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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)

Robert J. Makar (No. 033579)

Assistant Attorneys General 

2005 N. Central Avenue

Phoenix, Arizona 85004

Telephone: (602) 542-5252

Drew.Ensign@azag.gov

Attorneys for Defendant Mark Brnovich 

in his official capacity as Attorney General

(Additional counsel listed on signature page)

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

American Muslims for Palestine and Dr. 

Hatem Bazian,

Plaintiffs,

vs.

Arizona Board of Regents for and on 

behalf of Arizona State University; and 

Mark Brnovich, in his official capacity 

as Attorney General Of Arizona,

Defendants.

Case No: 2:18-cv-00670-PHX-JJT

DEFENDANTS’ REPLY TO RESPONSE 

IN SUPPORT OF THEIR MOTION TO 

DISMISS

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...........................................................................................II

INTRODUCTION........................................................................................................... 1

ARGUMENT.................................................................................................................. 2

I. PLAINTIFFS HAVE CONCEDED THIS ACTION IS PRUDENTIALLY MOOT

AND UNRIPE............................................................................................................. 2

A. Prudential Mootness Is Both Appropriate And Conceded Here ........................ 3

B. This Case Is Concededly Unripe ...................................................................... 3

II. PLAINTIFFS’ EXTENSIVE DISCUSSION OF THE CONSTITUTIONAL

MERITS AND FACTUAL NON SEQUITURS ARE IRRELEVANT ......................... 3

A. Plaintiffs’ Extensive Discussion Of The First Amendment Merits Is Irrelevant 

and Unserious.......................................................................................................... 3

B. Plaintiffs’ Factual Red Herrings Are Irrelevant ................................................ 4

III. THIS SUIT IS CONSTITUTIONALLY MOOT................................................... 6

IV. THE INDIVIDUAL DEFENDANTS MUST BE DISMISSED ............................ 9

CONCLUSION ............................................................................................................. 11

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TABLE OF AUTHORITIES

CASES

Alvarez v. Smith

558 U.S. 87, 93 (2009)................................................................................................. 7

Arizona Attorneys for Criminal Justice v. Ducey

No. 17-cv-1422, 2018 WL 1570244 (D. Ariz. Mar. 30, 2018) ................................... 10

Calzone v. Hawley

866 F.3d 866 (8th Cir. 2017)...................................................................................... 10

Center for Biological Diversity v. Lohn

511 F.3d 960 (9th Cir. 2007)........................................................................................ 6

DeFunis v. Odegaard

416 U.S. 312 (1974) .................................................................................................... 8

FEC v. Wisconsin Right to Life, Inc.

551 U.S. 449 (2007) .................................................................................................... 9

Headwaters, Inc. v. BLM

893 F.2d 1012 (9th Cir. 1989)...................................................................................... 9

International Longshoremen’s Ass’n, AFL-CIO v. Allied Int’l, Inc.

456 U.S. 212 (1982) .................................................................................................... 4

Jordahl v. Brnovich

No. 17-cv-8263 (D. Ariz. filed Dec. 6, 2017)........................................................2, 4, 9

Lujan v. Defs. of Wildlife

504 U.S. 555 (1992) .................................................................................................... 6

Native Vill. of Noatak v. Blatchford

38 F.3d 1505 (9th Cir. 1994)........................................................................................ 7

Planned Parenthood of Idaho, Inc. v. Wasden

376 F.3d 908 (9th Cir. 2004)...................................................................................1, 10

Public Utilities Comm’n v. FERC

100 F.3d 1451 (9th Cir. 1996).................................................................................. 7, 8

Regan v. Taxation With Representation of Wash.

461 U.S. 540 (1983) .................................................................................................... 4

Rumsfeld v. FAIR

547 U.S. 47 (2006) ...................................................................................................... 4

Shoshone-Bannock Tribes v. Fish & Game Comm’n, Idaho

42 F.3d 1278 (9th Cir. 1994)........................................................................................ 6

Snoeck v. Brussa

153 F.3d 984 (9th Cir. 1998)...................................................................................1, 10

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Steel Co. v. Citizens for a Better Env’t

523 U.S. 83 (1998). ..................................................................................................... 1

Taylor v. List

880 F.2d 1040 (9th Cir. 1989).................................................................................... 11

Vance v. Peters

97 F.3d 987 (7th Cir. 1996) ....................................................................................... 11

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INTRODUCTION

Plaintiffs’ Opposition brief is—much like this suit itself—far more germane to 

Plaintiffs’ public relations campaign than the legal issues actually presented here. For 

example, Plaintiffs remarkably devote more than 7 pages of their 17-page brief to issues 

not actually raised by Defendants’ motion to dismiss (i.e., the merits of their First 

Amendment claim). See Doc. 28 (“Opp.”) at 5-11. But that constitutional argumentation 

is utterly irrelevant for resolving the motion to dismiss at issue here—which raises 

mootness, ripeness and other procedural issues alone.

As to the arguments that Defendants actually did make in their motion to dismiss, 

Plaintiffs have precious little—and often nothing at all—to say. In particular, Defendants 

asserted prudential mootness as an entirely sufficient ground for dismissal. See Doc. 24

(“MTD”) at 10-13. That argument would be hard to miss: it was more than four pages 

long and an entire subsection (I.D) of the motion to dismiss. But Plaintiffs do not offer 

any response to this dispositive argument. Not one word. Plaintiffs thus offer no basis 

on which this Court could decline to dismiss this action under the doctrine of prudential 

mootness, and this Court should dismiss on that conceded ground alone.

Plaintiffs similarly offer no response to Defendants’ equally unmissable and 

dispositive argument that this case should be dismissed as unripe—i.e., Roman II of the 

argument. See MTD at 13-14. This Court should therefore dismiss this action on that 

fully sufficient and conceded ground as well.

Plaintiffs’ unwillingness or inability to address these dispositive issues ultimately 

makes resolution of Defendants’ motion to dismiss supremely simple: this Court can—

and should—grant the motion on those conceded grounds alone, and avoid reaching any 

other (actually contested) issue. Indeed, because Plaintiffs’ silence concedes lack of

subject matter jurisdiction at least twice, there is nothing for this Court to do but 

“‘announc[e] th[at] fact and dismiss[] the cause,’” since “[w]ithout jurisdiction the court 

cannot proceed at all.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).

Even as to the issues that Plaintiffs do address—which are irrelevant in light of 

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Plaintiffs’ dispositive concessions—their arguments cannot withstand scrutiny. Although 

Plaintiffs attempt to rely on the “voluntary cessation” exception to mootness, they neither 

dispute that (1) the fact that “time has passed and Plaintiffs have given their speech” 

(MTD at 9) is not voluntary cessation, but rather ordinary mootness (since time marches 

on no matter what actions Plaintiffs or Defendants take), nor (2) Defendants’ 

demonstration that “the voluntary cessation exception does not apply where, as here, 

Defendants had already ceased the relevant conduct before this action was filed.” MTD 

at 9. Both of these grounds preclude application of the voluntary cessation exception.

Plaintiffs similarly cannot satisfy their burden in asserting the capable-ofrepetition, yet-evading-review exception to mootness. Plaintiffs never deny that their

constitutional challenges will not evade review because “a virtually identical First 

Amendment challenge to the Act is pending before this Court in Jordahl v. Brnovich, No. 

17-cv-8263 (D. Ariz. filed Dec. 6, 2017).” MTD at 9. Plaintiffs simply ignore that 

argument entirely. Plaintiffs similarly have not established any genuine likelihood of 

repetition where ASU—the only university in Arizona named in Plaintiffs’ complaint—

changed its policy even before this suit was filed. There is thus no reason to believe that 

Plaintiffs will ever encounter the ASU policy that they challenged again. And to the 

extent that Plaintiffs have issues with other universities, those issues can and must wait 

for a new suit that satisfies the requirements of Article III.

ARGUMENT

I. PLAINTIFFS HAVE CONCEDED THIS ACTION IS PRUDENTIALLY 

MOOT AND UNRIPE

Ultimately everything that Plaintiffs say in their Opposition is rendered irrelevant 

by what they do not say—i.e., anything in response to Defendants’ prudential mootness 

and ripeness arguments, both of which mandate dismissal if accepted by this Court. And 

Plaintiffs have failed to offer any basis on which those arguments could be rejected. This 

Court should therefore dismiss on the bases of prudential mootness and/or ripeness, 

which Plaintiffs have conceded is appropriate.

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A. Prudential Mootness Is Both Appropriate And Conceded Here

Defendants’ motion argued—as an entirely independent and sufficient ground—

that this case should be dismissed under the doctrine of prudential mootness, citing 

numerous precedents applying the doctrine. See MTD at 10-13. In response, Plaintiffs 

argue, well, nothing. Plaintiffs do not even acknowledge Defendants’ prudential 

mootness argument, let alone address any aspect of it. Indeed, the word “prudential” 

does not even appear anywhere in their brief. Nor do Plaintiffs address in any genuine 

detail the extensive evidence that Defendants cited in support of their argument—

including Defendants’ demonstration that the representations made by Plaintiffs to this 

Court about their willingness to sign the applicable contracts if the anti-Israel-boycott 

clauses were removed ultimately proved to be false. See MTD at 11-12.

Plaintiffs’ non-response should resolve this case. By thoroughly defaulting on a 

dispositive argument, dismissal for prudential mootness is amply warranted here. 

B. This Case Is Concededly Unripe

Plaintiffs similarly ignore—entirely—Defendants’ ripeness argument, which is 

another fully sufficient ground for dismissal. See MTD at 13-14. The only time any 

form of the word “ripe” appears anywhere in their brief is in a case parenthetical for the 

entirely separate point that Plaintiffs must produce “‘affidavits or any other evidence 

necessary to satisfy [their] burden of establishing . . . subject matter jurisdiction.’” Opp. 

at 4 (citation omitted). Plaintiffs never acknowledge the necessity of Article III ripeness 

at all, let alone attempt to satisfy the requisite “genuine threat of imminent prosecution” 

requirement. This Court should therefore dismiss for lack of ripeness as well. 

II. PLAINTIFFS’ EXTENSIVE DISCUSSION OF THE CONSTITUTIONAL 

MERITS AND FACTUAL NON SEQUITURS ARE IRRELEVANT

A. Plaintiffs’ Extensive Discussion Of The First Amendment Merits Is 

Irrelevant and Unserious

Plaintiffs’ Opposition engages in a lengthy and completely irrelevant discussion of 

the merits of their First Amendment claim, which consumes nearly half of their brief. 

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See Opp. at 5-11. Plaintiffs appear to use this extensive non sequitur as the premise for 

their contention (at 4) that Defendants have not addressed the merits of Plaintiffs’ First 

Amendment claim because they “know it [the Act] cannot withstand judicial scrutiny.” 

That ad hominem attack is specious. The Attorney General and the State have not 

remotely been shy about defending the constitutionality of the Act when subject matter 

jurisdiction for such a challenge is even arguably present. In the Jordahl case the State 

extensively briefed the First Amendment claim. See Jordahl v. Brnovich, No. 17-cv8263 (D. Ariz. filed Dec. 6, 2017) (Docs. 28, 46). Moreover, the State of Arizona 

voluntarily intervened as a defendant specifically so that it could defend the 

constitutionality of its statute. See id. (Doc. 24).

The Attorney General and the State are more than prepared to mount a robust 

defense of the constitutionality of the Act in any case where the merits of such arguments 

are even plausibly presented. But that is not remotely the case here. This action is 

patently moot and unripe, as Plaintiffs’ numerous concessions by silence concede.1

B. Plaintiffs’ Factual Red Herrings Are Irrelevant

Plaintiffs’ Opposition is loaded up with numerous red-herring factual assertions, 

few of which Plaintiffs actually argue should have legal relevance. The bulk thus appear 

to serve little function aside from clouding the issues or throwing mud. But because 

those red herrings contain several none-too-subtle insinuations of impropriety, 

Defendants will address them briefly even though they have no legal relevance.

Plaintiffs cast various aspersions by alleging (at 3) that, with respect to ASU’s 

speaker contract, “the metadata of that document says it was created by an ASU 

administrative assistant on February 22, 2018.” That is both incorrect and irrelevant on 

 1

 Moreover, even on the First Amendment issues, Plaintiffs’ silence on dispositive issues 

is all-but deafening. Plaintiffs’ notably do not address the dispositive precedents of 

Rumsfeld v. FAIR, 547 U.S. 47 (2006), International Longshoremen’s Ass’n, AFL-CIO v. 

Allied Int’l, Inc., 456 U.S. 212, 214, 223-26 (1982), and Regan v. Taxation With 

Representation of Wash., 461 U.S. 540, 549 (1983). Plaintiffs’ discussion of the 

constitutional issues is thus deeply unserious, as the State will eagerly explain if this 

Court concludes that subject matter jurisdiction exists here. 

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multiple levels. First, Plaintiffs’ assertions relate to a version of the speaker contract not 

provided by ASU, or even a member of Muslim Students Association, but instead some 

unspecified “reporter.” It is far from clear why a version of the speaker form provided by 

a non-party after this suit was filed (and thus necessarily played no part in the events 

alleged in the Complaint) has any relevance whatsoever. Second, the metadata from the 

version omitting the anti-Israel-boycott clause shows a) that February 22, 2018 was 

simply the date that particular version was “saved;” and b) that it was actually created on 

December 13, 2017. 3d Cárdenas Decl. ¶3 & Ex. A. Third, the Defendants did not claim 

that the speaker form was never changed after December 2017—instead they expressly 

stated that “[t]he speaker form agreement has been revised since December 2017, but

none of the revised versions included any certification with respect to boycotts of Israel.” 

2d Cárdenas Decl. ¶5. The fact that a subsequent copy of the document floating around 

with some unnamed reporter may have a later creation date does not change the fact that 

the anti-Israel-boycott clause was removed in December 2017 and has never been added 

back into any subsequent version of the form. Id. ¶¶4-5. Fourth, even accepting 

Plaintiffs’ mistaken assertion of a February 22, 2018 “creation” date, that is still before 

this suit was filed, thus precluding any application of the voluntary cessation exception. 

See infra at 7-8. Fifth, Plaintiffs never make any argument concerning metadata in their 

argument section, effectively conceding its irrelevance with respect to Article III 

mootness.

Plaintiffs also (at 3) point to other contracts used by ASU and suggest they are 

somehow relevant to Article III mootness. But none of those contract forms are used for 

student-group-invited speakers, 3d Cárdenas Decl. ¶2—i.e., the only dispute presented by 

Plaintiffs’ Complaint. Because there is no indication that Plaintiffs intend to perform any 

function at ASU other than speaking, those other contract forms are irrelevant.

Plaintiffs further point to the speaker forms used by University of Arizona 

(“UofA”) and Northern Arizona University (“NAU”). None of those forms have any 

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relevance because Plaintiffs’ Complaint only challenged the speaker form used by ASU. 

Indeed, Plaintiffs’ Complaint does not even mention either institution. 

In addition, Plaintiffs cannot retroactively reframe their Complaint (particularly 

without amending it formally) to evade mootness.2 In any event, Plaintiffs attempt to 

bolster their likelihood-of-recurrence argument by alleging that they are “exploring 

opportunities” to potentially speak at University of Arizona at some future unspecified 

date does not satisfy Article III. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 564

(1992) (“Such ‘some day’ intentions—without any description of concrete plans, or 

indeed even any specification of when the some day will be—do not support [Article III 

jurisdiction.]”). Moreover, UofA and NAU have now revised their speaker forms to 

eliminate the no boycott clause. Tribbensee Decl. ¶¶ 2-5. Plaintiffs are therefore now 

free to speak at any of the three universities under ABOR’s jurisdiction without fear that 

they will have to sign a contract with an anti-Israel-boycott clause. 

III. THIS SUIT IS CONSTITUTIONALLY MOOT

In addition to being prudentially moot, this case is also moot as a matter of Article 

III. The fact that Plaintiffs’ April 3 speeches have come and gone, as well as the change 

in ASU’s policy (the only policy challenged by the Complaint) each independently render 

this suit moot. Nor can Plaintiffs squeeze within any exception to Article III mootness.

A. This Case Is Moot Unless It Falls Within An Exception

Plaintiffs’ Complaint only identifies a single instance where the challenged policy 

of ASU would ever be applied against Plaintiffs—Plaintiffs’ April 3, 2018 speaking 

engagements. Complaint ¶ 37. No other potential application of the challenged speaker 

 2

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(9th Cir. 1994) (request for declaratory judgment in challenge to order prohibiting certain 

fishing during summer of 1991 was moot once the summer was over because the claims 

were “narrowly focused on a single past event”); Center for Biological Diversity v. Lohn, 511 F.3d 960, 964 (9th Cir. 2007) (claim seeking endangered listing for the Southern 

Resident killer whale was mooted when the agency listed the population; possibility that 

the government policy “might adversely affect ... the Service’s listing determination of 

certain other killer whale populations at some indeterminate time in the future is too 

remote and too speculative a consideration to save this case from mootness”).

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contract/Act would ever be applied to them; nor was another other university’s speaker 

contract identified—let alone challenged. Accordingly, this case was mooted (subject to 

possible exceptions not applicable here as discussed next) both when (1) ASU changed 

its speaker contract in December 2017, and (2) Plaintiffs gave their April 3 speeches 

without any hindrance by Defendants whatsoever. See MTD at 5-7.

Plaintiffs appear to argue that this case is not moot because this Court could issue 

declaratory relief. See Opp. at 16 (“This Court can grant relief by declaring that the antiBDS Act violates the First Amendment[.]”). But there is no exception to mootness for 

declaratory relief: “[a] federal court cannot issue a declaratory judgment if a claim has 

become moot.” Public Utilities Comm’n v. FERC, 100 F.3d 1451, 1459 (9th Cir. 1996); 

accord Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1514 (9th Cir. 1994). Thus, 

even if the parties “continue to dispute the lawfulness of the [law/Defendants’ policy],” a 

case is moot when it is “no longer embedded in any actual controversy about the 

plaintiffs’ particular legal rights.” Alvarez v. Smith, 558 U.S. 87, 93 (2009). That is 

precisely the case here. Now that the concrete dispute about Plaintiffs’ April 3 speaking 

engagement has vanished, Plaintiffs’ suit is moot unless it falls within an exception to 

mootness. As explained next, neither exception identified by Plaintiffs applies here.

B. The Voluntary Cessation Exception Does Not Apply

Plaintiffs rely heavily on the voluntary cessation exception to mootness. Their

supporting arguments fail for four reasons, however.

First, the voluntary cessation exception could apply (if at all) only to ASU’s

change in its speaker form, not the fact that Plaintiffs’ April 3, 2018 speaking event is 

now in the rear-view mirror. It could hardly be disputed that Defendants do not control 

the flow of time, and the fact that April 3 has now come and gone is not “voluntary 

cessation” by Defendants, but rather the product of immutable laws of science. This 

aspect of mootness is effectively identical to DeFunis v. Odegaard, 416 U.S. 312, 318 

(1974), where simple passage of time rendered the dispute moot. And because the April 

3 speaking event is the only application of the speaker form/statute even alleged in 

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Plaintiffs’ Complaint (Complaint ¶¶ 4-5, 37), Plaintiffs cannot rely on the voluntary 

cessation exception to overcome the fact that April 3, 2018 is now in the past rather than 

the future.

Second, Plaintiffs never dispute the State’s argument that “the voluntary cessation 

exception does not apply where, as here, Defendants had already ceased the relevant 

conduct before this action was filed.” MTD at 9 (citing Public Utilities, 100 F.3d at

1460). Nor do Plaintiffs genuinely dispute that ASU had removed the anti-Israel-boycott 

clause from its speaker contracts before this suit was filed. Id. at 3, 9. Invocation of the 

voluntary cessation exception is thus concededly barred by controlling precedent here.

Third, Plaintiffs have no response at all to Defendants’ argument that “because 

ABOR/ASU had already stopped using a speaker contract with the anti-boycott clause 

before this suit was filed, Plaintiffs also cannot satisfy the requirements of Article III 

standing.” See MTD at 9. Indeed, the word “standing” does not appear whatsoever in 

Plaintiffs’ brief at all, thereby conceding that dispositive ground as well.

Fourth, Plaintiffs never dispute that the Ninth Circuit applies a presumption of 

good faith with respect to governmental cessation of conduct—a presumption that 

Plaintiffs do not even acknowledge, let alone rebut successfully.

For all of these reasons, the voluntary cessation exception cannot save Plaintiffs’ 

action from dismissal based on Article III mootness.

C. Plaintiffs Have Not Satisfied The Requirements Of The Capable-OfRepetition, Yet-Evading-Review Exception

Plaintiffs also cannot satisfy the “narrow” capable of repetition, yet evading 

review exception to mootness, which “applies only in ‘exceptional situations.’”

Headwaters, Inc. v. BLM, 893 F.2d 1012, 1016 (9th Cir. 1989). Indeed, Plaintiffs cannot 

satisfy their burden as to either prong of the exception.

Most tellingly, Plaintiffs do not even attempt to respond to Defendants’ argument 

(at 9) that the constitutional arguments advanced here “will not evade review [because] a 

virtually identical First Amendment challenge to the Act is pending before this Court in 

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Jordahl v. Brnovich, No. 17-cv-8263 (D. Ariz. filed Dec. 6, 2017).” Plaintiffs’ complete 

non-response to this argument precludes any conclusion that Plaintiffs have satisfied their 

burden on the evading-review prong.

Similarly, Plaintiffs’ arguments as to the likelihood of repetition fall far short of 

the mark. As Defendants explained, Plaintiffs “must demonstrate a ‘reasonable 

expectation or a demonstrated probability that the same controversy will recur involving 

the same complaining party.’” MTD at 8 (quoting FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449, 463 (2007)) (quotation marks omitted). But even Plaintiffs can only bring 

themselves to argue that “it is not absolutely clear Plaintiffs will not encounter the No 

Boycott of Israel clause on their next visit to Arizona.” Opp. at 14. But “absolute 

certainty” of non-repetition is not the governing standard, and Plaintiffs apparently 

cannot even mouth that they satisfy the Supreme Court’s standard.

IV. THE INDIVIDUAL DEFENDANTS MUST BE DISMISSED

A. The Attorney General Enjoys Sovereign Immunity

As the State’s motion demonstrated, the exception of Ex Parte Young—the only 

possible exception to sovereign immunity here—only applies where state officers act in 

an unconstitutional manner or threaten to do so.3 See MTD at 15-16 & nn.6-7. Because 

the “Attorney General is not alleged to have done anything, or to have threatened to 

initiate any enforcement action,” id. at 16, Plaintiffs cannot satisfy that standard here.

Rather than pointing to any actual action or threatened action by the Attorney 

General, the Complaint only alleges that he “is responsible for enforcing and defending 

the constitutionality of Arizona law.” Complaint ¶ 10. But the Ninth Circuit has made 

plain that “a generalized duty to enforce state law or general supervisory power over the 

persons responsible for enforcing the challenged provision will not subject an official to 

 3

 The State reserves the right to intervene to defend the constitutionality of the Act if this 

case proceeds past this Motion to Dismiss, see 28 U.S.C. § 2403(b); Fed. R. Civ. P. 

24(a)(1).

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suit.” Snoeck v. Brussa, 153 F.3d 984, 986-87 (9th Cir. 1998). And that is all that 

Plaintiffs allege here.4 

B. Plaintiffs’ Claim Against The Attorney General Fails For Lack of 

Standing And Ripeness

Plaintiffs also fail to establish Article III standing and ripeness with respect to the 

Attorney General. See, e.g., Calzone v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017)

(“Article III standing to sue each defendant also requires a showing that each defendant 

caused his injury and that an order of the court against each defendant could redress the 

injury.”). The failure to allege any actual action by the Attorney General necessarily 

precludes Plaintiffs from satisfying this standard. See, e.g., Arizona Attorneys for 

Criminal Justice v. Ducey, No. 17-cv-1422, 2018 WL 1570244, at *5 (D. Ariz. Mar. 30, 

2018) (“Because Plaintiffs set forth no facts which show that they have suffered an injury 

as a result of some conduct of the Attorney General, it follows that it is not likely, much 

less plausible, that an injunction against him would redress their injury.”).

Similarly, Plaintiffs’ complete failure to address ripeness at all, supra at 3, 

necessarily means that they have not established ripeness with respect to their claim 

against the Attorney General.

C. Plaintiffs Have Not Stated A Valid Section 1983 Claim

Contrary to Plaintiffs’ apparent position, Section 1983 is not an absolute liability 

(i.e., liability-without-fault) provision. See Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 

1996) (“Section 1983 creates a cause of action based on personal liability and predicated 

 4

 Plaintiffs cite (at 17) to A.R.S. § 35-301 in their Opposition. That argument is both 

(1) waived for failure to include it in the Complaint and (2) unavailing, because it merely 

provides the Attorney General with a general duty to enforce Arizona law in the 

expenditure of public funds that is insufficient under Snoeck. For the same reasons, 

Plaintiffs citation of Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 920 

(9th Cir. 2004) is unavailing. There the court found that the Idaho attorney general was 

not immune because he had the statutory authority to deputize himself into the role of 

county prosecutor, and then prosecute plaintiffs on the basis of a criminal enforcement 

provision in the challenged Idaho law. Id. at 912, 920. But the Attorney General 

possesses no such authority here.

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upon fault; thus, liability does not attach unless the individual defendant caused or 

participated in a constitutional deprivation”); Taylor v. List, 880 F.2d 1040, 1045 (9th 

Cir. 1989) (stating that “[l]iability under section 1983 arises only upon a showing of 

personal participation by the defendant”). Instead, Section 1983 requires actual wrongful 

conduct by a party to impose substantive liability on it. Plaintiffs have not alleged such 

conduct for either Defendant.

As to the Attorney General, Plaintiffs never deny that they have not alleged any 

action by him, let alone wrongful conduct. Because Section 1983 cannot impose liability 

without fault, Plaintiffs necessarily have failed to allege a viable claim against the 

Attorney General.

Similarly, Plaintiffs’ Complaint does not allege a viable claim against ABOR. 

Plaintiffs notably do not deny Defendants’ arguments that “the Complaint does not allege 

that ABOR/ASU provided to Plaintiffs the speaker form to which Plaintiffs objected, and

Plaintiffs’ own documents establish it was the student group that did so.” MTD at 17. 

Because the allegedly unconstitutional—and outdated—contract was circulated 

negligently by a third party, not ABOR/ASU, Plaintiffs’ Complaint thus unlawfully seeks 

to impose liability without fault on ABOR as well. Moreover, because Plaintiffs have not 

alleged that ABOR took any actions against them under color of law that violate federal 

law, Plaintiffs cannot validly name ABOR as a Section 1983 defendant.

CONCLUSION

Because Plaintiffs have conceded that dismissal is appropriate on grounds of 

prudential mootness and ripeness, Defendants’ motion to dismiss should be granted.

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Respectfully submitted this 14th 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)

Robert J. Makar (No. 033579)

Attorneys for Defendant Mark Brnovich in his 

official capacity as Attorney General

By: s/ Nancy Tribbensee

Nancy Tribbensee (No. 011128)

Senior Vice President and General Counsel, 

Arizona Board of Regents

José A. Cárdenas (No. 005632)

Senior Vice President and General Counsel,

ASU

Attorneys for Defendant Arizona Board of

Regents for and on behalf of Arizona State 

University

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CERTIFICATE OF SERVICE

I hereby certify that on this 14th 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:

Lena F. Masri 

Gadeir I. Abbas 

Carolyn M. Homer

453 New Jersey Ave., SE

Washington, DC 20003

Phone: (202) 742-6420

Fax: (202) 488-0833

Raees Mohamed, Esq. 

8283 N. Hayden Road, Suite 229

Scottsdale, Arizona 85258

Phone: (480) 331-9397

Fax: (866) 961-4984

 s/ Drew C. Ensign

Attorney for Defendant Mark Brnovich in his official capacity as Attorney General of 

Arizona

Case 2:18-cv-00670-DWL Document 31 Filed 06/14/18 Page 17 of 17