FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW PEYTON THOMAS, 

Maricopa County Attorney;

LORENZO ARENIVAZ; TIMOTHY

WILLIS; BARBARA WILLIS,

Plaintiffs-Appellants,

v.

BARBARA MUNDELL, Judge of the

Superior Court of Arizona; CAREY No. 07-15388

SNYDER HYATT, Judge of the D.C. No.

Superior Court of Arizona; AIMEE  CV-06-00598-PHXANDERSON, Commissioner, EHC

Superior Court of Arizona; OPINION RICHARD NOTHWEHR,

Commissioner, Superior Court of

Arizona; STEVEN LYNCH,

Commissioner, Superior Court of

Arizona; JAMES T. BLOMO,

Commissioner, Superior Court of

Arizona,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge, Presiding

Argued and Submitted

October 23, 2008—San Francisco, California

Filed July 15, 2009

Before: J. Clifford Wallace, Sidney R. Thomas and

Susan P. Graber, Circuit Judges.

8947
Opinion by Judge Wallace

8948 THOMAS v. MUNDELL
COUNSEL

Michael A. Carvin, Jones Day, Washington, D.C., for the

plaintiffs-appellants.

Scot L. Claus, Mariscal, Weeks, McIntyre & Friedlander,

P.A., Phoenix, Arizona, for the defendants-appellees.

OPINION

WALLACE, Senior Circuit Judge:

Andrew Peyton Thomas, the County Attorney for Maricopa

County, Arizona, in his official capacity (Thomas), along with

Lorenzo Arenivaz, Timothy Willis, and Barbara Willis (individual plaintiffs), sued several judges and commissioners of

the Arizona Superior Court for injunctive and declaratory

relief. They allege that certain post-sentencing probation programs adopted and supervised by the superior court violate

their federal constitutional and statutory rights. The district

court dismissed their claims for lack of standing. Thomas and

the individual plaintiffs timely appealed from the district

court’s dismissal. Because we agree that Thomas and the individual plaintiffs lack standing to challenge the probation programs at issue, we affirm the district court’s dismissal.

I.

In 1998, the Maricopa County Adult Probation Department

instituted a separate and specialized probation program for

8950 THOMAS v. MUNDELL
individuals convicted of aggravated driving-under-theinfluence (DUI) offenses. This program was funded through

a grant from the National Traffic Safety Administration, and

is commonly known as the “DUI court.” Eligible persons

were enrolled in the DUI court after having completed their

respective sentences. The DUI court differs from traditional

criminal probation in several respects. For example, probationers in the DUI court engage in more frequent contact with

their assigned probation officers, participate in substance

abuse treatment courses and counseling, and take part in peer

support groups and observation. Probationers are also

required to attend monthly status hearings before a superior

court judge, who tracks and monitors their progress.

Subsequently, Maricopa County instituted separate DUI

courts for Spanish-speaking and for Native American probationers. These programs were meant in part to address

observed deficiencies in the treatment and rehabilitation services rendered to these groups of probationers in the standard

DUI court program. The “Spanish-speaking DUI court” was

established in December 2002, and the “Native American

DUI court” followed in 2003 (collectively, separate DUI

courts). The separate DUI courts were funded through a grant

from the Substance Abuse and Mental Health Services

Administration of the United States Department of Health and

Human Services.

Thomas and the individual plaintiffs allege that the separate

DUI courts “segregate targeted recipients and treat them differently than the ‘regular’ DUI court.” Specifically, the

amended complaint alleges that proceedings in the Spanishspeaking DUI court are conducted in Spanish and are presided

over exclusively by defendant Judge Barbara Mundell.

Thomas and the individual plaintiffs allege that probationers

in the Spanish-speaking DUI court receive more positive reinforcement and fewer or lighter punishments as compared to

probationers in the “regular” DUI court. Also, the headphone

translation system employed in the Spanish-speaking DUI

THOMAS v. MUNDELL 8951
court is allegedly outdated and inadequate, preventing members of the public and the press from receiving “translation in

a timely and appropriate manner.”

With respect to the Native American DUI court, the

amended complaint alleges that probationers here are generally required to appear on the same day. Probationers in the

Native American DUI court also allegedly participate in “cultural programs, specially designed for them, such as being

sent to sweat lodges and participating in talking circles.”

Administrators of the DUI court program also allegedly treat

participants in the Native American DUI court “as a separate

group” for grant reporting purposes.

Thomas filed the original complaint on February 28, 2006.

An amended complaint was filed on March 13, 2006, adding

the individual plaintiffs to this action. As described above,

Thomas is the County Attorney for Maricopa County.

Arenivaz is a resident of Maricopa County, and a victim of a

DUI crime perpetrated by a probationer who participated in

the “regular” DUI court. The Willises are residents of Maricopa County, and victims of a DUI crime committed by a probationer who participated in the Spanish-speaking DUI court.

Thomas and the individual plaintiffs assert claims under the

First Amendment, the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, Title VI of the

Civil Rights Act of 1964, and 42 U.S.C. § 1981. They seek an

order declaring the separate DUI courts unconstitutional, and

enjoining the defendants from operating these probation programs. The defendants filed a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(1) and (6), asserting,

among other claims, that the plaintiffs lack standing to bring

this action in federal court. The district court granted the

defendants’ motion to dismiss, ruling that the plaintiffs have

failed to allege sufficient injury in fact to establish their standing to bring suit under Article III. This appeal followed.

8952 THOMAS v. MUNDELL
II.

Standing is a necessary element of federal-court jurisdiction under Article III of the Constitution. Warth v. Seldin, 422

U.S. 490, 498 (1975). “A threshold question in every federal

case is, therefore, whether at least one plaintiff has standing.”

City of South Lake Tahoe v. Cal. Tahoe Reg’l Planning

Agency, 625 F.2d 231, 233 (9th Cir. 1980), citing Constr.

Indus. Ass’n of Sonoma County v. City of Petaluma, 522 F.2d

897, 903 (9th Cir. 1975). We review the district court’s determination on that issue de novo. Stewart v. Thorpe Holding

Co. Profit Sharing Plan, 207 F.3d 1143, 1148 (9th Cir. 2000).

Because the standing issue was raised before the district court

in a motion to dismiss, we “must accept as true all material

allegations of the complaint, and must construe the complaint

in favor of the complaining party.” Warth, 422 U.S. at 501.

[1] To have standing to sue in federal court, a plaintiff must

allege “ ‘such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on

his behalf.” Id. at 498-99, quoting Baker v. Carr, 369 U.S.

186, 204 (1962). Therefore, “the plaintiff must have suffered

an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or

imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations, internal

quotation marks, and footnote omitted). A “particularized”

injury is one that “affect[s] the plaintiff in a personal and individual way.” Id. at 560 n.1. Thus, a plaintiff normally does

not have standing where the only “asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all or

a large class of citizens.” Warth, 422 U.S. at 499, citing

United States v. Richardson, 418 U.S. 166, 174-80 (1974).

A.

We first hold that Thomas lacks standing to bring this suit

under our well-settled precedent South Lake Tahoe. In that

THOMAS v. MUNDELL 8953
case, the mayor and city councilmembers of the City of South

Lake Tahoe (collectively, councilmembers) sought to enjoin

the enforcement of certain land use regulations and regional

and transportation plans adopted by the California Tahoe

Regional Planning Agency (Agency), a political subdivision

of the State of California. 625 F.2d at 232-33. They alleged

that the regulations and plans violated various federal constitutional guarantees. Id. The councilmembers argued that they

had standing to challenge these regulations because “they are

required by law to enforce the [Agency’s] regulations, and yet

by voting to enforce these [purportedly unconstitutional] regulations[, they] would violate their oaths of office to uphold

the U.S. Constitution.” Id. at 233 (internal citation omitted).

In rejecting the councilmembers’ standing arguments, we

concluded that the source of the councilmembers’ complaint

was “just abstract outrage at the enactment of an unconstitutional law. Apart from the highly speculative potential exposure to civil liability [for enforcing an unconstitutional

regulation] . . . , the councilmembers will lose nothing by

enforcing the [Agency’s] ordinances save an abstract measure

of constitutional principle.” Id. at 237. We reasoned that to

confer standing on the councilmembers based on their “abstract disagreement with the legislature over land use” would

conflict with the fundamental premise of federal standing doctrine — that a litigant’s standing cannot be based on the

“ ‘generalized interest of all citizens in constitutional governance.’ ” Id. at 237-38, quoting Schlesinger v. Reservists

Comm. to Stop the War, 418 U.S. 208, 217 (1974). Thus, we

held that the councilmembers’ interest in that case was “ ‘official’ rather than ‘personal,’ ” rendering their claim to standing

deficient. Id. at 238.

The distinction we drew between “official” and “personal”

interests derives from the Supreme Court’s decision in Smith

v. Indiana, 191 U.S. 138 (1903). In that case, the Court held

that a county tax auditor did not have standing to challenge

8954 THOMAS v. MUNDELL
the constitutionality of a state property tax statute in federal

court. Id. at 149-50. In so holding, the Court reasoned:

It is evident that the auditor had no personal interest

in the litigation. He had certain duties as a public

officer to perform. The performance of those duties

was of no personal benefit to him. Their nonperformance was equally so. He neither gained nor lost

anything by invoking the advice of the [state]

supreme court as to the proper action he should take.

He was testing the constitutionality of the law purely

in the interest of third persons, viz., the taxpayers

. . . . We think the interest of an appellant in this

court should be a personal, and not an official, interest . . . .

Id. at 149 (internal citation omitted). The Court accordingly

dismissed the tax auditor’s challenge because the auditor “did

not have the requisite interest to maintain [his] appeal.” Id. at

150.

[2] Under South Lake Tahoe and Smith, Thomas does not

have standing to challenge the constitutionality of the separate

DUI courts because his interest in this case is official, and not

personal. The amended complaint alleges that, “[t]hrough his

representation of the people of Maricopa County before state

DUI courts, [Thomas] and his office are compelled to participate in unconstitutional separate DUI courts for Spanish

speakers and for Native Americans . . . in violation of the

Constitution and laws of the United States.” South Lake

Tahoe teaches, however, that a public official’s “personal

dilemma” in performing official duties that he perceives to be

unconstitutional does not generate standing. 625 F.2d at 237.

Like the councilmembers in that case, Thomas’ “abstract outrage” at his obligation to participate in purportedly unconstitutional programs is based on nothing more than the

“ ‘generalized interest of all citizens in constitutional governance.’ ” Id., quoting Schlesinger, 418 U.S. at 217. Moreover,

THOMAS v. MUNDELL 8955
the performance of his duties as County Attorney in the separate DUI courts is of no personal benefit to him. See Smith,

191 U.S. at 149. Thomas loses nothing by his participation in

these separate DUI courts “save an abstract measure of constitutional principle.” South Lake Tahoe, 625 F.2d at 237. He

therefore lacks standing to bring this suit.

Thomas argues that his injury is more direct and particularized than the councilmembers’ injury in South Lake Tahoe

because here he is “subjected . . . to an unconstitutional and

illegal judicial process,” whereas the councilmembers were

merely “implementing or enforcing” purportedly unconstitutional regulations. But the councilmembers could have similarly characterized their injury as being subject to the

purportedly unconstitutional regulations they were obliged to

enforce. The crux of their claimed injury, however, lay in

their “abstract outrage at the enactment of an unconstitutional

law.” Id. Likewise, Thomas’ claimed injury is based upon his

“abstract outrage” at the operation of a state program he perceives to be unconstitutional. Thus, South Lake Tahoe is

directly on point.

Thomas attempts to circumvent the clear import of South

Lake Tahoe by alleging that the operation of the separate DUI

courts “disadvantages him and his office in fulfilling prosecutorial functions.” But any “disadvantage” suffered by Thomas

(and his office) in the separate DUI courts is institutional, not

personal. In Raines v. Byrd, 521 U.S. 811, 829-30 (1997), the

Supreme Court held that members of Congress did not have

standing to challenge the constitutionality of the Line Item

Veto Act because they did not have a sufficient “personal

stake” in the dispute. The congresspersons alleged that the

Line Item Veto Act caused an unconstitutional diminution of

Congress’ power relative to the Executive Branch, thereby

inflicting upon each congressperson a judicially cognizable

injury. Id. at 816. The Court rejected this argument, concluding that the alleged injury “is based on a loss of political

power, not loss of any private right.” Id. at 821. “The claimed

8956 THOMAS v. MUNDELL
injury thus runs (in a sense) with the Member’s seat, a seat

which the Member holds (it may quite arguably be said) as

trustee for his constituents, not as a prerogative of personal

power.” Id.

[3] Similarly, Thomas’ claimed injury in being “disadvantaged” by the separate DUI courts is based on the loss of his

institutional power as County Attorney, not the loss of any

private right. Thomas is not personally affected by the various

ways the separate DUI courts allegedly hamper the execution

of his prosecutorial duties. As with the congresspersons’ allegations of injury in Raines, the alleged disadvantages imposed

on the office of County Attorney by the operation of the separate DUI courts run with the office, and cannot be considered

injuries personal to Thomas. Id. Thus, Thomas’ allegations of

disadvantage to the office of County Attorney are insufficient

to plead successfully standing.

Thomas responds that even if the disadvantages suffered by

his office cannot be attributed to him personally, he has

alleged the requisite injury in fact because the “racially segregated” DUI court imposes on him a direct and personal injury

under Georgia v. McCollum, 505 U.S. 42 (1992). In McCollum, the Supreme Court held that the State of Georgia had

third-party standing to raise the equal protection rights of

jurors improperly excluded from a jury by a criminal defendant’s discriminatory use of peremptory challenges. Id. at 55-

56. In so ruling, the Court held that a state suffers a cognizable injury for standing purposes because “racial discrimination in the selection of jurors ‘casts doubt on the integrity of

the judicial process,’ and places the fairness of a criminal proceeding in doubt.” Id. at 56, quoting Powers v. Ohio, 499 U.S.

400, 411 (1991).

Thomas argues that as Maricopa County Attorney he acts

“on behalf of the State,” and therefore has standing as a state

agent to challenge the separate DUI courts as racially discriminatory. However, even assuming that Thomas can properly

THOMAS v. MUNDELL 8957
be considered a representative of the State of Arizona with

respect to his claims (itself a dubious proposition given the

Arizona Attorney General’s silence in this action), McCollum

does not confer upon him standing to sue. McCollum’s holding that the state had a cognizable injury for third-party standing purposes was guided by the fact that the state was a party

in the specific criminal prosecution at issue. See id. at 55-56.

Here, Thomas does not allege that he or the State is a party

in proceedings before the separate DUI courts. Although the

amended complaint alleges that Thomas represents “the people of Maricopa County before state DUI courts,” and that he

and his office are “compelled to participate” in the probation

programs, these allegations are too vague to plead successfully his standing to sue under McCollum. See Mann v. City

of Tucson, 782 F.2d 790, 793 (9th Cir. 1986) (per curiam)

(“Although we must, in general, accept the facts alleged in the

complaint as true, wholly vague and conclusory allegations

are not sufficient to withstand a motion to dismiss”).

[4] Thomas’ powers as County Attorney are strictly limited

by the Arizona Constitution, and he points to no constitutional

provision or other legal authority indicating that he or his

office is a party to the proceedings in the separate DUI courts.

The Arizona Constitution provides that “[t]he duties, powers,

and qualifications of [the County Attorney] shall be as prescribed by law.” Ariz. Const. art. 12, § 4. The legislature in

turn has prescribed that the County Attorney shall “[a]ttend

the superior and other courts within the county and conduct,

on behalf of the state, all prosecutions for public offenses.”

Ariz. Rev. Stat. § 11-532(A)(1). As the amended complaint

alleges, however, the DUI courts are “post-sentencing” probation programs, conducted for “defendants convicted of DUI”

— they are not “prosecutions for public offenses.” Therefore,

Thomas as County Attorney, representing either the County

or the State, cannot be considered a party to these proceedings; he thus does not have standing under McCollum.

[5] Finally, to the extent that Thomas argues that he has

third-party standing to assert the rights of the various proba8958 THOMAS v. MUNDELL
tioners required to attend the separate DUI courts, we reject

his contention. To establish third-party standing, a plaintiff

must allege that he has suffered an “injury in fact, thus giving

him or her a sufficiently concrete interest in the outcome of

the issue in dispute.” Powers, 499 U.S. at 411 (internal quotation marks omitted). As described above, Thomas’ interest in

this dispute is purely official, so he lacks the requisite injury

in fact to assume third-party standing on behalf of the separate

DUI court probationers.

B.

The individual plaintiffs similarly lack standing to challenge the separate DUI courts. They allege that they are victims of DUI crimes perpetrated by certain probationers who

participated in either the “regular” DUI court or the Spanishspeaking DUI court. As such, they have been allegedly “disadvantaged by unequal access to judicial services and by having the case of the defendant who harmed them adjudicated

in a racially separate DUI court system.” These allegations

describe injuries too generalized and impersonal to generate

standing. See Lujan, 504 U.S. at 560 (requiring that a plaintiff

assert the intrusion of a legally protected interest that is “concrete” and “particularized”).

[6] In United States v. Mindel, 80 F.3d 394 (9th Cir. 1996),

we held that crime victims did not have standing to challenge

a district court order rescinding criminal restitution payments

because the restitution order “serves a penal rather than a

compensatory purpose,” and so its rescission did not cause the

crime victims an injury in fact. Id. at 397, citing United States

v. Johnson, 983 F.2d 216, 217 (11th Cir. 1993). In this case,

the DUI court at issue serves a similarly penal, rather than

compensatory, purpose. The amended complaint alleges that

the DUI court “focuses on defendants convicted of aggravated

DUIs,” and may include “participation in substance abuse

treatment programs, attendance at support group meetings

such as Alcoholics Anonymous, observing a Victim Impact

THOMAS v. MUNDELL 8959
Panel, reporting to the Probation Department, seeking or

securing employment, and pledges of sobriety.” The DUI

courts thus mainly operate to penalize DUI probationers

rather than compensate victims. Therefore, the fact that the

Superior Court altered these probation programs to some

degree by incorporating the separate DUI courts does not

cause any concrete injury to the individual plaintiffs as victims of DUI probationers.

[7] The individual plaintiffs respond that the separate DUI

courts deprive them, as crime victims, of their “rights to justice and due process” as protected by the Victims’ Bill of

Rights in the Arizona Constitution. However, each of the individual plaintiffs has already seen the perpetrator of their

respective crimes tried and convicted for the charged DUI

offense in the Superior Court. The individual plaintiffs cite no

authority for the proposition that their rights to “justice and

due process” also encompass an interest in the administration

and operation of non-compensatory post-conviction probation

programs such as the separate DUI courts. See Kelly v. Robinson, 479 U.S. 36, 52 (1986) (observing that the “criminal justice system is not operated primarily for the benefit of

victims, but for the benefit of society as a whole”).

III.

[8] We hold that neither Thomas nor the individual plaintiffs have successfully pled their standing to challenge the

constitutionality of the separate DUI courts. Although we do

not take lightly allegations of racial discrimination in the judicial system, the doctrine of standing is of equal consequence.

This constitutional prerogative “is founded in concern about

the proper—and properly limited—role of the courts in a

democratic society.” Warth, 422 U.S. at 498. And as we held

nearly three decades ago, the standing requirements of Article

III “bar the courthouse door until the victim of a law’s unconstitutional enforcement . . . chooses to knock.” South Lake

Tahoe, 625 F.2d at 238. In this case, Thomas and the individ8960 THOMAS v. MUNDELL
ual plaintiffs have not alleged sufficient interest in this dispute

to merit their entry into federal court. We therefore affirm the

district court’s dismissal of their claims for lack of standing.

AFFIRMED.

THOMAS v. MUNDELL 8961