United States District Court, D. Arizona
P. Logan, United States District Judge
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
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).
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)”).)
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).) (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.)
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,
follows, he will be dismissed and the requests for
intervention and preliminary injunction will be denied.
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)).
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; (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).
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