United States District Court, D. Arizona
ORDER
HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.
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. § 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 Ariz. Rev. Stat. §
13-4433(B). (Doc. 123) On May 25, 2018, the Attorney General
filed a motion to dismiss the First Amended Complaint (the
“Motion”), arguing that the amended pleading
still fails to allege facts sufficient to demonstrate that
the Plaintiffs have standing to bring their claims. (Doc.
126) The Motion was fully briefed on July 19, 2018. (Docs.
136, 140) For the reasons set forth below, the Motion is
granted.
I.
Legal Standard
In
considering a facial challenge to jurisdiction under Rule
12(b)(1) of the Federal Rules of Civil Procedure, 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'y, Inc. v.
Davis, 307 F.3d 835, 849 (9th Cir.)); See Chandler
v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121
(9th Cir. 2010) (stating 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;[1] (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 (1992); 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.
Discussion
A.
Injury-In-Fact
As the
Court set forth in the Dismissal Order (Doc. 119), the
Plaintiffs have successfully alleged an injury-in-fact for
Article III standing. (Doc. 119 at 5-6) Plaintiffs
“have alleged ‘an intention to engage in a course
of conduct arguably affected with a constitutional
interest'” under the First Amendment that is
“proscribed by [the] statute they wish to
challenge.” (Doc. 123 at 4); Susan B. Anthony List
v. Driehaus, 134 S.Ct. 2334, 2344 (2014) (quoting
Babbitt v. United Farm Workers Nat'l Union, 442
U.S. 289, 298 (1979)). The First Amended Complaint
sufficiently alleges that Ariz. Rev. Stat. § 13-4433(B)
targets the Plaintiffs, who constitute a group of
criminal-defense attorneys and their investigatory agents.
The Plaintiffs sufficiently allege that the type of speech
they believe is constitutionally protected is (i) necessary
to the performance of their duties as advocates and (ii) the
basis upon which they may be disciplined were they to violate
§ 13-4433(B). See Canatella v. State of
California, 304 F.3d 843, 852-53 (9th Cir. 2002).
As set
forth in the Dismissal Order, Plaintiffs' claim of
self-censorship under the threat professional discipline and
sanctions sufficiently alleges that they have sustained an
injury to their First Amendment rights that is concrete and
actual. See Driehaus, 134 S.Ct. at 2342 (stating
where a plaintiff brings a pre-enforcement challenge, he or
she “satisfies the injury-in-fact requirement where he
alleges ‘an intention to engage in a course of conduct
arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat
of prosecution thereunder.'”). Plaintiffs'
claim that other criminal-defense attorneys and investigators
have been the subject of professional discipline for
violating § 13-4433(B) is sufficient to allege that
their decision to refrain from engaging in similar conduct is
based on a reasonable fear of enforcement of the statute.
(Doc. 123 at 3); See Driehaus, 134 S.Ct. at 2345 (a
threat of “administrative action, like arrest or
prosecution, ” is sufficient for Article III standing).
B.
Traceability
The
Court finds that the First Amended Complaint still fails to
offer plausible allegations from which the Court can conclude
that the Plaintiffs' injury is traceable to the actions
of the Attorney General. The Court notes that the bulk of the
revisions to the First Amended Complaint are found in
Paragraphs 38-62 of the pleading. (Doc. 123 at 9-13) Through
these amendments, the Plaintiffs describe the Attorney
General's role as the chief legal officer of the state of
Arizona, his role in prosecuting criminal matters throughout
the state, and his role in administering the victims'
rights program. (Doc. 123 at 9-11) The First Amended
Complaint explains how the Attorney General stands between
victims and defense counsel and describes how the Attorney
General responds to the Plaintiffs' requests for contact
with victims, by providing the victims with a “standard
form letter” that does not discuss the content of the
defense counsel's communication. (Doc. 123 at 10)
Notably,
however, the First Amended Complaint does not contain any new
or revised allegations showing that the Attorney General can
enforce or prosecute the consequences for a violation of
Ariz. Rev. Stat. § 13-4433(B). As set forth in the
Dismissal Order, the source of Plaintiffs' complained
injury, the restraint of protected speech, is the threat of
professional discipline for violating Ariz. Rev. Stat. §
13-4433(B). The First Amended Complaint continues to fail to
demonstrate how the Attorney General is tied to the
disciplinary process that is the cause of the Plaintiffs'
injury. The Plaintiffs' allegation that “the
Attorney General's Office of Victims Services has a
compliance administrator that investigates allegations of
victims' rights violations” is insufficient to
connect the Attorney General to the Plaintiffs' injury
because, at the end of any such investigation, the
disciplinary process resulting from any such investigation is
carried out by the State Bar of Arizona. (Doc. 123 at 11);
See also Wolfson, 616 F.3d at 1056-57 (“The
Arizona Supreme Court Disciplinary ...