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Kathleen E. Brody, No. 026331

Darrell L. Hill, No. 030424

ACLU Foundation of Arizona

3707 North 7th Street, Suite 235 

Phoenix, AZ 85014

Telephone: (602) 650-1854 

kbrody@acluaz.org

dhill@acluaz.org

Brian Hauss (pro hac vice)

Vera Eidelman (pro hac vice)

Ben Wizner (pro hac vice)

ACLU Foundation, Speech, Privacy & Technology Project

125 Broad Street, 18th Floor

New York, NY 10004

Telephone: (212) 549-2500

bhauss@aclu.org

veidelman@aclu.org

bwizner@aclu.org

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Mikkel Jordahl; Mikkel (Mik) Jordahl, P.C., 

Plaintiffs,

v.

Mark Brnovich, Arizona Attorney General; Jim 

Driscoll, Coconino County Sheriff; Matt Ryan, 

Coconino County Jail District Board of Directors 

Member; Lena Fowler, Coconino County Jail 

District Board of Directors Member; Elizabeth 

Archuleta, Coconino County Jail District Board of 

Directors Member; Art Babbott, Coconino County 

Jail District Board of Directors Member; Jim Parks, 

Coconino County Jail District Board of Directors 

Member, all in their official capacities,

Defendants.

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

PLAINTIFFS’ OPPOSITION TO 

THE STATE’S EMERGENCY 

MOTION TO STAY THE COURT’S 

SEPTEMBER 27, 2018 ORDER 

PENDING APPEAL

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INTRODUCTION

After fully considering the parties’ briefing and evidence regarding the preliminary 

injunction sought by Plaintiffs Mikkel Jordahl and Mikkel (Mik) Jordahl, P.C. (“Plaintiffs”) and 

the motion to dismiss by Defendants Arizona Attorney General Mark Brnovich and the State of 

Arizona (collectively, the “State”)—including deposition testimony, affidavits, legislative 

history, and supplemental filings—and holding oral argument on both motions, this Court issued 

a carefully reasoned 36-page Order (“Order”) on September 27, 2018. Doc. 63. The Order 

denies the State’s motion to dismiss and enjoins Defendants from enforcing A.R.S. § 35-

393.01(A) (“Certification Requirement”) until further order of the Court. Id. The State now 

seeks to stay the Order pending appeal. Doc. 67.

The Court should deny the State’s motion. The Court assessed almost identical arguments 

in deciding to issue its Order. The Court held that it is Plaintiffs who “have shown that they are 

likely to succeed on the merits of their claim, that they are likely to suffer irreparable harm in 

the absence of a preliminary injunction, and that the balance of equities and public interest favor 

an injunction.” Doc. 63 at 36. Although the State predictably objects to nearly all of the Court’s 

findings and conclusions, it fails to offer any new arguments, evidence, or authority in support 

of its emergency stay motion. 

ARGUMENT

A stay pending appeal is “not a matter of right,” but “an exercise of judicial discretion,” 

and the party seeking the stay “bears the burden of showing that the circumstances justify an 

exercise of that discretion.” Nken v. Holder, 556 U.S. 418, 433–34 (2009). 

The inquiry includes four factors: “(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.” Hilton v. Braunskill, 481 

U.S. 770, 776 (1987). “The first two factors . . . are the most critical.” Nken, 556 U.S. at 434.1

 1 The Ninth Circuit applies a continuum test for stays pending appeal. Golden Gate Restaurant 

Ass’n v. City & Cty. of S.F., 512 F.3d 1112, 1115–16 (9th Cir. 2008). “At one end of the 

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Importantly here, “[t]here is substantial overlap between these and the factors governing 

preliminary injunctions.” Id. Thus, the Court has already evaluated almost identical factors in 

deciding to issue a preliminary injunction, and has already considered, and rejected, the State’s 

arguments. But whereas Plaintiffs previously bore the burden of demonstrating that a 

preliminary injunction was justified, the State now bears the burden of demonstrating that the 

injunction should be stayed. For the reasons stated below and in Plaintiffs’ prior briefing, see 

Docs. 6, 39, the Court should deny the State’s request for a stay.

I. The State Is Unlikely to Succeed on the Merits

The State cannot make “a strong showing that [it] is likely to succeed on the merits.” 

Nken, 556 U.S. at 434 (quoting Hilton, 481 U.S. at 776). That showing requires more than a 

“‘better than negligible’” chance, or a “mere possibility,” of success. Id. 

The Court has already considered the merits of this case and determined that the State is 

not likely to succeed. Doc. 63 at 18–34. Instead, the Court determined that Plaintiffs are likely to 

prevail because “the conduct implicated by the terms of the Act encompasses expressive activity 

that is protected under the First Amendment,” and “the State’s proffered interests do not justify 

the infringement the Certification Requirement imposes on such expressive conduct.” Id. at 20. 

The State now attacks both of those conclusions. 

First, the State argues that it is likely to succeed because “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.’” Doc. 67 at 3. To support this position, the State again 

ignores NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), and continues to insist that 

International Longshoremen’s Ass’n, AFL-CIO v. Allied Int’l, Inc., 456 U.S. 212 (1982) and

Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR”), 547 U.S. 47 (2006) 

 

continuum, the moving party is required to show both a probability of success on the merits and 

the possibility of irreparable injury. . . . At the other end of the continuum, the moving party 

must demonstrate that serious legal questions are raised and that the balance of hardships tips 

sharply in its favor. These two formulations represent two points on a sliding scale in which the 

required degree of irreparable harm increases as the probability of success decreases.” Id.

(citations and internal quotation marks omitted). As discussed in the text above, the State fails to 

show either a probability of success or the possibility of irreparable injury, much less some 

combination of the two; thus, it cannot satisfy the Ninth Circuit’s test.

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must govern here, because political boycotts like those at issue in this case are not inherently 

expressive. Doc. 67 at 3–5. But the law regarding compelled speech and political boycotts is 

clear, and accepting the State’s argument would require the Court to ignore it. 

As the Court explained in the Order, the types of boycotting activities contemplated by 

the Certification Requirement “clearly include ‘the practice of persons sharing common views 

banding together to achieve a common end’” and “implicate[ ] the rights of assembly and 

association that Americans and Arizonans use ‘to bring about . . . change.’” Doc. 63 at 22, 24. 

The Supreme Court has “expressly found” that these sorts of activities—that is, “non-union 

boycotting activities aimed ‘to bring about political, social and economic change’”—“[are] 

protected activities under the First Amendment.” Id. at 21 (quoting NAACP v. Claiborne 

Hardware Co., 458 U.S. 886, 907 (1982)); see also Claiborne, 458 U.S. at 913 (identifying 

“peaceful political” boycotts as a form of “expression on public issues” that “has always rested 

on the highest rung of the hierarchy of First Amendment values.”).

As this Court explained in the Order, the State’s reliance on Longshoreman to argue 

otherwise “overstate[s] [the case’s] meaning.” Doc. 63 at 21. Longshoremen “was decided in 

the context of federal labor laws” and “[i]ndeed, only a few months [later], the Supreme Court in 

Claiborne expressly found that non-union boycotting activities aimed ‘to bring about political, 

social and economic change’ were protected activities under the First Amendment.” Id. at 21 

(quoting Claiborne, 458 U.S. at 907). Thus, it is Claiborne and not Longshoremen that controls 

here. The State’s reliance on Rumsfeld is similarly misguided. Whereas Rumsfeld held that 

blocking military recruiters from law school campuses is not inherently expressive conduct, 

Claiborne held that political boycotts of consumer goods are inherently expressive. Doc. 63 at 

23–24; see also Koontz v. Watson, 283 F. Supp. 3d 1007, 1024 (D. Kan. 2018) (finding 

Rumsfeld inapplicable because political boycotts, including BDS boycotts, are inherently 

expressive). Although the State insists that Rumsfeld involved “boycotting conduct” by law 

schools, the word “boycott” appears nowhere in the Supreme Court’s decision. 

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Second, because the Certification Requirement infringes Plaintiffs’ First Amendment 

rights, the State must show that it “has a ‘necessary impact on the actual operation’ of the 

State’” in order for the Requirement to survive constitutional scrutiny. Doc. 63 at 32 (quoting 

United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 468 (1995)). The State can do 

this only by demonstrating “that the recited harms are real, not merely conjectural, and that the 

regulation will in fact alleviate these harms in a direct and material way.’” Id. at 33 (quoting 

Nat’l Treasury, 513 U.S. at 475). In its motion to stay, much like in its prior briefing, the State 

has failed to offer any evidence for such a showing. Indeed, Arizona’s own legislative fact sheet 

plainly states the opposite—that “[t]here is no anticipated fiscal impact to the state General Fund 

associated with this legislation.” Id. (quoting AZ S. F. Sheet, 2016 Reg. Sess. H.B. 2617). 

Instead of demonstrating actual harms, the State has offered only “speculative fears of 

subsidizing boycotts of Israel.” Id. at 34. The State asserts in its stay motion that “[m]oney is 

fungible, and the provision of public funds inevitably results in a subsidization of the activities 

of the fund recipient.” Doc. 67 at 5. This is identical to the State’s argument at the preliminary 

injunction stage that “[a]bsent the Act’s prohibitions, public monies will almost certainly be 

allocated to companies engaged in boycotts of Israel, thereby subsidizing those boycotts.” Doc. 

63 at 33–34 (quoting Doc. 28 at 25). The Court rightly rejected the argument then and should do 

so again. Once again, the State fails to explain how paying a contractor to perform a service 

“subsidizes” the contractor’s independent boycott activity, any more than paying a public 

employee to perform a job subsidizes the employee’s expression outside of work.2

 2 Moreover, accepting the State’s speculative argument would undercut an entire line of First 

Amendment cases regarding unconstitutional conditions on government funds—including 

Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983), which the State 

cites in a strained attempt to argue otherwise. As this Court explained, in upholding the 

“requirement that non-profit organizations seeking tax-exempt status not engage in substantial 

efforts to influence legislation,” the Supreme Court in Regan specifically noted that the 

requirement “was not ‘unduly burdensome’ because [it] did not prohibit organizations from 

lobbying altogether.” Doc. 63 at 29, n.9. Indeed, as this Court recognized, the Supreme Court 

has repeatedly held that, while the government may be able to restrict what private entities do 

with government funds, it cannot restrict their expressive activity outside the scope of the 

government program. Id. (citing Agency for Intern. Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205, 219 (2013); Rust v. Sullivan, 500 U.S. 173, 197 (1991); FCC v. League of Women 

Voters of California, 468 U.S. 364, 399-401 (1984); and Regan, 461 U.S. at 546).

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Finally, the State argues that it is likely to succeed on the merits because the Court 

“wrongly discounted” its stated interest in preventing discrimination. Doc. 67 at 6. As Plaintiffs 

discussed in their briefs in support of the preliminary injunction, the Certification Requirement 

is not an anti-discrimination law. It applies to group boycotts of Israel, or territories controlled 

by Israel, regardless of whether they are undertaken in a manner that discriminates on the basis 

of nationality, national origin, or religion. Doc. 39 at 22 (citing A.R.S. § 35-393(1)). It also does 

not prohibit discrimination generally, but instead impermissibly targets political boycotts of one 

country, Israel, based on hostility to their message. Id. (citing R.A.V. v. City of St. Paul, 505 U.S. 

377, 396 (1992)). As the Court observed, “the Act’s history . . . suggests that the goal of the Act 

is to penalize the efforts of those engaged in political boycotts of Israel and those doing business 

in Israeli-occupied territories because such boycotts are not aligned with the State’s values,” 

which “is constitutionally impermissible.” Doc. 63 at 33.

The Court found that the State has “produced no evidence that Arizona businesses have 

or are engaged in discriminatory practices against Israel, Israeli entities, or entities that do 

business with Israel.” Id. at 34. The State still has not produced any such evidence. Instead, it 

simply asserts that the political boycotts it seeks to suppress are inherently discriminatory. This 

is quite wrong. Indeed, the boycott in which Plaintiffs want to participate is based not on any 

entity’s national origin, but rather on “actions taken by Israel in relation to Palestine,” which 

“are matters of much political and public debate.” Id. at 32. As the Court recognized, “even if 

the State could [show that it was combatting discrimination], by including politically-motivated 

boycotts of Israel within the activity that is prohibited, the Act is unconstitutionally overinclusive.” Id. at 34 (citing Koontz, 283 F. Supp. 3d at 1023). The State has failed to offer any 

new legal arguments or factual evidence that could change this analysis. 

II. The State Will Not Be Irreparably Injured Absent a Stay

The State also cannot show that it “will be irreparably injured absent a stay.” Nken, 556 

U.S. at 426 (quoting Hilton, 481 U.S. at 776). As with the first factor, “simply showing some 

possibility” of irreparable injury is not enough to satisfy the State’s burden. Id.at 434. 

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The State argues that it “by definition suffers irreparable harm when it is precluded from 

carrying out the laws passed by its democratic processes.” Doc. 67 at 7. But it is axiomatic that 

this principle cannot apply where the law at issue is unconstitutional. See, e.g., Coal. for Econ. 

Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (recognizing an injunction of a law as harm 

to the government only after “already h[o]ld[ing that the preliminary injunction] rests on an 

erroneous legal premise”). As the Court held when granting the preliminary injunction, 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; id. at 36 (“There is no realistic likelihood that Defendants will be harmed by being enjoined 

from enforcing a law that violates the First Amendment on its face.”). 

The State also contends that “[t]he preliminary injunction’s effect is . . . to cause a 

massive upheaval in the State’s procurement systems” because it will impact “hundreds of new 

contracts in the next six months to one year.” Doc. 67 at 8. Even accepting that bringing the 

contracts in line with constitutional requirements could somehow constitute an “upheaval,” the 

State has failed to establish how compliance with the Court’s Order would burden its 

procurement system. The State should be able to remove the Certification Requirement just as 

smoothly as it introduced it—for example, by removing the Israel Boycott Form, SPO Form 

205, from the State website that houses standard forms and documents, see Standard Forms and 

Documents, Ariz. Dep’t of Admin. Procurement, https://spo.az.gov/administration-policy/stateprocurement-resource/standard-forms-and-documents (last accessed Oct. 5, 2018), and by 

simply not requiring or accepting this form as part of its contracting process. Indeed, the State 

has failed to offer any evidence of the burden it anticipates, or any legal citation to a court order

granting a stay for this reason in similar circumstances.

Finally, the State argues that “this is likely to cause substantial uncertainty.” Doc. 67 at 8. 

The State’s position appears to be that the Order enjoins it only from “tak[ing] . . . action to 

enforce the anti-Israel-Boycott certification,” id., and that it may still require contractors to sign 

the certification. If so, the State has misread the Order, which plainly prohibits the State from 

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enforcing the statute by requiring its contractors to sign the unconstitutional certification. Doc. 

63 at 36 (“Until further order of the Court, Defendants are enjoined from enforcing A.R.S. § 35-

393.01(A)”). If the State properly enforces the Court’s preliminary injunction, no uncertainty 

should arise. Thus, the State has failed to establish either of the first two “most critical” factors 

for a stay.

III. Issuance of the Stay Would Substantially Injure Other Interested Parties.

As this Court held in the Order, the harm caused by allowing continued enforcement of 

the Certification Requirement is “irreparable per se”—and it extends not only to Plaintiffs, but 

also to all other companies wishing to contract with the State of Arizona. Id. at 35. “The loss of 

First Amendment freedoms, for even minimal periods of time, unquestionably constitutes 

irreparable injury.” Id. (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). This is especially 

true when the “expressive conduct that is so burdened is political in nature.” Id. (citing Klein v. 

City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009)). 

The State argues that “Plaintiffs’ harms are minimal” and “entirely conjectural” because 

“there is every reason to believe that Plaintiffs will ultimately be paid for [their] work.” Doc. 67 

at 2. This entirely ignores the First Amendment harms Plaintiffs and other contractors would 

suffer without the injunction. They would be again forced to choose between (a) signing the 

anti-boycott certification, not joining in an expressive boycott, and contracting with the state, or 

(b) refusing to sign and forgoing their livelihood. Lifting the injunction would therefore 

inevitably chill Plaintiffs’ “and other putative state contractors’ speech rights.” Koontz, 283 F. 

Supp. 3d at 1026. 

IV. The Public Interest Lies in Denying a Stay

Finally, the public’s interest will be best served by denying the State’s motion. The Ninth 

Circuit has “consistently recognized the ‘significant public interest’ in upholding free speech 

principles, as the ‘ongoing enforcement of the potentially unconstitutional regulations . . . would 

infringe not only the free expression interests of [plaintiffs], but also the interests of other 

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people’ subjected to the same restrictions.” Klein, 584 F.3d at 1208 (alterations and omission in 

original) (quoting Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002)). 

As in its prior briefing, the State argues that the Court should defer to the Legislature, 

which “has already defined the public interest.” Doc. 67 at 8. But, as the Court has already held, 

“the public has little interest in enforcement of unconstitutional laws.” Doc. 63 at 35. Rather, the 

public interest is best served “by following binding Supreme Court precedent and protecting the 

core First Amendment right of political expression.” Homans v. City of Albuquerque, 264 F.3d 

1240, 1244 (10th Cir. 2001). Moreover, in this case, the State has failed to identify any 

legitimate public interests actually served by the Certification Requirement. See Doc. 63 at 32–

34. Thus, not one of the stay factors weighs in the State’s favor.

CONCLUSION

For the foregoing reasons, the Court should deny the State’s motion for stay pending 

appeal of the Order.

Respectfully submitted this 5th day of October, 2018.

By: /s/ Brian Hauss

Brian Hauss (pro hac vice)

Vera Eidelman (pro hac vice)

Ben Wizner (pro hac vice)

ACLU Foundation

Speech, Privacy & Technology Project

125 Broad Street, 18th Floor

New York, NY 10004

Kathleen E. Brody

Darrell L. Hill

ACLU Foundation of Arizona

3707 North 7th Street, Suite 235

Phoenix, AZ 85014

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on October 5, 2018, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice 

of Electronic Filing to all parties.

By: /s/ Brian Hauss

Brian Hauss (pro hac vice)

ACLU Foundation

Speech, Privacy & Technology Project

125 Broad Street, 18th Floor

New York, NY 10004

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