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Brian J. Schulman (SBN 015286), schulmanb@gtlaw.com 

Greenberg Traurig, LLP 

2375 E. Camelback Road, Suite 700 

Phoenix, AZ 85016 

Telephone: (602) 445-8000 

schulmanb@gtlaw.com 

Gregory E. Ostfeld (pro hac vice application forthcoming) 

Greenberg Traurig, LLP 

77 West Wacker Drive, Suite 3100 

Chicago, IL 60601 

Telephone: (312) 456-8400 

ostfeldg@gtlaw.com 

Attorneys for Amicus Curiae American Jewish Committee 

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 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. 

NO. 3:17-CV-08263-DJH

MOTION FOR LEAVE TO FILE 

BRIEF OF AMICUS CURIAE

AMERICAN JEWISH 

COMMITTEE 

Proposed amicus curiae, the American Jewish Committee (“AJC”), by its 

undersigned counsel, hereby respectfully moves the Court for leave to file instanter the 

accompanying Brief of Amicus Curiae American Jewish Committee (the “Amicus 

Brief”), a true and authentic copy of which is attached hereto as Exhibit 1. In support of 

its motion, AJC submits the following incorporated Memorandum of Points and 

Authorities: 

Case 3:17-cv-08263-DJH Document 30 Filed 02/02/18 Page 1 of 8
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LAW OFFICES 

GREENBERG 

TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION 

The American Jewish Committee (“AJC”) is a national organization dedicated to 

enhancing the well-being of Israel and the Jewish people worldwide and advancing 

human rights and democratic values in the United States and around the world. In 

accordance with its mission and values, AJC has spearheaded legislation and executive 

action to ensure that no unit of government is compelled to subsidize a contractor’s 

decision to boycott Israeli goods or services. To that end, AJC supports the certification 

requirement contained in House Bill 2617, A.R.S. § 35-393 et seq. (“HB 2617” or the 

“Act”), which the present lawsuit seeks to enjoin and declare unconstitutional. AJC 

moves in this case for amicus curiae status, to defend the Arizona Legislature’s 

enactment of HB 2617, and to demonstrate how the Act appropriately advances the 

State’s legitimate interest in protecting its commerce with Israel and not allowing public 

funds to be used to subsidize invidious or discriminatory boycotts, without infringing on 

private citizens’ First Amendment rights to free expression and association. 

AJC can offer the Court important input on the legal and constitutional issues 

related to HB 2617, based on AJC’s extensive involvement in and support for this Act 

and similar statutes and executive orders in numerous other States. As amicus, AJC will 

work to avoid duplicative and excessive briefing of matters already addressed in the 

State’s Combined Response to Plaintiffs’ Motion for a Preliminary Injunction and 

Motion to Dismiss. (Dkt. No. 28). By participating as an amicus, AJC respectfully 

submits it can have a meaningful voice in this case of public importance, without 

unduly burdening the Court or parties. See Silver v. Babbitt, 166 F.R.D. 418, 435 (D. 

Az. 1994) (recognizing the sufficiency of amicus status to ensure that outside parties’ 

concerns “are fully considered by this Court without adding unnecessary volume of 

pleadings or lengthening these proceedings”). 

II. INTEREST OF THE AMICUS

AJC is a national organization with more than 125,000 members and supporters 

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PHOENIX, ARIZONA 85016 

(602) 445-8000

and 22 regional offices nationwide. It was founded in 1906 to protect the civil and 

religious rights of American Jews. Its mission is to enhance the well-being of Israel and 

the Jewish people worldwide, and to advance human rights and democratic values in the 

United States and around the world. AJC frequently speaks out on issues of public 

concern, including events in the Middle East, Israeli-Palestinian relations, and antiSemitism. 

AJC opposes the use of public funds to support the so-called Boycott, 

Divestment, and Sanctions (“BDS”) movement, which markets itself as a non-violent 

movement to boycott, divest from, and sanction Israel with the putative goal of getting it 

to withdraw to its pre-1967 borders, but whose leadership in fact seeks and has actively 

promoted the elimination of Israel as a Jewish state. AJC has actively sought to rally 

elected officials to reject the BDS movement, and has been a leader in supporting 

legislation to ensure that no unit of government is compelled to subsidize invidious or 

discriminatory boycotts of Israeli goods or services. AJC supports the HB 2617, and 

opposed Plaintiffs’ efforts to enjoin that Act and declare it unconstitutional. 

Plaintiffs misconstrue and mischaracterize HB 2617 as a restraint on personal 

boycotts, as well as related acts of expression and association. That is not the Act’s 

scope or effect. Though AJC vocally and vigorously opposes the BDS movement, it 

fully supports each citizen’s right to engage in personal boycotts as an expression of his 

or her individual social, political, religious, or moral beliefs. The Act is not intended to 

reach, and should not reasonably be construed to reach, such personal conduct. Rather, 

the Act expresses the State’s legitimate interest in ensuring that public funds are not 

used to subsidize a contractor’s engagement in boycotts or other BDS activities that 

either impair the State’s commerce with Israel or are carried out in a manner that 

discriminates on the basis of nationality, national origin or religion and that is not based 

on a valid business reason. The State is not obliged to expend public resources to 

subsidize such activities. 

HB 2617 protects the State’s legitimate government interest by requiring State 

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PHOENIX, ARIZONA 85016 

(602) 445-8000

contractors to certify that they are not participating in such boycotts of Israel with 

respect to the contracted goods or services they are supplying. Protecting this interest 

need not and does not impede individual expression or association. The Act cannot be 

construed to prevent individuals from participating in boycotts in their personal 

capacities. And it cannot be construed to prevent individuals from expressing their 

personal views regarding boycotts or associating with others who share their views. 

AJC therefore respectfully requests leave to submit its Amicus Brief to clarify the 

legitimate and constitutional scope of the Act. 

III. ARGUMENT 

A. This Court Has the Authority to Permit Amicus Participation 

The Federal Rules of Civil Procedure are silent on the subject of amicus curiae

briefs at the district court level. Cf. Fed. R. App. P. 29 (governing filing of amicus briefs 

at the appellate level). Nonetheless, the Ninth Circuit has acknowledged this Court’s 

inherent discretionary authority to appoint amici and receive amicus briefs. See Fisher 

v. Arizona, 594 Fed. Appx. 917, 919 (9th Cir. 2014); All. of Nonprofits for Ins., Risk 

Retention Grp. v. Kipper, 712 F.3d 1316, 1328 (9th Cir. 2013); Hoptowit v. Ray, 682 

F.2d 1237, 1290 (9th Cir. 1982), abrogated in part on other grounds by Sandin v. 

Connor, 515 U.S. 472 (1995). “District courts have broad discretion to appoint or reject 

amici curiae.” Friendly House v. Whiting, No. CV 10-1061-PHX-SRB, 2010 WL 

11452277, at *19 n.15 (D. Ariz. Oct. 8, 2010) (citing Hoptowit). “Amici may properly 

‘take a legal position and present legal arguments in support of it.’” Id. (quoting Funbus 

Sys., Inc. v. Cal. Pub. Utils. Comm’n, 801 F.2d 1120, 1125 (9th Cir. 1986) (internal 

citation omitted)). Indeed, “[d]istrict courts frequently welcome amicus briefs from nonparties concerning legal issues that have potential ramifications beyond the parties 

directly involved or if the amicus has ‘unique information or perspective that can help 

the court beyond the help that the lawyers for the parties are able to provide.’” NGV 

Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 

2005), disapproved on other grounds in later proceedings sub nom. Guidiville Band of 

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PHOENIX, ARIZONA 85016 

(602) 445-8000

Pomo Indians v. NGV Gaming Ltd., No. C 04-3955-SC, 2005 WL 5503031 (N.D. Cal. 

Oct. 19, 2005), rev’d in part, vacated in part, 531 F.3d 767 (9th Cir. 2008). 

This Court has repeatedly granted amicus status to allow an interested outside 

party to express its views on questions of public importance by means short of 

intervention. See, e.g., WildEarth Guardians v. Provencio, No. CV-16-08010-PCTSMM, 2017 WL 4286189, at *1 (D. Ariz. Sept. 26, 2017); Peters v. LifeLock Inc., No. 

CV-14-00576-PHX-ROS, 2014 WL 12544495, at *8 (D. Ariz. Sept. 19, 2014); Harris 

v. Arizona Indep. Redistricting Comm’n, No. CV-12-0894-PHX-ROS, 2012 WL 

5835336, at *7 (D. Ariz. Nov. 16, 2012); Grand Canyon Tr. v. U.S. Bureau of 

Reclamation, No. CV-07-8164-PHX-DGC, 2010 WL 2643537, at *31 (D. Ariz. June 

29, 2010), aff’d in part, appeal dismissed in part, 691 F.3d 1008 (9th Cir. 2012), as 

amended (Sept. 17, 2012). An amicus is not required to be disinterested in the outcome 

of a case. Funbus Systems, Inc. v. California Public Utilities Com., 801 F.2d 1120, 

1124-25 (9th Cir.1986). To the contrary, it is “perfectly permissible” for an amicus to 

“take a legal position and present legal arguments in support of it[.]” Id. at 1125. See 

also Miller-Wohl Co. v. Commissioner of Labor & Industry, 694 F.2d 203, 204 (9th Cir. 

1982). Amici help the Court by “assisting in a case of general public interest, 

supplementing the efforts of counsel and drawing the court’s attention to law that might 

otherwise escape consideration.” Funbus Systems, 801 F.2d at 1125. 

B. AJC Should Be Granted Leave to File Its Proposed Amicus Brief 

AJC has an interest in this litigation that aligns with, but differs in some respects 

from, the interests of the State of Arizona and the other state and local parties. As a 

vocal opponent of the BDS movement, and a strong supporter of HB 2617 and other 

statutes and executive orders pursuing similar aims across the country, AJC supports the 

Act’s constitutionality and enforcement. At the same time, as an advocate of the civil 

and religious rights of American Jews, as well as human rights and democratic values in 

the United States and around the world, AJC has a strong interest in the exercise of free 

expression and association in support of one’s personal political, religious, or moral 

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(602) 445-8000

beliefs. AJC fundamentally disagrees with Plaintiffs’ premise that HB 2617 impairs or 

impedes Plaintiffs’ exercise of their expressive or associational rights, and respectfully 

seek leave to show this Court why the Act—and its statutory and executive counterparts 

in twenty-three other States—is not at odds with the First Amendment rights of free 

expression and free association. 

AJC’s proposed Amicus Brief takes the legal position and presents legal 

arguments that HB 2617 is constitutional as written and applied, and that it does not 

and, properly construed, cannot chill Plaintiffs’ First Amendment rights in the manner 

asserted in their pleadings and moving papers. AJC respectfully submits that Plaintiffs 

have misconstrued and mischaracterized HB 2617 as applied to each Plaintiff, and that 

their fears about it are consequently misplaced. With respect to the individual named 

Plaintiff Mikkel Jordahl (“Mr. Jordahl”), AJC would show that he is correct in his 

acknowledged view that the Act does not apply to his personal participation in a 

political boycott, nor does it restrain or limit his activities of expression or association 

relating to his personal participation in such a boycott. Accordingly, his fears about his 

personal, vocal advocacy are ill-founded; he is free to continue to express himself. With 

respect to the law firm Plaintiff Mikkel (Mik) Jordahl, P.C. (the “Firm”), AJC would 

show that it is incorrect in its view that the Act in any way limits its expressive or 

associative activities. The Act only requires that a government contractor, in its capacity 

as a contractor, certify that it is not currently engaged in a boycott that impairs the 

State’s commerce with Israel or is carried out in an unlawfully discriminatory manner. 

The State has the right to seek such a certification in furtherance of its legitimate 

interest in ensuring that it is not forced to subsidize invidious or discriminatory political 

boycotts at taxpayer expense. The enforcement of this legitimate interest does not 

prevent contractors from continuing to express their political views or to associate with 

organizations sharing their political views. The Firm remains free to express itself and 

to associate itself politically with other organizations. 

For these reasons, AJC would show this Court that this lawsuit is not grounded in 

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TRAURIG

2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

the text, purpose, or scope of HB 2617 or any genuine restrictions it imposes, but rather 

in Plaintiffs’ misreading of the Act and unnecessary self-imposed restraints that the Act 

neither sought nor required. To grant preliminary injunctive relief under these 

circumstances, where a plain text reading of the Act is sufficient to avoid constitutional 

concerns, is injudicious. Moreover, a hasty ruling by this Court granting such injunctive 

relief would impact not only the legitimate aims advanced by HB 2617, but could also 

serve as adverse precedent with respect to the laws of the twenty-three other States that 

have adopted legislation or executive orders toward the same end of protecting the 

States’ commerce with Israel and preventing governmental subsidies of discriminatory 

boycotts. (Dkt. No. 28, App. A). 

AJC believes these legal arguments and its supporting authorities would be 

helpful to the Court in its review, analysis, and disposition of Plaintiffs’ pending motion 

for preliminary injunction. No party and no counsel for a party (a) authored the Amicus

Brief in whole or in part, (b) requested or solicited AJC’s involvement or the Amicus

Brief, or (c) made any monetary contribution intended to fund the preparation or 

submission of the Amicus Brief. AJC therefore requests leave to file its Amicus Brief 

with the Court. 

WHEREFORE, AJC respectfully requests that the Court (1) grant AJC leave to 

file its Amicus Brief, instanter; and (2) grant such other and further relief as the Court 

deems necessary or appropriate. 

DATED this 2nd day of February, 2018. 

 GREENBERG TRAURIG, LLP 

 By: /s/ Brian J. Schulman Brian J. Schulman 

Gregory E. Ostfeld 

(pro hac vice application forthcoming) 

Counsel for Amicus Curiae 

American Jewish Committee

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2375 EAST CAMELBACK ROAD, SUITE 700 

PHOENIX, ARIZONA 85016 

(602) 445-8000

CERTIFICATE OF SERVICE 

 I hereby certify that on February 2, 2018, I electronically transmitted the attached 

document to the Clerk’s Office using CM/ECF System for filing and distribution to all 

registered participants of the CM/ECF System: 

By: /s/ Amy L. Hershberger Employee, Greenberg Traurig, LLP 

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