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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Mikkel Jordahl, et al., 

Plaintiffs, 

v. 

Mark Brnovich, et al., 

Defendants. 

No. CV-17-08263-PCT-DJH 

ORDER 

 Pending before the Court is the State’s Emergency Motion to Stay the Court’s 

September 27, 2018, Order Pending Appeal. (Doc. 67). This Court ordered expedited 

briefing on the Motion. (Doc. 70). Plaintiffs have submitted an Opposition to the State’s 

Motion to Stay (Doc. 71), and the State has submitted a Reply with attachments (Doc. 

72), all of which this Court has reviewed and considered. 

A. Background 

 On September 27, 2018, this Court granted Plaintiffs’ Motion for a Preliminary 

Injunction enjoining enforcement of A.R.S. § 35-393.01(A). That statute states: 

A public entity may not enter into a contract with a company to acquire or dispose of services, supplies, information technology or construction unless the contract includes a written certification that the company is not currently engaged in, and agrees for the duration of the contract to not 

engage in, a boycott of Israel. 

A.R.S. § 35-393.01(A) (hereafter, “Certification Requirement” or “the Act”). In its 

Order, this Court held that the statutory Certification Requirement unconstitutionally 

infringes on First Amendment rights by “burden[ing] expressive political activity 

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protected under the First Amendment.” (Doc. 63 at 26). This Court further found that 

Plaintiffs “met their burden of showing not only that they and others are engaged in 

protected activities, but that the terms of the Act encompass such activities.” (Doc. 63 at 

32). Additionally, the Court found that “the State has demonstrated no harms to Arizona, 

or its economic relationship with Israel, that would be alleviated by conditioning all 

public entity contracts on the contractors’ promise to refrain from engaging in actions 

taken in response to larger calls to boycott of Israel.” (Doc. 63 at 34). Accordingly, the 

Court found that Plaintiffs were likely to succeed on the merits of the case. (Doc. 63 at 

34). 

 The Court additionally found that the remaining elements for a preliminary 

injunction were met. First, Plaintiffs established a likelihood of irreparable harm because 

the “loss of First Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable injury.” (Doc. 63 at 35). Second, the balance of 

the equities and public interest lean in favor of Plaintiffs because “Defendants will 

experience little to no hardship by enjoining the enforcement of a law that does nothing 

to further any economic state interest and infringes on First Amendment protections” and 

because “public interest favors an injunction as the public has little interest in 

enforcement of unconstitutional laws.” (Doc. 63 at 35). Because Plaintiffs were likely to 

succeed on the merits of their claim, because Plaintiffs were likely to suffer irreparable 

injury, and because the balance of equities and public interest leaned in favor of 

Plaintiffs, the Court enjoined enforcement of the Certification Requirement in A.R.S. § 

35-393.01(A). 

 The State has now moved to stay enforcement of that September 27, 2018, Order, 

pending appeal. 

B. Discussion 

 Determining whether to grant a stay pending appeal is within the discretion of the 

Court and is based upon the circumstances of the particular case. Lair v. Bullock, 697 

F.3d 1200, 1203 (9th Cir. 2012). “Judicial discretion in exercising a stay is to be guided 

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by the following legal principles . . . : ‘(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.’” Id. 

(quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). The burden of showing that the stay 

is justified is on the party requesting a stay. Id. 

 The State argues that the first factor, whether the stay applicant has made a strong 

showing that it is likely to succeed on the merits, is met because the “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.’” (Doc. 67 at 4). To succeed on this 

factor, the applicant must establish that it has a “substantial case for relief on the merits.” 

Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011). Stated differently, the 

applicant must have raised “serious legal questions,” which are questions that are 

“substantial, difficult, and doubtful, as to make them a fair ground for litigation and thus 

for more deliberative investigation.” Silvester v. Harris, 2014 WL 6611592 at *3 (E.D. 

Cal. 2014) (quoting Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991)). 

Without restating the reasoning underlying this Court’s September 27, 2018, Order, the 

Court notes that this is not an issue of first impression and that, as stated in the Order, 

“the Certification Requirement is an unconstitutional condition on government 

contractors.” (Doc. 63 at 20). Even if this conclusion could be construed as debatable, 

however, this factor is outweighed by the remaining factors of the stay analysis, all of 

which support denying the stay pending appeal. 

 Regarding irreparable harm, the State asserts that it will suffer irreparable harm if 

it is “precluded from carrying out the laws passed by its democratic process.” (Doc. 67 at 

8). It is true that a “state may suffer an abstract form of harm whenever one of its acts is 

enjoined.” Indep. Living Ctr. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009), 

vacated on other grounds, Douglas v. Indep. Living Ctr., 565 U.S. 606 (2012). Because, 

however, a state court enactment could offend a federal law provision, the type of harm 

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argued by the State is not dispositive. Id. (“[I]n assessing the relative harms to the 

parties, we reject the . . . suggestion that, merely by enjoining a state legislative act, we 

create a per se harm trumping all other harms”); Silvester, 2014 Westlaw 6611592 at * 3 

(finding that a state suffers an abstract harm when one of its laws is enjoined, but that this 

harm “is not a dispositive harm and it may be outweighed by other factors”). Here, the 

Court must balance the Arizona statute against First Amendment rights. Because 

enforcing the statute violates those First Amendment rights, there is no irreparable harm 

to the State; instead, the irreparable harm is to government contractors that are precluded 

from speaking on matters of public concern. 

 The State also asserts that it will suffer irreparable harm due to “disruptive 

consequences of this Court’s preliminary injunction.” (Doc. 67 at 8). Perplexingly, the 

State claims that there would be “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.” (Doc. 67 at 8-9). 

First, assuming that there is an “extremely low number of apparent objectors” to the 

statutory provisions, it is unclear how any “massive upheaval” in the procurement 

process would arise. Second, even if contracts and requests for proposals are affected, 

there is a difference between adding a new requirement to a contract and removing a 

requirement, especially when the requirement that is removed is unrelated to the work 

being performed or bid upon. Therefore, because removing the Certification 

Requirement will not impact the work being performed or bid upon, but will instead only 

impact the political expression of the contractors, the Court finds that this factor weighs 

against staying the injunction pending appeal. 

 The remaining factors, whether issuance of the stay will substantially injure the 

other parties interested in the proceeding and where the public interest lies, also weigh 

against issuing a stay pending appeal. First, as this Court found in its Order, enforcing 

the statute harms Plaintiffs and those similarly situated to Plaintiffs: 

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 

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347, 373 (1976). Indeed, when the expressive conduct that is so burdened is political in nature, “[t]he harm is particularly irreparable.” Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009). As such, the harms that 

Plaintiffs and other companies wishing to contract with the state of Arizona are irreparable per se. 

(Doc. 63 at 35). Therefore, this factor weighs heavily against a stay. Likewise, 

consideration of where the public interest lies also weighs against issuing a stay because 

the State will experience “little to no hardship by enjoining the enforcement of a law that 

does nothing to further any economic state interest and infringes on First Amendment 

protections.” (Doc. 63 at 35). 

 In conclusion, after considering all relevant factors, the Court finds that each 

factor weighs against staying the preliminary injunction pending appeal. 

 Accordingly, 

IT IS ORDERED denying the State’s Emergency Motion to Stay the Court’s 

September 27, 2018, Order Pending Appeal. (Doc. 67). 

 Dated this 19th day of October, 2018. 

Honorable Diane J. Humetewa 

United States District Judge 

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