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MARK BRNOVICH 

ATTORNEY GENERAL

Drew C. Ensign (No. 25463) 

Oramel H. (O.H.) Skinner (No. 32891) 

Brunn (Beau) W. Roysden III (No. 28698) 

 Assistant Attorneys General 

2005 N. Central Avenue 

Phoenix, Arizona 85004 

Telephone: (602) 542-5252 

Drew.Ensign@azag.gov 

Attorneys for Defendant Mark Brnovich 

in his official capacity as Attorney General 

and Intervenor-Defendant State of Arizona 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Mikkel Jordahl; Mikkel (Mik) Jordahl, 

P.C., 

 Plaintiffs, 

vs. 

Mark Brnovich, Arizona Attorney 

General; Jim Driscoll, Coconino County 

Sheriff; Matt Ryan, Coconino County 

Board of Supervisors Chair; Lena 

Fowler, Coconino County Board of 

Supervisors Vice Chair; Elizabeth 

Archuleta Coconino County Board of 

Supervisors Member; Art Babbott, 

Coconino County Board of Supervisors 

Member; Jim Parks, Coconino County 

Board of Supervisors Member; Sarah 

Benatar, Coconino County Treasurer, all 

in their official capacities, 

Defendants, 

and 

State of Arizona, 

Intervenor-Defendant.

Case No: 3:17-cv-08263-PCT-DJH 

STATE’S EMERGENCY MOTION TO 

STAY THE COURT’S SEPTEMBER 27, 

2018 ORDER PENDING APPEAL 

Case 3:17-cv-08263-DJH Document 67 Filed 10/02/18 Page 1 of 11
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INTRODUCTION 

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

of Arizona (collectively, the “State”) respectfully move for a stay pending appeal of the 

preliminary injunction entered by this Court on September 27, 2018 (“Preliminary 

Injunction”), which enjoined enforcement of A.R.S. § 35-393 et seq. (the “Act”). Given 

the circumstances surrounding the Preliminary Injunction, as well as its scope, the State 

initially sought an emergency telephonic hearing in order to expeditiously make an oral 

request for a stay (and obtain a ruling on that request). Doc. 64. The State now makes 

this written motion for a stay in accordance with the Court’s instructions in its order 

denying the State’s request. See Doc. 65. 

This case involves issues of first impression in both this District and Circuit. 

Additionally, this Court’s Preliminary Injunction extends First Amendment protection to 

commercial boycotts under NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 

(1982), for only the second time since that decision was released over 35 years ago. At a 

bare minimum, the merits of Plaintiffs’ First Amendment claim are fairly contestable and 

a stay is warranted pending resolution of the State’s appeal to the Ninth Circuit. Indeed, 

for all of the reasons set forth in the State’s prior briefing and herein, the State believes 

that this Court’s Preliminary Injunction rests on legal error. 

The State will also suffer irreparable harm in the absence of a stay. The statute 

this Court enjoined by the Preliminary Injunction was passed by bipartisan 

supermajorities of the elected representatives of the people of Arizona. The State by 

definition suffers irreparable harm when it is precluded from carrying out the laws passed 

by its democratic processes. See, e.g., Coalition for Economic Equity v. Wilson, 122 F.3d 

718, 719 (9th Cir. 1997) (“[A] state suffers irreparable injury whenever an enactment of 

its people or their representatives is enjoined.”). Moreover, the statewide injunction here 

imposes a particularized irreparable harm, given that the State will need to provide notice 

and notation to pending requests for proposals (“RFPs”) that contain the pertinent antiIsrael-boycott certification language. Although precise numbers cannot be known at this 

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time, it is expected that the State Procurement Office itself will likely issue 

approximately hundreds of new contracts in the next six months to one year. 

The balance of equities and public interest also favor a stay. The Arizona 

Legislature has already defined the public interest, as has Congress by declaring official 

U.S. policy as “oppos[ing] ... boycotts ... against Israel.” 19 U.S.C. § 4452(b)(4)-(5). 

Allowing the Act to stay in effect during the short time of an appeal is thus in the public 

interest. See, e.g., United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 

(2001) (“[A] court sitting in equity cannot ‘ignore the judgment of Congress, deliberately 

expressed in legislation.’”). 

Nor will Plaintiffs suffer any meaningful harm during the pendency of an appeal. 

As explained previously, Plaintiffs’ harms are minimal: particularly as Plaintiffs 

continue to perform work under the public contracts allegedly denied, and there is every 

reason to believe that Plaintiffs will ultimately be paid for that work. See Doc. 28 at 31-

32. Moreover, Plaintiffs’ harms are entirely conjectural. 

For all of these reasons, this Court should grant a stay pending appeal. 

LEGAL STANDARD 

In evaluating a request for a stay pending appeal, this Court must consider 

“(1) whether the stay applicant has made a strong showing that he is likely to succeed on 

the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether 

issuance of the stay will substantially injure the other parties interested in the proceeding; 

and (4) where the public interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 

2012) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). 

ARGUMENT 

I. THE STATE IS LIKELY TO PREVAIL IN ITS APPEAL

As this Court has recognized, “[c]ourts have interpreted th[e] first [stay-pendingappeal] criterion as requiring that the movant show that ‘the appeal raises serious and 

difficult questions of law in an area where the law is somewhat unclear.’” Overstreet v. 

Thomas Davis Medical Centers, P.C., 978 F. Supp. 1313, 1314 (D. Ariz. 1997) (quoting 

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Mamula v. Satralloy, Inc., 578 F. Supp. 563, 580 (S.D. Ohio 1983)). That standard is 

easily satisfied here. 

Plaintiffs’ First Amendment claim raises issues of first impression both in this 

Court and in the Ninth Circuit, and the law in this area is at least “somewhat unclear.” 

Plaintiffs have not cited a single case anywhere in this Circuit where a court has 

recognized that a boycott enjoys First Amendment protection under Claiborne. And 

aside from the District of Kansas’s decision in Koontz v. Watson, No. 17-4099, 2018 WL 

617894 (D. Kan. Jan. 30, 2018)—which was akin to a default judgment and was later 

vacated in any event, see Doc. 46 at 4 n.2, Doc. 61-2—no court anywhere has seemingly 

extended Claiborne to protect a boycott. And the Supreme Court expressly refused to 

extend Claiborne in FTC v. Superior Court Trial Lawyers Ass’n to commercial (rather 

than consumer) boycotts and indicated that Claiborne was limited to boycotts that (unlike 

here) “sought only the equal respect and equal treatment to which [the boycott 

participants] were constitutionally entitled.” 493 U.S. 411, 426 (1990). 

This Court decided to extend Claiborne to Plaintiffs’ boycott. The State obviously 

disagrees with that decision. But, more relevant here, the complete dearth of controlling 

authority means that this case raises “serious and difficult questions of law in an area 

where the law is somewhat unclear.’” Overstreet, 978 F. Supp. at 1314. 

More generally, this Court’s decision errs for all of the reasons explained in the 

State’s prior briefing. See Docs. 28, 46. The State will not belabor those arguments here. 

But four aspects of this Court’s Preliminary Injunction Order bear emphasis on the 

question of whether the State is likely to prevail on its appeal. 

First, this Court’s distinction of International Longshoremen’s Ass’n, AFL-CIO v. 

Allied Int’l, Inc., 456 U.S. 212 (1982), is untenable. This Court reasoned that 

Longshoremen “does not purport to state that there is no constitutional right to engage in 

boycotting activities” but instead relied upon “the [labor-law] context in which this type 

of governmental infringement on the First Amendment rights of labor unions and their 

members is justified.” Doc. 63 at 21. But that is not a fair reading of Longshoremen. 

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That case did not recognize a First Amendment interest and then conclude that 

“governmental infringement” of that right was justified by the government’s purportedly 

unique interest in regulating labor law. Instead, Longshoremen’s terse analysis is outright 

dismissive of the idea that any First Amendment interest existed at all, announcing 

succinctly what all nine Justices considered obvious: there was no “protected activity 

under the First Amendment.” 456 U.S. at 226-27. And that conclusion is underscored by 

the absence of any discussion of compelling state interests or narrow tailoring. 

Nor did this Court ever meaningfully address the State’s contention that “picketing 

is far more expressive than Plaintiffs’ selection of computers and printers.” Doc. 28 at 

16. Thus, to the extent that Longshoremen is distinguishable, it is to Plaintiffs’ detriment. 

Second, this Court’s distinction of Rumsfeld v. Forum for Academic & 

Institutional Rights, Inc. (“FAIR”), 547 U.S. 47 (2006), is similarly unlikely to withstand 

appellate scrutiny. Notably, this Court recognized that under FAIR “the commercial 

actions (or non-actions) of one person, e.g., the decision not to buy a particular brand of 

printer ... may not be deserving of First Amendment protections...” Doc. 63 at 23. But 

this Court nonetheless distinguished FAIR because Plaintiffs’ boycott was purportedly in 

“response to larger calls to action that the state opposes” thereby “infringing on the very 

kind of expressive conduct at issue in Claiborne.” Id. at 23-24. 

But the boycotts in FAIR were also undeniably in “response to larger calls to 

action”—indeed, virtually every law school in the nation opposed the military’s then 

“Don’t Ask, Don’t Tell” policy, and each boycotted the military based on that “larger 

call.” See FAIR v. Rumsfeld, 291 F. Supp. 2d 269, 280-81 (D.N.J. 2003). And there was 

never any doubt that the law schools’ actual speech opposing that policy—i.e., a very 

“large[] call to action”—was protected under the First Amendment. FAIR, 547 U.S. at 

60. But it was equally clear that the law schools’ boycotting conduct in “response to 

[those] larger calls to action” enjoyed no such protection—indeed not a single Justice 

thought otherwise. Id. at 61-70.

Just so here. Although Plaintiffs’ boycott may be in response to pure speech that 

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is protected under the First Amendment, the conduct at issue must be inherently 

expressive itself, or it enjoys no protection under FAIR. And FAIR specifically evaluated 

whether each relevant act was inherently expressive by itself, rather than allowing the 

law schools to bootstrap their arguments by pointing to either explanatory speech or 

being part of a broader message. Id. at 64-66. This Court erred by allowing Plaintiffs to 

rely on that exact sort of bootstrapping here, in contravention of FAIR. 

Third, this Court erred in concluding that the State’s “fears of subsidizing boycotts 

of Israel” were “speculative.” Doc. 63 at 34. Money is fungible, and the provision of 

public funds inevitably results in a subsidization of the activities of the fund recipient. 

The Supreme Court in Regan v. Taxation With Representation of Wash., 461 U.S. 540, 

549 (1983), for example, did not examine specifically whether the marginal funds that 

would otherwise accrue to an organization by more favorable 501(c)(3) tax treatment 

would actually be spent directly on lobbying. Instead, it was sufficient for purposes of 

the unconstitutional-conditions doctrine that any funds of the organizations would be 

spent on lobbying. 

So too here. The provision of any public funds to an entity engaged in 

discriminatory conduct in violation of Arizona public policy is necessarily a subsidy of 

that activity. Given the fungibility of money, governments are not held to the burden of 

proving specific public dollars go to a specific purpose. This Court squarely violated 

Regan and other Supreme Court precedents by concluding otherwise. 

The error is particularly apparent in light of the Court’s failure to account for the 

fact that federal law has banned employment discrimination on the basis of national 

origin for all federal contractors for more than 50 years. See Exec. Order No. 11,246 

§203 (1965). No court has ever required that the federal government prove that the funds 

from the contract at issue were directly subsidizing such discrimination. There is no 

doubt, for example, that even if the federal government only contracts with one division 

of a company, it may nonetheless demand the entire company not engage in 

discrimination based on national origin (as well as race, religion and sex, etc.). Indeed, it 

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has been the virtually unquestioned law for a half century that the government can decide 

that even a single federal dollar spent on a contractor engaged in national-origin 

discrimination is too much. This Court’s rupture from that settled legal consensus is 

unlikely to survive appellate review. 

Fourth, this Court wrongly discounted the State’s compelling anti-discrimination 

interests here. Although this Court reasoned that the “State has similarly produced 

no evidence that Arizona businesses have or are engaged in discriminatory practices 

against Israel, Israeli entities, or entities that do business with Israel,” Doc. 63 at 34, that 

is plainly wrong. To refuse to do business with entities based on their nationality is to 

discriminate on the basis of national origin—by definition. Congress, for example, has 

banned discrimination against the old, but not the young—thereby defining what 

discrimination is invidious and illegal—and that is plainly constitutional. See, e.g., 

EEOC v. Wyoming, 460 U.S. 226 (1983). Moreover, the Court’s order later 

acknowledges that the Act is an anti-discrimination statute when it stated that “the State 

clearly has less intrusive and more viewpoint-neutral means to combat such 

discrimination [targeted by the Act].” Doc. 63 at 35 (emphasis added). 

 Here, the Arizona Legislature has specifically concluded that boycotts on the basis 

of Israeli nationality or doing business with Israelis were discriminatory: “Companies 

that refuse to deal with United States trade partners such as Israel, or entities that do 

business with or in such countries, make discriminatory decisions on the basis of national 

origin.” See 2016 Ariz. Legis. Serv. Ch. 46. Arizona is hardly alone is this conclusion. 

Congress has expressly made an equivalent finding: “boycotts ... against Israel ... are 

contrary to the principle of nondiscrimination[.]” 19 U.S.C. § 4452(b)(4)-(5). Moreover, 

at least 23 other states have reached the same conclusion. See Doc. 28 App’x A. 

This Court also failed to consider meaningfully how truly radical the act of 

invalidating an anti-discrimination law on First Amendment grounds is. In fact, the 

Supreme Court has done so only twice, in Boy Scouts of America v. Dale, 530 U.S. 640 

(2000), and Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 568 

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(1995). Both of those cases involved forced inclusion into groups—something not even 

conceivably at issue here. Nor did Claiborne invalidate an anti-discrimination statute. 

This Court’s invalidation of an anti-discrimination statute under the First Amendment on 

the basis of conduct that even the Court acknowledges is not inherently expressive by 

itself is unlikely to survive appellate review. 

* * * * * 

For all of these reasons, the State has at least proved the existence of “serious and 

difficult questions of law in an area where the law is somewhat unclear.’” Overstreet, 978 

F. Supp. at 1314. The State has thus amply satisfied the first factor for obtaining a stay 

pending appeal. 

II. THE STATE WILL SUFFER IRREPARABLE HARM ABSENT A STAY

The State is certain to suffer irreparable harm absent a stay. The statute enjoined 

by this Court was passed by bipartisan supermajorities. And the State by definition 

suffers irreparable harm when it is precluded from carrying out the laws passed by its 

democratic processes. See, e.g., Coalition for Economic Equity v. Wilson, 122 F.3d 718, 

719 (9th Cir. 1997) (“[A] state suffers irreparable injury whenever an enactment of its 

people or their representatives is enjoined.”); accord Maryland v. King, 133 S. Ct. 1, 3 

(2012) (Roberts, C.J., in chambers) (“[A]ny time a State is enjoined by a court from 

effectuating [its] statutes ... it suffers a form of irreparable injury.”). 

In addition to the frustration of its democratic processes as prescribed by its 

constitution, the State will also suffer additional irreparable harm from the disruptive 

consequences of this Court’s preliminary injunction. The certification at issue is required 

in contracts entered into by a “public entity,” see A.R.S. § 35-393.01(A), which is 

defined as “this state, a political subdivision of this state or an agency, board, commission 

or department of this state or a political subdivision of this state.” A.R.S. § 35-393(5). 

This Court’s injunction thus appears to affect most pending requests for proposals (RFPs) 

by the State or any of its subdivisions that contain an anti-Israel-boycott provision. The 

State anticipates that it may need to also inform potential bidders of the changes to the 

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pending RFPs.1 Although precise numbers cannot be known at this time, the State 

Procurement Office estimates that it will issue hundreds of new contracts in the next six 

months to one year. The preliminary injunction’s effect is therefore to cause a massive 

upheaval in the State’s procurement systems, which is not remotely justified—

particularly given the extremely low number of apparent objectors to the Anti-Israel 

Boycott contractual clauses under the Act. 

III. THE REMAINING FACTORS FAVOR A STAY PENDING APPEAL

While, “[t]he first two factors of the traditional standard are the most critical,” 

Nken v. Holder, 556 U.S. 418, 434 (2009), the balance of the remaining factors also 

favors granting a stay pending appeal. The public interest clearly favors a stay. Here, the 

Arizona Legislature has already defined the public interest. So has Congress, declaring 

that U.S. policy is to “oppose[] ... boycotts ... against Israel.” 19 U.S.C. § 4452(b)(4)-

(5). Those legislative enactments should be given effect. See Cannabis Buyers, 532 U.S. 

at 497 (“[A] court sitting in equity cannot ‘ignore the judgment of Congress, deliberately 

expressed in legislation.’”); see also Berman v. Parker, 348 U.S. 26, 32 (1954) (“Subject 

to specific constitutional limitations, when the legislature has spoken, the public interest 

has been declared in terms well-nigh conclusive.”). 

The balance of harms also tips sharply in favor of a stay. As explained previously, 

Plaintiffs’ harms are not substantial, and indeed are overwhelmingly theoretical. See

Doc. 28 at 31-32. Plaintiffs notably continue to perform under the contract they are 

allegedly being denied, and have every expectation of ultimately being paid. And any 

loss of time value of money based on late payment is the quintessential sort of injury that 

is reparable by monetary damages. 

 

1

 At present, the State is making good faith efforts to provide notice to as many affected 

state agencies as is possible, and to add language to pending RFPs indicating that unless 

and until this Court’s injunction is lifted, the State will take no action to enforce the antiIsrael-Boycott certification. However, this is likely to cause substantial uncertainty—

both now and if the Court’s injunction is later lifted. The State is also evaluating whether 

and how to provide notice to political subdivisions of the State. 

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Moreover, Plaintiffs failed to identify any actual purchase they would like to make 

but cannot due to the Act. “Jordahl’s company only identified a single potential purchase 

of HP products on the horizon, a computer,” and had not even “performed the basic 

research to determine if an HP [desktop] would be the best computer provider for his 

business.” Doc. 28 at 31-32. Without performing that research, Plaintiffs’ harm is 

entirely conjectural and Plaintiffs have necessarily failed to satisfy his burden of proving 

that “he is likely to suffer irreparable harm in the absence of preliminary relief.” Winter 

v. NRDC, 555 U.S. 7, 20 (2008). 

In addition, that hypothetical computer purchase is not remotely expressive: it is 

undisputed that such a desktop computer would be placed in Jordahl’s home office that 

no client has ever set foot in. Doc. 28 at 21. There is thus no one to perceive whatever 

message Plaintiffs’ speculative purchase of a HP desktop purportedly conveys. 

CONCLUSION 

For all of the foregoing reasons, the State’s motion for a stay pending appeal 

should be granted.

Respectfully submitted this 2nd day of October, 2018. 

MARK BRNOVICH 

ATTORNEY GENERAL 

By: s/ Drew C. Ensign 

Drew C. Ensign (No. 25463) 

Oramel H. (O.H.) Skinner (No. 32891) 

Brunn (Beau) W. Roysden III (No. 28698) 

Attorneys for Defendant Mark Brnovich in his 

official capacity as Attorney General and 

Intervenor-Defendant State of Arizona 

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CERTIFICATE OF SERVICE 

 I hereby certify that on this 2nd day of October, 2018, I electronically filed the 

foregoing with the Clerk of the Court for the United States District Court for the District 

of Arizona using the CM/ECF filing system. Counsel for all parties are registered 

CM/ECF users and will be served by the CM/ECF system pursuant to the notice of 

electronic filing. 

 s/ Drew C. Ensign 

Attorneys for Defendant Mark Brnovich in his official capacity as Attorney General and 

Intervenor-Defendant State of Arizona

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