1 

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

Brian Hauss (pro hac vice application forthcoming) 

Vera Eidelman (pro hac vice application forthcoming) 

Ben Wizner (pro hac vice application forthcoming) 

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., ) No. 

 ) 

 Plaintiffs, ) COMPLAINT FOR

v. ) DECLARATORY AND 

 ) INJUNCTIVE RELIEF 

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. ) 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 1 of 14
2 

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 

PRELIMINARY STATEMENT 

1. Pursuant to a recently enacted law, House Bill 2617, A.R.S. § 35-

393.01 (“HB 2617” or “the Act”), the State of Arizona requires government 

contractors to certify that they are not engaged in boycotts of Israel or territories 

controlled by Israel. Plaintiff Mikkel Jordahl participates in a political boycott of 

consumer goods and services offered by businesses supporting Israel’s occupation 

of the Palestinian territories. He is also the sole owner of a law firm that contracts 

with the Coconino County Jail District to provide legal services to incarcerated 

individuals. In order to renew his contract, Mr. Jordahl would have to certify that 

his firm neither participates in a boycott of Israel nor affiliates with entities engaged 

in a boycott of Israel. Mr. Jordahl does not want to sign this certification, but he 

fears the loss of his firm’s government contracts. The Act’s certification 

requirement violates the First and Fourteenth Amendments by requiring Mr. 

Jordahl’s firm and other government contractors to disavow their participation in 

political boycotts. 

JURISDICTION AND VENUE 

2. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 for violations 

of civil rights under the First and Fourteenth Amendments to the United States 

Constitution. 

3. The case presents a federal question within this Court’s jurisdiction 

under Article III, § 2 of the United States Constitution and 28 U.S.C. §§ 1331 and 

1343. 

4. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 2 of 14
3 

5. Venue is proper in this Court under 28 U.S.C. § 1391 because the 

parties reside in this District, and a substantial part of the events giving rise to this 

claim occurred in this District. 

PARTIES 

6. Plaintiff Mikkel Jordahl is a resident of Sedona, Arizona. He is the 

sole owner of a professional corporation law firm. 

7. Plaintiff Mikkel (Mik) Jordahl, P.C. is an Arizona corporation. For the 

past twelve years, it has contracted with the Coconino County Jail District to provide 

legal advice to incarcerated individuals. 

8. Defendant Mark Brnovich is the Arizona Attorney General. As the 

Attorney General, Mr. Brnovich is the chief law enforcement officer of the State of 

Arizona. A.R.S. § 41-192(A). Pursuant to A.R.S. § 41-194.01, Mr. Brnovich has the 

authority to investigate, at the request of a state legislator, whether actions of a 

county violate state law, to initiate legal proceedings if he concludes that a county’s 

actions do or may violate state law, and to notify the Arizona State Treasurer if he 

concludes that a county’s actions do violate state law so that the Treasurer will 

withhold and redistribute state shared monies. Mr. Brnovich also has the authority, 

pursuant to A.R.S. § 41-193(A)(2), to prosecute public officials and others for 

misappropriation of public monies under A.R.S. § 35-301. Mr. Brnovich is sued in 

his official capacity. 

9. The Coconino County Jail District is a political subdivision of the 

State of Arizona. It is organized and established for the purpose of providing for incustody detention and inmate-correctional housing in a County Detention Facility 

pursuant to A.R.S. § 48-4001 et seq. It is overseen and operated by the Coconino 

County Sheriff and the Coconino County Board of Supervisors. The County Board 

of Supervisors serves as the Board of Directors of the Jail District. The County 

Treasurer serves as the Treasurer of the Jail District. See A.R.S. § 48-4002. 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 3 of 14
4 

10. Defendant Jim Driscoll is the Coconino County Sheriff. Mr. Driscoll’s 

duties include taking charge of and keeping the County Detention Facility pursuant 

to A.R.S. §§ 11-441(A)(5) and 48-4002(F). Mr. Driscoll is sued in his official 

capacity. 

11. Defendant Matt Ryan is the chairman of the Coconino County Board 

of Supervisors and a member of the Board of Directors for the Coconino County 

Jail District. Mr. Ryan is sued in his official capacity. 

12. Defendant Lena Fowler is vice-chair of the Coconino County Board 

of Supervisors and a member of the Board of Directors for the Coconino County 

Jail District. Ms. Fowler is sued in her official capacity. 

13. Defendant Elizabeth Archuleta is a member of the Coconino County 

Board of Supervisors and a member of the Board of Directors for the Coconino 

County Jail District. Ms. Archuleta is sued in her official capacity. 

14. Defendant Art Babbott is a member of the Coconino County Board of 

Supervisors and a member of the Board of Directors for the Coconino County Jail 

District. Mr. Babbott is sued in his official capacity. 

15. Defendant Jim Parks is a member of the Coconino County Board of 

Supervisors and a member of the Board of Directors for the Coconino County Jail 

District. Mr. Parks is sued in his official capacity. 

16. Defendant Sarah Benatar is Coconino County Treasurer. Ms. 

Benatar’s duties include serving as the treasurer for the Coconino County Jail 

District. Ms. Benatar is sued in her official capacity. 

STATEMENT OF FACTS 

The Act 

17. In March 2016, the Arizona Legislature enacted HB 2617, codified at 

A.R.S. § 35-393 et seq. (“the Act”). The Act provides, in relevant part: 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 4 of 14
5 

A.R.S. § 35-393. Definitions 

In this article, unless the context otherwise requires: 

1. “Boycott” means engaging in a refusal to deal, terminating 

business activities or performing other actions that are intended 

to limit commercial relations with Israel or with persons or 

entities doing business in Israel or in territories controlled by 

Israel, if those actions are taken either: 

(a) In compliance with or adherence to calls for a boycott of 

Israel other than those boycotts to which 50 United States 

Code § 4607(c) applies. 

(b) In a manner that discriminates on the basis of nationality, 

national origin or religion and that is not based on a valid 

business reason. 

2. “Company” means a sole proprietorship, organization, 

association, corporation, partnership, joint venture, limited 

partnership, limited liability partnership, limited liability 

company or other entity or business association, and includes 

a wholly owned subsidiary, majority-owned subsidiary, parent 

company or affiliate. 

. . . 

3. “Public entity” means 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 § 35-393.01. Contracting; procurement; investment; 

prohibitions 

A. 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. 

18. The Act became effective on August 6, 2016. 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 5 of 14
6 

19. The Act seeks to suppress participation in political boycott campaigns 

aimed at Israel and/or territories controlled by Israel, particularly Boycott, 

Divestment, and Sanctions (“BDS”) campaigns. These campaigns seek to apply 

economic pressure on Israel to protest the Israeli government’s treatment of 

Palestinians and occupation of the Palestinian territories. 

20. The Act’s legislative findings state, inter alia: “Boycotts and related 

tactics have become a tool of economic warfare that threaten the sovereignty and 

security of key trade partners of the United States. The state of Israel is the most 

prominent target of such boycott activity.” 

21. In its press release announcing the introduction of HB 2617, the 

Arizona House of Representatives Republican Caucus explained that the Act will 

“target companies engaging in actions that are politically motivated,” including 

politically motivated boycotts. One of the Act’s sponsors, Representative Paul 

Boyer, said, “I stand proudly and publicly with Israel against those who would seek 

to delegitimize her. What detractors couldn’t do militarily, they’re now trying to do 

economically, which would harm the only democracy in the Middle East who stands 

shoulder to shoulder with the United States against all our enemies.” 

22. The Act’s Committee Report states that “[t]here is no anticipated 

fiscal impact to the state General Fund associated with this legislation.” 

Mr. Jordahl’s Boycott Participation 

23. Plaintiff Mikkel Jordahl comes from three generations of Lutheran 

ministers, including his father, two uncles, both grandfathers, and one great 

grandfather. 

24. Mr. Jordahl’s parents lived in the occupied West Bank for a year in 

1977, while his father was on sabbatical, and Mr. Jordahl spent three months there 

with them. Both Mr. Jordahl and his parents were profoundly affected by what they 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 6 of 14
7 

saw in the occupied Palestinian territories. Upon his return to the United States, Mr. 

Jordahl established the Oberlin College chapter of the Palestine Human Rights 

Campaign. He has continued to be involved in various human rights aspects of the 

Israeli-Palestinian conflict. 

25. Mr. Jordahl’s son was raised Jewish. Mr. Jordahl and his son took a 

trip to Israel and Palestine in the spring of 2017, after his son’s Bar Mitzvah. They 

met with many Arab and Jewish people in Israel and the West Bank. They were 

disheartened to hear the common opinion that Israeli settlements in the occupied 

Palestinian territories would prevent an end to the occupation. Many of the 

Palestinians they met expressed no hope that they would ever receive equal rights 

in the occupied territories. 

26. Mr. Jordahl has been moved by the Evangelical Lutheran Church in 

America’s (ELCA) Peace Not Walls campaign, which seeks to promote the “equal 

human dignity and rights for all people in the Holy Land,” as well as “an end to 

Israeli settlement building and the occupation of Palestinian land.” The campaign 

calls on “individuals to invest in in Palestinian products to build their economy and 

to utilize selective purchasing to avoid buying products” made in Israeli settlements 

in the occupied Palestinian territories. 

27. Mr. Jordahl is a non-Jewish member of Jewish Voice for Peace, which 

describes itself as “a national grassroots organization inspired by Jewish tradition to 

work for a just and lasting peace according to principles of human rights, equality, 

and international law for all the people of Israel and Palestine.” Jewish Voice for 

Peace endorses the call from Palestinian civil society for Boycott, Divestment, and 

Sanctions campaigns to protest the Israeli government’s actions, including the 

occupation of Palestinian territories. 

28. In conjunction with these calls for boycott, Mr. Jordahl personally 

boycotts consumer goods and services offered by businesses supporting Israel’s 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 7 of 14
8 

occupation of the Palestinian territories. Mr. Jordahl participates in this boycott to 

protest both the occupation and the settlements, which he believes violate the human 

rights of Palestinians. He has also written his elected representatives to request a 

reduction in funding to Israel proportional to Israeli spending on settlements in the 

occupied Palestinian territories. 

The Coconino County Jail District Contract 

29. Mr. Jordahl is the sole owner of a professional corporation law firm, 

Mikkel (Mik) Jordahl, P.C. (“the Firm”). For the past twelve years, the Firm has 

contracted with Coconino County Jail District (“the County”) to provide legal 

advice to incarcerated individuals regarding issues like conditions of confinement, 

civil rights, extradition, and habeas corpus. 

30. The current contract between the Firm and County covers a multi-year 

period, with annual renewals. Under the contract, the Firm receives a monthly 

payment of $1,533, or more than $18,000 per year. 

31. The Firm first entered into the current contract in the fall of 2016. An 

official from the County asked Mr. Jordahl to sign not only the standard paperwork, 

but also a new form entitled “Certification Pursuant to A.R.S. § 35-393.01.” 

32. The certification form required the Firm’s duly authorized signatory 

to sign below the following language: 

Pursuant to the requirements of A.R.S. § 35-393.01(A), the 

Independent Contractor hereby certifies that the Independent 

Contractor is not currently engaged in a boycott of Israel. The 

Independent Contractor further certifies that no wholly owned 

subsidiaries, majority-owned subsidiaries, parent companies, or 

affiliates of the Independent Contractor (if any) are currently engaged 

in a boycott of Israel. Independent Contractor further and additionally 

agrees that for the duration of this Independent Contractor Agreement, 

neither Independent Contractor, nor any wholly owned subsidiaries, 

majority-owned subsidiaries, parent companies, or affiliates of 

Independent Contractor (if any) shall engage in a boycott of Israel. 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 8 of 14
9 

For purposes of this certification, “boycott of Israel” shall mean 

engaging in a refusal to deal, terminating business activities, or 

performing other actions that are intended to limit commercial 

relations with Israel or with persons or entities doing business in Israel 

or in territories controlled by Israel, if those actions are taken either: 

(a) in compliance with or adherence to calls for a boycott of Israel 

other than those boycotts to which 50 U.S.C. § 4607(c) applies; or (b) 

in a manner that discriminates on the basis of nationality, national 

origin or religion and that is not based on a valid business reason. 

This Certification is hereby adopted as an integral and substantive part 

of the Agreement, and irrevocably supplements the terms thereof. 

Any violation of this Certification by the Independent Contractor shall 

constitute an event of material breach of the Agreement. 

33. Mr. Jordahl signed the certification on October 14, 2016. He sent the 

original signed addendum to an official with the County. He also sent a copy of the 

signed form to Rose Winkeler, Deputy County Attorney of Coconino County, along 

with a letter entitled “Re: Israel Boycott Addendum to Inmate Civil Rights Advising 

Contract.” 

34. In the letter, Mr. Jordahl wrote, “I was extremely surprised to see the 

one page Addendum attached to the contract related to boycotts of Israel. . . . I 

understand this is a new state law and the county is bound to follow it. I will comply 

as long as the law is in effect, however I wanted it on record that I strongly oppose 

the law as I believe it is an unconstitutional violation of the 1st Amendment. I do 

reserve my right to challenge the law in the courts.” 

35. Mr. Jordahl further wrote, “I wanted to clarify that I sign the 

addendum in my capacity as a sole-proprietor contractor on behalf of my 

professional corporation and not in my personal capacity unrelated to any 

government contract. I am also interpreting the term ‘affiliate’ in the addendum and 

the law to apply only to formal business relationships.” 

36. The County accepted the certification. The contract commenced on 

November 10, 2016. 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 9 of 14
10 

37. Because of the certification, Mr. Jordahl has been careful to separate 

his personal boycott participation from the operation of his Firm, which currently 

does not participate in Mr. Jordahl’s boycott of consumer goods and services offered 

by businesses supporting Israel’s occupation of the Palestinian territories. He has 

also been careful not to use his Firm to support or affiliate with entities participating 

in such boycotts. 

38. On November 14, 2017, Mr. Jordahl received a letter regarding the 

renewal of his contract from the County. The letter, which was signed by Kathleen 

Levinson, the Administrative Manager of the Coconino County Sheriff’s Office, 

asked Mr. Jordahl to sign and notarize the enclosed “agreement[ ] approved by [the 

County’s] Board of Directors.” After the request, Ms. Levinson wrote, “We look 

forward to our continuing partnership.” 

39. The enclosed agreement stipulated to a one-year renewal of the 2016 

contract between the Firm and the County. The amended agreement did not change 

the contract’s scope or compensation. The renewed contract would run from July 1, 

2017, through June 30, 2018. 

40. The renewal agreement also included another Certification Pursuant 

to A.R.S. § 35-393.01, which was substantially unchanged from the certification 

included in the 2016 agreement. 

41. Mr. Jordahl has not signed and returned the 2017 agreement, because 

he objects to making the certification. 

The Act’s Effects 

42. The Act’s certification requirement compels speech. Mr. Jordahl does 

not want to sign a certification about his Firm’s boycott participation, but he fears a 

substantial loss of income if his Firm were to lose its government contract. 

43. The certification requirement prevents government contractors from 

participating in or promoting protected political boycotts. Were it not for the Act’s 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 10 of 14
11 

certification requirement, Mr. Jordahl would extend his personal boycott 

participation to his Firm’s consumer choices. For example, Mr. Jordahl would 

refuse to purchase Hewlett Packard equipment for his Firm, based on Hewlett 

Packard’s provision of information technology services used by Israeli security 

checkpoints throughout the West Bank. 

44. The certification requirement prevents government contractors from 

affiliating with individuals and organizations that participate in protected political 

boycotts. For example, Jewish Voice for Peace has asked Mr. Jordahl’s Firm to 

contribute office support and financial contributions to their boycott activities. In 

order to comply with the certification, Mr. Jordahl has rejected these requests. Were 

it not for the certification requirement, Mr. Jordahl’s Firm would provide support 

services and financial contributions, as well as pro bono legal services, to Jewish 

Voice for Peace and other boycott participants. 

45. The certification requirement chills individual expression and 

association. Although Mr. Jordahl does not understand the certification to apply to 

his personal activities, he reasonably fears that vocal advocacy about his personal 

boycott participation would lead to suspicion about whether his Firm is complying 

with the certification. He has felt pressure not to promote or discuss his personal 

boycott participation in public. 

46. Mr. Jordahl’s boycott participation has no bearing on his provision of 

legal services to incarcerated individuals. Mr. Jordahl and his Firm do not, and 

would not, discriminate against clients or employees based on their nationality or 

any legally protected characteristic. 

47. Although Mr. Jordahl does not want to sign the certification, he would 

otherwise like his Firm to continue providing legal services under contract with the 

County. 

48. Defendants’ unlawful actions are intentional. 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 11 of 14
12 

49. Defendants’ unlawful actions are taken either with malice or with 

reckless indifference to Plaintiffs’ clearly established constitutional rights. 

CAUSE OF ACTION 

VIOLATION OF FIRST AND FOURTEENTH AMENDMENT RIGHTS 

42 U.S.C. § 1983 

50. Plaintiffs restate and incorporate by reference the allegations 

contained in the preceding paragraphs of this Complaint. 

51. In the following paragraphs, references to the First Amendment 

include the First Amendment as applied to the states through the Fourteenth 

Amendment. 

52. The politically motivated boycott of consumer goods and services 

offered by companies operating in Israel, and/or Israeli settlements in the occupied 

Palestinian territories, is speech and expressive activity related to a matter of public 

concern. It is therefore protected by the First Amendment. 

53. Participation in this boycott, together with others who use boycott, 

divestment, and sanctions tactics, is protected association under the First 

Amendment. 

54. Speech related to participation in this boycott is speech on a matter of 

public concern. It is therefore protected by the First Amendment. 

55. Restriction on Political Expression: The certification requirement 

violates the First Amendment, both on its face and as applied, because it unduly 

restricts government contractors’ ability to engage in core political expression and 

expressive activity, including participation in political boycotts. 

56. Content and Viewpoint Discrimination: The certification 

requirement violates the First Amendment, both on its face and as applied, because 

it discriminates against protected expression based on the expression’s content and 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 12 of 14
13 

viewpoint. The requirement prohibits government contractors from boycotting 

Israel, Israeli businesses, or businesses supporting Israel’s occupation of the 

Palestinian territories, while allowing contractors to participate in other boycotts, 

including boycotts of other foreign countries and “reverse boycotts” targeting 

companies engaged in boycotts of Israel. 

57. Overinclusiveness/Substantial Overbreadth: The certification 

requirement violates the First Amendment because it is overinclusive and 

substantially overbroad. 

58. Ideological Litmus Test and Compelled Speech: The certification 

requirement violates the First Amendment, both on its face and as applied, because 

it imposes an ideological litmus test and compels speech related to government 

contractors’ protected political beliefs, associations, and expression. 

59. Discrimination Based on Political Beliefs and Associations: The 

certification requirement violates the First Amendment, both on its face and as 

applied, because it bars government contractors from receiving government 

contracts based on their protected political beliefs and associations. 

REQUEST FOR RELIEF 

WHEREFORE, Plaintiffs respectfully request that the Court enter judgment 

in their favor and against Defendants, and award the following relief: 

A. Declare that the certification requirement contained in A.R.S § 35-

393.01 violates the First and Fourteenth Amendments of the United States 

Constitution, both on its face and as applied to Plaintiffs; 

B. Preliminarily and permanently enjoin Defendants, their officers, 

agents, servants, employees, and attorneys, and those persons in active concert or 

participation with them who receive actual notice of the injunction, from requiring 

government contractors to certify that they are not currently engaged in boycotts of 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 13 of 14
14 

Israel and from penalizing government contractors based on their participation in 

political boycotts of Israel; 

C. Alternatively, preliminarily and permanently enjoin Defendants, their 

officers, agents, servants, employees, and attorneys, and those persons in active 

concert or participation with them who receive actual notice of the injunction, from 

requiring Plaintiffs to certify that the Firm is not currently engaged in a boycott of 

Israel and from penalizing them based on their participation in a political boycott of 

Israel; 

D. Award Plaintiffs their costs and reasonable attorneys’ fees in this 

action; 

E. Grant Plaintiffs such other relief as this Court may deem just and 

proper. 

Dated this 7th day of December, 2017. 

Respectfully submitted, 

/s/ Kathleen E. Brody Kathleen 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

Brian Hauss* 

Vera Eidelman* 

Ben Wizner* 

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

*Applications for pro hac vice forthcoming 

 

Case 3:17-cv-08263-DJH Document 1 Filed 12/06/17 Page 14 of 14