Ariz. Attorneys for Criminal Justice v. Ducey, No. CV-17-01422-PHX-SPL
| Decision Date | 27 February 2020 |
| Docket Number | No. CV-17-01422-PHX-SPL |
| Citation | 441 F.Supp.3d 817 |
| Parties | ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE et al., Plaintiffs, v. DUCEY et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Andrew McNulty, Pro Hac Vice, David A. Lane, Pro Hac Vice, Killmer Lane & Newman LLP, Denver, CO, Dan W. Goldfine, Ian Matthew Fischer, Lewis Roca Rothgerber Christie LLP—Phoenix Office, Kathleen E. Brody, Mitchell Stein Carey Chapman PC, Jared G. Keenan, Martin Lieberman, ACLU, Phoenix, AZ, for Plaintiffs.
Eryn Marie McCarthy, Nancy M. Bonnell, Office of the Attorney General, Carrie Ann Laliberte, Lisa Tewksbury Hauser, Bonnett Fairbourn Friedman & Balint PC, Phoenix, AZ for Defendant.
On May 8, 2017, Plaintiffs, individual criminal-defense lawyers, investigators, and non-profit organization Arizona Attorneys for Criminal Justice, initiated this action (the "Original Complaint") challenging the constitutionality of Ariz. Rev. Stat. ("A.R.S.") § 13-4433(B), which prohibits criminal defense counsel from initiating contact with a victim. (Doc. 1) On June 26, 2017, the Attorney General of the State of Arizona (the "Attorney General") moved to dismiss the Original Complaint, arguing that the Plaintiffs did not have standing to bring the lawsuit. (Doc. 31) On March 30, 2018, the Court granted the Attorney General's motion to dismiss in part (the "Dismissal Order"). (Doc. 119) In granting the Attorney General's first motion to dismiss, the Court found that the Plaintiffs failed to "offer plausible allegations from which the Court can conclude that their injury is traceable to the actions of the Attorney General or the ambit of his enforcement authority" or show that the relief requested under the Original Complaint would redress the Plaintiffs' alleged injury. (Doc. 119 at 6–9) Based on the allegations in the Original Complaint, the Court found that the Plaintiffs lacked standing to pursue their claims, but the Court provided the Plaintiffs with leave to amend the Original Complaint by a later deadline. (Doc. 119 at 9–11)
On May 4, 2018, the Plaintiffs filed an amended complaint (the "First Amended Complaint") seeking identical declaratory and injunctive relief that would prevent the Attorney General from enforcing A.R.S. § 13-4433(B). (Doc. 123) On May 25, 2018, the Attorney General filed a motion to dismiss the First Amended Complaint (the "Second Motion to Dismiss"), arguing that the amended pleading still failed to allege facts sufficient to demonstrate that the Plaintiffs had standing to bring their claims. (Doc. 126) On March 15, 2019, the Court granted the Attorney General's second motion to dismiss (the "Second Dismissal Order"). (Doc. 147) In doing so, the Court found that the Plaintiffs still failed to "offer plausible allegations from which the Court can conclude that the Plaintiffs' injury is traceable to the actions of the Attorney General" or show that the relief requested under the First Amended Complaint would redress Plaintiff's alleged injury.
(Doc. 147 at 4–7) Based on the allegations in the First Amended Complaint, the Court found that the Plaintiffs still lacked standing to pursue their claims, but the Court provided the Plaintiffs with a second leave to amend the Original Complaint by a later deadline. (Doc. 147 at 7–8)
On April 26, 2019, Plaintiffs filed another amended complaint (the "Second Amended Complaint") seeking identical declaratory and injunctive relief but adding the State Bar of Arizona ("State Bar"), its Chief Bar Counsel, Maret Vessella ("Vessella"), and the director of the Arizona Department of Public Safety, Colonel Frank Milstead (respectively "DPS" and "Milstead") as defendants. (Doc. 150) On June 20, 2019, the State Bar and Vessella ("State Bar" and "Vessella") filed their Motion to Dismiss the Second Amended Complaint, arguing lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted (Doc. 162 at 1) (the "State Bar's Motion to Dismiss") and the Attorney General filed its Motion to Dismiss the Second Amended Complaint, arguing lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to Join a Rule 19 Party (Doc. 164 at 3) (the ). Pending before the Court are the State Bar's Motion to Dismiss and the Attorney General's Motion to Dismiss. The Motions were fully briefed. The Court's ruling is as follows.1
Federal Rule of Civil Procedure 12(b)(1) "allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction." Kinlichee v. United States , 929 F. Supp. 2d 951, 954 (D. Ariz. 2013) (citing Tosco Corp. v. Comtys. for a Better Env't , 236 F.3d 495, 499 (9th Cir. 2001) ). Allegations raised under FRCP 12(b)(1) should be addressed before other reasons for dismissal because if the complaint is dismissed for lack of subject matter jurisdiction, other defenses raised become moot. Kinlichee , 929 F. Supp. 2d at 954. A motion to dismiss for lack of subject matter jurisdiction under FRCP 12(b)(1) may attack either the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction or the existence of subject matter jurisdiction in fact. Renteria v. United States , 452 F. Supp. 2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ'g Co., Inc. v. General Tel. & Elecs. Corp. , 594 F.2d 730, 733 (9th Cir. 1979) ); Edison v. United States , 822 F.3d 510, 517 (9th Cir. 2016). When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Renteria , 452 F. Supp. 2d at 919 (citing Federation of African Amer. Contractors v. City of Oakland , 96 F.3d 1204, 1207 (9th Cir. 1996) ). When the motion to dismiss is a factual attack on subject matter jurisdiction, however, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact. Renteria , 452 F. Supp. 2d at 919 (citing Thornhill , 594 F.2d at 733 ). A plaintiff has the burden of proving that jurisdiction does in fact exist. Renteria , 452 F. Supp. 2d at 919 (citing Thornhill , 594 F.2d at 733 ). Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss. Rosenbaum v. Syntex Corp. , 95 F.3d 922, 926 (9th Cir. 1996).
"To state a case or controversy under Article III, a plaintiff must establish standing." Arizona Christian School Tuition Organization v. Winn , 563 U.S. 125, 133, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011) ; See also Hein v. Freedom from Religion Found., Inc. , 551 U.S. 587, 597–98, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007). The doctrine of standing encompasses both constitutional requirements and prudential considerations. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc. , 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). "The constitutional requirement of standing has three elements: (1) the plaintiff must have suffered an injury-in-fact—that is, a concrete and particularized invasion of a legally protected interest that is actual or imminent, not conjectural or hypothetical;2 (2) the injury must be causally connected—that is, fairly traceable—to the challenged action of the defendant and not the result of the independent action of a third party not before the court; and (3) it must be likely and not merely speculative that the injury will be redressed by a favorable decision by the court." Catholic League for Religious and Civil Rights v. City and County of San Francisco , 624 F.3d 1043, 1049 (9th Cir. 2010) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Valley Forge , 454 U.S. at 475–76, 102 S.Ct. 752 ).
The plaintiff bears the burden of establishing the existence of a justiciable case or controversy, and " ‘must demonstrate standing for each claim he seeks to press’ and ‘for each form of relief’ that is sought." Davis v. Federal Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (quoting DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ). "A plaintiff must establish standing with the ‘manner and degree of evidence required at the successive stages of the litigation.’ " Carrico v. City and County of San Francisco , 656 F.3d 1002, 1006 (9th Cir. 2011) (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ). "[A]t the pleading stage, the plaintiff must clearly ... allege facts demonstrating each element." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (internal quotations omitted).
Younger abstention is a jurisprudential doctrine rooted in overlapping principles of equity, comity, and federalism. See Steffel v. Thompson , 415 U.S. 452, 460–73, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (); Younger v. Harris , 401 U.S. 37, 43–49, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (); Gilbertson v. Albright , 381 F.3d 965, 970–75 (9th Cir. 2004) (en banc) (). Abstention from the exercise of federal jurisdiction is the exception, not the rule. Colorado River Water Conservation District v. United States , 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Absent significant countervailing interests, the federal courts are obliged to exercise their jurisdiction. Id. ; County of Allegheny v. Frank Mashuda Co. , 360 U.S. 185, 189, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959). The Court must abstain under Youn...
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