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Arizona Attorneys for Criminal Justice v. Ducey

United States District Court, D. Arizona

March 29, 2018

Arizona Attorneys for Criminal Justice, et al., Plaintiffs,
Doug Ducey, et al., Defendants.


          Steven P. Logan, United States District Judge

         In 1990, voters approved an amendment to the Arizona constitution, the Victims' Bill of Rights (“VBR”), which grants crime victims twelve enumerated rights designed “[t]o preserve and protect [their] rights to justice and due process.” Ariz. Const. art. II, § 2.1(A). In 1991, Arizona enacted the Victims' Rights Implementation Act (“VRIA”), a set of statutory amendments implementing the VBR. 1991 Ariz. Sess. Laws Ch. 229 (H.B. 2412) (codified at Ariz. Rev. Stat. §§ 13-4401 to 4442). Among those statutes includes Arizona Revised Statute § 13-4433, which implements a victim's right under the VBR to refuse an interview. See Ariz. Const. art. II, § 2.1(A)(5). The statute reads in relevant part:

A. Unless the victim consents, the victim shall not be compelled to submit to an interview on any matter, including any charged criminal offense witnessed by the victim and that occurred on the same occasion as the offense against the victim, or filed in the same indictment or information or consolidated for trial, that is conducted by the defendant, the defendant's attorney or an agent of the defendant.
B. The defendant, the defendant's attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor's office. The prosecutor's office shall promptly inform the victim of the defendant's request for an interview and shall advise the victim of the victim's right to refuse the interview.
C. The prosecutor shall not be required to forward any correspondence from the defendant, the defendant's attorney or an agent of the defendant to the victim or the victim's representative.
D. If the victim consents to an interview, the prosecutor's office shall inform the defendant, the defendant's attorney or an agent of the defendant of the time and place the victim has selected for the interview... The victim has the right to terminate the interview at any time or to refuse to answer any question during the interview. The prosecutor has standing at the request of the victim to protect the victim from harassment, intimidation or abuse and, pursuant to that standing, may seek any appropriate protective court order.

Ariz. Rev. Stat. § 13-4433(A)-(D).

         On May 8, 2017, Plaintiffs, individual criminal-defense lawyers, investigators, and non-profit organization Arizona Attorneys for Criminal Justice, filed a complaint challenging the constitutionality of Ariz. Rev. Stat. § 13-4433(B), which prohibits the defense from initiating contact with a victim. (Doc. 1 ¶ 1, 16-23.) They allege that “[c]riminal-defense lawyers and investigators have been subjected to professional discipline and criminal charges for alleged violations of A.R.S. § 13-4433(B), and these adverse actions against members of the criminal-defense community have chilled constitutionally protected speech and hindered the ability of criminal-defense teams to effectively represent criminal defendants and vindicate the rights afforded them in the criminal-justice process.” (Doc. 1 ¶ 9; see also Doc. 1 ¶ 53 (alleging “other defense lawyers and members of defense teams have been threatened with professional and criminal sanctions based on violations of A.R.S. § 13-4433(B)”).)

         Plaintiffs bring two claims for relief under 42 U.S.C. § 1983 against Arizona Attorney General Mark Brnovich in his official capacity as “the chief legal officer of the state, ” who “has general supervisory authority over county and local prosecutors, ” and “is responsible for the administration of the victims' rights program, which administers a plan for assisting and monitoring state and local entities that are required to implement and comply with victims' rights laws, including A.R.S. § 13-4433(B).” (Doc. 1 ¶ 25 (citing Ariz. Rev. Stat. § 41-191.06).)[1] (Doc. 1.) They seek injunctive and declaratory relief, asking that enforcement of Ariz. Rev. Stat. § 13-1433(B) be enjoined, and that § 13-1433(B) be declared unconstitutional “on the grounds that: (1) the law is a content-based restriction on constitutionally protected speech not narrowly tailored to a compelling government interest, and (2) the law is overbroad, in violation of the First Amendment to the United States Constitution.” (Doc. 1 ¶ 11.)

         Pending before the Court are numerous party and non-party motions; the Attorney General moves to dismiss the complaint, Plaintiffs move for preliminary injunction, and several non-parties move to intervene as defendants. Finding this case is not justiciable against the Attorney General, [2] as follows, he will be dismissed and the requests for intervention and preliminary injunction will be denied.

         I. Legal Standard

         In considering a facial challenge to jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, as here, the Court determines whether the allegations in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, and dismissal is appropriate only where the plaintiff fails to allege an element necessary for subject matter jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). The material factual allegations of the complaint are presumed to be true and construed in favor of the complaining party. Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (quoting Nat'l Audubon Soc., 307 F.3d at 849). See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010) (Article III standing is properly raised under 12(b)(1)).

         “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 (2011). See also Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 597-98 (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 (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;[3] (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, 504 U.S. at 560-61; Valley Forge, 454 U.S. at 475-76).

         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 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (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). “[A]t the pleading stage, the plaintiff must clearly... allege facts demonstrating each element.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (internal quotations omitted).

         II. ...

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