (Doc. 1 ¶ 11.)

10

Pending before the Court are numerous party and non-party motions; the Attorney

11 General moves to dismiss the complaint, Plaintiffs move for preliminary injunction, and

12 several non-parties move to intervene as defendants. Finding this case is not justiciable 13 against the Attorney General,2 as follows, he will be dismissed and the requests for

14 intervention and preliminary injunction will be denied.

15 I. Legal Standard

16

In considering a facial challenge to jurisdiction under Rule 12(b)(1) of the Federal

17 Rules of Civil Procedure, as here, the Court determines whether the allegations in the

18 complaint are insufficient on their face to demonstrate the existence of jurisdiction, and

19 dismissal is appropriate only where the plaintiff fails to allege an element necessary for

20 subject matter jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

21 2004); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). The material factual

22 allegations of the complaint are presumed to be true and construed in favor of the

23 complaining party. Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (quoting

24 1

The complaint also names Governor Doug Ducey as a defendant, who has been

25 dismissed from this action on stipulation of the parties.

26

2

the Attorney General moves to dismiss the complaint under Rule 12(b)(1),

12(b)(6), and 12(b)(7) of the Federal Rules of Civil Procedure arguing: (1) Younger v.

27

Harris; (2) lack of standing; (3) sovereign immunity; (4) failure to join necessary parties under Rule 19; and (5) failure to state a claim. (Doc. 31.) Because the Court concludes

28

that Plaintiffs lack standing to sue the Attorney General, it does not reach the remaining arguments advanced.

3

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 4 of 13

1 Nat’l Audubon Soc., 307 F.3d at 849). See Chandler v. State Farm Mut. Auto. Ins. Co.,

2 598 F.3d 1115, 1122 (9th Cir. 2010) (Article III standing is properly raised under

3 12(b)(1)).

4

“To state a case or controversy under Article III, a plaintiff must establish

5 standing.” Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 133

6 (2011). See also Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 597-98

7 (2007). The doctrine of standing encompasses both constitutional requirements and

8 prudential considerations. See Valley Forge Christian Coll. v. Ams. United for Separation

9 of Church & State, Inc., 454 U.S. 464, 471 (1982). “The constitutional requirement of

10 standing has three elements: (1) the plaintiff must have suffered an injury-in-fact—that is,

11 a concrete and particularized invasion of a legally protected interest that is actual or 12 imminent, not conjectural or hypothetical;3 (2) the injury must be causally connected—

13 that is, fairly traceable—to the challenged action of the defendant and not the result of the

14 independent action of a third party not before the court; and (3) it must be likely and not

15 merely speculative that the injury will be redressed by a favorable decision by the court.”

16 Catholic League for Religious and Civil Rights v. City and County of San Francisco, 624

17 F.3d 1043, 1049 (9th Cir. 2010) (citing Lujan, 504 U.S. at 560-61; Valley Forge, 454

18 U.S. at 475-76).

19

The plaintiff bears the burden of establishing the existence of a justiciable case or

20 controversy, and “‘must demonstrate standing for each claim he seeks to press’ and ‘for

21 each form of relief’ that is sought.” Davis v. Federal Election Comm’n, 554 U.S. 724,

22 734 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). “A

23 plaintiff must establish standing with the ‘manner and degree of evidence required at the

24 successive stages of the litigation.’” Carrico v. City and County of San Francisco, 656

25

26

3 “The constitutional component of ripeness overlaps with the ‘injury in fact’ analysis for Article III standing. Whether framed as an issue of standing or ripeness, the

27

inquiry is largely the same: whether the issues presented are ‘definite and concrete, not hypothetical or abstract.’” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010)

28

(citations omitted). See also LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000) (discussing ripeness).

4

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 5 of 13

1 F.3d 1002, 1006 (9th Cir. 2011) (quoting Lujan, 504 U.S. at 561). “[A]t the pleading

2 stage, the plaintiff must clearly... allege facts demonstrating each element.” Spokeo, Inc.

3 v. Robins, 136 S.Ct. 1540, 1547 (2016) (internal quotations omitted).

4 II. Discussion

5

A. Injury-In-Fact

6

The Court finds that Plaintiffs have sufficiently alleged an injury-in-fact for

7 Article III standing. Plaintiffs “have alleged ‘an intention to engage in a course of

8 conduct arguably affected with a constitutional interest’” under the First Amendment that

9 is “‘proscribed by [the] statute they wish to challenge.’” Susan B. Anthony List v.

10 Driehaus, 134 S.Ct. 2334, 2344 (2014) (quoting Babbitt v. United Farm Workers Nat’l

11 Union, 442 U.S. 289, 298 (1979)). (See Doc. 1 ¶¶ 38-47, 52.) See Fla. Bar v. Went For It,

12 Inc., 515 U.S. 618, 634 (1995) (“speech by attorneys on public issues and matters of legal

13 representation” is constitutionally protected”); Eng v. Cooley, 552 F.3d 1062, 1069 (9th

14 Cir. 2009) (state action that “chill[s] an attorney’s advocacy for his or her client strikes at

15 the heart of the First Amendment.”); In re Morrissey, 168 F.3d 134, 140 (4th Cir. 1999).

16 By its terms, Ariz. Rev. Stat. § 13-4433(B) targets Plaintiffs - criminal-defense attorneys

17 and their investigatory agents. See Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d

18 644, 655 (9th Cir. 2011). Plaintiffs allege the type of speech they believe is

19 constitutionally protected, is necessary to the performance of their duties as advocates,

20 and is the basis upon which they may be disciplined were they to violate § 13-4433(B).

21 See Canatella v. State of California, 304 F.3d 843, 852–53 (9th Cir. 2002).

22

Plaintiffs’ claim of self-censorship under the threat of enforcement sufficiently

23 alleges that, in the absence of concurrent prosecution, they have sustained an injury to

24 their First Amendment rights that is concrete and actual. See Driehaus, 134 S. Ct. at 2342

25 (quoting Babbitt, 442 U.S. at 298) (where a plaintiff brings a pre-enforcement challenge,

26 he or she “satisfies the injury-in-fact requirement where he alleges ‘an intention to

27 engage in a course of conduct arguably affected with a constitutional interest, but

28 proscribed by a statute, and there exists a credible threat of prosecution thereunder.”);

5

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 6 of 13

1 Libertarian Party of Los Angeles County v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013);

2 Wolfson, 616 F.3d at 1059 (“Self-censorship is a constitutionally recognized injury”)

3 California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094 (9th Cir. 2003) (“In an

4 effort to avoid the chilling effect of sweeping restrictions, the Supreme Court has

5 endorsed what might be called a ‘hold your tongue and challenge now’ approach rather

6 than requiring litigants to speak first and take their chances with the consequences.”).

7

Plaintiffs’ claim that other criminal-defense attorneys and investigators have been

8 the subject of professional discipline for violating § 13-4433(B) is sufficient to allege that

9 their decision to refrain from engaging in is based on a reasonable fear of enforcement of

10 the statute. (Doc. 1 ¶ 9; Doc. 46 at 10 (citing examples of state bar disciplinary

11 proceedings). See Driehaus, 134 S. Ct. at 2345 (a threat of “administrative action, like

12 arrest or prosecution,” is sufficient for Article III standing); McCormack v. Herzog, 788

13 F.3d 1017, 1027 (9th Cir. 2015) (“a plaintiff need only ‘reasonable fear a statute would

14 be enforced against it if it engaged in certain conduct’”) (quoting Planned Parenthood of

15 Idaho, Inc. v. Wasden, 376 F.3d 908, 917 (9th Cir. 2004)); Human Life of Washington

16 Inc. v. Brumsickle, 624 F.3d 990, 1001 (9th Cir. 2010) (“self-censorship is a

17 constitutionally sufficient injury as long as it is based on an actual and well-founded fear

18 that the challenged statute will be enforced”) (internal quotations omitted); Lopez v.

19 Candaele, 630 F.3d 775, 786 (9th Cir. 2010) (“a threat of government prosecution is

20 credible if … there is a history of past prosecution or enforcement under the challenged 21 statute.”) (internal quotations omitted).4

22

B. Traceability

23

Although Plaintiffs sufficiently allege an injury-in-fact, they fail to offer plausible

24 allegations from which the Court can conclude that their injury is traceable to the actions

25 of the Attorney General or the ambit of his enforcement authority. See Lujan, 504 U.S. at

26 4

As the individual plaintiffs have sufficiently alleged an injury-in-fact for purposes

27

of Article III standing, the Court need not reach the Attorney General’s arguments concerning the Arizona Attorneys for Criminal Justice. See California ex rel. Imperial

28

Cnty. Air Pollution Control Dist. v. U.S. Dep't of the Interior, 767 F.3d 781, 789 (9th Cir. 2014).

6

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 7 of 13

1 560; Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614, 619 (9th Cir. 1999)

2 (observing that Article III justiciability and Eleventh Amendment immunity present a

3 closely related, overlapping inquiry); Southern Pac. Transp. Co. v. Brown, 651 F.2d 613,

4 615 (9th Cir. 1980).

5

The source of Plaintiffs’ complained injury – the restraint of protected speech – is

6 the threat of professional discipline for violating Ariz. Rev. Stat. § 13-4433(B).5 The

7 Attorney General, however, has no authority to prosecute, sanction, or otherwise carry out

8 the vital steps in the disciplinary process. Rather, as reflected in the cases cited by

9 Plaintiffs, the State Bar of Arizona “initiate[s]” disciplinary proceedings and the Arizona

10 Supreme Court “discipline[s] defense attorneys for violations of the statute.” (Doc. 46 at

11 9.) See also Wolfson, 616 F.3d at 1056–57 (“The Arizona Supreme Court Disciplinary

12 Commission has authority to impose various sanctions on members of the Arizona Bar,

13 including censure, reprimand, probation, and restitution… The Arizona Chief Bar

14 Counsel is charged with overseeing and directing the prosecution of discipline cases

15 involving members of the bar…”) (internal citations omitted). Thus, Plaintiffs’ alleged

16 injuries are the result of “the independent action of some third party not before the court.”

17 Bennett v. Spear, 520 U.S. 154, 169 (1997).

18

It is of little consequence that the Attorney General can advise or report violations

19 of § 13-4433(B) to the state bar, because that conduct does not have a coercive effect on

20 the actions of state bar counsel who may or may not elect to pursue action, and any

21 ensuing discipline is the result of an independent decision made by the commission. See

22 Novak v. U.S., 795 F.3d 1012, 1019 (9th Cir. 2015) (“‘To plausibly allege that the injury

23

24

5 The VRIA itself contains no civil or criminal penalties for violations of its provisions, nor provides for a private cause of action to be brought against a violating

25

party. See Lindsay R. v. Cohen, 343 P.3d 435, 437 (Ariz. Ct. App. 2015) (“neither the VBR nor the VRIA gives victims a right to control the proceedings, to plead defenses, or

26

to examine or cross-examine witnesses; the VBR and the VRIA give victims the right to participate and be notified of certain criminal proceedings.”); State ex rel. Montgomery v.

27

Padilla, 364 P.3d 479, 485 (Ariz. Ct. App. 2015) (the VRIA provides a victim with standing to seek an order in the defendant’s trial or appellate proceeding to enforce a

28

right or to challenge an order denying a right) (citing A.R.S. § 13–4437(A)); (Doc. 31 at 9).

7

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 8 of 13

1 was not the result of the independent action of some third party, the plaintiff must offer

2 facts showing that the government’s unlawful conduct is at least a substantial factor

3 motivating the third parties’ actions.’”) (quoting Mendia v. Garcia, 768 F.3d 1009, 1013

4 (9th Cir. 2014)); Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220,

5 1227 (9th Cir. 2008); Guerrero v. Clinton, 157 F.3d 1190, 1195 (9th Cir. 1998) (finding

6 no causal connection from a report that had no direct legal consequences or a

7 “determinative or coercive effect” on the actions of the injuring party); Snoeck v. Brussa,

8 153 F.3d 984, 987 (9th Cir. 1998).

9

The Court observes that the complaint also alleges that defense attorneys and

10 investigators face a threat of “criminal charges” for violations of Ariz. Rev. Stat. § 13-

11 4433(B). (Doc. 1 ¶ 9.) Neither the complaint nor Plaintiffs’ responsive filings however

12 set forth any basis for this allegation, and for purposes of this discussion, it is deemed

13 abandoned. Even so, the Court points out that there are no allegations which show that

14 the Attorney General prosecutes or directs the criminal prosecution of § 13-4433(B)

15 violations, nor have the parties pointed the Court to any authority which suggests the

16 Attorney General could. The statute itself contains no criminal penalties and Ariz. Rev.

17 Stat. § 41-191.06, the statutory administrative provision for the victims’ rights program to

18 which Plaintiffs cite (see Doc. 1 ¶ 25), provides no such authority. Rather, it states only

19 that “[t]he attorney general may employ administrative and other personnel that the

20 attorney general deems necessary to administer the victims’ rights program.” Ariz. Rev.

21 Stat. § 41-191.06(B). Nor do Plaintiffs allege that, in the absence of any apparent power to

22 do so, the Attorney General has nonetheless threatened to criminally prosecute violations

23 of § 13-4433(B). Thus the fact that “Defendant may handle any criminal prosecution in

24 Arizona” and has “the authority to influence all criminal prosecutions in the state” does

25 not draw even an attenuated line of causation between his conduct and the source of

26 Plaintiffs’ alleged injury. (Doc. 46 at 10-11 (citing Ariz. Rev. Stat. § 41-193(A).) See

27 Maya, 658 F.3d at 1070 (“To survive a motion to dismiss for lack of constitutional

28 standing, plaintiffs must establish a ‘line of causation’ between defendants’ action and

8

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 9 of 13

1 their alleged harm that is more than ‘attenuated.’”) (quoting Allen v. Wright, 468 U.S.

2 737, 757 (1984)).

3

Lastly, Plaintiffs argue that the Attorney General’s role as “the conduit between

4 defense counsel and victims in all criminal proceedings,” and authority to assert standing

5 to invoke the rights of a victim, if requested, provides the necessary causal link between

6 his responsibilities and Plaintiffs’ injury. (Doc. 46 at 11-12.) This is unavailing. It is not

7 the prospect of rejection by an intermediary individual or event that Plaintiffs claim has a

8 chilling effect on their speech – it is the “omnipresent threat of prosecution incident to a

9 violation of § 13-4433(B) that acts as the illegal and unconstitutional prior restraint and

10 First Amendment violation.” (Doc. 46 at 16.) Plaintiffs therefore fail to allege that the

11 Attorney General has the necessary causal connection with and is fairly traceable to the

12 conduct from which the alleged injuries arise.

13

C. Redressability

14

Because Plaintiffs set forth no facts which show that they have suffered an injury

15 as a result of some conduct of the Attorney General, it follows that it is not likely, much

16 less plausible, that an injunction against him would redress their alleged injury. See

17 Lujan, 504 U.S. at 561; Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir.

18 2001); United States v. City of Arcata, 629 F.3d 986, 989 (9th Cir. 2010). As reasoned

19 above, the Attorney General has no direct involvement in or coercive effect over the

20 prosecution of disciplinary proceedings for violations of Ariz. Rev. Stat. § 13-4433(B).

21 Thus, any injunction against the Attorney General would not require him to act in any

22 way that would redress Plaintiffs’ injuries; the threat of discipline that has a chilling

23 effect on Plaintiffs’ speech would persist with full force in the hands of third parties that

24 are not before the Court. Plaintiffs therefore lack standing to pursue their claims against

25 the Attorney General. See Massachusetts v. EPA, 549 U.S. 497, 526 (2007)

26 (redressability for Article III standing is satisfied only where the risk of harm “would be

27 reduced to some extent if petitioners received the relief they seek”); Shell Gulf of Mexico

28 Inc. v. Center for Biological Diversity, Inc., 771 F.3d 632, 636 (9th Cir. 2014) Novak,

9

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 10 of 13

1 795 F.3d at 1019–20; Mayfield v. U.S., 599 F.3d 964, 972 (9th Cir. 2010); ASARCO Inc.

2 v. Kadish, 490 U.S. 605, 615 (1989).

3

D. Leave to Amend

4

Despite the Attorney General’s inherent attempt to persuade the contrary, the

5 Court cannot conclude that Plaintiffs would be unable to make a sufficient showing of

6 Article III standing to seek redress against an appropriate defendant. An injunction

7 against a defendant who has the power to prosecute or discipline violations of § 13-

8 4433(B) would redress at least some of Plaintiffs’ alleged injuries - Plaintiffs would not

9 be compelled to self-censor their speech under fear of the discipline alleged in the

10 complaint, and would be free to initiate contact with victims. See e.g., Wolfson, 616 F.3d

11 at 1056–57 (“The[] defendants have the power to discipline Wolfson and, if they are

12 enjoined from enforcing the challenged provisions, Wolfson will have obtained redress in

13 the form of freedom to engage in certain activities without fear of punishment… Without

14 a possibility of the challenged canons being enforced, those canons will no longer have a

15 chilling effect on speech. Wolfson will thus be able to engage in the political speech and

16 campaign activities he desires. It is true that Wolfson cannot obtain revision of the Code

17 from these defendants, but Wolfson may nevertheless obtain a form of effective redress

18 in this action.”).

19

Plaintiffs’ failure to challenge Arizona Rule of Criminal Procedure 39(b)(12)(A) is

20 immaterial. Plaintiffs do not allege in their complaint that there is some threat of 21 discipline or judicial sanction for violating Rule 39(b)(12),6 or that the rule otherwise has

22 6

The rule reads in relevant part:

23

Notwithstanding the provisions of any other rule, a victim has and is entitled to

24

assert each of the following rights:…(12) the right to refuse an interview, deposition, or other discovery request by the defendant, the defendant's

25

attorney, or other person acting on the defendant's behalf, and: (A) the defense must communicate requests to interview a victim to the prosecutor, not the

26

victim; (B) a victim's response to such requests must be communicated through the prosecutor; and (C) if there is any comment or evidence at trial regarding a

27

victim’s refusal to be interviewed, the court must instruct the jury that a victim has the right under the Arizona Constitution to refuse an interview[.]

28 Ariz. Crim. P. 39(b)(12)(A)-(C).

10

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 11 of 13

1 a chilling effect on their speech. Cf. Champlin v. Sargeant In and For County of

2 Maricopa, 965 P.2d 763, 765 (Ariz. 1998) (interpreting Rule 39(b) as a limitation on a

3 trial judge’s authority to compel a witness interview, deposition, or other discovery

4 request made by the defense); Day v. Superior Court In and For County of Maricopa,

5 823 P.2d 82, 84 (Ariz. Ct. App. 1991) (“the court’s authority is limited by the Victim’s

6 Bill of Rights”); State v. Lee, 355 P.3d 621, 624 (Ariz. Ct. App. 2015). Similarly, the

7 possibility that a victim might invoke its right not to be interviewed under A.R.S. § 13-

8 4437, or that some state or federal court may continue to preclude the defense from

9 initiating contact with victims pursuant to § 13-4433(B) or Rule 39(B)(12), also is not

10 fatal; the complaint does not allege that either of these threats chill Plaintiffs’ speech.

11 And, just as the Attorney General’s ability to advise the state bar of a violation of § 13-

12 4433(B) does not establish a causal link to Plaintiffs’ alleged injury, the possibility that a

13 victim might contact the state bar or the trial court has no bearing on whether Plaintiffs

14 may obtain relief from the threat of professional discipline by the state bar. (See Doc. 31 at

15 12.)

16

Therefore, the complaint will be dismissed with leave to amend. See Maya v.

17 Centex Corp., 658 F.3d 1060, 1072 (9th Cir. 2011) (dismissal without leave for lack of

18 standing is improper unless it is clear that the complaint cannot be saved by any

19 amendment).

20 III. Conclusion

21

Finding that Plaintiffs have failed to offer sufficient facts showing that their

22 alleged injuries are traceable to or redressable by the Attorney General, he will be

23 dismissed from this action. Plaintiffs’ request for preliminary injunction against the

24 Attorney General will therefore be denied. See Fed. R. Civ. P. 65(d)(2). Because the

25 Court cannot determine whether the interests of the applicants seeking intervention would

26 be adequately represented by the parties, the motion to intervene will be denied without

27 prejudice, subject to refiling following the filing of a responsive pleading by an amended

28 defendant in this action. See Freedom from Religion Found., Inc. v. Geithner, 644 F.3d

11

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 12 of 13

1 836, 841 (9th Cir. 2011) (“Failure to satisfy any one of the requirements is fatal to the

2 application”); Cal. ex rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006)

3 (setting forth elements).

4

Lastly, the Court observes that the Arizona Prosecuting Attorneys Advisory

5 Council, Pima County Attorney’s Office, Arizona Crime Victim Rights Law Group,

6 Arizona Coalition to End Domestic Violence, and National Crime Victim Law Institute

7 have filed amicus curiae briefs. (Docs. 38, 40, 41.) The Court generally does not favor

8 amicus curiae briefs and does not permit them to be filed absent consent of all parties or

9 a substantial showing that the amicus curiae will present relevant matters that have not or

10 could not have been brought to the Court’s attention by the parties. Therefore, not having

11 obtained leave of Court and satisfied the above, the amicus curiae briefs with be stricken.

12 Any request for leave to submit an amicus curiae brief may be filed following the filing

13 of a responsive pleading by an amended defendant in this action. Accordingly,

14

IT IS ORDERED:

15

1. That the Motion to Supplement (Doc. 110), Cross Motion to Supplement

16 (Doc. 111), and Stipulation Re: Supplemental Reply (Doc. 117) are granted and deemed

17 admitted as filed;

18

2. That the Motion for Preliminary Injunction (Doc. 11) is denied;

19

3. That the Motion to Intervene (Doc. 35), Motion for Joinder (Doc. 54), and

20 Motion for Ruling (Doc. 79) are denied without prejudice;

21

4. That the Amicus Curiae Briefs (Docs. 38, 40, 41) are stricken without

22 prejudice;

23

5. That Attorney General Mark Brnovich’s Motion to Dismiss (Doc. 31) is

24 granted in part and he is dismissed without prejudice from this action;

25

6. That Plaintiffs shall have until April 20, 2018 to file an Amended Complaint

26 consistent with this Order and the local rules; and

27 ///

28 ///

12

Case 2:17-cv-01422-SPL Document 119 Filed 03/30/18 Page 13 of 13

1

7. That if Plaintiffs elect not file an Amended Complaint in accordance with

2 this Order, this action will be dismissed without prejudice for lack of jurisdiction on

3 April 23, 2018.

4

Dated this 29th day of March, 2018.

5

6

Honorable Steven P. Logan

7

United States District Judge

8

9

10

11

12

13

14

15

16

17

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22

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24

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26

27

28

13

 
 Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 1 of 22

1 ACLU Foundation of Arizona 3707 North 7th Street, Suite 235 Phoenix, Arizona 85014
2 Telephone: 602-650-1854

Kathleen E. Brody (State Bar No. 026331)
3 Email: kbrody@acluaz.org

Brenda Muñoz Furnish (State Bar No. 027280)
4 Email: bmfurnish@acluaz.org

5

Killmer, Lane & Newman, LLP
1543 Champa Street

Denver, Colorado 80202

6 Telephone: 303-571-1000

David A. Lane (pro hac vice)
7 Email: dlane@kln-law.com

Andrew McNulty (pro hac vice)
8 Email: amcnulty@kln-law.com

Lewis Roca Rothgerber Christie LLP
9 201 East Washington Street, Suite 1200 Phoenix, Arizona 85004-2595

10 Dan W. Goldfine (State Bar No. 018788) Direct Dial: 602.262.5392 Direct Fax: 602.262.5747
11 E-mail: DGoldfine@lrrc.com

Ian M. Fischer (State Bar No. 026239)
12 Direct Dial: 602.262.5724

Direct Fax: 602.262.5747

E-mail:
13

IFischer@lrrc.com

Roy Herrera (State Bar No. 032901)

Direct Dial: 602.262.5742
14 Direct Fax: 602.262.5747

E-mail: RHerrera@lrrc.com

15 Daniel A. Arellano (State Bar No. 032304) Direct Dial: 602.262.0860 Email: darellano@lrrc.com
16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF ARIZONA

19 Arizona Attorneys for Criminal Justice;

20

Christopher Dupont; Rich Robertson; Richard L. Lougee; Richard D. Randall;

21 Jeffrey A. Kirchler; John Canby,

22

Plaintiffs,

23

vs.

No. 2:17-cv-01422-SPL
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
(Assigned to the Honorable Steven P. Logan)

24

Mark Brnovich, in his official capacity as Attorney General of the State of Arizona,

25

Defendant.

26

27

28

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 2 of 22

1

INTRODUCTION

2

1. This action challenges the constitutionality of Arizona Revised Statutes

3 (“A.R.S.”) § 13-4433(B), which prohibits a criminal defendant’s attorney and others

4 working on a criminal defendant’s defense team from initiating contact with the victim

5 of the crime, including second-degree relatives of a crime victim who is killed or

6 incapacitated, except through the office of the prosecutor who is prosecuting the

7 defendant.

8

2. Because A.R.S. § 13-4433(B) prohibits and restricts speech by criminal-

9 defense lawyers, defense investigators, and others working on the defense team by

10 limiting to whom they may speak, with whom they may communicate, and how, the

11 statute implicates the free-speech rights protected by the First Amendment to the

12 United States Constitution.

13

3. In particular, A.R.S. § 13-4433(B) is an unlawful content-based and

14 overbroad prior restraint on the speech of criminal-defense lawyers and others on the

15 defense team that inhibits and outlaws speech fully protected by the First Amendment.

16 Plaintiffs bring this action to have A.R.S. § 13-4433(B) declared unconstitutional, and

17 its enforcement enjoined.

18

4. A.R.S. § 13-4433(B) is part of the statutory scheme that the Arizona

19 legislature enacted to protect the rights of crime victims as part of legislative efforts to

20 implement the Arizona Constitution’s Victims’ Bill of Rights, Ariz. Const. art. 2, § 2.1.

21

5. However, A.R.S. § 13-4433(B) goes beyond the protections afforded to

22 crime victims in the Victims’ Bill of Rights and is not appropriately tailored to the

23 state’s legitimate purpose of protecting a victim’s right to “be treated with fairness,

24 respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout

25 the criminal justice process.” Ariz. Const. art. 2, § 2.1(A)(1).

26

6. For criminal-defense lawyers and others working on the defense team,

27 attempting to contact victims and their family members is a crucial part of the effective

28 representation of the defendant. It is an essential part of pre-trial investigation 2

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 3 of 22

1 regarding culpability, other possible perpetrators, and potential mitigation evidence for

2 sentencing purposes. Likewise, contact with victims and their family members can be

3 crucial for post-conviction work on behalf of a defendant, including when investigating

4 claims of actual innocence. All criminal-defense attorneys, but particularly capital-

5 defense teams, have constitutional obligations to their clients to fully investigate

6 possible defenses to culpability and to seek out information that could mitigate a

7 sentence, including sparing the defendant from the death penalty.

8

7. Speech directed at crime victims is not only important for its implications

9 for attorneys representing the criminally accused and their ethical and constitutional

10 duties, it is also of grave public importance because of the crime victim’s role in the

11 political campaign to abolish the death penalty, whether through active or passive

12 means. Victims are often the most important advocates for a sentence less than death,

13 which is a topic with significant political importance in modern America.

14

8. Moreover, past experiences in Arizona, and current practice in other

15 states, show that crime victims and their family members do not always wish to shut

16 off contact from the defense team; in fact, sometimes they welcome such contact.

17 Rather than allowing these potentially helpful and desirable discussions between the

18 victim, the victim’s family, and the defense team, A.R.S. § 13-4433(B) places the

19 defendant’s litigation adversary – the prosecutor – in the middle and shuts them down

20 before they can happen.

21

9. Criminal-defense lawyers and investigators have been subjected to, and

22 face the risk of, professional discipline, court sanctions, and criminal charges for

23 alleged violations of A.R.S. § 13-4433(B), and these adverse actions against members

24 of the criminal-defense community have chilled constitutionally protected speech and

25 hindered the ability of criminal-defense teams to effectively represent criminal

26 defendants and vindicate the rights afforded them in the criminal-justice process.

27

10. Plaintiffs include an association of criminal-defense professionals,

28 criminal-defense lawyers, and investigators. Plaintiffs (including members of the 3

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 4 of 22

1 organizational Plaintiff Arizona Attorneys for Criminal Justice) work on behalf of

2 criminal defendants in trial and post-conviction cases, in all types of criminal matters,

3 including capital and non-capital murder cases, sex cases, and cases with claims of

4 innocence. A.R.S. § 13-4433(B) directly infringes the free-speech rights of Plaintiffs

5 because Plaintiffs are chilled from attempting to speak to victims and, if they do

6 undertake the risk of attempting to contact a crime victim, such speech may subject

7 them to professional discipline, court sanctions, or criminal prosecution for violating

8 the law.

9

11. Defendant is the chief legal officer of the state of Arizona. His office

10 prosecutes criminal offenses, and he has general supervisory authority over all county

11 and local prosecutors in Arizona. Defendant, either directly or through his supervisory

12 authority, is the litigation adversary that A.R.S. § 13-4433(B) places between Plaintiffs

13 and the targets of their speech, shutting Plaintiffs down before they may engage in

14 protected speech activity. Defendant stands between victims and criminal-defense

15 lawyers’ and investigators’ speech. Defendant also has the authority to bring criminal

16 charges, make complaints for professional discipline, and seek court sanctions against

17 criminal-defense professionals for alleged violations of A.R.S. § 13-4433(B).

18

12. Defendant is also responsible for the administration of the victims’ rights

19 program established by A.R.S. § 41-191.06, which administers training on compliance

20 with A.R.S. § 13-4433(B) and monitors and ensures Arizona’s state and local criminal-

21 justice agencies’ implementation and compliance with victims’ rights laws, including

22 A.R.S. §13-4433(B). Defendant also publishes brochures and other publications

23 encouraging compliance with victims’ rights laws, including A.R.S. § 13-4433(B). By

24 doing so Defendant directly and indirectly suppresses Plaintiffs’ speech and creates a

25 climate that chills Plaintiffs’ speech.

26

13. Plaintiffs seek declaratory and injunctive relief against enforcement of

27 A.R.S. § 13-4433(B) on the grounds that: (1) the law is a content-based restriction on

28 constitutionally protected speech not narrowly tailored to a compelling government 4

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 5 of 22

1 interest, and (2) the law is overbroad, in violation of the First Amendment to the

2 United States Constitution.

3

JURISDICTION AND VENUE

4

14. This case arises under the United States Constitution and presents a

5 federal question within this Court’s jurisdiction under Article III of the Constitution

6 and 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3). This action is brought pursuant to 42

7 U.S.C. § 1983.

8

15. The Court has the authority to grant declaratory relief pursuant to the

9 Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.

10

16. The Court has the authority to award costs and attorneys’ fees under 42

11 U.S.C. § 1988.

12

17. Venue is proper in this District under 28 U.S.C. § 1391(b). Defendant is

13 sued in his official capacity, and his official place of business is located within this

14 District. The events giving rise to this complaint are the enactment, within this District,

15 of an unconstitutional statute of the state of Arizona, and its implementation and

16 enforcement by Defendant.

17

PARTIES

18

Arizona Attorneys for Criminal Justice

19

18. Plaintiff Arizona Attorneys for Criminal Justice is a statewide not-for-

20 profit membership organization of criminal-defense lawyers, law students, and

21 associated professionals dedicated to protecting the rights of the accused in the courts

22 and in the legislature; promoting excellence in the practice of criminal law through

23 education, training, and mutual assistance; and fostering public awareness of citizens’

24 rights, the criminal-justice system, and the role of the defense lawyer.

25

19. Arizona Attorneys for Criminal Justice counts among its membership

26 more than 500 lawyers and allied professionals who work in private law practice, in

27 public practice in the state’s indigent-defense agencies, and as private investigators

28 retained to assist criminal-defense teams. Members of Arizona Attorneys for Criminal 5

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 6 of 22

1 Justice work on behalf of clients in all types of cases, including capital and non-capital

2 murders, sex crimes, other serious felonies, and misdemeanors, in all courts in the state

3 of Arizona.

4

Individual Plaintiffs

5

20. Plaintiff Christopher R. Dupont is a lawyer who has been licensed to

6 practice law in Arizona since 1992. He is a criminal-defense attorney who defends

7 clients accused of both capital and non-capital crimes. As part of his practice, Mr.

8 Dupont also represents crime victims.

9

21. Plaintiff Rich Robertson is a private investigator who works with

10 criminal-defense lawyers on cases throughout Arizona, including capital and non-

11 capital cases. He is licensed as a private investigator by the Arizona Department of

12 Public Safety and owns R3 Investigations. Mr. Robertson is a member of Plaintiff

13 Arizona Attorneys for Criminal Justice.

14

22. Plaintiff Richard L. Lougee, Jr., is a lawyer who has been licensed to

15 practice law in Arizona since 1989. He was first admitted to the practice of law in

16 Connecticut in 1977, and was also licensed to practice law in New Mexico, but is

17 currently on inactive status in those states. Mr. Lougee practices in the area of criminal

18 defense, including handling sex crimes and capital defense. Mr. Lougee is a member

19 of Plaintiff Arizona Attorneys for Criminal Justice.

20

23. Plaintiff Richard Randall is a lawyer who has been licensed to practice

21 law in Arizona since 1991. He practices in the area of capital defense and is trial

22 counsel for capital cases in Maricopa County.

23

24. Plaintiff Jeffrey Kirchler is a lawyer who has been licensed to practice

24 law in Arizona since 2002. He practices in the area of capital defense and is trial

25 counsel for capital cases in Maricopa County.

26

25. Plaintiff John A. Canby is a lawyer who has been licensed to practice law

27 in Arizona since 1986. He practices in the area of capital defense and is resource

28 counsel for capital cases in Maricopa County. Mr. Canby is a member of Plaintiff 6

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 7 of 22

1 Arizona Attorneys for Criminal Justice.

2

Defendant

3

26. Defendant Mark Brnovich is the Attorney General of Arizona, is the

4 chief legal officer of the state, and has general supervisory authority over county and

5 local prosecutors. Attorney General Brnovich has the authority to prosecute all

6 criminal offenses in the name of the state of Arizona. A.R.S. § 41-193(A)(1). Attorney

7 General Brnovich is also responsible for the administration, including funding and

8 compliance audits, of the victims’ rights program, which administers a plan for

9 assisting, training, and monitoring state and local entities that are required to

10 implement and comply with victims’ rights laws, including A.R.S. § 13-4433(B). See

11 A.R.S. § 41-191.06. Attorney General Brnovich is sued in his official capacity.

12

FACTUAL BACKGROUND

13

The Statute

14

27. In 1990, Arizona voters approved Proposition 104, the Victims’ Bill of

15 Rights, as an amendment to the state Constitution. The Victims’ Bill of Rights is

16 codified at Arizona Constitution, Article 2, § 2.1.

17

28. Among the provisions of the Victims’ Bill of Rights is the right of a

18 crime victim “[t]o be treated with fairness, respect, and dignity, and to be free from

19 intimidation, harassment, or abuse, throughout the criminal justice process.” Ariz.

20 Const. art. 2, § 2.1(A)(1).

21

29. Under the Victims’ Bill of Rights, a crime victim also has the right “[t]o

22 refuse an interview, deposition, or other discovery request by the defendant, the

23 defendant’s attorney, or other person acting on behalf of the defendant.” Ariz. Const.

24 art. 2, § 2.1(A)(5).

25

30. The Victims’ Bill of Rights also provides that the legislature has “the

26 authority to enact substantive and procedural laws to define, implement, preserve and

27 protect the rights guaranteed to victims” by the constitutional amendment. Ariz. Const.

28 art. 2, § 2.1(D). 7

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 8 of 22

1

31. In 1991, the Arizona legislature passed, and the governor signed into law,

2 House Bill 2412, the Crime-Victims’ Rights Implementation Act, which included in its

3 provisions legislation intended to implement the Victims’ Bill of Rights, including an

4 earlier, but substantially similar version of A.R.S. § 13-4433(B).

5

32. The legislative intent for the Crime-Victims’ Rights Implementation Act,

6 as expressed in House Bill 2412, was as follows:

7

The legislature recognizes that many innocent persons suffer economic

loss and personal injury or death as a result of criminal acts. It is the

8

intent of the legislature of this state to:

9

1. Enact laws that define, implement, preserve and protect the rights

guaranteed to crime victims by article II, section 2.1, Constitution of

10

Arizona.

11

2. Ensure that article II, section 2.1, Constitution of Arizona, is fully

and fairly implemented and that all crime victims are provided with

12

basic rights of respect, protection, participation and healing of their

ordeals.

13

3. Ensure at all stages of the criminal justice process that the duties

14

established by article II, section 2.1, Constitution of Arizona, are

fairly apportioned among all law enforcement agencies, prosecution

15

agencies, courts and corrections agencies in this state.

16

4. Ensure that employees of this state and its political subdivisions

who engage in the detention, investigation, prosecution and

17

adjudication of crime use reasonable efforts to see that crime victims

are accorded the rights established by article II, section 2.1,

18

Constitution of Arizona.

19

33. A.R.S. § 13-4433(B) currently reads:

20

The defendant, the defendant’s attorney or an agent of the defendant shall

only initiate contact with the victim through the prosecutor’s office. The

21

prosecutor’s office shall promptly inform the victim of the defendant’s

request for an interview and shall advise the victim of the victim’s right

22

to refuse the interview.

23

34. A.R.S. § 13-4401(19) defines “victim”:

24

“Victim” means a person against whom the criminal offense has been

committed, including a minor, or if the person is killed or incapacitated,

25

the person’s spouse, parent, child, grandparent or sibling, any other

person related to the person by consanguinity or affinity to the second

26

degree or any other lawful representative of the person, except if the

person or the person’s spouse, parent, child, grandparent, sibling, other

27

person related to the person by consanguinity or affinity to the second

degree or other lawful representative is in custody for an offense or is the

28

accused.

8

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 9 of 22

1

35. Thus, A.R.S. § 13-4433(B) prohibits criminal defense lawyers and

2 others working on the defense team from speaking to the victim of a crime without

3 using the prosecutor’s office as a conduit for the communication. When a victim is

4 killed or incapacitated, the defense team may not speak to anyone within two degrees

5 of consanguinity or affinity to the victim without using the prosecutor’s office as a

6 conduit. And when a victim is a minor child, the defense team may not speak with the

7 child victim or the child’s parents or guardians.

8

36. In addition, A.R.S. § 13-4433 was amended in 1997 to add a provision

9 that allows a prosecutor to refuse to forward correspondence from the defense team to

10 victims and their families, further limiting the speech of defense lawyers and the

11 defense team. That provision, codified at A.R.S. § 13-4433(C), currently reads:

12

The prosecutor shall not be required to forward any correspondence from

the defendant, the defendant’s attorney or an agent of the defendant to the

13

victim or the victim’s representative.

14

37. Thus, A.R.S. § 13-4433(B) operates to prohibit defense lawyers and

15 defense teams from contacting crime victims or their family members without the

16 consent of the prosecutor, the defense team’s litigation adversary.

17

The Attorney General’s Authority to Enforce A.R.S. § 13-4433(B)

18

38. As the chief legal officer of the state, the Attorney General has the

19 authority to initiate and handle any criminal prosecution in Arizona.

20

39. The Attorney General, or his designee, is required by state statute to

21 prosecute all indictments returned by a state grand jury, and the Attorney General has

22 the discretion to initiate a prosecution even when there is no state grand jury indictment

23 for any crime that is within the jurisdiction of the state grand jury. A.R.S. § 21-427.

24

40. The Attorney General’s office serves as the prosecutor for many criminal

25 cases at the trial level, almost all felony direct appeals filed in criminal cases in

26 Arizona, and all capital habeas corpus litigation in federal court.

27

41. The Attorney General’s office takes steps to enforce A.R.S. § 13-4433(B)

28 in the cases handled by that office, including, for instance, standing in the middle of 9

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 10 of 22

1 communications between the defense team and victims in trial-level matters and filing

2 motions in capital habeas corpus proceedings asking the federal courts to preclude the

3 defense team from directly contacting crime victims consistent with A.R.S. § 13-

4 4433(B).

5

42. The Attorney General supervises and may assist all county attorneys in

6 the state and has the authority to influence all criminal prosecutions in the state. See

7 A.R.S. § 41-193(A)(4) (stating that the Attorney General shall “[e]xercise supervisory

8 powers over county attorneys of the several counties in matters pertaining to that office

9 and require reports relating to the public business thereof”); id. § 41-193(A)(5) (stating

10 that the Attorney General shall “[a]t the direction of the governor, or when deemed

11 necessary, assist the county attorney of any county in the discharge of the county

12 attorney’s duties”).

13

43. As the chief prosecutor in Arizona, the Attorney General literally stands

14 between Plaintiffs and the targets of their intended speech, crime victims. If Plaintiffs

15 want to speak to or otherwise communicate with a statutory victim where they

16 represent the defendant in a pending criminal matter, Plaintiffs cannot do so directly,

17 but rather must initiate contact with the prosecutor, who could be the Attorney General

18 or another prosecutor that the Attorney General supervises.

19

44. If a Plaintiff attempts to initiate contact with a victim through the

20 Attorney General, the Attorney General’s office sends a standard form letter to the

21 victim, the content of which remains the same no matter what message the Plaintiff

22 wants to convey to the victim. This means that no matter what reason the Plaintiff has

23 to speak to a victim, or what the Plaintiff wants to say, that reason for the message and

24 the content of the message will not be communicated to the victim.

25

45. As the administrator of the victims’ rights program under A.R.S.§ 41-

26 191.06, the Attorney General monitors and assists state and local criminal justice

27 agencies to implement and comply with victims’ rights laws. The Attorney General

28 conducts training and provides technical assistance for criminal justice agencies and 10

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 11 of 22

1 their employees on victims’ rights laws, and publishes brochures and pamphlets about

2 victims’ rights laws, including A.R.S. § 13-4433(B), for distribution to victims,

3 criminal justice agencies and the public at large.

4

46. In literature published by his office, the Attorney General has stated that

5 he will take every action necessary to “help ensure justice is served through upholding

6 victims’ rights.”

7

47. As the administrator of the victims’ rights program, the Attorney

8 General disburses monies from the victims’ rights fund (established under A.R.S. § 41-

9 191.08) and audits state and local entities that receive state resources for victims’ rights

10 so as to enforce “uniformity, efficiency and compliance by state and local entities that

11 are responsible for ensuring crime victims’ access to justice.” Id. § 41-191.06(A).

12

48. The Attorney General may require corrective action or withholding

13 monies from the victims’ rights fund if a criminal justice agency does not comply with

14 victims’ rights laws, including A.R.S. § 13-4433(B). This means that if a prosecuting

15 agency in Arizona permitted Plaintiffs to contact victims directly, without initiating

16 that contact through the prosecutor, the Attorney General could withhold victims’

17 rights funds from that agency.

18

49. The Attorney General’s Office of Victims Services has a compliance

19 administrator that investigates allegations of victims’ rights violations and works with

20 victims who believe their rights have been violated.

21

50. At the request of a victim, the Attorney General “may assert any right to

22 which the victim is entitled.” A.R.S. § 13-4437. The Attorney General, thus, has

23 authority to enforce the prohibition on contact between the defense team and victims

24 (and victims’ families) as outlined in A.R.S. § 13-4433(B).

25

51. The Attorney General’s office will seek sanctions from the court or file a

26 complaint with the state bar or other licensing agency against a Plaintiff, or member of

27 the Plaintiff organization, if he or she violates A.R.S. § 13-4433(B). The Attorney

28 General’s Office would also instruct the Plaintiff, or member of the Plaintiff 11

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 12 of 22

1 organization, not to violate A.R.S. § 13-4433(B) again and ask the court to advise the

2 same.

3

52. The mere threat that the Attorney General or another prosecutor under

4 the Attorney General’s supervision will initiate disciplinary proceedings, seek court

5 sanctions, or pursue potential criminal prosecution has a chilling effect on the

6 willingness of Plaintiffs, and members of the Plaintiff organization, to engage in

7 speech with statutory crime victims and others, even when such speech might not be

8 prohibited by A.R.S. § 13-4433(B). As such, Plaintiffs, and members of their defense

9 teams, have not directly contacted crime victims or their families since the

10 implementation of A.R.S. § 13-4433(B) because the Attorney General’s enforcement

11 of A.R.S. § 13-4433(B) makes the risk of such proceedings or sanctions much more

12 likely.

13

53. If the Attorney General files a complaint with the disciplinary authority

14 about an attorney failing to comply with A.R.S. § 13-4433(B), the disciplinary

15 authority is required under Arizona law to investigate such a complaint and will open

16 an investigation to determine whether a full investigation is warranted. If not

17 warranted, the disciplinary authority takes no further action. If a full investigation is

18 warranted, the matter is referred to bar counsel for further investigation.

19

54. Whether the complaint is terminated after the initial investigation or after

20 a full investigation, the fact that there was an investigation is subject to public records

21 disclosure under Arizona law and available for any person or potential client to

22 review. Thus, regardless of what action the disciplinary authority takes, the Attorney

23 General’s filing of a complaint with a disciplinary authority is sufficient to create a

24 public record of a purported violation of law based solely on the unconstitutional

25 infringement of Plaintiffs’ First Amendment rights.

26

55. The attorney against whom the Attorney General files such a complaint

27 may also have to respond to the complaint, including potentially retaining counsel and

28 notifying her or his malpractice insurer. That attorney may also have to report the 12

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 13 of 22

1 complaint to future employers.

2

56. Likewise, if the Attorney General seeks sanctions in court against a

3 Plaintiff or member of the Plaintiff organization for failing to comply with A.R.S. §

4 13-4433(B), a public record of that motion and claim of contempt is made,

5 permanently besmirching that attorney’s record, regardless of whether a court takes

6 any further action.

7

57. The Attorney General, as chief legal officer of the state and administrator

8 of the victims’ rights program, has created an atmosphere of fear and enforcement that

9 chills Plaintiffs’ speech and the speech of members of the Plaintiff organization.

10

58. As a high-ranking representative of the Attorney General’s office stated

11 under oath, “any attorney should feel somewhat afraid of violating the law”; “it’s a no-

12 brainer.”

13

59. Unless he is enjoined, the Attorney General will continue to enforce

14 A.R.S. § 13-4433(B) against Plaintiffs, members of the Plaintiff organization, and

15 other individuals serving on criminal defense teams. .

16

60. If the Attorney General were enjoined from enforcing A.R.S. § 13-

17 4433(B), neither his office nor any other county or local prosecutor who he supervises

18 could stand between the speech of defense lawyers and investigators, including

19 Plaintiffs and members of the Plaintiff organization.

20

61. An injunction against the Attorney General enforcing A.R.S. § 13-

21 4433(B) would also remove the atmosphere of fear and enforcement that chills

22 Plaintiffs and members of the Plaintiff organization from engaging in the

23 constitutionally protected speech of directly contacting crime victims.

24

62. Plaintiffs also incorporate by this reference their Motion to Supplement

25 the Record on Plaintiffs’ Motion for Preliminary Injunction (Doc. 11) and Defendant’s

26 Motion to Dismiss (Doc. 31) and the exhibits attached thereto, Doc. 110, 110-1 as

27 exhibits to this First Amended Complaint for Declaratory and Injunctive Relief.

28 13

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 14 of 22

1

A.R.S. § 13-4433(B) Violates the First Amendment

2

63. A.R.S. § 13-4433(B) is an unlawful restraint on defense attorneys, their

3 investigators, and others working on behalf of a criminal defendant, precluding them

4 from engaging in constitutionally protected speech. It acts as an unconstitutional

5 licensing requirement and prior restraint on speech because defense lawyers and

6 defense teams must initiate contact with crime victims through the defense’s litigation

7 adversary, the prosecutor, and must get permission from the government before

8 engaging in the protected speech.

9

64. The attorney members of Arizona Attorneys for Criminal Justice and the

10 individual Plaintiffs are professionally obligated to render effective assistance of

11 counsel to all of their criminally accused clients by the Sixth Amendment.

12

65. In a capital case, the United States Supreme Court deems it imperative

13 that the attorney representing the accused at the very least reach out and attempt to 14 make contact with any and all witnesses in the case.1

15

66. In a capital case, the defense team’s duty to investigate often includes

16 making overtures to the family of the deceased in an effort to understand whether they

17 desire the death penalty for the perpetrator or would be satisfied with a lesser sentence,

18 such as life imprisonment without parole. Victim impact testimony is often critical to

19 the jury’s determination of the appropriate sentence in a capital case and if defense

20 counsel can persuade the victim’s family not to desire the death penalty, it can literally

21 save the life of a defendant. In addition, prosecutors will sometimes acquiesce to the

22 wishes of the victim’s family and drop their demand for death. A.R.S. § 13-4433(B)

23 prevents the defense team from engaging in these efforts.

24

67. In capital cases where a relative of the defendant is the victim, often the

25 best source of evidence regarding mitigation critical to saving a defendant’s life is

26 found with the defendant’s family, which is also the victim’s family. A.R.S. § 13-

27 4433(B) precludes the Plaintiffs from speaking to those crucial witnesses except by

28 1 See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003). 14

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 15 of 22

1 using the prosecutor as an intermediary.

2

68. In non-capital cases, interviewing victims whenever possible is deemed

3 an essential duty of a conscientious criminal-defense attorney as part of efforts to

4 ascertain the facts of the case. A.R.S. § 13-4433(B) prevents the defense team from

5 conducting this type of thorough investigation.

6

69. In engaging with the family of the victim in a capital case, it is

7 incumbent upon defense counsel to discuss with any willing member of the victim’s

8 family why the death penalty is not the best option for the good of the surviving family

9 members and why an option of life imprisonment may better achieve the ends they

10 seek. This discussion frequently includes such wide ranging topics as closure,

11 vengeance, rehabilitation, cost, deterrence, remorse, the impact on the victim’s family,

12 the impact of an execution on the defendant’s family, as well as the politics and

13 morality of the death penalty. There are innumerable other areas of discussion with

14 victims’ families relevant to the death penalty. It is the goal of defense counsel to

15 attempt to change the hearts and minds of victims’ families through a quiet, respectful

16 discussion about the appropriate resolution of the case without the death penalty being

17 sought.

18

70. Contacting victims and their family members is not only a crucial part of

19 effectively representing a capital defendant, it is also critical to lobbying for the passive

20 repeal of the death penalty. In a number of states, the unofficial repeal of the death

21 penalty has been achieved by criminal-defense attorneys who convince family

22 members of victims in capital crimes to speak out in opposition to the death penalty,

23 thereby pressuring prosecutors and the public to abandon capital prosecution. 24 Ultimately, this can lead to the official, legislative repeal of the death penalty.2 Without

25 2 See Cornell Law School Death Penalty Worldwide International Human Rights Clinic, Pathways to Abolition of the Death Penalty (June 2016),
26 https://www.deathpenaltyworldwide.org/pdf/Pathways%20to%20Abolition%20Death %20Penalty%20Worldwide%202016-07%20FINAL.pdf (detailing how the passive
27 repeal of the death penalty in the state of Maryland, where no death sentences were imposed for almost a decade, led to the official, legislative abolition of the death
28 penalty in 2013). 15

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 16 of 22

1 this important speech on a matter of grave public concern, the political campaign for

2 the passive repeal of the death penalty can be significantly hampered.

3

71. From a free-speech perspective, discussions between the defense team

4 and the victim’s family in a capital case are the highest form of protected speech as

5 they clearly involve matters of grave public concern and may only be suppressed if the

6 government can show a compelling reason for such suppression.

7

72. In a more routine criminal case, defense lawyers and members of the

8 defense team should be able to approach crime victims to at least attempt to discuss the

9 facts and circumstances of the alleged crime. It is essential for a defense attorney to

10 attempt to ascertain a clear picture of the facts of a case and to determine the credibility

11 of a complaining witness, including whether the victim has accurately perceived the

12 facts and circumstances of the event in question.

13

73. A.R.S. § 13-4433(B) essentially makes it less likely, if not nearly

14 impossible, that defense lawyers and others on defense teams, including Plaintiffs, will

15 be able to speak with the individuals most necessary to interview in any criminal case.

16 Experience has shown that Plaintiffs are most frequently thwarted in their attempts to

17 speak with crime victims and their families when communications must be initiated

18 through the prosecutor.

19

74. In communicating the defense team’s desire to speak with crime victims,

20 the Attorney General sends a standard form letter that is not tailored in any way to the

21 individual speech of the defense attorney or member of the defense team. Instead of

22 communicating the message that the defense team wishes to convey to the crime

23 victims or the crime victims’ family, the Attorney General instead substitutes its own

24 speech. Effectively, the defense team is not allowed to communicate its message and

25 speech to crime victims and their families at all; the only speech or message

26 communicated to crime victims and their families is the canned message of the

27 Attorney General.

28

75. Plaintiffs, and members of the Plaintiff organization, regularly represent

16

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 17 of 22

1 defendants accused of crimes involving victims, or participate in their defense teams.

2 As part of their representation of defendants in criminal cases, Plaintiffs, and members

3 of the Plaintiff organization, regularly wish to speak with victims of the alleged crime.

4 Were it not for the restriction in A.R.S. § 13-4433(B), these individuals would contact

5 victims directly, and not by initiating contact through the prosecutor.

6

76. Consistent with their professional and ethical obligations, Plaintiffs

7 would be courteous, polite, and respectful in communications with victims.

8

77. Because of A.R.S. § 13-4433(B), Plaintiffs are forced to communicate

9 victim interview requests through the prosecutor instead of to the victim directly.

10

78. Because of the atmosphere of fear and enforcement created by the

11 Attorney General and A.R.S. § 13-4433(B), Plaintiffs do not contact statutory victims

12 and others directly for fear that doing so would subject them to professional discipline,

13 court sanctions, or criminal prosecution, even when such speech might not be

14 prohibited by A.R.S. § 13-4433(B).

15

79. Because Plaintiffs have a First Amendment right to attempt to speak with

16 any and all witnesses and other persons connected with a criminal case, including the

17 persons precluded from direct contact by A.R.S. § 13-4433(B), and because Plaintiffs

18 have a right to attempt these interviews unfettered by the compulsion to use a

19 government go-between, A.R.S. § 13-4433(B) violates the First Amendment.

20

80. Moreover, A.R.S. § 13-4433(B) is overbroad because it stops not only

21 speech that would be deemed criminal or unethical, such as harassing, abusive, or

22 threatening speech, but also eliminates all speech of any kind, including that which is

23 afforded the highest protections under the First Amendment.

24

STATEMENT OF CLAIMS FOR RELIEF

25

Count I: First Amendment

26

81. Plaintiffs repeat and re-allege the foregoing paragraphs.

27

82. The prohibition against Plaintiffs contacting victims or their families

28 pursuant to A.R.S. § 13-4433(B) is an unlawful restraint on protected speech. 17

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 18 of 22

1

83. The members of Arizona Attorneys for Criminal Justice and the

2 individual Plaintiffs seek to engage in speech involving matters of great public concern

3 that goes to the heart of the functioning of the criminal-justice system, such as:

4

• In capital murder cases, explaining to victims’ families why the death

5

penalty should not be imposed by discussing factors at issue in current

6

public debate, including the possibility of mistaken identity, the public

7

cost of imposing the death penalty, the lack of deterrence resulting from

8

death sentences, the lack of finality for victims because the death penalty

9

extends criminal proceedings by decades, the cruelty of the death

10

penalty, and innumerable other reasons for the victims’ families to

11

oppose its imposition;

12

• In non-capital cases, the victim’s observation of the facts of the alleged

13

criminal incident, the victim’s ability to have adequately observed the

14

key circumstances of the incident, and the victim’s credibility, all for

15

various purposes related to conducting a thorough investigation,

16

including to prevent and remedy wrongful convictions;

17

• Engaging in speech designed to ensure the proper functioning of the

18

criminal-justice system in Arizona as a true and fair adversarial system so

19

that convictions will be reliable and the innocent will not be convicted or

20

will be exonerated.

21

84. Because other defense lawyers and members of defense teams have been

22 threatened with professional, judicial, and criminal sanctions based on violations of

23 A.R.S. § 13-4433(B), and because the Attorney General creates an atmosphere of fear

24 of such threats through his enforcement of A.R.S. § 13-4433(B), including directly

25 when his office is prosecuting a case and through supervision and compliance

26 enforcement when another prosecuting agency is handling a case, it carries with it a

27 chilling effect which precludes Plaintiffs and other persons of ordinary firmness from

28 engaging in the First Amendment protected speech activity of contacting and 18

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 19 of 22

1 communicating with victims, their families, and others.

2

85. Because the functioning of the criminal-justice system is a matter of

3 utmost public importance, the government must advance a compelling reason for the

4 prohibition on protected speech.

5

86. A.R.S. § 13-4433(B) is a prior restraint that authorizes suppression of

6 speech in advance of its expression by requiring defense lawyers and members of a

7 defense team to initiate contact with a crime victim only through a prosecutor’s office

8 and allowing the prosecutor unfettered discretion to communicate whatever he or she

9 wants to the crime victim at the same time he or she communicates to the victim the

10 right to refuse an interview with the defense team. In cases prosecuted by the Attorney

11 General, his office sends a standard form letter to a victim when the defense requests to

12 speak to the victim, wholly preventing the speech of defense lawyers and investigators,

13 including Plaintiffs and Plaintiff organization’s members.

14

87. A.R.S. § 13-4433(B) is not a permissible prior restraint because it

15 regulates speech based on the viewpoint of the speaker and based on the content of the

16 speech, it is not narrowly tailored to the government’s interest in protecting victims

17 against harassment (or any other important, significant, or compelling government

18 interest), and does not leave open ample channels for communication between the

19 defense team and crime victims.

20

Count II: Overbreadth

21

88. Plaintiffs repeat and re-allege the foregoing paragraphs.

22

89. A.R.S. § 13-4433(B) is overbroad and thus unconstitutional because it

23 prohibits any and all speech by defense lawyers and defense teams aimed at crime

24 victims and their families, not just speech that would be unlawful, harassing,

25 threatening, or obscene.

26

90. A.R.S. § 13-4433(B) is not narrowly tailored to achieve the government

27 interest in protecting crime victims and their families against intimidation, harassment,

28 or abuse, or to achieve any other legitimate government interest. 19

Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 20 of 22

1

91. The state could put in place a more narrowly tailored rule that would

2 address the government interest in protecting crime victims and their families against

3 intimidation, harassment, or abuse, without restricting the speech of Plaintiffs and other

4 criminal-defense lawyers and defense teams.

5

92. A.R.S. § 13-4433(B) also fails to leave open ample alternatives for

6 Plaintiffs’ expression.

7

93. A.R.S. § 13-4433(B) prevents a substantial amount of protected speech

8 from occurring due to its overbreadth and chills people of ordinary firmness, including

9 Plaintiffs, from engaging in protected speech.

10

CONCLUSION

11 WHEREFORE, Plaintiffs respectfully request that the Court:

12

A. Declare that A.R.S. § 13-4433(B) violates the First Amendment of the

13 United States Constitution;

14

B. Preliminarily and permanently enjoin Defendant, his officers, agents,

15 servants, employees, and attorneys, and those persons in active concert or participation

16 with him from enforcing A.R.S. § 13-4433(B);

17

C. Award Plaintiffs reasonable costs and attorneys’ fees pursuant to 42

18 U.S.C. § 1988; and

19

D. Grant Plaintiffs such other and further relief as the Court deems just and

20 proper.

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Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 21 of 22

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RESPECTFULLY submitted this 4th day of May, 2018.

2

ACLU FOUNDATION OF ARIZONA

Kathleen E. Brody

3

Brenda Muñoz Furnish

4

KILLMER, LANE & NEWMAN, LLP

David A. Lane

5

Andrew McNulty

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LEWIS ROCA ROTHGERBER CHRISTIE LLP

7

By: /s/ Ian M. Fischer_________

Dan W. Goldfine

8

Ian M. Fischer

Roy Herrera

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Daniel A. Arellano

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Attorneys for Plaintiffs

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Case 2:17-cv-01422-SPL Document 123 Filed 05/04/18 Page 22 of 22

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CERTIFICATE OF SERVICE

2

I hereby certify that on May 4, 2018, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a

4 Notice of Electronic Filing to all parties.

5

/s/ Joye Allen

6

Employee of Lewis Roca Rothgerber Christie LLP

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 Case 2:17-cv-01422-SPL Document 147 Filed 03/15/19 Page 1 of 8
WO

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 9

Arizona Attorneys for Criminal Justice, et al.,

) ) )

No. CV-17-01422-PHX-SPL

10

Plaintiffs,

) )

ORDER

11 vs.

) )

12 Doug Ducey, et al.,

) )

13 14

)

Defendants.

) )

15

16

On May 8, 2017, Plaintiffs, individual criminal-defense lawyers, investigators, and

17 non-profit organization Arizona Attorneys for Criminal Justice, initiated this action (the

18 “Original Complaint”) challenging the constitutionality of Ariz. Rev. Stat. § 13-4433(B),

19 which prohibits criminal defense counsel from initiating contact with a victim. (Doc. 1)

20 On June 26, 2017, the Attorney General of the State of Arizona (the “Attorney General”)

21 moved to dismiss the Original Complaint, arguing that the Plaintiffs did not have standing

22 to bring the lawsuit. (Doc. 31) On March 30, 2018, the Court granted the Attorney General’s

23 motion to dismiss in part (the “Dismissal Order”). (Doc. 119) In granting the Attorney

24 General’s first motion to dismiss, the Court found that the Plaintiffs failed to “offer plausible

25 allegations from which the Court can conclude that their injury is traceable to the actions

26 of the Attorney General or the ambit of his enforcement authority” or show that the relief

27 requested under the Original Complaint would redress the Plaintiffs’ alleged injury. (Doc.

28 119 at 6–9) Based on the allegations in the Original Complaint, the Court found that the

Case 2:17-cv-01422-SPL Document 147 Filed 03/15/19 Page 2 of 8

1 Plaintiffs lacked standing to pursue their claims, but the Court provided the Plaintiffs with

2 leave to amend the Original Complaint by a later deadline. (Doc. 119 at 9–11)

3

On May 4, 2018, the Plaintiffs filed an amended complaint (the “First Amended

4 Complaint”) seeking identical declaratory and injunctive relief that would prevent the

5 Attorney General from enforcing Ariz. Rev. Stat. § 13-4433(B). (Doc. 123) On May 25,

6 2018, the Attorney General filed a motion to dismiss the First Amended Complaint (the

7 “Motion”), arguing that the amended pleading still fails to allege facts sufficient to

8 demonstrate that the Plaintiffs have standing to bring their claims. (Doc. 126) The Motion

9 was fully briefed on July 19, 2018. (Docs. 136, 140) For the reasons set forth below, the

10 Motion is granted.

11 I. Legal Standard

12

In considering a facial challenge to jurisdiction under Rule 12(b)(1) of the Federal

13 Rules of Civil Procedure, the Court determines whether the allegations in the complaint

14 are insufficient on their face to demonstrate the existence of jurisdiction, and dismissal is

15 appropriate only where the plaintiff fails to allege an element necessary for subject matter

16 jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Wolfe v.

17 Strankman, 392 F.3d 358, 362 (9th Cir. 2004). The material factual allegations of the

18 complaint are presumed to be true and construed in favor of the complaining party. Maya

19 v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (quoting Nat’l Audubon Soc’y, Inc.

20 v. Davis, 307 F.3d 835, 849 (9th Cir.)); See Chandler v. State Farm Mut. Auto. Ins. Co.,

21 598 F.3d 1115, 1121 (9th Cir. 2010) (stating Article III standing is properly raised under

22 12(b)(1)).

23

“To state a case or controversy under Article III, a plaintiff must establish standing.”

24 Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 133 (2011); See

25 also Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 597–98 (2007). The

26 doctrine of standing encompasses both constitutional requirements and prudential

27 considerations. See Valley Forge Christian Coll. v. Ams. United for Separation of Church

28 & State, Inc., 454 U.S. 464, 471 (1982). “The constitutional requirement of standing has

2

Case 2:17-cv-01422-SPL Document 147 Filed 03/15/19 Page 3 of 8

1 three elements: (1) the plaintiff must have suffered an injury-in-fact—that is, a concrete

2 and particularized invasion of a legally protected interest that is actual or imminent, not

3 conjectural or hypothetical;1 (2) the injury must be causally connected—that is, fairly

4 traceable—to the challenged action of the defendant and not the result of the independent

5 action of a third party not before the court; and (3) it must be likely and not merely

6 speculative that the injury will be redressed by a favorable decision by the court.” Catholic

7 League for Religious and Civil Rights v. City and County of San Francisco, 624 F.3d 1043,

8 1049 (9th Cir. 2010) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); Valley

9 Forge, 454 U.S. at 475–76).

10

The plaintiff bears the burden of establishing the existence of a justiciable case or

11 controversy, and “‘must demonstrate standing for each claim he seeks to press’ and ‘for

12 each form of relief’ that is sought.” Davis v. Federal Election Comm’n, 554 U.S. 724, 734

13 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). “A plaintiff

14 must establish standing with the ‘manner and degree of evidence required at the successive

15 stages of the litigation.’” Carrico v. City and County of San Francisco, 656 F.3d 1002,

16 1006 (9th Cir. 2011) (quoting Lujan, 504 U.S. at 561). “[A]t the pleading stage, the plaintiff

17 must clearly. . . allege facts demonstrating each element.” Spokeo, Inc. v. Robins, 136 S.Ct.

18 1540, 1547 (2016) (internal quotations omitted).

19 II. Discussion

20

A. Injury-In-Fact

21

As the Court set forth in the Dismissal Order (Doc. 119), the Plaintiffs have

22 successfully alleged an injury-in-fact for Article III standing. (Doc. 119 at 5–6) Plaintiffs

23 “have alleged ‘an intention to engage in a course of conduct arguably affected with a

24 constitutional interest’” under the First Amendment that is “proscribed by [the] statute they

25 wish to challenge.” (Doc. 123 at 4); Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334,

26 1

“The constitutional component of ripeness overlaps with the ‘injury in fact’ analysis

27

for Article III standing. Whether framed as an issue of standing or ripeness, the inquiry is largely the same: whether the issues presented are ‘definite and concrete, not hypothetical

28

or abstract.’” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010); See also LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000) (discussing ripeness).

3

Case 2:17-cv-01422-SPL Document 147 Filed 03/15/19 Page 4 of 8

1 2344 (2014) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298

2 (1979)). The First Amended Complaint sufficiently alleges that Ariz. Rev. Stat. § 13-

3 4433(B) targets the Plaintiffs, who constitute a group of criminal-defense attorneys and

4 their investigatory agents. The Plaintiffs sufficiently allege that the type of speech they

5 believe is constitutionally protected is (i) necessary to the performance of their duties as

6 advocates and (ii) the basis upon which they may be disciplined were they to violate § 13-

7 4433(B). See Canatella v. State of California, 304 F.3d 843, 852–53 (9th Cir. 2002).

8

As set forth in the Dismissal Order, Plaintiffs’ claim of self-censorship under the

9 threat professional discipline and sanctions sufficiently alleges that they have sustained an

10 injury to their First Amendment rights that is concrete and actual. See Driehaus, 134 S. Ct.

11 at 2342 (stating where a plaintiff brings a pre-enforcement challenge, he or she “satisfies

12 the injury-in-fact requirement where he alleges ‘an intention to engage in a course of

13 conduct arguably affected with a constitutional interest, but proscribed by a statute, and

14 there exists a credible threat of prosecution thereunder.’”). Plaintiffs’ claim that other

15 criminal-defense attorneys and investigators have been the subject of professional

16 discipline for violating § 13-4433(B) is sufficient to allege that their decision to refrain

17 from engaging in similar conduct is based on a reasonable fear of enforcement of the

18 statute. (Doc. 123 at 3); See Driehaus, 134 S. Ct. at 2345 (a threat of “administrative action,

19 like arrest or prosecution,” is sufficient for Article III standing).

20

B. Traceability

21

The Court finds that the First Amended Complaint still fails to offer plausible

22 allegations from which the Court can conclude that the Plaintiffs’ injury is traceable to the

23 actions of the Attorney General. The Court notes that the bulk of the revisions to the First

24 Amended Complaint are found in Paragraphs 38–62 of the pleading. (Doc. 123 at 9–13)

25 Through these amendments, the Plaintiffs describe the Attorney General’s role as the chief

26 legal officer of the state of Arizona, his role in prosecuting criminal matters throughout the

27 state, and his role in administering the victims’ rights program. (Doc. 123 at 9–11) The

28 First Amended Complaint explains how the Attorney General stands between victims and

4

Case 2:17-cv-01422-SPL Document 147 Filed 03/15/19 Page 5 of 8

1 defense counsel and describes how the Attorney General responds to the Plaintiffs’

2 requests for contact with victims, by providing the victims with a “standard form letter”

3 that does not discuss the content of the defense counsel’s communication. (Doc. 123 at 10)

4

Notably, however, the First Amended Complaint does not contain any new or

5 revised allegations showing that the Attorney General can enforce or prosecute the

6 consequences for a violation of Ariz. Rev. Stat. § 13-4433(B). As set forth in the Dismissal

7 Order, the source of Plaintiffs’ complained injury, the restraint of protected speech, is the

8 threat of professional discipline for violating Ariz. Rev. Stat. § 13-4433(B). The First

9 Amended Complaint continues to fail to demonstrate how the Attorney General is tied to

10 the disciplinary process that is the cause of the Plaintiffs’ injury. The Plaintiffs’ allegation

11 that “the Attorney General’s Office of Victims Services has a compliance administrator that

12 investigates allegations of victims’ rights violations” is insufficient to connect the Attorney

13 General to the Plaintiffs’ injury because, at the end of any such investigation, the

14 disciplinary process resulting from any such investigation is carried out by the State Bar of

15 Arizona. (Doc. 123 at 11); See also Wolfson, 616 F.3d at 1056–57 (“The Arizona Supreme

16 Court Disciplinary Commission has authority to impose various sanctions on members of

17 the Arizona Bar, including censure, reprimand, probation, and restitution . . . The Arizona

18 Chief Bar Counsel is charged with overseeing and directing the prosecution of discipline

19 cases involving members of the bar. . . .”).

20

As set forth in the Dismissal Order, the fact that the Attorney General can advise or

21 report violations of § 13-4433(B) to the Arizona State Bar does not have a coercive effect

22 on the actions of state bar counsel who may or may not elect to pursue action, and any

23 ensuing discipline is the result of an independent decision made by the commission. See

24 Novak v. U.S., 795 F.3d 1012, 1019 (9th Cir. 2015) (“To plausibly allege that the injury

25 was not the result of the independent action of some third party, the plaintiff must offer

26 facts showing that the government’s unlawful conduct is at least a substantial factor

27 motivating the third parties’ actions.”) Again, the Plaintiffs have failed to set forth

28 sufficient allegations to demonstrate that the Attorney General’s role in (i) administering

5

Case 2:17-cv-01422-SPL Document 147 Filed 03/15/19 Page 6 of 8

1 the victims’ rights program; (ii) supervising prosecutors throughout the state of Arizona;

2 (iii) enforcing Ariz. Rev. Stat. § 13-4433(B) by investigating allegations of victims’ rights

3 violations; or (iv) performing other tasks such as training prosecutors or disbursing assets

4 from the victims’ rights fund, has any bearing on the disciplinary process that the Plaintiffs

5 are challenging as unconstitutional.

6

Furthermore, the Plaintiffs continue to fail to demonstrate that the Attorney General

7 will, or even has the authority to, prosecute criminal charges for violations of Ariz. Rev.

8 Stat. § 13-4433(B). The First Amended Complaint reiterates the allegation that defense

9 attorneys and investigators face a threat of “criminal charges” for violations of Ariz. Rev.

10 Stat. § 13-4433(B). (Doc. 123 at 12) The First Amended Complaint fails to set forth

11 allegations which (i) show that the Attorney General directs the criminal prosecution of §

12 13-4433(B) violations or (ii) point the Court to any authority which suggests the Attorney

13 General could prosecute such matters. As provided in the Court’s earlier analysis, the threat

14 that the Attorney General could “initiate disciplinary proceedings, seek court sanctions or

15 pursue potential criminal prosecution” is insufficient to hold the Attorney General liable for

16 a disciplinary process that his office does not implement. (Doc. 123 at 12) As set forth in

17 the Dismissal Order, the statute itself contains no criminal penalties, and Ariz. Rev. Stat. §

18 41-191.06 provides no such authority. It states only that “[t]he attorney general may

19 employ administrative and other personnel that the attorney general deems necessary to

20 administer the victims’ rights program.” Ariz. Rev. Stat. § 41-191.06(B).

21

Finally, the First Amended Complaint continues to fail to allege that the Attorney

22 General has nonetheless threatened to criminally prosecute violations of § 13-4433(B). Thus

23 the fact that the Attorney General may handle any criminal prosecution in Arizona and has

24 “the authority to influence all criminal prosecutions in the state” does not draw even an

25 attenuated line of causation between his conduct and the source of Plaintiffs’ alleged injury.

26 (Doc. 123 at 9–10) The First Amended Complaint fails to allege that the Attorney General

27 has the necessary causal connection with and is fairly traceable to the conduct from which

28 the alleged injuries arise. Therefore, the Plaintiffs lack standing to bring their claims

6

Case 2:17-cv-01422-SPL Document 147 Filed 03/15/19 Page 7 of 8

1 against the Attorney General.

2

C. Redressability

3

The requested declaratory and injunctive relief against the Attorney General would

4 not redress the Plaintiffs’ alleged injury because the Plaintiffs fail to plead sufficient facts

5 to demonstrate that they have suffered an injury as a result of some conduct of the Attorney

6 General. See Lujan, 504 U.S. at 561; Cantrell v. City of Long Beach, 241 F.3d 674, 679

7 (9th Cir. 2001). As stated, the Attorney General has no direct involvement in or coercive

8 effect over the prosecution of disciplinary proceedings for violations of Ariz. Rev. Stat. §

9 13-4433(B). Thus, any injunction against the Attorney General would not require him to

10 act in any way that would redress Plaintiffs’ injuries; the threat of discipline that has a

11 chilling effect on Plaintiffs’ speech would continue with full force at the hands of third

12 parties that are not before the Court. The Plaintiffs therefore lack standing to pursue their

13 claims against the Attorney General. See Massachusetts v. EPA, 549 U.S. 497, 526 (2007)

14 (stating redressability for Article III standing is satisfied only where the risk of harm

15 “would be reduced to some extent if petitioners received the relief they seek.”).

16

D. Leave to Amend

17

Federal Rule of Civil Procedure 15(a) requires that leave to amend “shall be freely

18 given when justice so requires.” Segal v. Rogue Pictures, 544 F. App’x 769, 770 (9th Cir.

19 2013). Courts generally consider four factors when addressing a request for leave to

20 amend, which are bad faith, undue delay, prejudice to the opposing party, and futility of

21 amendment. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). The

22 record before the Court discloses no facts indicating bad faith, undue delay, or prejudice to

23 the Attorney General. As set forth in the Dismissal Order, the Court does not conclude that

24 Plaintiffs would be unable to make a sufficient showing of Article III standing to seek

25 redress against an appropriate defendant. An injunction against a defendant who has the

26 power to prosecute or discipline violations of § 13-4433(B) would redress at least some of

27 Plaintiffs’ alleged injuries, as the Plaintiffs would not be compelled to self-censor their

28 speech under fear of the discipline alleged in the First Amended Complaint and would be

7

Case 2:17-cv-01422-SPL Document 147 Filed 03/15/19 Page 8 of 8

1 free to initiate contact with victims. Therefore, the First Amended Complaint will be

2 dismissed with leave to amend. See Maya, 658 F.3d at 1072 (stating dismissal without

3 leave for lack of standing is improper unless it is clear that the complaint cannot be saved

4 by any amendment).

5 III. Conclusion

6

Finding that Plaintiffs have failed to offer sufficient facts to show that their alleged

7 injuries are traceable to or redressable by the Attorney General, he will be dismissed from

8 this action.

9

IT IS ORDERED:

10

1. That Attorney General Mark Brnovich’s Motion to Dismiss (Doc. 126) is

11 granted, and he is dismissed without prejudice from this action;

12

2. That Plaintiffs shall have until April 12, 2019 to file a second amended

13 complaint consistent with this Order and the local rules; and

14

3. That if Plaintiffs elect not file a second amended complaint in accordance with

15 this Order, this action will be dismissed without prejudice for lack of jurisdiction on April

16 15, 2019.

17

Dated this 15th day of March, 2019.

18

19

Honorable Steven P. Logan

20

United States District Judge

21

22

23

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25

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27

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8

 
 Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 1 of 22

1 ACLU Foundation of Arizona 3707 North 7th Street, Suite 235 Phoenix, Arizona 85014
2 Telephone: 602-650-1854

Kathleen E. Brody (State Bar No. 026331)
3 Email: kbrody@acluaz.org

4

Killmer, Lane & Newman, LLP
1543 Champa Street

Denver, Colorado 80202

5 Telephone: 303-571-1000

David A. Lane (pro hac vice)
6 Email: dlane@kln-law.com

Andrew McNulty (pro hac vice)
7 Email: amcnulty@kln-law.com

Lewis Roca Rothgerber Christie LLP
8 201 East Washington Street, Suite 1200 Phoenix, Arizona 85004-2595

9 Dan W. Goldfine (State Bar No. 018788)

Direct Dial: 602.262.5392

E-mail:
10

DGoldfine@lrrc.com

Ian M. Fischer (State Bar No. 026239)

Direct Dial: 602.262.5724
11 E-mail: IFischer@lrrc.com

Attorneys for Plaintiffs
12

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF ARIZONA

15

Arizona Attorneys for Criminal Justice; Christopher Dupont; Rich Robertson;

16

Richard L. Lougee; Richard D. Randall; Jeffrey A. Kirchler; John Canby,

17

Plaintiffs,

18

vs.

No. 2:17-cv-01422-SPL SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Assigned to the Honorable Steven P. Logan)

19 Mark Brnovich, in his official capacity as

20

Attorney General of the State of Arizona; State Bar of Arizona; Maret Vessella, Chief

21

Bar Counsel of the State Bar of Arizona; Colonel Frank Milstead, in his official

22

capacity as Director of the Arizona Department of Public Safety,

23

Defendants.

24

25

26

27

28

107805566.1

Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 2 of 22

1

INTRODUCTION

2

1. This action challenges the constitutionality of Arizona Revised Statutes

3 (“A.R.S.”) § 13-4433(B), which prohibits a criminal defendant’s attorney and others

4 working on a criminal defendant’s defense team from initiating contact with the victim

5 of the crime, including second-degree relatives of a crime victim who is killed or

6 incapacitated, except through the office of the prosecutor who is prosecuting the

7 defendant.

8

2. Because A.R.S. § 13-4433(B) prohibits and restricts speech by criminal-

9 defense lawyers, defense investigators, and others working on the defense team by

10 limiting to whom they may speak, with whom they may communicate, and how, the

11 statute implicates the free-speech rights protected by the First Amendment to the

12 United States Constitution.

13

3. In particular, A.R.S. § 13-4433(B) is an unlawful content-based and

14 overbroad prior restraint on the speech of criminal-defense lawyers and others on the

15 defense team that inhibits and outlaws speech fully protected by the First Amendment.

16 Plaintiffs bring this action to have A.R.S. § 13-4433(B) declared unconstitutional, and

17 its enforcement enjoined.

18

4. A.R.S. § 13-4433(B) is part of the statutory scheme that the Arizona

19 legislature enacted to protect the rights of crime victims as part of legislative efforts to

20 implement the Arizona Constitution’s Victims’ Bill of Rights, Ariz. Const. art. 2, § 2.1.

21

5. However, A.R.S. § 13-4433(B) goes beyond the protections afforded to

22 crime victims in the Victims’ Bill of Rights and is not appropriately tailored to the

23 state’s legitimate purpose of protecting a victim’s right to “be treated with fairness,

24 respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout

25 the criminal justice process.” Ariz. Const. art. 2, § 2.1(A)(1).

26

6. For criminal-defense lawyers and others working on the defense team,

27 attempting to contact victims and their family members is a crucial part of the effective

28 representation of the defendant. It is an essential part of pre-trial investigation 2
107805566.1

Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 3 of 22

1 regarding culpability, other possible perpetrators, and potential mitigation evidence for

2 sentencing purposes. Likewise, contact with victims and their family members can be

3 crucial for post-conviction work on behalf of a defendant, including when investigating

4 claims of actual innocence. All criminal-defense attorneys, but particularly capital-

5 defense teams, have constitutional obligations to their clients to fully investigate

6 possible defenses to culpability and to seek out information that could mitigate a

7 sentence, including sparing the defendant from the death penalty.

8

7. Speech directed at crime victims is not only important for its implications

9 for attorneys representing the criminally accused and their ethical and constitutional

10 duties, it is also of grave public importance because of the crime victim’s role in the

11 political campaign to abolish the death penalty, whether through active or passive

12 means. Victims are often the most important advocates for a sentence less than death,

13 which is a topic with significant political importance in modern America.

14

8. Moreover, past experiences in Arizona, and current practice in other

15 states, show that crime victims and their family members do not always wish to shut

16 off contact from the defense team; in fact, sometimes they welcome such contact.

17 Rather than allowing these potentially helpful and desirable discussions between the

18 victim, the victim’s family, and the defense team, A.R.S. § 13-4433(B) places the

19 defendant’s litigation adversary – the prosecutor – in the middle and shuts them down

20 before they can happen.

21

9. Criminal-defense lawyers and investigators have been subjected to, and

22 face the risk of professional discipline for alleged violations of A.R.S. § 13-4433(B),

23 and these adverse actions against members of the criminal-defense community have

24 chilled constitutionally protected speech and hindered the ability of criminal-defense

25 teams to effectively represent criminal defendants and vindicate the rights afforded

26 them in the criminal-justice process.

27

10. Plaintiffs include an association of criminal-defense professionals,

28 criminal-defense lawyers, and investigators. Plaintiffs (including members of the 3
107805566.1

Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 4 of 22

1 organizational Plaintiff Arizona Attorneys for Criminal Justice) work on behalf of

2 criminal defendants in trial and post-conviction cases, in all types of criminal matters,

3 including capital and non-capital murder cases, sex cases, and cases with claims of

4 innocence. A.R.S. § 13-4433(B) directly infringes the free-speech rights of Plaintiffs

5 because Plaintiffs are chilled from attempting to speak to victims and, if they do

6 undertake the risk of attempting to contact a crime victim, such speech may subject

7 them to professional discipline for violating the law.

8

11. Plaintiffs seek declaratory and injunctive relief against enforcement of

9 A.R.S. § 13-4433(B) on the grounds that: (1) the law is a content-based restriction on

10 constitutionally protected speech not narrowly tailored to a compelling government

11 interest, and (2) the law is overbroad, in violation of the First Amendment to the

12 United States Constitution.

13

JURISDICTION AND VENUE

14

12. This case arises under the United States Constitution and presents a

15 federal question within this Court’s jurisdiction under Article III of the Constitution

16 and 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3). This action is brought pursuant to 42

17 U.S.C. § 1983.

18

13. The Court has the authority to grant declaratory relief pursuant to the

19 Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.

20

14. The Court has the authority to award costs and attorneys’ fees under 42

21 U.S.C. § 1988.

22

15. Venue is proper in this District under 28 U.S.C. § 1391(b). Each of the

23 Defendants’ official places of business is located within this District. The events giving

24 rise to this complaint are the enforcement, within this District, of an unconstitutional

25 statute of the state of Arizona by Defendants.

26

PARTIES

27

Arizona Attorneys for Criminal Justice

28

16.

107805566.1

Plaintiff Arizona Attorneys for Criminal Justice is a statewide not-for4

Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 5 of 22

1 profit membership organization of criminal-defense lawyers, law students, and

2 associated professionals dedicated to protecting the rights of the accused in the courts

3 and in the legislature; promoting excellence in the practice of criminal law through

4 education, training, and mutual assistance; and fostering public awareness of citizens’

5 rights, the criminal-justice system, and the role of the defense lawyer.

6

17. Arizona Attorneys for Criminal Justice counts among its membership

7 more than 500 lawyers and allied professionals who work in private law practice, in

8 public practice in the state’s indigent-defense agencies, and as private investigators

9 retained to assist criminal-defense teams. Members of Arizona Attorneys for Criminal

10 Justice work on behalf of clients in all types of cases, including capital and non-capital

11 murders, sex crimes, other serious felonies, and misdemeanors, in all courts in the state

12 of Arizona.

13

Individual Plaintiffs

14

18. Plaintiff Christopher R. Dupont is a lawyer who has been licensed to

15 practice law in Arizona since 1992. He is a criminal-defense attorney who defends

16 clients accused of both capital and non-capital crimes. As part of his practice, Mr.

17 Dupont also represents crime victims.

18

19. Plaintiff Rich Robertson is a private investigator who works with

19 criminal-defense lawyers on cases throughout Arizona, including capital and non-

20 capital cases. He is licensed as a private investigator by the Arizona Department of

21 Public Safety and owns R3 Investigations. Mr. Robertson is a member of Plaintiff

22 Arizona Attorneys for Criminal Justice.

23

20. Plaintiff Richard L. Lougee, Jr., is a lawyer who has been licensed to

24 practice law in Arizona since 1989. He was first admitted to the practice of law in

25 Connecticut in 1977, and was also licensed to practice law in New Mexico, but is

26 currently on inactive status in those states. Mr. Lougee practices in the area of criminal

27 defense, including handling sex crimes and capital defense. Mr. Lougee is a member

28 of Plaintiff Arizona Attorneys for Criminal Justice. 5
107805566.1

Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 6 of 22

1

21. Plaintiff Richard Randall is a lawyer who has been licensed to practice

2 law in Arizona since 1991. He practices in the area of capital defense and is trial

3 counsel for capital cases in Maricopa County.

4

22. Plaintiff Jeffrey Kirchler is a lawyer who has been licensed to practice

5 law in Arizona since 2002. He practices in the area of capital defense and is trial

6 counsel for capital cases in Maricopa County.

7

23. Plaintiff John A. Canby is a lawyer who has been licensed to practice law

8 in Arizona since 1986. He practices in the area of capital defense and is resource

9 counsel for capital cases in Maricopa County. Mr. Canby is a member of Plaintiff

10 Arizona Attorneys for Criminal Justice.

11

Defendants

12

24. The State Bar of Arizona (“SBA”) is an Arizona non-profit corporation,

13 established under the direction and control of the Supreme Court of Arizona.

14

25. Maret Vassella is the Chief Bar Counsel of the SBA (“Chief Bar

15 Counsel”) and is responsible for the investigation and prosecution of alleged violations

16 of ethical and professional standards of Arizona-licensed attorneys.

17

26. Colonel Frank Milstead is the Director of the Arizona Department of

18 Public Safety (the “DPS Director”). The DPS Director is sued in his official capacity.

19

27. Mark Brnovich is the chief legal officer of the state of Arizona (the

20 “Attorney General”). The Attorney General has stated that he does not object to being

21 named, in his official capacity, as a defendant in this matter, if the case proceeds

22 against an appropriate defendant. Alternatively, the Attorney General represented that

23 he would, on behalf of the State of Arizona, avail himself of the State’s statutory right

24 to intervene in this matter if it proceeds. Attorney General Brnovich is sued in his

25 official capacity, pursuant to these representations.

26

FACTUAL BACKGROUND

27

The Statute

28

28.

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In 1990, Arizona voters approved Proposition 104, the Victims’ Bill of 6

Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 7 of 22

1 Rights, as an amendment to the state Constitution. The Victims’ Bill of Rights is

2 codified at Arizona Constitution, Article 2, § 2.1.

3

29. Among the provisions of the Victims’ Bill of Rights is the right of a

4 crime victim “[t]o be treated with fairness, respect, and dignity, and to be free from

5 intimidation, harassment, or abuse, throughout the criminal justice process.” Ariz.

6 Const. art. 2, § 2.1(A)(1).

7

30. Under the Victims’ Bill of Rights, a crime victim also has the right “[t]o

8 refuse an interview, deposition, or other discovery request by the defendant, the

9 defendant’s attorney, or other person acting on behalf of the defendant.” Ariz. Const.

10 art. 2, § 2.1(A)(5).

11

31. The Victims’ Bill of Rights also provides that the legislature has “the

12 authority to enact substantive and procedural laws to define, implement, preserve and

13 protect the rights guaranteed to victims” by the constitutional amendment. Ariz. Const.

14 art. 2, § 2.1(D).

15

32. In 1991, the Arizona legislature passed, and the governor signed into law,

16 House Bill 2412, the Crime-Victims’ Rights Implementation Act, which included in its

17 provisions legislation intended to implement the Victims’ Bill of Rights, including an

18 earlier, but substantially similar version of A.R.S. § 13-4433(B).

19

33. The legislative intent for the Crime-Victims’ Rights Implementation Act,

20 as expressed in House Bill 2412, was as follows:

21

The legislature recognizes that many innocent persons suffer economic

loss and personal injury or death as a result of criminal acts. It is the

22

intent of the legislature of this state to:

23

1. Enact laws that define, implement, preserve and protect the rights

guaranteed to crime victims by article II, section 2.1, Constitution of

24

Arizona.

25

2. Ensure that article II, section 2.1, Constitution of Arizona, is fully

and fairly implemented and that all crime victims are provided with

26

basic rights of respect, protection, participation and healing of their

ordeals.

27

3. Ensure at all stages of the criminal justice process that the duties

28

established by article II, section 2.1, Constitution of Arizona, are

7

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Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 8 of 22

1

fairly apportioned among all law enforcement agencies, prosecution

agencies, courts and corrections agencies in this state.

2 4. Ensure that employees of this state and its political subdivisions

3

who engage in the detention, investigation, prosecution and

adjudication of crime use reasonable efforts to see that crime victims

4

are accorded the rights established by article II, section 2.1,

Constitution of Arizona.

5

34. A.R.S. § 13-4433(B) currently reads:

6

The defendant, the defendant’s attorney or an agent of the defendant shall

7

only initiate contact with the victim through the prosecutor’s office. The

prosecutor’s office shall promptly inform the victim of the defendant’s

8

request for an interview and shall advise the victim of the victim’s right

to refuse the interview.

9

35. A.R.S. § 13-4401(19) defines “victim”:

10 “Victim” means a person against whom the criminal offense has been

11

committed, including a minor, or if the person is killed or incapacitated,

the person’s spouse, parent, child, grandparent or sibling, any other

12

person related to the person by consanguinity or affinity to the second

degree or any other lawful representative of the person, except if the

13

person or the person’s spouse, parent, child, grandparent, sibling, other

person related to the person by consanguinity or affinity to the second

14

degree or other lawful representative is in custody for an offense or is the

accused.

15

36. Thus, A.R.S. § 13-4433(B) prohibits criminal defense lawyers and

16 others working on the defense team from speaking to the victim of a crime without

17 using the prosecutor’s office as a conduit for the communication. When a victim is

18 killed or incapacitated, the defense team may not speak to anyone within two degrees

19 of consanguinity or affinity to the victim without using the prosecutor’s office as a

20 conduit. And when a victim is a minor child, the defense team may not speak with the

21 child victim or the child’s parents or guardians.

22

37. In addition, A.R.S. § 13-4433 was amended in 1997 to add a provision

23 that allows a prosecutor to refuse to forward correspondence from the defense team to

24 victims and their families, further limiting the speech of defense lawyers and the

25 defense team. That provision, codified at A.R.S. § 13-4433(C), currently reads:

26 The prosecutor shall not be required to forward any correspondence from

27

the defendant, the defendant’s attorney or an agent of the defendant to the

victim or the victim’s representative.

28

8

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1

38. Thus, A.R.S. § 13-4433(B) operates to prohibit defense lawyers and

2 defense teams from contacting crime victims or their family members without the

3 consent of the prosecutor, the defense team’s litigation adversary.

4

The SBA and Chief Bar Counsel’s Authority to Enforce A.R.S. § 13-4433(B)

5

39. The SBA and Chief Bar Counsel have authority to investigate and

6 prosecute attorneys admitted to the practice of law in Arizona for violations of the

7 Arizona Rules of Professional Conduct.

8

40. Arizona Rule of the Supreme Court 42, Ethical Rule (“ER”) 8.4(d), states

9 that it is professional misconduct for an attorney admitted to the practice of law in

10 Arizona to “engage in conduct that is prejudicial to the administration of justice.”

11

41. The SBA and Chief Bar Counsel have enforced A.R.S. § 13-4433(B) as

12 violations of ER 8.4(d) when criminal defense attorneys directly speak with crime

13 victims or their family members.

14

42. The SBA and Chief Bar Counsel have investigated and prosecuted

15 attorneys admitted to the practice of law in Arizona because they contacted crime

16 victims, or their family members, alleging that such contact violated ER 8.4(d). The

17 SBA and Chief Bar Counsel prosecuted these attorneys because the aforementioned

18 contact was in violation of A.R.S. § 13-4433(B).

19

43. The mere threat that the SBA or Chief Bar Counsel will initiate

20 disciplinary proceedings has a chilling effect on the willingness of Plaintiffs, and

21 members of the Plaintiff organization, to engage in speech with crime victims and

22 others, even when such speech might not be prohibited by A.R.S. § 13-4433(B). As

23 such, Plaintiffs, and members of their defense teams, have not directly contacted crime

24 victims or their families since the implementation of A.R.S. § 13-4433(B). In other

25 words, the credible threat (as evidenced by past enforcement) that the SBA or Chief

26 Bar Counsel will enforce the prohibitions of A.R.S. § 13-4433(B) has chilled Plaintiffs,

27 and members of the Plaintiff organization, from communicating in any way with crime

28 victims and their family members. 9
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1

The DPS Director’s Authority to Enforce A.R.S. § 13-4433(B)

2

44. The DPS Director administers all aspects of private investigator licensing

3 in Arizona. A.R.S. § 32-2402(A).

4

45. As part of the DPS Director’s administration of private investigator

5 licensing, the Department of Public Safety has a Licensing Unit that investigates

6 violations of the requirements to maintain a private investigator license in Arizona, and

7 prosecutes private investigators for such violations (including, for example, seeking to

8 revoke licenses).

9

46. Grounds for discipline of a private investigator licensed in the State of

10 Arizona include “[k]nowingly violating, or advising, encouraging or assisting the

11 violation of, a statute.” A.R.S. § 32-2457(A)(5).

12

47. The DPS Director has authority to investigate and prosecute private

13 investigators licensed in the State of Arizona for allegedly violating A.R.S. § 13-

14 4433(B), or advising, encouraging, or assisting someone else to do so.

15

48. The mere threat that the DPS Director will investigate or initiate

16 disciplinary proceedings has a chilling effect on the willingness of Plaintiffs, and

17 members of the Plaintiff organization, to engage in speech with crime victims and

18 others, even when such speech might not be prohibited by A.R.S. § 13-4433(B). As

19 such, Plaintiffs, and members of their defense teams, have not directly contacted crime

20 victims or their families since the implementation of A.R.S. § 13-4433(B).

21

The Attorney General’s Authority to Enforce A.R.S. § 13-4433(B)

22

49. As the chief legal officer of the state, the Attorney General has the

23 authority to initiate and handle any criminal prosecution in Arizona.

24

50. The Attorney General, or his designee, is required by state statute to

25 prosecute all indictments returned by a state grand jury, and the Attorney General has

26 the discretion to initiate a prosecution even when there is no state grand jury indictment

27 for any crime that is within the jurisdiction of the state grand jury. A.R.S. § 21-427.

28

51.

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The Attorney General’s office serves as the prosecutor for many criminal 10

Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 11 of 22

1 cases at the trial level, almost all felony direct appeals filed in criminal cases in

2 Arizona, and all capital habeas corpus litigation in federal court.

3

52. The Attorney General’s office takes steps to enforce A.R.S. § 13-4433(B)

4 in the cases handled by that office, including, for instance, standing in the middle of

5 communications between the defense team and victims in trial-level matters and filing

6 motions in capital habeas corpus proceedings asking the federal courts to preclude the

7 defense team from directly contacting crime victims consistent with A.R.S. § 13-

8 4433(B).

9

53. The Attorney General supervises and may assist all county attorneys in

10 the state and has the authority to influence all criminal prosecutions in the state. See

11 A.R.S. § 41-193(A)(4) (stating that the Attorney General shall “[e]xercise supervisory

12 powers over county attorneys of the several counties in matters pertaining to that office

13 and require reports relating to the public business thereof”); id. § 41-193(A)(5) (stating

14 that the Attorney General shall “[a]t the direction of the governor, or when deemed

15 necessary, assist the county attorney of any county in the discharge of the county

16 attorney’s duties”).

17

54. As the chief prosecutor in Arizona, the Attorney General literally stands

18 between Plaintiffs and the targets of their intended speech, crime victims. If Plaintiffs

19 want to speak to or otherwise communicate with a statutory victim where they

20 represent the defendant in a pending criminal matter, Plaintiffs cannot do so directly,

21 but rather must initiate contact with the prosecutor, who could be the Attorney General

22 or another prosecutor that the Attorney General supervises.

23

55. If a Plaintiff attempts to initiate contact with a victim through the

24 Attorney General, the Attorney General’s office sends a standard form letter to the

25 victim, the content of which remains the same no matter what message the Plaintiff

26 wants to convey to the victim. This means that no matter what reason the Plaintiff has

27 to speak to a victim, or what the Plaintiff wants to say, that reason for the message and

28 the content of the message will not be communicated to the victim. 11
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Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 12 of 22

1

56. As the administrator of the victims’ rights program under A.R.S.§ 41-

2 191.06, the Attorney General monitors and assists state and local criminal justice

3 agencies to implement and comply with victims’ rights laws. The Attorney General

4 conducts training and provides technical assistance for criminal justice agencies and

5 their employees on victims’ rights laws, and publishes brochures and pamphlets about

6 victims’ rights laws, including A.R.S. § 13-4433(B), for distribution to victims,

7 criminal justice agencies and the public at large.

8

57. In literature published by his office, the Attorney General has stated that

9 he will take every action necessary to “help ensure justice is served through upholding

10 victims’ rights.”

11

58. As the administrator of the victims’ rights program, the Attorney General

12 disburses monies from the victims’ rights fund (established under A.R.S. § 41-191.08)

13 and audits state and local entities that receive state resources for victims’ rights so as to

14 enforce “uniformity, efficiency and compliance by state and local entities that are

15 responsible for ensuring crime victims’ access to justice.” Id. § 41-191.06(A).

16

59. The Attorney General may require corrective action or may withhold

17 monies from the victims’ rights fund if a criminal justice agency does not comply with

18 victims’ rights laws, including A.R.S. § 13-4433(B). This means that if a prosecuting

19 agency in Arizona permitted Plaintiffs to contact victims directly, without initiating

20 that contact through the prosecutor, the Attorney General could withhold victims’

21 rights funds from that agency.

22

60. The Attorney General’s Office of Victims Services has a compliance

23 administrator that investigates allegations of victims’ rights violations and works with

24 victims who believe their rights have been violated.

25

61. At the request of a victim, the Attorney General “may assert any right to

26 which the victim is entitled.” A.R.S. § 13-4437. The Attorney General, thus, has

27 authority to enforce the prohibition on contact between the defense team and victims

28 (and victims’ families) as outlined in A.R.S. § 13-4433(B). 12
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1

62. The Attorney General’s office will file a complaint with the state bar or

2 other licensing agency against a Plaintiff, or member of the Plaintiff organization, if he

3 or she violates A.R.S. § 13-4433(B). The Attorney General’s Office would also

4 instruct the Plaintiff, or member of the Plaintiff organization, not to violate A.R.S.

5 § 13-4433(B) again.

6

63. The mere threat that the Attorney General or another prosecutor under

7 the Attorney General’s supervision will initiate disciplinary proceedings has a chilling

8 effect on the willingness of Plaintiffs, and members of the Plaintiff organization, to

9 engage in speech with statutory crime victims and others, even when such speech

10 might not be prohibited by A.R.S. § 13-4433(B). As such, Plaintiffs, and members of

11 their defense teams, have not directly contacted crime victims or their families since

12 the implementation of A.R.S. § 13-4433(B) because the Attorney General’s

13 enforcement of A.R.S. § 13-4433(B) makes the risk of such proceedings much more

14 likely.

15

64. If the Attorney General files a complaint with the disciplinary authority

16 about an attorney failing to comply with A.R.S. § 13-4433(B), the disciplinary

17 authority is required under Arizona law to investigate such a complaint and will open

18 an investigation to determine whether a full investigation is warranted. If not

19 warranted, the disciplinary authority takes no further action. If a full investigation is

20 warranted, the matter is referred to bar counsel for further investigation.

21

65. Whether the complaint is terminated after the initial investigation or after

22 a full investigation, the fact that there was an investigation is subject to public records

23 disclosure under Arizona law and available for any person or potential client to

24 review. Thus, regardless of what action the disciplinary authority takes, the Attorney

25 General’s filing of a complaint with a disciplinary authority is sufficient to create a

26 public record of a purported violation of law based solely on the unconstitutional

27 infringement of Plaintiffs’ First Amendment rights.

28

66.

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The attorney against whom the Attorney General files such a complaint 13

Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 14 of 22

1 may also have to respond to the complaint, including potentially retaining counsel and

2 notifying her or his malpractice insurer. That attorney may also have to report the

3 complaint to future employers.

4

67. The Attorney General, as chief legal officer of the state and administrator

5 of the victims’ rights program, has created an atmosphere of fear and enforcement that

6 chills Plaintiffs’ speech and the speech of members of the Plaintiff organization.

7

68. As a high-ranking representative of the Attorney General’s office stated

8 under oath, “any attorney should feel somewhat afraid of violating the law”; “it’s a no-

9 brainer.”

10

A.R.S. § 13-4433(B) Violates the First Amendment

11

69. A.R.S. § 13-4433(B) is an unlawful restraint on defense attorneys, their

12 investigators, and others working on behalf of a criminal defendant, precluding them

13 from engaging in constitutionally protected speech. It acts as an unconstitutional

14 licensing requirement and prior restraint on speech because defense lawyers and

15 defense teams must initiate contact with crime victims through the defense’s litigation

16 adversary, the prosecutor, and must get permission from the government before

17 engaging in the protected speech.

18

70. The attorney members of Arizona Attorneys for Criminal Justice and the

19 individual Plaintiffs are professionally obligated to render effective assistance of

20 counsel to all of their criminally accused clients by the Sixth Amendment.

21

71. In a capital case, the United States Supreme Court deems it imperative

22 that the attorney representing the accused at the very least reach out and attempt to 23 make contact with any and all witnesses in the case.1

24

72. In a capital case, the defense team’s duty to investigate often includes

25 making overtures to the family of the deceased in an effort to understand whether they

26 desire the death penalty for the perpetrator or would be satisfied with a lesser sentence,

27 such as life imprisonment without parole. Victim impact testimony is often critical to

28 1 See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003). 14
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Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 15 of 22

1 the jury’s determination of the appropriate sentence in a capital case and if defense

2 counsel can persuade the victim’s family not to desire the death penalty, it can literally

3 save the life of a defendant. In addition, prosecutors will sometimes acquiesce to the

4 wishes of the victim’s family and drop their demand for death. A.R.S. § 13-4433(B)

5 prevents the defense team from engaging in these efforts.

6

73. In capital cases where a relative of the defendant is the victim, often the

7 best source of evidence regarding mitigation critical to saving a defendant’s life is

8 found with the defendant’s family, which is also the victim’s family. A.R.S. § 13-

9 4433(B) precludes the Plaintiffs from speaking to those crucial witnesses except by

10 using the prosecutor as an intermediary.

11

74. In non-capital cases, interviewing victims whenever possible is deemed

12 an essential duty of a conscientious criminal-defense attorney as part of efforts to

13 ascertain the facts of the case. A.R.S. § 13-4433(B) prevents the defense team from

14 conducting this type of thorough investigation.

15

75. In engaging with the family of the victim in a capital case, it is

16 incumbent upon defense counsel to discuss with any willing member of the victim’s

17 family why the death penalty is not the best option for the good of the surviving family

18 members and why an option of life imprisonment may better achieve the ends they

19 seek. This discussion frequently includes such wide ranging topics as closure,

20 vengeance, rehabilitation, cost, deterrence, remorse, the impact on the victim’s family,

21 the impact of an execution on the defendant’s family, as well as the politics and

22 morality of the death penalty. There are innumerable other areas of discussion with

23 victims’ families relevant to the death penalty. It is the goal of defense counsel to

24 attempt to change the hearts and minds of victims’ families through a quiet, respectful

25 discussion about the appropriate resolution of the case without the death penalty being

26 sought.

27

76. Contacting victims and their family members is not only a crucial part of

28 effectively representing a capital defendant, it is also critical to lobbying for the passive 15
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Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 16 of 22

1 repeal of the death penalty. In a number of states, the unofficial repeal of the death

2 penalty has been achieved by criminal-defense attorneys who convince family

3 members of victims in capital crimes to speak out in opposition to the death penalty,

4 thereby pressuring prosecutors and the public to abandon capital prosecution. 5 Ultimately, this can lead to the official, legislative repeal of the death penalty.2 Without

6 this important speech on a matter of grave public concern, the political campaign for

7 the passive repeal of the death penalty can be significantly hampered.

8

77. From a free-speech perspective, discussions between the defense team

9 and the victim’s family in a capital case are the highest form of protected speech as

10 they clearly involve matters of grave public concern and may only be suppressed if the

11 government can show a compelling reason for such suppression.

12

78. In a more routine criminal case, defense lawyers and members of the

13 defense team should be able to approach crime victims to at least attempt to discuss the

14 facts and circumstances of the alleged crime. It is essential for a defense attorney to

15 attempt to ascertain a clear picture of the facts of a case and to determine the credibility

16 of a complaining witness, including whether the victim has accurately perceived the

17 facts and circumstances of the event in question.

18

79. A.R.S. § 13-4433(B) essentially makes it less likely, if not nearly

19 impossible, that defense lawyers and others on defense teams, including Plaintiffs, will

20 be able to speak with the individuals most necessary to interview in any criminal case.

21 Experience has shown that Plaintiffs are most frequently thwarted in their attempts to

22 speak with crime victims and their families when communications must be initiated

23 through the prosecutor.

24

80. In communicating the defense team’s desire to speak with crime victims,

25 2 See Cornell Law School Death Penalty Worldwide International Human Rights Clinic, Pathways to Abolition of the Death Penalty (June 2016),
26 https://www.deathpenaltyworldwide.org/pdf/Pathways%20to%20Abolition%20Death %20Penalty%20Worldwide%202016-07%20FINAL.pdf (detailing how the passive
27 repeal of the death penalty in the state of Maryland, where no death sentences were imposed for almost a decade, led to the official, legislative abolition of the death
28 penalty in 2013). 16
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Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 17 of 22

1 the Attorney General sends a standard form letter that is not tailored in any way to the

2 individual speech of the defense attorney or member of the defense team. Instead of

3 communicating the message that the defense team wishes to convey to the crime

4 victims or the crime victims’ family, the Attorney General instead substitutes its own

5 speech. Effectively, the defense team is not allowed to communicate its message and

6 speech to crime victims and their families at all; the only speech or message

7 communicated to crime victims and their families is the canned message of the

8 Attorney General.

9

81. Plaintiffs, and members of the Plaintiff organization, regularly represent

10 defendants accused of crimes involving victims. As part of their representation of

11 defendants in criminal cases, Plaintiffs, and members of the Plaintiff organization,

12 regularly wish to speak with victims of the alleged crime. Were it not for the restriction

13 in A.R.S. § 13-4433(B), these individuals would contact victims directly, and not by

14 initiating contact through the prosecutor.

15

82. Consistent with their professional and ethical obligations, Plaintiffs

16 would be courteous, polite, and respectful in communications with victims.

17

83. Because of A.R.S. § 13-4433(B), Plaintiffs are forced to communicate

18 victim interview requests through the prosecutor instead of to the victim directly.

19

84. Because of the atmosphere of fear and enforcement created by the SBA,

20 Chief Bar Counsel, the DPS Director, and the Attorney General and A.R.S. § 13-

21 4433(B), Plaintiffs do not contact statutory victims and others directly for fear that

22 doing so would subject them to professional discipline prosecuted by the SBA, Chief

23 Bar Counsel, or the DPS Director, even when such speech might not be prohibited by

24 A.R.S. § 13-4433(B).

25

85. Because Plaintiffs have a First Amendment right to attempt to speak with

26 any and all witnesses and other persons connected with a criminal case, including the

27 persons precluded from direct contact by A.R.S. § 13-4433(B), and because Plaintiffs

28 have a right to attempt these interviews unfettered by the compulsion to use a 17
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Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 18 of 22

1 government go-between, A.R.S. § 13-4433(B) violates the First Amendment.

2

86. Moreover, A.R.S. § 13-4433(B) is overbroad because it stops not only

3 speech that would be deemed criminal or unethical, such as harassing, abusive, or

4 threatening speech, but also eliminates all speech of any kind, including that which is

5 afforded the highest protections under the First Amendment.

6

STATEMENT OF CLAIMS FOR RELIEF

7

Count I: First Amendment

8

87. Plaintiffs repeat and re-allege the foregoing paragraphs.

9

88. The prohibition against Plaintiffs contacting victims or their families

10 pursuant to A.R.S. § 13-4433(B) is an unlawful restraint on protected speech.

11

89. The members of Arizona Attorneys for Criminal Justice and the

12 individual Plaintiffs seek to engage in speech involving matters of great public concern

13 that goes to the heart of the functioning of the criminal-justice system, such as:

14

• In capital murder cases, explaining to victims’ families why the death

15

penalty should not be imposed by discussing factors at issue in current

16

public debate, including the possibility of mistaken identity, the public

17

cost of imposing the death penalty, the lack of deterrence resulting from

18

death sentences, the lack of finality for victims because the death penalty

19

extends criminal proceedings by decades, the cruelty of the death

20

penalty, and innumerable other reasons for the victims’ families to

21

oppose its imposition;

22

• In non-capital cases, the victim’s observation of the facts of the alleged

23

criminal incident, the victim’s ability to have adequately observed the

24

key circumstances of the incident, and the victim’s credibility, all for

25

various purposes related to conducting a thorough investigation,

26

including to prevent and remedy wrongful convictions;

27

• Engaging in speech designed to ensure the proper functioning of the

28
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criminal-justice system in Arizona as a true and fair adversarial system so 18

Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 19 of 22

1

that convictions will be reliable and the innocent will not be convicted or

2

will be exonerated.

3

90. Because other defense lawyers and members of defense teams have been

4 threatened with professional discipline based on violations of A.R.S. § 13-4433(B), it

5 carries with it a chilling effect which precludes Plaintiffs and other persons of ordinary

6 firmness from engaging in the First Amendment protected speech activity of contacting

7 and communicating with victims, their families, and others.

8

91. Because the functioning of the criminal-justice system is a matter of

9 utmost public importance, the government must advance a compelling reason for the

10 prohibition on protected speech.

11

92. A.R.S. § 13-4433(B) is a prior restraint that authorizes suppression of

12 speech in advance of its expression by requiring defense lawyers and members of a

13 defense team to initiate contact with a crime victim only through a prosecutor’s office

14 and allowing the prosecutor unfettered discretion to communicate whatever he or she

15 wants to the crime victim at the same time he or she communicates to the victim the

16 right to refuse an interview with the defense team. In cases prosecuted by the Attorney

17 General, his office sends a standard form letter to a victim when the defense requests to

18 speak to the victim, wholly preventing the speech of defense lawyers, including

19 Plaintiffs and Plaintiff organization’s members.

20

93. A.R.S. § 13-4433(B) is not a permissible prior restraint because it

21 regulates speech based on the viewpoint of the speaker and based on the content of the

22 speech, it is not narrowly tailored to the government’s interest in protecting victims

23 against harassment (or any other important, significant, or compelling government

24 interest), and does not leave open ample channels for communication between the

25 defense team and crime victims.

26

Count II: Overbreadth

27

94. Plaintiffs repeat and re-allege the foregoing paragraphs.

28

95.

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A.R.S. § 13-4433(B) is overbroad and thus unconstitutional because it 19

Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 20 of 22

1 prohibits any and all speech by defense lawyers and defense teams aimed at crime

2 victims and their families, not just speech that would be unlawful, harassing,

3 threatening, or obscene.

4

96. A.R.S. § 13-4433(B) is not narrowly tailored to achieve the government

5 interest in protecting crime victims and their families against intimidation, harassment,

6 or abuse, or to achieve any other legitimate government interest.

7

97. The state could put in place a more narrowly tailored rule that would

8 address the government interest in protecting crime victims and their families against

9 intimidation, harassment, or abuse, without restricting the speech of Plaintiffs and other

10 criminal-defense lawyers and defense teams.

11

98. A.R.S. § 13-4433(B) also fails to leave open ample alternatives for

12 Plaintiffs’ expression.

13

99. A.R.S. § 13-4433(B) prevents a substantial amount of protected speech

14 from occurring due to its overbreadth and chills people of ordinary firmness, including

15 Plaintiffs, from engaging in protected speech.

16

CONCLUSION

17 WHEREFORE, Plaintiffs respectfully request that the Court:

18

A. Declare that A.R.S. § 13-4433(B) violates the First Amendment of the

19 United States Constitution;

20

B. Preliminarily and permanently enjoin the DPS Director, the SBA, Chief

21 Bar Counsel, and their officers, agents, servants, employees, and attorneys, and those

22 persons in active concert or participation with them from enforcing A.R.S. § 13-

23 4433(B);

24

C. Award Plaintiffs reasonable costs and attorneys’ fees pursuant to 42

25 U.S.C. § 1988; and

26

D. Grant Plaintiffs such other and further relief as the Court deems just and

27 proper.

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RESPECTFULLY submitted this 26th day of April, 2019.

2

ACLU FOUNDATION OF ARIZONA

Kathleen E. Brody

3 KILLMER, LANE & NEWMAN, LLP

4

David A. Lane

Andrew McNulty

5 LEWIS ROCA ROTHGERBER CHRISTIE LLP

6 By: /s/ Ian M. Fischer_________

7

Dan W. Goldfine

Ian M. Fischer

8 Attorneys for Plaintiffs

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Case 2:17-cv-01422-SPL Document 150 Filed 04/26/19 Page 22 of 22

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CERTIFICATE OF SERVICE

2

I hereby certify that on April 26, 2019, I electronically transmitted the attached

3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a

4 Notice of Electronic Filing to all parties.

5

/s/ Joye Allen

6

Employee of Lewis Roca Rothgerber Christie LLP

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107805566.1

 
 Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 1 of 15

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Arizona Attorneys for Criminal Justice ) No. CV-17-01422-PHX-SPL

9 et al,

) )

10

Plaintiffs,

) ORDER )

11 vs.

) )

12 Ducey et al,

) )

13 14

)

Defendants.

) )

15 On May 8, 2017, Plaintiffs, individual criminal-defense lawyers, investigators, and
16 non-profit organization Arizona Attorneys for Criminal Justice, initiated this action (the
17 “Original Complaint”) challenging the constitutionality of Ariz. Rev. Stat. (“A.R.S.”) § 13-
18 4433(B), which prohibits criminal defense counsel from initiating contact with a victim.
19 (Doc. 1) On June 26, 2017, the Attorney General of the State of Arizona (the “Attorney
20 General”) moved to dismiss the Original Complaint, arguing that the Plaintiffs did not have
21 standing to bring the lawsuit. (Doc. 31) On March 30, 2018, the Court granted the Attorney
22 General’s motion to dismiss in part (the “Dismissal Order”). (Doc. 119) In granting the
23 Attorney General’s first motion to dismiss, the Court found that the Plaintiffs failed to “offer
24 plausible allegations from which the Court can conclude that their injury is traceable to the
25 actions of the Attorney General or the ambit of his enforcement authority” or show that the
26 relief requested under the Original Complaint would redress the Plaintiffs’ alleged injury.
27 (Doc. 119 at 6–9) Based on the allegations in the Original Complaint, the Court found that
28

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 2 of 15

1 the Plaintiffs lacked standing to pursue their claims, but the Court provided the Plaintiffs

2 with leave to amend the Original Complaint by a later deadline. (Doc. 119 at 9–11)

3

On May 4, 2018, the Plaintiffs filed an amended complaint (the “First Amended

4 Complaint”) seeking identical declaratory and injunctive relief that would prevent the

5 Attorney General from enforcing A.R.S. § 13-4433(B). (Doc. 123) On May 25, 2018, the

6 Attorney General filed a motion to dismiss the First Amended Complaint (the “Second

7 Motion to Dismiss”), arguing that the amended pleading still failed to allege facts sufficient

8 to demonstrate that the Plaintiffs had standing to bring their claims. (Doc. 126) On March

9 15, 2019, the Court granted the Attorney General’s second motion to dismiss (the “Second

10 Dismissal Order”). (Doc. 147) In doing so, the Court found that the Plaintiffs still failed to

11 “offer plausible allegations from which the Court can conclude that the Plaintiffs’ injury is

12 traceable to the actions of the Attorney General” or show that the relief requested under the

13 First Amended Complaint would redress Plaintiff’s alleged injury. (Doc. 147 at 4–7) Based

14 on the allegations in the First Amended Complaint, the Court found that the Plaintiffs still

15 lacked standing to pursue their claims, but the Court provided the Plaintiffs with a second

16 leave to amend the Original Complaint by a later deadline. (Doc. 147 at 7–8)

17

On April 26, 2019, Plaintiffs filed another amended complaint (the “Second

18 Amended Complaint”) seeking identical declaratory and injunctive relief but adding the

19 State Bar of Arizona (“State Bar”), its Chief Bar Counsel, Maret Vessella (“Vessella”), and

20 the director of the Arizona Department of Public Safety, Colonel Frank Milstead

21 (respectively “DPS” and “Milstead”) as defendants. (Doc. 150) On June 20, 2019, the State

22 Bar and Vessella (“State Bar” and “Vessella”) filed their Motion to Dismiss the Second

23 Amended Complaint, arguing lack of subject matter jurisdiction and failure to state a claim

24 upon which relief can be granted (Doc. 162 at 1) (the “State Bar’s Motion to Dismiss”) and

25 the Attorney General filed its Motion to Dismiss the Second Amended Complaint, arguing

26 lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted,

27 and failure to Join a Rule 19 Party (Doc. 164 at 3) (the “Attorney General’s Third Motion

28 to Dismiss”). Pending before the Court are the State Bar’s Motion to Dismiss and the

2

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 3 of 15

1 Attorney General’s Motion to Dismiss. The Motions were fully briefed. The Court’s ruling 2 is as follows.1

3 I. Legal Standard

4

A. FRCP 12(b)(1) and Article III Standing

5

Federal Rule of Civil Procedure 12(b)(1) “allows litigants to seek the dismissal of an

6 action from federal court for lack of subject matter jurisdiction.” Kinlichee v. United States,

7 929 F. Supp. 2d 951, 954 (D. Ariz. 2013) (citing Tosco Corp. v. Comtys. for a Better Env’t,

8 236 F.3d 495, 499 (9th Cir. 2001)). Allegations raised under FRCP 12(b)(1) should be

9 addressed before other reasons for dismissal because if the complaint is dismissed for lack

10 of subject matter jurisdiction, other defenses raised become moot. Kinlichee, 929 F. Supp.

11 2d at 954. A motion to dismiss for lack of subject matter jurisdiction under FRCP 12(b)(1)

12 may attack either the allegations of the complaint as insufficient to confer upon the court

13 subject matter jurisdiction or the existence of subject matter jurisdiction in fact. Renteria v.

14 United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ’g Co., Inc.

15 v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979)); Edison v. United States,

16 822 F.3d 510, 517 (9th Cir. 2016). When the motion to dismiss attacks the allegations of

17 the complaint as insufficient to confer subject matter jurisdiction, all allegations of material

18 fact are taken as true and construed in the light most favorable to the nonmoving party.

19 Renteria, 452 F. Supp. 2d at 919 (citing Federation of African Amer. Contractors v. City of

20 Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996)). When the motion to dismiss is a factual

21 attack on subject matter jurisdiction, however, no presumptive truthfulness attaches to the

22 plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial

23 court from evaluating for itself the existence of subject matter jurisdiction in fact. Renteria,

24 452 F. Supp. 2d at 919 (citing Thornhill, 594 F.2d at 733). A plaintiff has the burden of

25 proving that jurisdiction does in fact exist. Renteria, 452 F. Supp. 2d at 919 (citing

26

27

1 Because it would not assist in resolution of the instant issues, the Court finds the

28

pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

3

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 4 of 15

1 Thornhill, 594 F.2d at 733). Conclusory allegations of law and unwarranted inferences are

2 insufficient to defeat a motion to dismiss. Rosenbaum v. Syntex Corp., 95 F.3d 922, 926

3 (9th Cir. 1996).

4

“To state a case or controversy under Article III, a plaintiff must establish standing.”

5 Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 133 (2011); See also

6 Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 597–98 (2007). The doctrine of

7 standing encompasses both constitutional requirements and prudential considerations. See

8 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454

9 U.S. 464, 471 (1982). “The constitutional requirement of standing has three elements: (1)

10 the plaintiff must have suffered an injury-in-fact—that is, a concrete and particularized

11 invasion of a legally protected interest that is actual or imminent, not conjectural or 12 hypothetical;2 (2) the injury must be causally connected—that is, fairly traceable—to the

13 challenged action of the defendant and not the result of the independent action of a third

14 party not before the court; and (3) it must be likely and not merely speculative that the injury

15 will be redressed by a favorable decision by the court.” Catholic League for Religious and

16 Civil Rights v. City and County of San Francisco, 624 F.3d 1043, 1049 (9th Cir. 2010)

17 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); Valley Forge, 454 U.S. at 475–

18 76).

19

The plaintiff bears the burden of establishing the existence of a justiciable case or

20 controversy, and “‘must demonstrate standing for each claim he seeks to press’ and ‘for

21 each form of relief’ that is sought.” Davis v. Federal Election Comm’n, 554 U.S. 724, 734

22 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). “A plaintiff

23 must establish standing with the ‘manner and degree of evidence required at the successive

24 stages of the litigation.’” Carrico v. City and County of San Francisco, 656 F.3d 1002, 1006

25 (9th Cir. 2011) (quoting Lujan, 504 U.S. at 561). “[A]t the pleading stage, the plaintiff must

26 2

“The constitutional component of ripeness overlaps with the ‘injury in fact’ analysis

27

for Article III standing. Whether framed as an issue of standing or ripeness, the inquiry is largely the same: whether the issues presented are ‘definite and concrete, not hypothetical

28

or abstract.’” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010); See also LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000) (discussing ripeness).

4

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 5 of 15

1 clearly. . . allege facts demonstrating each element.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540,

2 1547 (2016) (internal quotations omitted).

3

B. Younger Abstention

4

Younger abstention is a jurisprudential doctrine rooted in overlapping principles of

5 equity, comity, and federalism. See Steffel v. Thompson, 415 U.S. 452, 460–73 (1974)

6 (explaining the history and purposes of the doctrine); Younger v. Harris, 401 U.S. 37, 43–

7 49 (discussing the jurisprudential background of abstention); Gilbertson v. Albright, 381

8 F.3d 965, 970–75 (9th Cir.2004) (en banc) (tracing the Supreme Court’s application of the

9 doctrine). Abstention from the exercise of federal jurisdiction is the exception, not the rule.

10 Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Absent

11 significant countervailing interests, the federal courts are obliged to exercise their

12 jurisdiction. Id.; County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189 (1959). The

13 Court must abstain under Younger if four requirements are met: (1) a state-initiated

14 proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the

15 federal plaintiff is not barred from litigating federal constitutional issues in the state

16 proceeding; and (4) the federal court action would enjoin the proceeding or have the

17 practical effect of doing so, i.e., would interfere with the state proceeding in a way that

18 Younger disapproves. Gilbertson, 381 F.3d at 978; AmerisourceBergen Corp. v. Roden

19 (“ABC”), 495 F.3d 1143, 1149 (9th Cir.2007). “Although Younger itself involved potential

20 interference with a state criminal case, the Supreme Court has extended the doctrine to

21 federal cases that would interfere with state civil cases and state administrative

22 proceedings.” San Jose Silicon Valley Chamber of Commerce Political Action Comm. V.

23 City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008) (citing Ohio Civil Rights Comm'n v.

24 Dayton Christian Sch., Inc., 477 U.S. 619, 627 (1986)). “There is no principled distinction

25 between finality of judgments for purposes of appellate review and finality of state-initiated

26 proceedings for purposes of Younger abstention.” Id. at 1093.

27 II. Analysis

28

Both the Attorney General and the State Bar Defendants seek dismissal of the case

5

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 6 of 15

1 under FRCP 12(b)(1), although based on slightly different arguments, as well as under

2 FRCP 12(b)(6). The Attorney General also seeks dismissal under FRCP 12(b)(7). The Court

3 addresses issues of subject matter jurisdiction first.

4

A. The Attorney General’s 12(b)(1) Argument

5

The Court notes that the Attorney General has raised issues of subject matter

6 jurisdiction twice already, and more specifically issues of lack of Article III standing. (Docs.

7 31 at 6–11; 126 at 4–7) The two previous arguments were facial challenges to subject matter

8 jurisdiction and the Court reviewed the Original Complaint and the First Amended

9 Complaint under the appropriate standard for such challenges. See Renteria, 452 F. Supp.

10 2d at 919. The Attorney General’s Third Motion to Dismiss is based on a factual challenge

11 to subject matter jurisdiction based on lack of Article III standing and specifically lack of

12 redressability, one of the three requirements for Article III standing. (Doc. 164 at 1–2)

13 However, the Court finds that it does not need to consider a factual challenge to the Second

14 Amended Complaint because the Second Amended Complaint still fails to meet the

15 traceability requirement for purposes of Article III standing under a facial challenge as more

16 fully explained below.

17

As set forth in both the Dismissal Order and the Second Dismissal Order, the Court

18 already found that Plaintiffs have sufficiently alleged an injury-in-fact for purposes of

19 Article III standing in their case against the Attorney General. (Docs. 119 at 5–6; 147 at 3–

20 4) The Attorney General is not challenging this standing requirement in its Third Motion to

21 Dismiss.

22

In both the Dismissal Order and the Second Dismissal Order, the Court found that

23 Plaintiffs had failed to offer plausible allegations that would satisfy the traceability

24 requirement for Article III standing. (Docs. 119 at 6–9; 147 at 4–7) The Court notes that the

25 Attorney General is not arguing a lack of traceability in its Third Motion to Dismiss.

26 Because questions of subject matter jurisdiction can be raised by the Court sua sponte and

27 at any time, see Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006), the Court now turns to

28 the Second Amended Complaint to determine whether Plaintiffs have met their burden on

6

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 7 of 15

1 pleading traceability for their claim against the Attorney General.

2

The Court finds that Plaintiffs have made very little changes to the section laying out

3 the basis for their claim against the Attorney General from the First Amended Complaint.

4 (Doc. 150 at 10–14) Plaintiffs removed any reference to court sanctions in the Second

5 Amended Complaint, focusing on potential disciplinary proceedings. (Doc. 150 at 10–14)

6 Plaintiffs removed a reference to “seek[ing] sanctions from the court” and “ask[ing] the

7 court to advise the same” in paragraph 62 of the Second Amended Complaint. (Doc. 150 at

8 12) (compared to paragraph 51 of the First Amended Complaint which is identical besides

9 the removed language, see Doc. 123 at 11) Plaintiffs also removed a reference to “seek[ing]

10 court sanctions or pursue potential criminal prosecution” and “making the risk of . . . such

11 sanctions much more likely” in paragraph 63 of the Second Amended Complaint. (Doc. 150

12 at 13) (compared to paragraph 52 of the First Amended Complaint which is identical besides

13 the removed language, see Doc. 123 at 12) Finally, Plaintiffs removed the paragraphs which

14 set forth Plaintiffs’ arguments as to why an injunction granted against the Attorney General

15 would be proper. (Doc. 123 at 13, ¶¶ 59–61) Based on those findings, the Court concludes

16 that the Second Amended Complaint still fails to offer plausible allegations from which the

17 Court can conclude that the Plaintiffs’ injury is traceable to the actions of the Attorney

18 General. The Court already discussed at length its reasoning regarding traceability in the

19 Second Dismissal Order and it is still fully applicable to the Second Amended Complaint,

20 with the exception of the reasoning related to the imposition or prosecution of criminal

21 charges on page 6 of the Second Dismissal Order. (Doc. 147 at 4–7). The few modifications

22 made in the Second Amended Complaint’s section regarding the Attorney General fail to

23 cure the defect related to traceability for purposes of Article III standing. The revised

24 allegations are still not enough to show the necessary causation and traceability between the

25 disciplinary process Plaintiffs are challenging as unconstitutional and the actions, and

26 powers, of the Attorney General.

27

Accordingly, the Court will grant the Attorney General’s Third Motion to Dismiss

28 without leave to amend because it finds that it would be futile to allow Plaintiffs to amend

7

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 8 of 15

1 their complaint for a third time.3

2

B. The State Bar of Arizona’s Eleventh Amendment Immunity Argument

3

The State Bar argues that as an agency of the state of Arizona, it is immune from suit

4 under the Eleventh Amendment to the United States Constitution. (Doc. 162 at 7–9) The

5 Court agrees.

6

“Under the Eleventh Amendment to the Constitution of the United States, neither a

7 state nor its agencies may be sued in federal court without the state’s consent.” Cleveland

8 v. Pinal County Superior Court, No. CV 12-1942-PHX-DGC (SPL), 2012 U.S. Dist. LEXIS

9 148494, at *7-8, 2012 WL 4932657 (D. Ariz. Oct. 16, 2012) (citing Pennhurst State Sch. &

10 Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). “A state bar operates as the investigative

11 arm of its state supreme court, and thus, is an agency of the state; as an agency of the state,

12 the Eleventh Amendment renders state bars immune from suit in federal court.” Id. at *8

13 (citing Gilchrist v. Arizona Supreme Court, 10 Fed. Appx. 468, 470 (9th Cir. 2001)); see

14 also O'Connor v. State of Nev., 686 F.2d 749, 750 (9th Cir. 1982). Thus, Plaintiffs’ direct

15 claims against the State Bar are precluded. Furthermore, Plaintiffs themselves in their

16 response to the State Bar’s Motion to Dismiss wrote that they “do not object to dismissing

17 the State Bar without prejudice.” (Doc. 170 at 2) Plaintiffs do not have the choice as to the

18 type of dismissal. The State Bar of Arizona is immune from suit under the Eleventh

19 Amendment, any amendment to the complaint would be futile, and a dismissal without

20 prejudice is therefore not a possible avenue. Taking these realities into account, no possible

21 set of factual allegations could be pleaded in a proposed Third Amended Complaint that

22 would cure the aforementioned deficiencies. See In re Apollo Group, No. CV-10-1735-

23 PHX-JAT, 2011 U.S. Dist. LEXIS 124781, at *66, 2011 WL 5101787 (D. Ariz. Oct. 27,

24 2011) (quoting Lopez, 203 F.3d at 1127) (noting that leave for amend should be granted

25

26

3 Because the Court finds that Plaintiffs failed to satisfy the second requirement for

27

Article III standing and it is dispositive of the claims against the Attorney General based on lack of subject matter jurisdiction, the Court does not address the other arguments raised in

28

the Attorney General’s Second Motion to Dismiss. See Giddings v. Vision House Prod., Inc., 584 F.Supp.2d 1222, 1225 (D. Ariz. 2008).

8

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 9 of 15

1 when dismissing “unless the court determines that the pleading could not possibly be cured

2 by the allegations of other facts”); McGlinchy v. Shell Chem. Co., 845 F.2d 802, 818 (9th

3 Cir. 1988). Accordingly, the Court will grant the State Bar’s Motion to Dismiss based on

4 immunity under the Eleventh Amendment and the case against the State Bar of Arizona will 5 be dismissed with prejudice.4

6

C. Defendant Vessella’s Argument that Plaintiffs Lack Article III Standing

7

Defendant Vessella argues that Plaintiffs’ case against her should be dismissed

8 because of lack of subject matter jurisdiction based on Article III standing and failure to

9 state a claim.

10

At the outset, the Court notes that Defendant Vessella joined in the Attorney

11 General’s argument regarding redressability and Younger abstention. (Doc. 162 at 3, fn.1)

12 It also notes that Defendant Vessella makes an argument that any prior holding of the Court

13 regarding standing should be disregarded and argued anew because neither the State Bar of

14 Arizona nor Vessella was a party to this case until Plaintiffs made a claim against them in

15 their Second Amended Complaint. (Docs. 162 at 10; 179 at 3–4) With one exception, the

16 Court agrees with that argument as to the newly named Defendants State Bar and Vessella

17 are entitled to their day in court and to be heard: the exception is the Court’s finding that

18 Plaintiffs have sufficiently pled an injury-in-fact for purposes of Article III standing and

19 surviving a motion to dismiss. (Docs. 119 at 5–6; 147 at 3–4) The Court’s reasoning and

20 findings about injury-in-fact are still applicable and did not depend on the name of the

21 Defendant but instead, on the injury alleged by Plaintiffs, and whether they sufficiently pled

22 the injury under a motion to dismiss standard of review. (Doc. 147 at 4) However, the

23 Article III standing requirements of traceability and redressability are directly dependent on

24 who the defendant is in this case. The Court now turns to the issues of traceability and

25

26

4 Similarly to the disposition of the Attorney General’s Second Motion to Dismiss in

27

Section II(A). of this Order, because the Eleventh Amendment is dispositive of the State Bar’s Motion to Dismiss, the Court does not address the remaining arguments raised by the

28

State Bar in its Motion as they relate to dismissal of the State Bar alone and not Defendant Vessella.

9

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 10 of 15

1 redressability for purposes of Article III standing as applied to Plaintiffs’ claims against

2 Defendant Vessella.

3

With regards to the issue of traceability or causation, the Court first notes that

4 Plaintiffs are challenging A.R.S. § 13-4433(B) but not the rules of professional conduct,

5 which are truly the source of any potential sanction they might suffer if they violate the 6 victim contact rules set forth in A.R.S. § 13-4433(B).5 This is an interesting case where the

7 challenged statute itself does not provide for an enforcement mechanism but might be

8 enforced through other rules which are not challenged by the Plaintiffs. Plaintiffs argue that

9 Arizona Rule of the Supreme Court 42, Ethical Rule (“ER”) 8.4 provides that it is

10 professional misconduct for an attorney “to engage in conduct that is prejudicial to the

11 administration of justice.” (Doc. 150 at 9, ¶ 40) Plaintiffs add that enforcing A.R.S. § 13-

12 4433(B) would be done under ER 8.4. (Doc. 150 at 9, ¶41-42) Defendant Vessella relies on

13 Section 3531 of Wright and Miller, Federal Practice and Procedure (3d ed. 2019) for her

14 argument that Plaintiffs failed to establish traceability to her. (Docs. 162 at 14–15; 179 at

15 8–9)

16

In this case, there is an additional, non-named party, the Arizona Supreme Court

17 Disciplinary Commission (the “Commission”), which would make the decision to impose

18 sanctions on an attorney for violating the ethical rules promulgated by the Arizona Supreme

19 Court. (Doc. 119 at 7) See also Wolfson, 616 F.3d at 1056–57. “The Arizona Chief Bar

20 counsel is charged with overseeing and directing the prosecution of discipline cases

21 involving members of the bar….” (Doc. 119 at 7) Id. Plaintiffs have alleged they fear that

22

5 The Victims’ Rights Implementation Act (“VRIA”) itself contains no civil or

23 criminal penalties for violations of its provisions, nor provides for a private cause of action

24

to be brought against a violating party. See Lindsay R. v. Cohen, 343 P.3d 435, 437 (Ariz. Ct. App. 2015) (“neither the [Victims’ Bill of Rights (“VBR”)] nor the VRIA gives victims

25 a right to control the proceedings, to plead defenses, or to examine or cross-examine

witnesses; the VBR and the VRIA give victims the right to participate and be notified of 26 certain criminal proceedings.”); State ex rel. Montgomery v. Padilla, 364 P.3d 479, 485

27 (Ariz. Ct. App. 2015) (the VRIA provides a victim with standing to seek an order in the

defendant’s trial or appellate proceeding to enforce a right or to challenge an order denying 28 a right) (citing A.R.S. § 13–4437(A)); (Doc. 31 at 9).

10

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 11 of 15

1 if they violate A.R.S. § 13-4433(B), the Chief Bar Counsel will investigate them for

2 violations of the ethical rules which might ultimately result in sanctions. (Doc. 150 at 9)

3 This last part would be a decision made by the Arizona Supreme Court Disciplinary

4 Commission. “To plausibly allege that the injury was not the result of the independent action

5 of some third party, the plaintiff must offer facts showing that the government’s unlawful

6 conduct is at least a substantial factor motivating the third parties’ actions.” Novak v. United

7 States, 795 F.3d 1012, 1019 (9th Cir. 2015) (quoting Mendia v. Garcia, 768 F.3d 1009,

8 1013 (9th Cir. 2014)) (internal quotations omitted); see also Mendia, 768 F.3d at 1013 (“[s]o

9 long as the plaintiff can make that showing without relying on speculation or guesswork

10 about the third parties’ motivations . . ., she has adequately alleged Article III causation.”)

11 (citing Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1150, 185 L.Ed.2d

12 264 (2013)) (internal quotations omitted).

13

The Court finds that Defendant Vessella’s position and duties of oversight and

14 prosecution of ethical violations would be a substantial factor in the Commission’s

15 decisions and actions. There is no doubt that absent an investigation and prosecution of

16 Plaintiffs or other attorneys for a violation of A.R.S. § 13-4433(B) and ER 8.4, the

17 Commission would not sanction an attorney for a violation of ethical rules. This is not to

18 say that every investigation and prosecution by the Chief Bar Counsel and its office

19 necessarily result in sanctions. But the Court finds that Plaintiffs have met their burden to

20 establish traceability between their alleged injury-in-fact and Defendant Vessella as Chief

21 Bar Counsel.

22

The Court now turns to the last requirement for Article III standing, redressability.

23 On this issue, the Court finds Wolfson particularly instructive and ultimately dispositive. In

24 Wolfson, the Ninth Circuit, quoting Lujan, 504 U.S. at 561–62 (1992), reasoned that “[i]f a

25 plaintiff is an object of the [challenged action] ... there is ordinarily little question that the

26 action or inaction has caused him injury, and that a judgment preventing or requiring the

27 action will redress it.” Wolfson, 616 F.3d at 1056 (internal quotations omitted). In this case,

28 Plaintiffs are clearly the object of the statute they challenge and of the actions, or potential

11

Case 2:17-cv-01422-SPL Document 191 Filed 02/27/20 Page 12 of 15

1 actions, of Defendant Vessella. They seek two forms of relief: a declaration that A.R.S. §

2 13-4433(B) is unconstitutional and injunctive relief against Defendant Vessella to preclude

3 enforcement of violations of the statute through ethical discipline. Defendant Vessella has

4 the power to investigate and prosecute Plaintiffs for ethical violations stemming from a

5 violation of A.R.S. § 13-4433(B) and ER 8.4 and, if she is enjoined from enforcing the

6 challenged provisions, Plaintiffs will have obtained redress in the form of freedom to engage

7 in certain activities without fear of punishment. Without a possibility of the challenged

8 statute being enforced through disciplinary actions under ER 8.4, the statute will no longer

9 have a chilling effect on speech. Plaintiffs will thus be able to engage in the speech and

10 expressive conduct they desire. The Court notes that ultimately, if the Court issued an

11 injunction, it would be a narrow one: it would not preclude discipline based on violations

12 of other ethical rules or reasons other than contacting a victim without going through the

13 prosecutor’s office. There are many possible scenarios where the communications initiated

14 by attorneys might still violate other statutes or ethical rules and an injunction in this case

15 would not preclude the Chief Bar Counsel from undertaking an investigation and a

16 prosecution of such violations. The Chief Bar Counsel would only be enjoined from seeking

17 sanctions solely on the basis that defense counsel contacted a victim without going through

18 the prosecutor’s office in violation of A.R.S. § 13-4433(B) and ER 8.4. Accordingly, the

19 Court finds that Plaintiffs have met the redressability requirement for Article III standing in

20 their case against Defendant Vessella.

21

D. Defendant Vessella’s Argument that Plaintiffs Failed to State a § 1983 Claim

22

Defendant Vessella argues that “for the same reasons that Plaintiffs have no Article

23 III case or controversy as to [her], they have failed to state a § 1983 claim against her.”

24 (Docs. 162 at 17; 179 at 11) Because the Court found that Plaintiffs have made a sufficient

25 showing to allege Article III standing for their claims against Defendant Vessella and

26 Defendant Vessella has not offered any other argument as to why Plaintiffs do not have a

27 valid § 1983 claim, the Court finds that Defendant Vessella has failed to make an argument

28 that Plaintiffs have failed to state a claim under § 1983.

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1

E. Defendant Vessella’s Argument that Younger Requires Abstention

2

The Court notes that in her joint motion to dismiss with the State Bar Defendant,

3 Defendant Vessella joined in the Attorney General’s arguments based on Younger

4 abstention. (Doc. 162 at 3, fn.1) Defendant Vessella did not make any argument in addition

5 to the ones of the Attorney General on this issue and accordingly, the Court looks at the

6 Attorney General’s arguments in support of the application of the Younger doctrine to

7 resolve this argument.

8

Younger abstention is only proper if the four requirements are met. San Jose, 546

9 F.3d 1087, 1092; see also Gilbertson, 381 F.3d at 978. Turning to the first of those

10 requirements, that a state-initiated proceeding is ongoing, the Court finds that Defendant

11 Vessella, relying exclusively on the arguments of the Attorney General, has failed to prove

12 that such proceedings are ongoing. Defendant Vessella has not pointed to any pending

13 disciplinary proceedings against Plaintiffs based on violation of A.R.S. §13-4433(B) and

14 ER 8.4 but instead relied on the fact that Plaintiffs are currently representing some criminal

15 defendants in pending state court proceedings. (Doc. 164 at 10) This is not enough to meet

16 the first requirement for Younger abstention; indeed, if disciplinary proceedings were

17 pending, the Court would likely conclude that the required ongoing state-initiated

18 proceedings were present. See Canatella v. California, 404 F.3d 1106, 1110 (9th Cir. 2005)

19 (holding that “California’s attorney discipline proceedings are judicial in character for

20 purposes of Younger abstention . . . . [s]uch proceedings commenced when the State Bar of

21 California issued the notice of disciplinary charges against Bendel”) (internal quotations

22 omitted). The Court finds the fact that Plaintiffs are currently representing criminal

23 defendants in state court and that they might violate A.R.S. § 13-4433(B), which might

24 trigger disciplinary proceedings under ER 8.4, involves too many contingencies to satisfy

25 the state-initiated ongoing proceedings prong of the Younger inquiry. Accordingly, because

26 Defendant Vessella, through the arguments of the Attorney General, failed to prove the first

27 prong of the Younger doctrine and she is required to prove all four prongs, the Court does

28 not reach the remaining arguments she raised under Younger and it will not abstain based

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1 on Younger.

2

F. Issues of Standing for Plaintiffs’ Claim Against the Director of DPS

3

Although Defendant Milstead did not file any motion to dismiss based on lack of

4 subject matter jurisdiction, our duty to review the presence or lack thereof still mandates

5 that the Court analyze whether such subject matter jurisdiction is present over the case

6 Plaintiffs made against Milstead.

7

One of the Plaintiffs, Rich Robertson, is a private investigator who works with

8 criminal-defense attorneys on capital and non-capital cases throughout the State of Arizona

9 and who holds a private investigator license granted by DPS. (Doc. 150 at 5) He is also a

10 member of the Arizona Attorneys for Criminal Justice organization. (Doc. 150 at 5)

11

For the same reasons that other Plaintiffs have sufficiently pled the three

12 requirements for purposes of Article III standing for their claims against Defendant

13 Vessella, the Court finds that Robertson and the Arizona Attorneys for Criminal Justice

14 have met their burden of proof with regards to their claims against Milstead. The injury-in-

15 fact is similar to the one alleged by the attorneys, namely a self-censorship based on a fear

16 of disciplinary actions; the traceability requirement is also similar because Milstead

17 administers all aspects of private investigator licensing and discipline like the Chief Bar

18 Counsel does for attorneys; and finally, the redressability requirements is again similar

19 because an injunction directed at Milstead and prohibiting enforcement of disciplinary

20 actions based on a violation of A.R.S. § 13-4433(B) by private investigators would redress

21 some of the harm suffered by Plaintiff Robertson and other similarly situated private

22 investigators. Accordingly, the Court has subject matter jurisdiction over Plaintiffs’ claim

23 against Milstead.

24

IT IS ORDERED:

25

1. That the Attorney General’s Third Motion to Dismiss (Doc. 164) is granted

26 in full and with prejudice because any amendment would be futile;

27

2. That the State Bar of Arizona and Defendant Vessella’s Motion to Dismiss

28 (Doc. 162) is granted in part, only dismissing the State Bar of Arizona with prejudice

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1 based on Eleventh Amendment immunity.

2

IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action

3 with respect to the Attorney General and the State Bar of Arizona defendants and enter

4 judgment accordingly as to those two defendants only.

5

Dated this 27th day of February, 2020.

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Honorable Steven P. Logan United States District Judge

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