1 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 

Kathleen E. Brody, AZ Bar No. 026331 

Darrell L. Hill, AZ Bar 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 

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’ RESPONSE TO 

STATE’S NOTICE OF 

SUPPLEMENTAL AUTHORITY 

Case 3:17-cv-08263-DJH Document 62 Filed 09/14/18 Page 1 of 5
2 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs respectfully respond to the State’s notice of supplemental authority, Doc. 61, 

which addressed (1) the release of an updated Arizona Agency Handbook by the Arizona 

Attorney General’s Office; and (2) the dismissal of Koontz v. Watson, 283 F. Supp. 3d 1007 (D. 

Kan. 2018), pursuant to settlement of the case. Neither of these post-argument developments 

affects the issues before the Court. 

Agency Handbook: The guidance contained in the Arizona Agency Handbook has no 

bearing here for three reasons. First, the Handbook does nothing to change the fact that, in order 

to contract with Coconino County, Mr. Jordahl must certify that his Firm will not participate in a 

boycott of Israel or territories controlled by Israel; that Mr. Jordahl still refuses to sign that 

certification; and that he is therefore still being denied compensation for the legal services he 

performs for Coconino County. Doc. 39 at 11–13. Those facts alone establish Plaintiffs’ 

compelled speech claim. Id. at 12–13; Baird v. State Bar of Ariz., 401 U.S. 1 (1971). 

Second, like the arguments transposed from the State’s legal briefs, the Handbook’s 

purported clarifying definitions of “company” and “boycott of Israel” are inconsistent with the 

plain language of the statute, too vague to provide adequate notice as to what boycott actions are 

prohibited, and inapplicable to Plaintiffs’ boycott activity. Doc. 39 at 13–16. Plaintiffs wish to 

participate in a BDS boycott of companies supporting Israel’s occupation of the Palestinian 

territories, including all companies operating in Israeli settlements in the West Bank. Id. at 13. 

Plaintiffs’ boycott is in compliance with or adherence to calls for boycott by Jewish Voice for 

Peace, the Evangelical Lutheran Church in America, and a number of other BDS group. See id. 

Thus, the Handbook has no effect on Plaintiffs’ claims. 

Finally, as the State’s own cited authority points out, “Opinions of the Attorney General 

are advisory, and are not binding.” Ruiz v. Hall, 191 Ariz. 441, 449 (1998); accord Marston’s 

Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 94 (1982). Moreover, these cases 

apply to formal Attorney General opinions, which the Attorney General may not issue sua 

sponte or in response to a request from a private citizen. See Doc. 58 at 2. Even if agencies and 

political subdivisions may rely on the guidance offered by the Handbook, they are by no means 

Case 3:17-cv-08263-DJH Document 62 Filed 09/14/18 Page 2 of 5
3 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

required to do so. Indeed, the Attorney General himself could change the Handbook if he so 

chooses. “[P]recedent warns against accepting as ‘authoritative’ an Attorney General’s 

interpretation of state law” under such circumstances. Stenberg v. Carhart, 530 U.S. 914, 940 

(2000) (citation omitted)). Otherwise, Plaintiffs’ and other state contractors’ First Amendment 

rights would be placed “‘at the sufferance of’ [Arizona’s] Attorney General.” Vt. Right to Life 

Comm., Inc. v. Sorrell, 221 F.3d 376, 383 (2d Cir. 2000) (citation omitted) (collecting cases). 

Koontz Dismissal: Koontz was dismissed pursuant to settlement after the state legislature 

amended the law such that it no longer applies to Ms. Koontz. Specifically, the law now requires 

companies to sign the anti-boycott certification only if they have a contract with the state “with 

an aggregate price of more than $100,000.” K.S.A. 75-3740e(b). Because Ms. Koontz was 

contracting with the state solely in her individual capacity, and because her contract was not 

worth more than $100,000, see Koontz, 283 F. Supp. 3d at 1013–14, she is no longer required to 

sign Kansas’s anti-boycott certification. Here, on the other hand, Plaintiffs are indisputably 

required to sign Arizona’s anti-boycott certification in order for Mr. Jordahl’s Firm to contract 

with Coconino County. Doc. 39 at 11–12. Thus, the dismissal in Koontz has no bearing on the 

facts at issue here, or on the persuasiveness of the Koontz court’s reasoned, published opinion. 

Case 3:17-cv-08263-DJH Document 62 Filed 09/14/18 Page 3 of 5
4 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Respectfully submitted this 14th day of September, 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 

Case 3:17-cv-08263-DJH Document 62 Filed 09/14/18 Page 4 of 5
5 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE 

I hereby certify that on September 14, 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. 

/s/ Brian Hauss 

Case 3:17-cv-08263-DJH Document 62 Filed 09/14/18 Page 5 of 5