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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 Avenueƒ

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’ JOINT MOTION TO 

DISMISS

Oral Argument Requested

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TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................................ii

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

FACTUAL BACKGROUND ...........................................................................................2

LEGAL STANDARD........................................................................................................4

ARGUMENT .....................................................................................................................5

I. PLAINTIFFS’ CLAIM IS DOUBLY MOOT .....................................................5

A. Plaintiffs’ Claim Is Moot Now That Plaintiffs Spoke At The April 3 Event 

That Was The Subject Of Their Suit..............................................................6

B. ABOR’s Removal Of The Anti-Boycott Clause Also Moots This Action.....7

C. No Exceptions To Constitutional Mootness Apply Here ...............................7

1. The Capable of Repetition, Yet Evading Review Exception Does Not 

Apply Here ....................................................................................................7

2. The Voluntary Cessation Exception Also Does Not Apply........................9

D. Alternatively, This Case Is Moot As A Prudential Matter ..........................10

II. PLAINTIFFS’ CLAIM IS UNRIPE...................................................................13

III. THE INDIVIDUAL DEFENDANTS MUST BE DISMISSED........................15

A. The Attorney General Enjoys Sovereign Immunity ....................................15

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

And Ripeness............................................................................................................16

C. Plaintiffs Have Not Stated A Valid Section 1983 Claim ..............................16

CONCLUSION................................................................................................................17

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TABLE OF AUTHORITIES

CASES

Alden v. Maine

527 U.S. 706 (1999) ......................................................................................................15

Already, LLC v. Nike, Inc.

568 U.S. 85 (2013) ..................................................................................................4, 5, 6

Alvarez v. Smith

558 U.S. 87 (2009) ..................................................................................................4, 6, 7

American Cargo Transp., Inc. v. United States

625 F.3d 1176 (9th Cir. 2010).......................................................................................10

American Mfrs. Mut. Ins. Co. v. Sullivan

526 U.S. 40 (1999) ........................................................................................................17

American Rivers v. NMFS

126 F.3d 1118 (9th Cir. 1997).........................................................................................7

Arizona Attorneys for Criminal Justice v. Ducey

No. 17-cv-1422, 2018 WL 1570244, (D. Ariz. Mar. 30, 2018)....................................16

C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist.

654 F.3d 975 (9th Cir. 2011)...........................................................................................6

Davis v. FEC

554 U.S. 724 (2008) ........................................................................................................8

DeFunis v. Odegaard

416 U.S. 312 (1974) ....................................................................................................6, 9

Deutsche Bank Nat. Tr. Co. v. FDIC

744 F.3d 1124 (9th Cir. 2014).......................................................................................10

FEC v. Wisconsin Right to Life, Inc.

551 U.S. 449 (2007) ........................................................................................................8

Forest Guardians v. U.S. Forest Serv.

329 F.3d 1089 (9th Cir. 2003).........................................................................................7

GTE California, Inc. v. FCC

39 F.3d 940 (9th Cir. 1994).............................................................................................6

Headwaters, Inc. v. BLM

893 F.2d 1012 (9th Cir. 1989).........................................................................................8

Idaho Dep’t of Fish & Game v. NMFS

56 F.3d 1071 (9th Cir. 1995)...........................................................................................9

Jordahl v. Brnovich

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

Log Cabin Republicans v. United States

658 F.3d 1162 (9th Cir. 2011).....................................................................................5, 7

Los Angeles v. Lyons

461 U.S. 95 (1983) ......................................................................................................8, 9

Mendez v. Freeport-McMoRan, Inc.

No. 16- 00548, 2016 WL 6577064 (D. Ariz. Nov. 7, 2016)...........................................5

Morales v. Trans World Airlines, Inc.

504 U.S. 374 (1992) ................................................................................................15, 16

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Native Vill. of Noatak v. Blatchford

38 F.3d 1505 (9th Cir. 1994)...........................................................................................8

Natural Res. Council, Inc. v. Grossarth

979 F.2d 1377 (9th Cir. 1992).........................................................................................7

Pennhurst State Sch. & Hosp. v. Halderman

465 U.S. 89 (1984) ........................................................................................................15

Public Utilities Comm’n v. FERC

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

Saldana v. Occidental Petroleum Corp.

774 F.3d 544 (9th Cir. 2014)...........................................................................................5

Sample v. Johnson

771 F.2d 1335 (9th Cir. 1985).........................................................................................8

Scott v. Pasadena Unified School Dist.

306 F.3d 646 (9th Cir. 2002)...........................................................................................9

Seminole Tribe of Fla. v. Florida

517 U.S. 44 (1996) ........................................................................................................15

Shoshone-Bannock Tribes v. Fish & Game Commission, Idaho

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

St. Clair v. City of Chico

880 F.2d 199 (9th Cir. 1989)...........................................................................................5

Steel Co. v. Citizens for a Better Envt.

523 U.S. 83 (1998) ........................................................................................................13

Thomas v. Anchorage Equal Rights Comm’n

220 F.3d 1134 (9th Cir. 2000).............................................................................5, 13, 14

Western Radio Serv. Co. v. Glickman

113 F.3d 966 (9th Cir. 1997)...........................................................................................7

White v. Lee

227 F.3d 1214 (9th Cir. 2000).......................................................................................10

Wilton v. Seven Falls Co.

515 U.S. 277 (1995) ......................................................................................................13

Winzler v. Toyota Motor Sales U.S.A., Inc.

681 F.3d 1208 (10th Cir. 2012).....................................................................................11

Younger v. Harris

401 U.S. 37 (1971) ........................................................................................................14

STATUTES

42 U.S.C. § 1983 ...............................................................................................................16

42 U.S.C. § 1988 ...............................................................................................................16

A.R.S. § 35-393.01..........................................................................................................1, 2

OTHER AUTHORITIES

2016 Ariz. Sess. Laws. Ch. 46 (2d Reg. Sess.) ...................................................................2

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Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, 

Defendants jointly move to dismiss Plaintiffs’ Complaint.

INTRODUCTION

This case began as a First Amendment challenge to a clause in an outdated speaker 

contract, which rapidly proved to be wholly unnecessary—and indeed could have been 

resolved with a simple phone call rather than seeking the accelerated intervention of this 

Court. But regardless of whether this case was ever within this Court’s jurisdiction, it 

assuredly is not now because it is doubly moot. 

Specifically, Plaintiffs’ challenge is now moot both because: (1) Plaintiffs have 

now spoken at the April 3 event at issue without any hindrance by Defendants, rendering 

academic the issue of whether Plaintiffs could speak at that event without agreeing to the

relevant anti-boycott clause, and (2) the challenged clause was removed last year by 

Defendant Arizona Board of Regents for and on behalf of Arizona State University 

(“ABOR”) from its speaker contracts—prior to any invitation to Plaintiffs to speak—and 

all Defendants agree the statute the clause sought to implement, A.R.S. § 35-393.01(A) 

(the “Act”), does not apply to guest speaker invitations. Either one of these two factors 

equally eliminate Article III justiciability here. Together they leave no doubt that 

dismissal is required.

Plaintiffs cannot avoid this outcome by relying on either the capable-of-repetition, 

yet-evading-review or voluntary-cessation exceptions to mootness. Neither exception 

applies here. But even if this case is not moot within the meaning of Article III, it 

satisfies the requirements for prudential mootness. At best, justiciability is hanging by a 

thread here and the relief requested is, at the very least, uncomfortably close to an 

advisory opinion. Moreover, Plaintiffs’ litigation conduct demonstrates that the core of 

this suit—the “dispute” about whether Plaintiffs could speak at the April 3 event—was 

little more than a pretense to challenge the Act. 

Plaintiffs’ challenge also fails for lack of ripeness. Here there is no credible threat 

of enforcement against Plaintiffs—and indeed all Defendants have affirmatively 

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disavowed any intent to enforce the Act in this context. Because any threat of 

enforcement is thoroughly incredible, Plaintiffs’ claim is unripe.

Finally, this case must be dismissed against the Attorney General because (1) he 

enjoys sovereign immunity against Plaintiffs’ claim, (2) that claim lacks standing and 

ripeness as to the Attorney General, and (3) Plaintiffs have not asserted that he took, or is 

about to take, any action whatsoever that could serve as the basis of liability. 

Similarly, ABOR must be dismissed because Plaintiffs have not alleged any 

actions by ABOR that purportedly violated Plaintiffs’ rights, because the incorrect 

contract was sent to Plaintiffs by a third party and ABOR has never—at any point—

insisted that Plaintiffs sign a contract with the anti-boycott provision as a condition of 

speaking at the April 3 event.

FACTUAL BACKGROUND

The Anti-Boycott Act

Concerned about the use of boycotts as “economic warfare” against Israel, the 

Arizona Legislature enacted, and the Governor signed, the Act. See 2016 Ariz. Sess. 

Laws. Ch. 46, § 2 (2d Reg. Sess.) . The Act was passed by bipartisan supermajorities: 

42-16 in the House and 23-6 in the Senate. See Ensign Decl. Exs. A-B. The relevant 

provision of the Act prohibits public entities from “enter[ing] into a contract with a 

company to acquire or dispose of services, supplies, information technology or 

construction” unless the company provides “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.” A.R.S. § 35-393.01(A).

ABOR’s Speaker Form Contract

Arizona State University (“ASU”) utilizes a template speaker’s contract that is 

used both for speakers invited by ASU itself and for speakers invited by student 

organizations when material resources of ASU are required. 2d Cárdenas Decl. ¶ 2.

Student groups are not required to use the template contract when only nominal or 

incidental resources are required (e.g., the use of classrooms). Id.

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After enactment of the Act, ASU incorporated an anti-boycott clause into its 

standard form contracts, including its speaker’s contract in September 2016. Id.¶ 3. In 

December 2017, however, ABOR determined that the Act did not apply to on-campus 

speeches and therefore removed the anti-boycott clause from its speaker contract and 

posted that revised version of the contract on its website in December 2017. Id. ¶ 4. 

Although the form has been revised since, no subsequent version of the form has ever 

included an anti-boycott clause. Id. ¶ 5. The current version of the speaker form is 

attached as Exhibit C to the Second Cárdenas Declaration. Id.¶ 5 & Ex. C.

Plaintiffs’ April 3 Speaking Invitation

On February 22, 2018, a student member of the Muslim Students Association of 

Arizona State University (“MSA”) invited Plaintiffs to speak at an April 3, 2018 event. 

Id. ¶ 6 ; Complaint ¶ 31; Doc. 9-2 Ex. A. No other events/dates were included in that 

invitation. As part of that invitation, without consultation with ASU officials, the student 

sent an outdated version of the ASU speaker contract that included an anti-boycott 

provision, paragraph 20. Complaint ¶¶ 31, 35; Doc. 17-1 at 1 ¶¶ 3-4. 

This Suit And Subsequent Events

Plaintiffs filed the instant suit on March 1 without first contacting Defendants. 

Doc. 1; 2d Cárdenas Decl. Ex. E. Plaintiffs sought a preliminary injunction the next day, 

again without notifying Defendants. See Doc. 9. When ABOR/ASU heard about the suit 

through media inquiries, it contacted counsel for Plaintiffs, both local and in D.C., to 

explain that the correct version of the contract does not contain the boycott provision. 2d 

Cárdenas Decl. ¶ 11. Although ABOR explained the need to speak with counsel prior to 

Plaintiffs’ March 2 press conference, ABOR was advised counsel was in a meeting and 

unable to speak; ABOR therefore released a press release stating that the Act did not 

apply to Plaintiffs’ April 3 speaking event. Id. ¶¶ 11-12; Ex. E. When ABOR finally was 

able to speak to Plaintiffs’ counsel on March 6 it told them that the speaker form sent to 

Plaintiffs and attached to their declarations was an obsolete version. Id. Ex. O. On 

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March 8, ABOR’s counsel provided Plaintiffs with an updated form, which omitted the 

anti-boycott clause. See id. 

Also on March 8, Defendants filed an opposition to Plaintiffs’ request for an 

expedited hearing. See Doc. 17. In that opposition, ABOR/ASU explained that it had 

sent Plaintiffs an updated form that excluded the anti-boycott clause, that “‘the statute 

simply does not apply in this context,’” and “‘ASU has no intentions of enforcing the 

statute that is the subject of your lawsuit and it will not be a bar to the April 3rd event.’” 

Id. at 3 (quoting Doc. 17-1 Ex. 1) (alteration omitted). The Attorney General similarly 

explained that he “agree[d] with ASU’s determination that the Act does not apply to Dr. 

Bazian and AMP with respect to their April 3 speaking engagements” and that he would 

“not take any action to enforce the Act vis-à-vis Dr. Bazian’s and AMP’s April 3 

speaking engagements.” Id. at 3-4.

Despite prior statements to the contrary, Plaintiffs did not sign the corrected 

contracts even though they do not contain the anti-boycott clause. 2d Cárdenas Decl. Ex. 

M. Instead, Plaintiffs raised a new objection to a clause requiring Plaintiffs to “comply 

with all applicable ... laws.” Id. So ASU removed that clause as well. Id. Ex. L. Even 

this change did not satisfy Plaintiffs. Id. Ex. K. Instead, Plaintiffs insisted on a 

stipulation that did nothing more than reiterate the commitments that Defendants had 

already made to Plaintiffs, as well as the Court. Id. Exs. H, I; Doc. 20.

Plaintiffs spoke on ASU’s campus on April 3. 2d Cárdenas Decl. ¶ 8. Defendants 

are not aware of any future on-campus speaking engagements by Plaintiffs. Id. ¶ 9. 

LEGAL STANDARD

Article III requires that “[a]n actual controversy must be extant at all stages of 

review, not merely at the time the complaint is filed.” Alvarez v. Smith, 558 U.S. 87, 92, 

(2009) (quotation marks omitted). A case is moot “when the issues presented are no 

longer live.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quotation marks 

omitted). To satisfy the ripeness requirements of Article III, “there must be a ‘genuine 

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threat of imminent prosecution.’” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 

1134, 1139 (9th Cir. 2000) (en banc). 

“[A] Rule 12(b)(1) motion can attack the substance of a complaint’s jurisdictional 

allegations despite their formal sufficiency, and in doing so rely on affidavits or any other 

evidence properly before the court.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th 

Cir. 1989). In evaluating a Rule 12(b)(1) motion, a court “may look beyond the 

complaint to facts properly in the record, ... need not presume the truthfulness of the 

plaintiffs’ allegations[, and] ... need not accept as true allegations that contradict matters 

properly subject to judicial notice or by exhibit.” Saldana v. Occidental Petroleum Corp., 

774 F.3d 544, 551 (9th Cir. 2014) (citations and quotations omitted). 

“Dismissal for failure to state a claim can be based on either the lack of a 

cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 

theory.” Mendez v. Freeport-McMoRan, Inc., No. 16- 00548, 2016 WL 6577064, at *1 

(D. Ariz. Nov. 7, 2016) (quotation marks omitted). 

ARGUMENT

I. PLAINTIFFS’ CLAIM IS DOUBLY MOOT

“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for 

purposes of Article III—‘when the issues presented are no longer ‘live’ or the parties lack 

a legally cognizable interest in the outcome.’” Nike, 568 U.S. at 91 (citation omitted). 

“[T]he Supreme Court and [the Ninth Circuit] have repeatedly held that a case is moot 

when the challenged statute is repealed, expires, or is amended to remove the challenged 

language. Log Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir. 2011). 

This action is moot for two independent reasons: (1) Plaintiffs have already 

spoken at the April 3 event, rendering irrelevant the purported dispute as to whether 

Plaintiffs would be able to do so without agreeing to an anti-boycott provision, and (2) 

ABOR/ASU had already replaced the outdated speaker contract upon which Plaintiffs’

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claim is based months before this suit was filed (as a simple phone call or any contact 

with ABOR/ASU would have confirmed). 

A. Plaintiffs’ Claim Is Moot Now That Plaintiffs Spoke At The April 3 

Event That Was The Subject Of Their Suit

Because Plaintiffs’ April 3 event has now occurred, any “controversy between the 

parties has thus clearly ceased to be definite and concrete and no longer touches the legal 

relations of parties having adverse legal interests.” DeFunis v. Odegaard, 416 U.S. 312, 

317 (1974) (quotation marks omitted). The expiration of the relevant action—here an 

invitation to speak on campus on April 3 purportedly conditioned on agreeing to the antiboycott provision—moots any challenge to that action. See, e.g., C.F. ex rel. Farnan v. 

Capistrano Unified Sch. Dist., 654 F.3d 975, 983 (9th Cir. 2011) (declaratory judgment 

claim regarding content of instruction moot following objecting student’s graduation); 

GTE California, Inc. v. FCC, 39 F.3d 940, 945 (9th Cir. 1994) (claim moot because 

administrative waiver at issue would have expired on its own terms prior to adjudication); 

Shoshone-Bannock Tribes v. Fish & Game Commission, Idaho, 42 F.3d 1278, 1281-82 

(9th Cir. 1994) (temporary agency prohibition on fishing expired). “No matter how 

vehemently the parties continue to dispute the lawfulness of the conduct that precipitated 

the lawsuit, the case is moot if the dispute is no longer embedded in any actual 

controversy about the plaintiffs’ particular legal rights.” Nike, 568 U.S. at 91 (quotation 

marks omitted).

Because the dispute about the constitutionality of the speaker contract for the April 

3 event is now “an abstract dispute about the law,” and “a dispute solely about the 

meaning of a law, abstracted from any concrete actual or threatened harm, [it] falls 

outside the scope of the constitutional words ‘Cases’ and ‘Controversies.’” Alvarez v. 

Smith, 558 U.S. at 93 (2009).

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B. ABOR’s Removal Of The Anti-Boycott Clause Also Moots This Action

This suit is also moot because ABOR/ASU had removed the anti-boycott clause 

from its speaker contracts—and indeed did so before this action was even filed. Supra at 

2-4. As in Log Cabin Republicans, ABOR/ASU’s removal of the anti-boycott provision 

from its speaker contracts “gave [plaintiffs] ‘everything’ [their] complaint ‘hoped to 

achieve.’” 658 F.3d at 1166 (citation omitted).

The Ninth Circuit has repeatedly held that a superseding government action moots 

a challenge to an earlier government action. See, e.g., Forest Guardians v. U.S. Forest 

Serv., 329 F.3d 1089, 1096 (9th Cir. 2003) (“[W]hen one [action] supersedes another, a 

challenge to the superseded [action] is moot”); Western Radio Serv. Co. v. Glickman, 113 

F.3d 966, 974 (9th Cir. 1997) (agency action “has been superseded” and “therefore has 

no current effect or continuing consequences, and [plaintiff’s] challenge to it is moot”); 

American Rivers v. NMFS, 126 F.3d 1118, 1124 (9th Cir. 1997) (challenge to 1994 

biological opinion is moot because it was superseded by 1995 biological opinion); Or. 

Natural Res. Council, Inc. v. Grossarth, 979 F.2d 1377, 1378-80 (9th Cir. 1992)

(cancellation of leases mooted suit over prior leases and review of agency’s issuance of 

new leases “should be considered in the first instance by a district court in separate 

litigation which can develop an independent record”).

So too here. The superseding contract form moots Plaintiffs’ challenge to the 

outdated contract form that Plaintiffs were given by a third-party’s mistake.

C. No Exceptions To Constitutional Mootness Apply Here

The State anticipates that Plaintiffs will argue that exceptions for voluntary 

cessation or claims capable of repetition, yet evading review apply here. Neither does.

1. The Capable of Repetition, Yet Evading Review Exception Does 

Not Apply Here

Federal courts do recognize an exception to mootness for disputes that are 

“‘capable of repetition’ while ‘evading review.’” Alvarez, 558 U.S. at 93. Plaintiffs, 

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however, cannot fall within that exception, which is both “narrow” and “applies only in 

‘exceptional situations.’” Headwaters, Inc. v. BLM, 893 F.2d 1012, 1016 (9th Cir. 1989), 

(citation omitted). 

To satisfy the exception, Plaintiffs would need to make two showings. First, they 

must demonstrate a “‘reasonable expectation’ or a ‘demonstrated probability’ that ‘the 

same controversy will recur involving the same complaining party.’” FEC v. Wisconsin 

Right to Life, Inc. (“WRTL”), 551 U.S. 449, 463 (2007) (citation omitted). Second, 

Plaintiffs must demonstrate that “‘the challenged action is in its duration too short to be 

fully litigated prior to its cessation or expiration.’” Davis v. FEC, 554 U.S. 724, 735 

(2008) (quoting WRTL, 551 U.S. at 462). Plaintiffs bear the burden of establishing both 

showings. See Los Angeles v. Lyons, 461 U.S. 95, 109 (1983); Sample v. Johnson, 771 

F.2d 1335, 1340, 1342 (9th Cir. 1985). But Plaintiffs cannot establish either requirement 

here.

First, there is no reasonable likelihood that Plaintiffs will ever again be asked to 

sign a certification under the Act. ABOR/ASU had already removed the anti-boycott 

clause from its speaker contracts months before this suit was filed and has no intention of 

ever restoring it. 2d Cárdenas Decl. ¶¶ 2-6. Thus, even if Plaintiffs are ever again asked 

to speak at ASU, there is no reasonable probability that they will be required to sign a 

contract with an anti-boycott provision. See, e.g., Pub. Utils. Comm’n v. FERC, 100 F.3d 

1451, 1460 (9th Cir. 1996) (where “resolution of a controversy depends on facts that are 

unique or unlikely to be repeated, the action is not capable of repetition and hence is 

moot”); Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994)

(rejecting as too speculative the possibility that defendant would again enact similar 

regulations to those originally challenged: “If in the future the Commissioner does 

implement regulations or policies which [plaintiff] finds objectionable, [it] can challenge 

them at that time.”). And Plaintiffs’ filings to date do not disclose any future speaking 

engagements at ASU, rendering the possibility of recurrence even more remote. 

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Second, Plaintiffs’ First Amendment challenges to the Act will not evade review—

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). That case involves a 

multi-year contract,1 and will not evade review. See, e.g., Idaho Dep’t of Fish & Game v. 

NMFS, 56 F.3d 1071, 1075 (9th Cir. 1995) (holding that biological opinion lasting four 

years is “more than enough time for litigants to obtain judicial review”).

2. The Voluntary Cessation Exception Also Does Not Apply

The “voluntary cessation” exception to mootness is likewise inapplicable here for 

four reasons.

First, one aspect of the mootness here is simply that time has passed and Plaintiffs 

have given their speech. That passage of time is not “voluntary cessation,” but rather 

ordinary mootness. See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 318 (1974).

Second, the voluntary cessation exception does not apply where, as here, 

Defendants had already ceased the relevant conduct before this action was filed. See, 

e.g., Pub. Utils. Comm’n, 100 F.3d at 1460 (“[I]n order for this exception to apply, the 

defendant’s voluntary cessation must have arisen because of the litigation.”). Here, 

ABOR had already removed the anti-boycott provision from its speaker agreement before 

this suit was filed. See Doc. 17-1; 2d Cárdenas Decl. ¶¶ 4-5.

Third, and relatedly, 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—which has no exception for voluntary 

cessation. See, e.g., Los Angeles v. Lyons, 461 U.S. 95, 109 (1983); Scott v. Pasadena 

Unified School Dist., 306 F.3d 646, 655 (9th Cir. 2002) (Standing is determined based on 

“the facts as they existed at the time that the complaint was filed.”).

 1

 While the contracts are for one year at a time, the contract is only bid out every four 

years and annual renewals are presumptive between biddings. Ensign Decl. Ex. C at 

83:16-84:1; 92:16-21.

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Fourth, Defendants have consistently explained why the Act does not apply to 

guest speakers, and that they have absolutely no intent of enforcing the Act against such 

speakers. See Doc. 17. Indeed, Defendants have disavowed the applicability of the Act 

in this context at every turn, and incorporated that position into the standard speaker 

contract. Id.; 2d Cárdenas Decl. Exs. E, J, L, N, O. And “unlike in the case of a private 

party, [courts] presume the government is acting in good faith” with any change in its 

conduct. American Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir. 

2010). The voluntary mootness exception thus does not apply. See, e.g., White v. Lee, 

227 F.3d 1214, 1242-44 (9th Cir. 2000) (exception did not apply where new policy was 

set forth in a memorandum that was “broad in scope and unequivocal in tone” and 

announced by press release).

D. Alternatively, This Case Is Moot As A Prudential Matter

Even if this case were not moot for purposes of Article III, prudential 

considerations here require dismissal of Plaintiffs’ suit since the dispute about the April 3 

event no longer has any practical significance. And Plaintiffs’ litigation conduct has 

demonstrated that they are disinterested in obtaining a practical solution to the issue that 

the Complaint was purportedly about—being able to speak at the April 3 event without 

agreeing not to boycott Israel—and instead are intent on obtaining an advisory opinion 

about the constitutionality of the Act at all costs, regardless of whether it has a concrete 

effect on them. 

The scarce judicial resources of this Court need not be wasted on litigants who 

interminably refuse to take “yes” for an answer. Instead, “The doctrine of prudential 

mootness permits a court to ‘dismiss an appeal not technically moot if circumstances 

have changed since the beginning of litigation that forestall any occasion for meaningful 

relief[.]’” Deutsche Bank Nat. Tr. Co. v. FDIC, 744 F.3d 1124, 1135 (9th Cir. 2014). 

Prudential mootness reflects the common-sense recognition that, “if events so overtake a 

lawsuit that the anticipated benefits of a remedial decree no longer justify the trouble of 

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deciding the case on the merits, equity may demand not decision but dismissal.” Winzler 

v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1210 (10th Cir. 2012). 

Here, Plaintiffs have spoken at their April 3 event without hindrance and have no 

apparent prospect of ever encountering the Act again. Supra at 4. Thus even if this case 

were not constitutionally moot, it has long since been robbed of any practical significance 

and should be dismissed as prudentially moot. Indeed, even if Plaintiffs could somehow 

squeeze into one of the exceptions to mootness, the constitutional justiciability of their 

claim would at best exist by the thinnest of margins and the case should be readily 

dismissed on prudential grounds. 

Such a dismissal is particularly appropriate given Plaintiffs’ litigation conduct—

which demonstrates that the April 3 event is but a pretense to challenge the 

constitutionality of the Act notwithstanding its inapplicability. At every turn, Plaintiffs 

refused to accept satisfaction of their purported objectives. Instead, they continually 

invented new, ad hoc concerns in an attempt to keep this case alive until even Plaintiffs’ 

capacity to concoct new objections ran out. This Court need not indulge such transparent 

litigation-seeking behavior. 

In particular, Plaintiffs’ representations to this Court have proven to have little 

value. Plaintiffs’ Complaint expressly stated that “Dr. Hatem Bazian and American 

Muslims for Palestine would accept the Muslim Students Association’s invitation if the 

‘No Boycott of Israel’ clause were stricken. They agree to all other contractual terms.” 

Complaint ¶ 37. Plaintiffs made a similar representation the next day in their motion for 

a preliminary injunction.2 And both of Plaintiffs’ declarants swore under oath that the 

anti-boycott clause was their only objection to the speaker form sent to them.3

 2

 See Doc. 9-1 at 5 (“The ‘No Boycott of Israel’ clause in ASU’s standard speaker 

agreement is, to Plaintiffs’ knowledge, the only institutional and legal roadblock to their 

participation in the scheduled April 3, 2018 event.”).

3

 See Doc. 9-3 at 3 ¶ 16 (“I have no objection to Arizona State University’s “Speaker / 

Artist Performer Agreement” other than Paragraph 20, the ‘No Boycott of Israel’ clause. 

... If the ‘No Boycott of Israel’ clause is stricken or declared unenforceable, I will sign 

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Plaintiffs’ commitments, however, rapidly proved worthless. After discovering 

about the case from press inquiries (not from Plaintiffs), ASU immediately called 

Plaintiffs’ counsel. 2d Cárdenas Decl. ¶ 11. When ABOR was unable to connect with 

any of Plaintiffs’ counsel prior to Plaintiffs’ March 2 press conference announcing this 

suit, ABOR issued a press release on March 2, the same day of the press conference, to 

explain that it did “not believe that this law [the Act] applies to this kind of engagement 

because the contract was to be with a student group.... The certification was not 

needed.” Id. ¶ 12; Ex. E. Counsel for ABOR/ASU further told Plaintiffs on March 6 and 

March 8 that “your lawsuit is based on an outdated version of our speaker engagement 

form contract. The form was revised in December of 2017 and the no boycott of Israel 

provision to which you object was removed.” Doc. 17-1 Ex. 1.

But even though the sole clause to which Plaintiffs had objected was removed 

from the speaker agreement before this suit was even filed, Plaintiffs did not follow 

through with their representations that they would sign the contracts if that clause 

removal occurred. Complaint ¶ 37; supra at 3-4. Instead, Plaintiffs suddenly discovered 

an objection to paragraph 6, which required Plaintiffs to comply with “applicable ... 

laws,” 2d Cárdenas Decl. Ex. M, O—even though Plaintiffs previously had full 

knowledge of that clause,4 and stated they agreed to “all other contractual terms.” 

Complaint ¶ 37. In short, Plaintiffs reneged on their commitments to this Court barely a 

week after making them.

In an effort to resolve this dispute without full-blown litigation, ABOR agreed to 

remove even the “applicable ... laws” clause. 2d Cárdenas Decl. Ex. L. In addition, both 

 the Agreement, enabling me to speak at the April 3, 2018 event.”); Doc. 9-2 at 3 ¶ 8 (“I 

cannot in good faith sign ...because of one, and only one, objection. Paragraph 20 of the 

Agreement.... If the ‘No Boycott of Israel’ clause is stricken or declared unenforceable, I 

will sign the Agreement, enabling AMP to participate in the April 3, 2018 event.”

4

 See Doc. 9-3 Ex. B (attaching contract with paragraph 6); Doc. 9-2 Ex. A (same).

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ABOR and the Attorney General made unequivocal commitments to this Court that they 

would not take action to interfere with the April 3 event under the Act. See Doc. 17.

But even these actions did not satisfy Plaintiffs. Instead, Plaintiffs now would 

“only withdraw our motion pursuant to an all-party stipulation.” 2d Cárdenas Decl. Ex. 

K. Although Defendants believed that such a stipulation was thoroughly unnecessary 

given the removal of every single clause to which Defendants had ever objected and 

Defendants’ binding commitments made to this Court, Defendants ultimately agreed to a 

joint stipulation. Id. Ex. H.

Plaintiffs’ conduct thus demonstrates that the April 3 event was but an artifice to 

obtain their true objective—an opinion from this Court regarding constitutionality of the 

Act notwithstanding that the Act does not affect Plaintiffs’ concrete interests. But this 

Court has does not have jurisdiction to enter such an advisory opinion. See, e.g., Steel 

Co. v. Citizens for a Better Envt., 523 U.S. 83, 101 (1998). And even if Plaintiffs 

satisfied the requirements of Article III, the doctrine of prudential mootness requires 

dismissal here where there is no meaningful relief to be had.

Alternatively, this Court should decline to exercise its jurisdiction to hear a request 

for a declaratory judgment. Such jurisdiction is entirely discretionary. See, e.g., Wilton 

v. Seven Falls Co., 515 U.S. 277, 288 (1995). And for all of these reasons, this Court 

should exercise its discretion not to hear this dispute.

II. PLAINTIFFS’ CLAIM IS UNRIPE

As the Ninth Circuit, sitting en banc, has explained: Neither “the mere existence 

of a proscriptive statute nor a generalized threat of prosecution satisfies the ‘case or 

controversy’ requirement.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 

1139 (9th Cir. 2000) (en banc). To satisfy the ripeness requirements of Article III, “there 

must be a ‘genuine threat of imminent prosecution.’” Id. Plaintiffs cannot remotely 

make such a showing.

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The Ninth Circuit has provided three factors to “evaluat[e] the genuineness of a 

claimed threat of prosecution”: “[(1)] whether the plaintiffs have articulated a ‘concrete 

plan’ to violate the law in question, [(2)] whether the prosecuting authorities have 

communicated a specific warning or threat to initiate proceedings, and [(3)] the history of 

past prosecution or enforcement under the challenged statute.” Id.

Because the anti-boycott clause no longer exists in speaker contracts, it is doubtful 

that Plaintiffs could have a “‘concrete plan’ to violate the” Act in the future.5 But even if 

they did, the second and third factors mandate a conclusion that this suit is unripe. Not 

only have Defendants never “communicated a specific warning or threat to initiate 

[enforcement] proceedings” against Plaintiffs, they have unequivocally disavowed any 

intent to enforce the Act in the context of guest speakers. Doc. 17 at 3-4. Thus, as in 

Thomas, “when plaintiffs ‘do not claim that they have ever been threatened with 

prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,’ 

they do not allege a dispute susceptible to resolution by a federal court.” 220 F.3d at 

1140 (citation omitted); see also Younger v. Harris, 401 U.S. 37, 42 (1971) (same). 

Similarly, as to the third factor, no Defendant has ever filed an enforcement action 

relating to the Act in this context. Ensign Decl. ¶¶ 2-3. Indeed, the Attorney General has

never initiated any suit to enforce the Act against anyone to date (although he has 

defended its constitutionality in this Court). Ensign Decl. ¶¶ 2-3. The second and third 

factors thus compel a conclusion that Plaintiffs have not established a “genuine threat of 

imminent prosecution,” requiring dismissal of this case as unripe.

 5

 Indeed, even at the time that this suit was filed, the speaker form actually used by 

ASU/ABOR did not include the anti-boycott clause. 2d Cárdenas Decl. ¶¶ 4-5.

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III. THE INDIVIDUAL DEFENDANTS MUST BE DISMISSED

A. The Attorney General Enjoys Sovereign Immunity

As a general matter, all state officials enjoy sovereign immunity. See, e.g., Alden 

v. Maine, 527 U.S. 706, 747 (1999) (“[S]overeign immunity bars relief against States and 

their officers[.]” (emphasis added)). Ex Parte Young recognizes a “narrow exception” to 

that immunity. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 76 (1996); accord

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114-15 & n.25 (1984)

(explaining that “Young is a fiction that has been narrowly construed”). Plaintiffs’ 

Complaint does not fall within that narrow exception, however.

Under Ex Parte Young, sovereign immunity is not a bar to suit against “an official 

who acts unconstitutionally [because the official] is [thereby] ‘stripped of his official or 

representative character[.]’” Pennhurst, 465 U.S. at 104 (emphasis added). Indeed, the 

Supreme Court has repeatedly stressed that the Ex Parte Young exception only applies 

where either the state officers actually act in an unconstitutional manner,6 or “threaten 

and are about to commence proceedings, either of a civil or criminal nature, to enforce 

against parties affected an unconstitutional act.” Morales v. Trans World Airlines, Inc., 

504 U.S. 374, 381 (1992).

7

 6

 See Frew v. Hawkins, 540 U.S. 431, 437 (2004) (Young “permits suits for prospective 

injunctive relief against state officials acting in violation of federal law” (emphasis 

added)); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993) 

(Young permits some suits “against state officials in federal court challenging the 

constitutionality of official conduct enforcing state law.” (emphasis added)); see also In 

re Ellett, 254 F.3d 1135, 1138 (9th Cir. 2001) (“To be entitled to relief under Ex Parte 

Young, then, [plaintiff] must allege that [defendant] ... is engaging in a course of activity 

in violation of federal law.” (emphasis added)).

7 Accord Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015) 

(“[F]ederal courts may in some circumstances grant injunctive relief against state officers 

who are violating, or planning to violate, federal law.” (emphasis added)); Steffel v. 

Thompson, 415 U.S. 452, 464–65 (1974) (Young “hold[s] that state officials who threaten 

to enforce an unconstitutional state statute may be enjoined by a federal court” (emphasis 

added)).

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In stark contrast here, the Attorney General is not alleged to have done anything,

or to have threatened to initiate any enforcement action. The entirety of Plaintiffs’ 

allegations regarding the Attorney General is found in paragraph 10, which alleges that 

he “is responsible for enforcing and defending the constitutionality of Arizona law.” 

Complaint ¶ 10. There is thus no allegation that the Attorney General has actually 

undertaken a relevant act whatsoever, let alone an action that violated the U.S. 

Constitution. Nor is there any allegation that the Attorney General has “threaten[ed] and 

[is] about to commence proceedings.” Morales, 504 U.S. at 381. Indeed, he has 

affirmatively disavowed any intent to enforce the Act in this context because it does not 

apply. Doc. 17 at 3-4. Ultimately, the Attorney General here has simply been sued as a 

stand-in for the State itself, which does not satisfy Young.

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

Standing And Ripeness

For similar reasons, Plaintiffs lack standing to assert a claim against the Attorney 

General, which would also be unripe. Absent any conduct by the Attorney General, there 

is no subject matter jurisdiction for a claim asserted against him. See 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.”).

C. Plaintiffs Have Not Stated A Valid Section 1983 Claim

Plaintiffs’ claim must be dismissed for failure to state a valid claim under 42 

U.S.C. § 1983.

8

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with respect to the Act at all, let alone that “deprived [Plaintiffs] of a right secured by the 

 8

 By asserting a violation of the First and Fourteenth Amendments and seeking attorneys 

feels under 42 U.S.C. § 1988, see Doc. 1 at 9, 12, Plaintiffs claim for relief necessarily 

must be asserted under Section 1983 even though it does not invoke that section (or any 

other) expressly.

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Constitution or laws of the United States, and that the alleged deprivation was committed 

under color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 

(1999) (stating elements of a Section 1983 claim). Plaintiffs’ failure to allege any action 

at all by the Attorney General necessarily means that Plaintiffs have not alleged a valid 

Section 1983 claim against him.

Plaintiffs also have not alleged that ABOR/ASU took any action under color of 

law that violated Plaintiffs’ rights. Notably, 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. See Doc. 9-3 

¶ 12; Doc. 9-2 ¶¶ 6-7 & Ex. A. And when ABOR/ASU first became aware of Plaintiffs’ 

objections, it quickly provided Plaintiff with an updated speaker form that did not include 

an anti-boycott clause. 2d Cárdenas Decl. Ex. E, O. Thus, the Complaint simply does 

not (and could not) allege that ABOR/ASU insisted that Plaintiffs sign a contract with an 

anti-boycott provision as a condition of speaking at the April 3 event, and therefore does 

not allege a viable Section 1983 claim.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Complaint should be dismissed for lack of 

subject matter jurisdiction or as prudentially moot. Alternatively, the Complaint should 

be dismissed for failure to state a valid section 1983 claim.

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Respectfully submitted this 10th day of April, 2018.

MARK BRNOVICH

ATTORNEY GENERAL

By: s/ Drew C. Ensign

Drew C. Ensign (No. 25462)

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

José A. Cárdenas (No. 005632)

Senior Vice President and General Counsel,

ASU

Attorneys for Defendant Arizona Board of

Regents

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LOCAL RULE 12.1 CERTIFICATION

Pursuant to Local Rule 12.1, I certify that before filing the instant motion 

attorneys for the State conferred with Plaintiffs’ counsel by email on April 9 and 

informed them of the State’s intention to file this motion and the bases for it. Plaintiffs’ 

counsel indicated that Plaintiffs would not be amending their Complaint prior to 

Defendants filing their instant motion to dismiss.

 s/ Drew C. Ensign

Attorney for Intervenor-Defendant State of Arizona

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CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of April, 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

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