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MARK BRNOVICH

Arizona Attorney General (Firm Bar No. 014000)

Drew C. Ensign (No. 25462)

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) 542-5200

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 State University; Arizona Board 

of Regents; and Mark Brnovich, in his 

official capacity as Attorney General of 

Arizona,

Defendants.

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

DEFENDANTS’ JOINT OPPOSITION 

TO PLAINTIFFS’ REQUEST FOR AN 

EXPEDITED HEARING (DOC. 10) AND 

FIRST REQUEST FOR AN 

EXTENSION OF TIME

Case 2:18-cv-00670-JJT Document 17 Filed 03/08/18 Page 1 of 7
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OPPOSITION TO EXPEDITED HEARING REQUEST

AND REQUEST FOR AN EXTENSION OF TIME

Defendants Arizona Board of Regents (“ABOR”)

1 and Mark Brnovich hereby 

jointly oppose Plaintiffs’ request for an expedited hearing “no later than the week of 

March 26,” because no such hearing is needed. Doc. 10 at 2.2 The hearing request is 

predicated on Plaintiffs desire to speak at “the April 3, 2018 event at Arizona State 

University which is the subject of Plaintiffs’ application.” Id. The sole obstacle to 

Plaintiffs speaking at that event was a “No Boycott of Israel” provision in the applicable 

speaker contract form sent to Plaintiffs by the Muslim Students Association of ASU. 

That form was outdated, however, and Plaintiffs have been sent an updated form revised 

in December 2017—which does not include any such anti-Israel-boycott provision. The 

university has also confirmed that Plaintiffs are free to speak on April 3. 

The sole impediment to Plaintiffs speaking at the April 3 event has thus been 

removed. Because it is clear that Plaintiffs will be permitted to speak without any

injunctive relief issued by this Court, there is no reason to schedule an expedited hearing. 

 1 Plaintiffs caption their case as being against Arizona State University, as well as 

separately against the Attorney General and the Arizona Board of Regents. ASU is not a 

party to this motion because it is a non-jural entity that cannot be sued. Governmental 

entities such as ASU “have no inherent power and possess only those powers and duties 

delegated to them by their enabling statutes.” Braillard v. Maricopa Cty., 232 P.3d 

1263, 1269, ¶ 12 (App. 2010). Thus, ASU “may be sued only if the legislature so 

provided.” Id. Arizona’s universities are governed by ABOR. A.R.S. § 15-1625(A).

By statute, ABOR has the capacity to sue and be sued. A.R.S. § 15-1625(B)(3). No 

similar statute exists for ASU. Therefore, claims for actions taken by ASU should name 

ABOR for and on behalf of ASU. Should this lawsuit proceed, then, at the appropriate 

time, plaintiffs should recast their suit appropriately. See Fed. R. Civ. P. 17(a)(1).

2 Defendants reserve the right to move to dismiss on all bases available to them. 

Nothing in this motion is intended to waive any bases for dismissal. Instead, it was 

necessary to file this response prior to a motion to dismiss given the timing of Plaintiffs’ 

expedited request.

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(Indeed, Plaintiffs may well decide to withdraw their motion for a preliminary injunction 

in light of these developments.)

Further, consistent with these facts, Defendants also respectfully request an 

extension of time to file consolidated motions to dismiss Plaintiffs’ Complaint (Doc. 1) 

and oppositions to Plaintiffs’ motion for a preliminary injunction (Doc. 9) until April 6. 

This request is supported by good cause.

ARGUMENT

I. THERE IS NO NEED FOR AN EXPEDITED HEARING

Both Plaintiffs’ motion for a preliminary injunction and request for an expedited 

hearing are predicated entirely on the notion that A.R.S. § 35-393 et seq. (the “Act”) will 

in some way inhibit Plaintiffs Dr. Bazian and American Muslims for Palestine (“AMP”)

from speaking at an event on April 3, 2018, at the campus of Arizona State University 

(“ASU”). Doc. 9-1 at 5 As Plaintiffs have themselves said: “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.” Id. It has, however, become perfectly clear that the Act does not pose any such 

obstacle to Dr. Bazian and AMP speaking.

Plaintiffs’ claim is premised entirely on a single provision in the purported form 

speaker agreement that was sent to Dr. Bazian and AMP. Doc. 1 at 9 (¶37) (“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.”). The form contract that was sent to them (in error) included 

a clause requiring certify that he/it was not “engaged in a boycott of Israel” within the 

meaning of the Act. Doc. 9-2 Ex. A at 3 (¶20) (page 11 of 13). 

Dr. Bazian has made plain that he has no other objection to the speaker agreement 

and would otherwise be willing and able to speak at the April 3 event: “If the ‘No 

Boycott of Israel’ clause [in the speaker form contract] is stricken or declared 

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unenforceable, I will sign the Agreement, enabling me to speak at the April 3, 2018 

event.” Doc. 9-3 at 6-7 (¶16) (Bazian Declaration). AMP has similarly explained that it 

has “one, and only one, objection,” the no-Israel-boycott clause. Doc. 9-2 at 3 (¶8)

(emphasis added). Therefore, “[i]f 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.” Id. 

Since the filing of this suit, it has become abundantly clear that AMP and Dr. 

Bazian will not be required to sign any contract with a “No Boycott of Israel” clause, and 

indeed that the Act does not apply to their speaking engagements at all. As José

Cárdenas, ASU’s General Counsel, has explained to Plaintiffs’ counsel, the form 

contract sent to Dr. Bazian was an incorrect, older form contract. Cárdenas Decl. Ex. 1. 

Mr. Cárdenas has since sent a revised and updated form to Plaintiffs’ counsel, which 

does not include any “No Boycott of Israel” clause. Cárdenas Decl. Ex. 1. Mr. Cárdenas

has also stated unequivocally that “[t]he 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.

ASU’s position that the Act does not apply to AMP’s and Dr. Bazian’s speaking 

engagements is well-founded and shared by Defendant Mark Brnovich. Among other 

reasons, Defendant Brnovich agrees that the Act does not apply to Plaintiffs’ proposed 

public speaking engagement at the University, as this type of guest speech is not a 

provision of “services” within the meaning of the Act, in particular as that term must be 

understood in light of the Act as a whole. See A.R.S. § 35-393.01(A). Id. (“A public 

entity may not enter into a contract with a company to acquire or dispose of services, 

supplies, information technology or construction....”).

Defendant Brnovich therefore fully agrees with ASU’s determination that the Act 

does not apply to Dr. Bazian and AMP with respect to their April 3 speaking 

engagements. The Attorney General will (1) argue as much in seeking dismissal of 

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Plaintiffs’ complaint and opposing Plaintiffs’ motion for a preliminary injunction (should 

that motion not be withdrawn) and (2) like Defendant ABOR, not take any action to 

enforce the Act vis-à-vis Dr. Bazian’s and AMP’s April 3 speaking engagements. ASU 

has conveyed the Attorney General’s position to Plaintiffs. Cárdenas Decl. Ex. 1.

Under these circumstances, there is no need to hold the expedited hearing

requested by Plaintiffs. The clause at issue does not appear in the revised speaker

contract sent to Plaintiffs’ counsel and no Defendant intends to interfere with Plaintiffs 

speaking at the April 3 event on the basis of the Act. Because Plaintiffs will be able to 

speak at that event no matter what actions this Court takes, no expedited hearing is either 

needed or warranted. The scarce resources of this Court need not be consumed by a 

hearing that is now, by all available evidence, pointless.

II. AN EXTENSION OF TIME IS WARRANTED

Defendants also request extensions of time to file consolidated motions to dismiss 

and responses to Plaintiffs’ motion for a preliminary injunction. Defendants were not 

served with Plaintiffs’ Complaint and motion until March 5. The current deadlines for 

the Defendants’ response and motion to dismiss/answer are therefore currently March 19 

and March 26, respectively. 

An April 6 deadline for a consolidated brief, representing an 11- to 18-day 

extension, will serve the interests of judicial economy and is supported by good cause for 

several reasons. First, consolidated briefing will assist this Court in resolving the issues 

presented, rather than having them raised piecemeal across individual motions. Second, 

a short extension should permit Defendants to depose Plaintiffs if appropriate to discover 

the facts relevant to Plaintiffs’ request for a preliminary injunction and/or the 

jurisdictional basis (or lack thereof) for this suit. Third, an extension of time is 

warranted because of the importance of the constitutional issues purportedly presented 

by Plaintiffs’ Complaint. A short extension of time will permit the Defendants to 

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address those issues meticulously in a manner that will assist this Court’s resolution of 

this action (should any Article III case or controversy exist/remain). 

For these reasons, the Defendants’ request for extensions of time to file 

consolidated briefs should be granted.

CONCLUSION

For the foregoing reasons, Plaintiffs’ request for an expedited hearing (Doc. 10) 

should be denied. In addition, Defendants’ requests for extensions of time to file 

consolidated motions to dismiss and responses to Plaintiffs’ motion for a preliminary 

injunction until April 6 should be granted.

Respectfully submitted this 8th day of March, 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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CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of March, 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

Case 2:18-cv-00670-JJT Document 17 Filed 03/08/18 Page 7 of 7