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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) 

Evan G. Daniels (No. 30624) 

Aaron Duell (No. 33450) 

 Assistant Attorneys General 

2005 N. Central Avenue 

Phoenix, Arizona 85004 

Telephone: (602) 542-5200 

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 RESPONSE TO PLAINTIFFS’ 

POST-ARGUMENT NOTICE (DOC. 58) 

 

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Defendants Mark Brnovich and the State of Arizona (the “State”) respectfully 

respond to Plaintiffs’ post-oral-argument “notice” (Doc. 58). The notice concerns a 

statement at oral argument that the Attorney General could “offer opinions as to what 

particular Arizona laws mean,” including at the request of “member[s] of the public,” 

Tr. at 32:13-24, which Plaintiffs argue is a “misstatement of law.” Doc. 58 at 2. Not 

only are the notice’s arguments incorrect, but even if correct, they did not merit the 

extraordinary step of post-argument briefing. 

First, to justify their purported basis for filing the notice, Plaintiffs had to add 

words to counsel’s argument. The above-quoted statement did not refer only to formal 

Attorney General Opinions under A.R.S. § 41-193(A)(7), but rather included any of the 

myriad forms of legal interpretation that the Attorney General might undertake and make 

public—which easily renders this not a “misstatement of law.” Indeed, “executive 

officials necessarily interpret the laws they enforce.” Perez v. Mortgage Bankers Ass’n, 

135 S. Ct. 1199, 1219 (2015) (Thomas, J., concurring in the judgment); Doc. 58-1 at 2-3. 

And Plaintiffs cite no authority that would prevent the Attorney General from sharing 

such interpretations with the public—particularly where Plaintiffs acknowledge that the 

Attorney General may offer such opinions “in statements to the media,” Doc. 58 at 2.1

Second, even as to formal opinions, Plaintiffs misread the governing statutory text. 

Section 41-193(A)(7) only mandates when the Attorney General must issue formal 

opinions, but does not prohibit doing so in other circumstances. Indeed, Plaintiffs’ 

concession that the Attorney General may offer legal opinions in statements to the press 

necessarily means that A.R.S. § 41-193(A)(7) does not provide an exclusive list of the 

persons to whom the Attorney General may offer opinions. See also State ex rel. Corbin 

v. Pickrell, 136 Ariz. 589, 597 (1983) (Attorney General’s authority extends to what is 

 

1

 Indeed prior to oral argument the State communicated with a student-invited university 

speaker about the application of the very statute at issue in this case, see American 

Muslims for Palestine v. Arizona Board of Regents, No. 18-670 (D. Ariz.) (Doc. 24-1, 

showing communications). Plaintiffs also do not offer any explanation of how their 

position about the Attorney General’s purported unwillingness/lack of authority to issue 

opinions can be reconciled with this fact. See Doc. 58-1 at 2 (flagging issue to Plaintiffs). 

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fairly implied in express statutory grants of authority).2

Third, Plaintiffs’ own counsel has received and relied upon an informal opinion 

from the Attorney General, carrying the same force of law as a formal opinion. This fact 

appears to create an irreconcilable conflict between Plaintiffs’ position here that such 

opinions are unlawful and their counsels’ prior blessing of the Attorney General issuing 

just such an opinion. See Doc. 58-1 at 2-3. Although the State specifically asked 

Plaintiffs’ counsel to address this, Doc. 58-1 at 3, they have not offered any way to 

reconcile these divergent positions they have taken before this Court. 

The upshot is that Plaintiffs’ counsel have departed from the actual transcript, 

contradicted their own past practices, and contorted Arizona law, all in an attempt to gain 

the slightest of strategic advantages through unnecessary post-argument submissions. 

This Court should reject such gamesmanship firmly and prevent further post-argument 

briefing by requiring prior leave from this Court. The time for post-argument 

argument—if ever appropriate—should be put to an end. 

 

Respectfully submitted this 15th day of June, 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) 

Evan G. Daniels (No. 030624) 

Aaron M. Duell (No. 033450) 

Attorneys for Defendant Mark Brnovich in his 

official capacity as Attorney General and 

Intervenor-Defendant State of Arizona 

 

2

 Plaintiffs also ignore that “the Attorney General is a ‘public officer of the state’ and 

thus could issue an opinion letter at his or her own request if the request of a member of 

the public convinced [him/her] that issuance of an opinion was warranted.” Doc. 58-1 

at 2. This was specifically pointed out to Plaintiffs, id., but they offered no response. 

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CERTIFICATE OF SERVICE 

 I hereby certify that on this 15th day of June, 2018, I caused the foregoing 

document to be electronically transmitted to the Clerk’s Office using the CM/ECF 

System for Filing and transmittal of a Notice of Electronic Filing to the following 

CM/ECF registrants: 

Kathleen E. Brody 

Darrell L. Hill 

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 

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 

ACLU Foundation 

 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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