National Coalition of Latino Clergy and Christian Leaders et al v. Arizona, State of et al

Filing 38

Reply re 30 MOTION to Dismiss Case in support of by Defendants Arizona, State of, Jan Brewer. (Bouma, John)

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National Coalition of Latino Clergy and Christian Leaders et al v. Arizona, State of et al Doc. 38 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 John J. Bouma (#001358) Robert A. Henry (#015104) Joseph G. Adams (#018210) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Phone: (602) 382-6000 Fax: (602) 382-6070 jbouma@swlaw.com bhenry@swlaw.com jgadams@swlaw.com and Joseph A. Kanefield (#015838) Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Telephone: (602) 542-1586 Fax: (602) 542-7602 jkanefield@az.gov Attorneys for Defendants Janice K. Brewer, Governor of the State of Arizona, and the State of Arizona IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA National Coalition of Latino Clergy and Christian Leaders ("CONLAMIC"), et al., Plaintiffs, v. State of Arizona, et al., Defendants. No. CV-10-0943-PHX-SRB GOVERNOR BREWER AND THE STATE OF ARIZONA'S REPLY IN SUPPORT OF MOTION TO DISMISS 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 Plaintiffs seek to challenge certain provisions of SB 1070 because they fear that SB 1070 could be enforced against them and speculate that SB 1070 has impacted their organizations and businesses. But plaintiffs have not demonstrated that they have suffered or are likely to suffer any actual or imminent injury as a result of SB 1070. Nor have plaintiffs demonstrated that the State of Arizona has waived its Eleventh Amendment immunity. As a result, plaintiffs' Amended Complaint should be dismissed. MEMORANDUM OF POINTS AND AUTHORITIES I. PLAINTIFFS ACKNOWLEDGE SEVERAL DEFICIENCIES IN THEIR AMENDED COMPLAINT Plaintiffs concede that the parties not named in the caption should be dismissed, that Count III should be withdrawn, and that class action certification is inappropriate. Pls.' Resp. at 3 n.1 & 16. Plaintiffs also do not dispute that certain allegations in the Amended Complaint ("AC") are confusing, but dispute that they have requested relief "only until the Department of Justice [had] spoken" and argue that their "inartful pleading" does not provide a basis for dismissal. Pls.' Resp. at 3. For the reasons stated below, the Amended Complaint should be dismissed because the State is immune from prosecution and because plaintiffs lack standing to pursue their claims. If the Court finds that plaintiffs have standing to pursue their claims, however, the Court should order plaintiffs to amend their pleading to clarify its allegations and prayer for relief. II. THE STATE OF ARIZONA IS IMMUNE FROM PROSECUTION Plaintiffs wrongly contend that conduct in a separate case, Friendly House v. Whiting, et al., Case No. CV10-01061-PHX-SRB, involving separate parties and separate claims but the same subject matter SB 1070 waives the State's Eleventh Amendment immunity in this case. Pls.' Resp. at 4-6. "While waiver in the litigation context focuses on the litigation act, the waiver must nonetheless be `clear.'" Tegic Commc'n Corp. v. Bd. of Regents of the Univ. of Tex. Sys., 458 F.3d 1335, 1342 (Fed. Cir. 2006) (quoting Lapides v. Bd. of Regents of the Univ. Sys. of Georgia, 535 U.S. 613, 620 (2002)). Tegic demonstrates that a waiver of Eleventh Amendment immunity in one case 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 does not carry over to a separate proceeding. In Tegic, the University had filed suit in Texas against forty-eight cellular-telephone companies, alleging that their text-input software infringed a University patent. Id. at 1337. Tegic was "the manufacturer and licensor of the software" at issue in the Texas lawsuit, and subsequently filed suit against the University in the Western District of Washington, seeking declaratory relief that the University's patent was invalid and that its software did not infringe the patent. Id. at 1337-38. The University did "not deny that it waived immunity as to defenses and counterclaims in the Texas district court, but argu[ed] that it did not waive immunity as to Tegic, or in the Washington forum." Id. at 1342. The district court agreed and the Federal Circuit affirmed, finding that "[a]lthough here the University obviously `made itself a party to the litigation to the full extent required for its complete determination,' it did not thereby voluntarily submit itself to a new action brought by a different party in a different state and a different district court." Id. at 1343 (citation omitted). The cases plaintiffs cite are inapposite because they involve waiver of immunity in the same case or a continuous proceeding. For example, in Lapides the Supreme Court found that the state voluntarily invoked federal jurisdiction and therefore waived its Eleventh Amendment immunity by removing the case from state court to federal court. Lapides, 535 U.S. at 621-22. Likewise, in Vas-Cath, Inc. v. Curators of Univ. of Mo., 473 F.3d 1376 (Fed. Cir. 2007), the court found that by participating in an administrative proceeding before the U.S. Patent and Trademark Office, the state had waived its Eleventh Amendment immunity for the entire proceeding, including the opposing party's appeal to the federal court. Id. at 1385; see also Gunter v. Atl. Coast Line R.R. Co., 200 U.S. 273 (1906) (denying Eleventh Amendment immunity in case seeking to enforce an ancillary decree against a successor-in-interest from the prior litigation). Plaintiffs' reliance on City of South Pasadena v. Mineta, 284 F.3d 1154 (9th Cir. 2002), see Pls' Resp. at 5, is misplaced. In South Pasadena, the Ninth Circuit actually granted Eleventh Amendment immunity even though the case involved "similar parties, facts and legal issues." 284 F.3d at 1156, 1158. Notably, the plaintiff in that case argued 2 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 that the absence of a "categorical rule" against the carry-over of a waiver of sovereign immunity bolstered its argument. Id. The court disagreed, finding that the narrow construction given to waivers of sovereign immunity "cut the other way," meaning the court "would be even less likely to conclude that the state's waiver survives the dismissal of the earlier case." Id. Thus, the South Pasadena court did not "implicitly hold that a waiver of sovereign immunity in one lawsuit can carry over to another, related lawsuit when the waiver continues to have legal effect." Pls.' Resp. at 5. Here, this case involves different parties, different allegations, and largely different claims than in Friendly House.1 Although both cases pertain to the same subject matter, the State has not "clearly" waived its Eleventh Amendment immunity in this case and, in fact, explicitly invokes that constitutional right. The State's intervention in the Friendly House case should not be broadly construed as a general waiver of all claims involving SB 1070. Furthermore, dismissing the State from this case does not create a risk of unfairness or inconsistency because Governor Brewer will remain to defend the litigation in her official capacity and on behalf of the State. III. PLAINTIFFS HAVE NOT ESTABLISHED THEIR STANDING Plaintiffs have not met their burden of establishing standing by "`alleg[ing] such a personal stake in the outcome of the controversy' as to warrant [the] invocation of federalcourt jurisdiction and . . . to justify exercise of the court's remedial powers." Warth v. Seldin, 422 U.S. 490, 498 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Plaintiffs are challenging SB 1070 based solely on "conjectural or hypothetical" injuries, which are insufficient to confer standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The individual plaintiffs express only fears that they could be stopped, detained, or arrested under Sections 2, 3, 5, or 6 based on numerous contingencies and faulty premises. And the organizational plaintiffs effectively concede that the Amended Complaint does not satisfy the standing requirements. The State intervened in the Friendly House case because the Friendly House plaintiffs had not named either the State or Governor Brewer as defendants. Here, Governor Brewer can adequately protect the interests of the State. 3 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 A. The Individual Plaintiffs Have Not Alleged Sufficient Facts to Demonstrate an Actual or Imminent Injury 1. Plaintiffs' alleged fears of being stopped or detained under Section 2 are not well founded Plaintiffs argue that they will be harmed if Section 2 is enforced by incorrectly interpreting Section 2 to "affirmatively require[] all local law enforcement to inquire into the immigration status of any person stopped." Pls.' Resp. at 7. In fact, Section 2(B) would require Arizona's law enforcement officers to make a reasonable attempt to determine a person's immigration status in connection with a lawful stop, detention, or arrest if: (1) reasonable suspicion exists that the person is an alien and is unlawfully present in the country; (2) it is practicable for the officer to conduct the inquiry; and (3) the inquiry would not hinder or obstruct an investigation. See Section 2(B). Plaintiffs have not alleged facts demonstrating that these contingencies would be satisfied and, thus, that it is likely Arizona's law enforcement officers will investigate their immigration status if Section 2 is enforced. See, e.g., Lujan, 504 U.S. at 560-61 (a plaintiff must demonstrate that the threatened injury is "likely" as opposed to merely "speculative"); San Diego County, 98 F.3d at 1126 (9th Cir. 1996) (a plaintiff must show a genuine threat of imminent prosecution to establish standing); Mot. to Dismiss at 4-5. Plaintiffs' fears of being stopped or detained under Section 2 also depend entirely on faulty premises. First, plaintiffs incorrectly assume that a person's Latino appearance or accent can give rise to reasonable suspicion of unlawful presence. See Pls.' Resp. at 7-8; AC 16-18, 28, 30, 35, 36. The reasonable suspicion standard is well established. It requires that an officer have "specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that [a] particular person is engaged in [unlawful] activity." United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989); see also Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (citing Terry v. Ohio, 392 U.S. 1, 23-24 (1968)). For an officer to stop or detain a person for the purpose of investigating the person's immigration status--under Section 2(B) or otherwise--the officer must have reasonable suspicion that the person is both an alien 4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 and unlawfully present in the country.2 The Supreme Court made clear 35 years ago that a person's "Mexican descent" does not constitute "a reasonable belief that [the person is an] alien[]," much less that the person is in the country unlawfully. United States v. Brignoni-Ponce, 422 U.S. 873, 886 (1975). A person's accent or English proficiency may create a reasonable suspicion that the person is an alien, but could not, standing alone, create a reasonable suspicion that the person is in the country unlawfully.3 Second, plaintiffs erroneously presume that an officer cannot investigate the individual plaintiffs' immigration status if Section 2(B) is not implemented. See Pls.' Resp. at 7-8. However, federal law expressly authorizes an immigration officer to detain a person if the officer has "reasonable suspicion, based on specific articulable facts, that the person being questioned is . . . an alien illegally in the United States." 8 C.F.R. 287.8(b)(2); see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1044-45 (1984). And courts have repeatedly held that state and local law enforcement officers can investigate potential violations of federal immigration laws under the same standard. See, e.g., United States v. Soriano-Jarquin, 492 F.3d 495, 501 (4th Cir. 2007); United States v. Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001). Thus, any plaintiff whose immigration status could be investigated under Section 2(B) could also be investigated under existing law. Section 2(B) would not alter the nature of such investigations or diminish the protections the Fourth Amendment provides to all persons present in the United States. Third, even if Section 2(B) could increase the likelihood that plaintiffs may be investigated on suspicion of an immigration violation, plaintiffs provide no authority to At least one plaintiff, John Doe 3, is a U.S. citizen with a valid Arizona driver's license, which would entitle him to a presumption of lawful presence under Section 2(B). 3 Cases in which courts have found reasonable suspicion of unlawful presence involve multiple indicators and, in many cases, an admission of unlawful presence. See, e.g., United States v. Rodriguez-Arreola, 270 F.3d 611, 613-16 (8th Cir. 2001) (failure to make eye contact, unexplained nervousness, no luggage for road trip, and admission of unlawful presence); United States v. Vasquez, 298 F.3d 354, 357-58 (5th Cir. 2002) (nervous behavior, travel on a route known for circumventing Border Patrol, vehicle type frequently used by traffickers); Santana-Garcia, 264 F.3d at 1190-91 (driver could not speak English or produce a driver's license and passenger admitted unlawful presence). 5 2 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 suggest that such an investigation would result in any cognizable harm. To the contrary, it is well established that an investigation predicated upon reasonable suspicion is constitutionally permissible. See, e.g., Terry, 392 U.S. at 23-24. 2. Plaintiffs Have Not Demonstrated a Likelihood of Prosecution Under Section 3 (A.R.S. 13-1509) The Amended Complaint contains no allegations that would establish a credible and imminent fear of prosecution under Section 3. See Mot. to Dismiss at 6-7. Plaintiffs' Response merely reiterates their speculation that some of them could be prosecuted under Section 3 because they lack documentation to confirm their U.S. citizenship or lawful immigration status. For example, plaintiffs argue that John Doe is a refugee without an "alien registration document," that John Doe 2 is temporarily without his permanent resident card, and that Jane Doe 2, a U.S. citizen, has only her Social Security card for identification.4 Pls.' Resp. at 9. But Section 3 "does not apply to a person who maintains authorization from the federal government to remain in the United States." Section 3(F). It is black letter law that the State must prove each element of the offense beyond a reasonable doubt to sustain a conviction. Thus, the State could not prosecute someone under Section 3 unless it had evidence (i.e., confirmation from the federal government) that the person did not have authorization to remain in the country.5 Plaintiffs' argument also ignores the fact that if there is probable cause to arrest a person under Section 3, there would also be probable cause to arrest a person under 8 U.S.C. 1304(e) or 1306. See Martinez v. Nygaard, 831 F.2d 822, 828 (9th Cir. 1987) ("An individual's admission that she is an alien, coupled with her failure to produce her green card, provides probable cause for an arrest."). Plaintiffs have not demonstrated 4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. Social Security cards are issued only to U.S. citizens and lawful residents with work authorization. See Social Security Administration, Application for a Social Security Card, available at http://www.socialsecurity.gov/online/ss-5.pdf (last visited Sept. 9, 2010). 5 Plaintiffs' argument that they could not avoid prosecution under Section 3 because they do not have documentary proof of their citizenship or immigration status, Pls.' Resp. at 910, also fails to recognize that law enforcement officers have numerous resources to verify a person's identity using the person's name, date of birth, and/or Social Security Number. 6 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 that enforcement of Section 3 would make it likely that they will be arrested for violating federal immigration registration laws. Plaintiffs' fears that they could be arrested and prosecuted under Section 3 do not confer standing. See, e.g., Lujan, 504 U.S. at 560-61. 3. Plaintiffs Have Not Demonstrated a Likelihood of Prosecution Under A.R.S. 13-2929 (Section 5) Plaintiffs Rivera and Siguenza allege that they fear prosecution under A.R.S. 13-2929 because they "regularly transport clients from one locale to another without regard for their clients' immigration status." Resp. at 10. But these allegations fall far short of demonstrating a likelihood of prosecution under A.R.S. 13-2929. First, a person cannot violate A.R.S. 13-2929 unless he knows or recklessly disregards that the person he is transporting is an illegal alien, see A.R.S. 13-2929(A)(1), and neither plaintiff has alleged that he regularly transports persons he knows (or should know) are illegal aliens. Second, A.R.S. 13-2929 requires a predicate criminal offense and neither plaintiff alleges that he transports clients (or intends to do so) while violating another criminal offense. See A.R.S. 13-2929(A)(1), (2). The fact that some of plaintiffs' clients may be in violation of a criminal offense (e.g., failing to carry their green cards), see Pls.' Resp. at 11, does not suffice. Third, A.R.S. 13-2929 requires that the transportation be in furtherance of the alien's illegal presence. See A.R.S. 132929(A)(1), (2). In other words, a conviction under A.R.S. 13-2929 would require "conduct tending substantially to facilitate an alien's remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence." United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999); see also United States v. Fierros, 692 F.2d 1291, 1295 (9th Cir. 1982) (construing the analogous federal statute, 8 U.S.C. 1324(a) and finding that "mere transportation of illegal aliens to and from the fields on the ranch or farm where they are working does not fall within a fair reading of the prohibitions of 1324").6 Here, neither plaintiff has alleged that he intends to prevent Although plaintiffs argue that the "in furtherance of" requirement is "unconstitutionally vague, Pls.' Resp. at 11, the federal government has been prosecuting persons under its analogous statute (8 U.S.C. 1324(a)) for decades. 7 6 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 government authorities from detecting their clients' illegal presence. Thus, neither plaintiff Rivera nor plaintiff Siguenza is likely to be prosecuted under A.R.S. 13-2929. 4. Plaintiffs Do Not Have a Valid "Fear" of Racial Profiling Several plaintiffs argue that they could be "stopped, questioned and arrested by local law enforcement" under Sections 2(B), 3, or 6 because of their appearance, Spanish accent, or limited English proficiency and that "racial profiling is inherent in the challenged provisions of S.B. 1070." Pls.' Resp. at 8. But plaintiffs' subjective fears do not grant them standing. Rather, a plaintiff has standing to challenge a statute only if the statute "authorize[s] the prosecution that the plaintiffs fear[]." Roe 1 v. Prince William Cnty., 525 F. Supp. 2d 799, 804 (E.D. Va. 2007). SB 1070 does not authorize racial profiling in fact, it expressly prohibits it and requires officers to implement the Act in a constitutional manner. See Sections 2(B), 3(C), and 12(C); see also Mot. to Dismiss at 5-6. Plaintiffs' argument fails to recognize that they cannot be stopped, questioned, or arrested based on their Latino appearance, accent, or English proficiency. Plaintiffs also fail to recognize that federal law enforcement officers apply the same standard (reasonable suspicion) in investigating possible immigration violations. Plaintiffs have not explained why Arizona's law enforcement officers could not apply these standards without engaging in racial profiling. 5. Plaintiffs Have Not Demonstrated that SB 1070 Has or Is Likely to Cause Them Economic Harm 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. Certain plaintiffs argue that they have suffered economic harm because "S.B. 1070 has caused Latinos to leave the [S]tate out of fear of unlawful interrogation, detention and arrest, if not prosecution, which has damaged Plaintiffs' enterprises economically." Pls.' Resp. at 11. Even assuming that Latinos have left Arizona because they fear SB 1070's implementation,7 their decision to leave is not traceable to any Plaintiffs seek to support this conclusion by citing a newspaper article that allegedly concludes that SB 1070 has affected consumer spending. Pls.' Resp. at 12. Not only is this article outside the pleadings, but it is inadmissible hearsay under Fed. R. Evid. 801 and 802. Thus, it is irrelevant to whether plaintiffs have standing to pursue their claims. 8 7 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 provision of the Act. See, e.g., Roe 1, 525 F. Supp. 2d at 806-07. No provision of SB 1070 requires any person to leave the State. To the extent anyone has left the State as a result of SB 1070, their decision to do so was voluntary and, according to plaintiffs' allegations, based on fears: (1) that they would be punished for their own violations of federal law8 or (2) that Arizona's law enforcement officers would not implement SB 1070 in accordance with the Act's terms (e.g., through racial profiling). As a result, plaintiffs' allegations do not demonstrate that they will suffer some injury because of SB 1070, as opposed to "the independent action of some third party not before the court." San Diego County, 98 F.3d at 1130 (quoting Lujan, 504 U.S. at 560); see also Roe 1, 525 F. Supp. 2d at 806-807.9 6. Plaintiffs Have Not Demonstrated that They Are Likely to Suffer Any Other Civil Rights Violations 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. Neither of plaintiffs' arguments regarding purported civil rights violations is sufficient to confer standing. First, plaintiffs argue that they will be separated from their family members through deportation. Pls.' Resp. at 13. Even assuming that plaintiffs' speculative fear of separation by deportation could constitute a concrete injury (which it cannot, see Roe 1, 525 F. Supp. 2d at 805), Arizona cannot deport anyone under SB 1070 or otherwise. See, e.g., 8 U.S.C. 1229a(a)(3). Plaintiffs could only be separated from their family members if their family members choose to violate federal law and the federal government chooses to deport them. Second, plaintiffs argue that they could be separated from their family members while their family members are being stopped, detained, or arrested under the challenged provisions of SB 1070. Pls.' Resp. at 13. But the Amended Complaint contains no allegations suggesting that any of the plaintiffs' family members are likely to be stopped, The challenged provisions of SB 1070 are designed to identify aliens that are in violation of federal immigration laws, see Section 2, and to regulate conduct involving persons that the federal government has not authorized to remain or work in the United States. See, e.g., Sections 3, 4, 5, and 6. 9 Plaintiffs argue that SB 1070 regulates business by relying on provisions of A.R.S. 23-212, 23-212.01 and 23-214 that are not part of SB 1070. See Pls.' Resp. at 13. 9 8 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 detained, or arrested under SB 1070. Plaintiffs cannot show that they were injured merely by speculating about potential constitutional violations in a generalized manner. B. There Is No Credible and Imminent Threat of Harm to the Organizational Plaintiffs' Members Plaintiffs effectively concede that their Amended Complaint does not contain sufficient allegations to establish that the organizational plaintiffs have associational standing. Pls.' Resp. at 14. Yet plaintiffs argue that this failure "should not be a basis to dismiss this action" because "[t]hese concerns are readily addressed through amendment." Id. The basis of the Motion to Dismiss, however, is that plaintiffs' Amended Complaint does not contain sufficient allegations to demonstrate plaintiffs' standing to pursue their claims. See generally Mot. to Dismiss; Fed. R. Civ. P. 12(b)(1). Plaintiffs cannot avoid dismissal of the Amended Complaint because plaintiffs may be able to establish in some hypothetical, future complaint that they have standing. Nor will be plaintiffs be able to establish associational standing by alleging that plaintiff Galindo is a member of CONLAMIC because plaintiffs have not established that plaintiff Galindo has standing. See White Tanks Concerned Citizens, Inc. v. Strock, 563 F.3d 1033, 1038 (9th Cir. 2009) (associational standing requires that an organization's "members would otherwise have standing to sue in their own right"). C. Plaintiffs' Attempt to Supplement the Allegations in the Amended Complaint Fail to Establish that CONLAMIC and La Hermoza Church Have Organizational Standing 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. The parties agree that to establish organizational standing, an organization must demonstrate that the challenged statute: (1) frustrates the organization's mission and (2) requires the organization to divert or expend resources in a manner other than in furtherance of the organization's goals. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982); Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1183 (9th Cir. 2010); Pls.' Resp. at 15. Plaintiffs argue that CONLAMIC meets this standard because it "has been forced to divert resources away from its religious objectives and instead [to] redirect them to 10 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 educating and defending Arizona's Latino community against the new immigration law." Pls.' Resp. at 15 (citing AC 41). Paragraph 41 of the Amended Complaint actually states: "The law has generated great hostility towards the Latino community in Arizona and therefore adversely affects the work Conlamic performs in Arizona and for Arizona businesses and residents." AC 41. The Amended Complaint contains no factual allegations to support a conclusion that SB 1070 has required CONLAMIC to divert any resources. Even if plaintiffs could cure this deficiency via their Response, plaintiffs' "supplemental" allegations are insufficient because they are conclusory and essentially attempt to use the resources CONLAMIC has devoted to this litigation as a basis to give it standing. This argument, if valid, would render the standing requirement meaningless. Plaintiffs also attempt to establish that La Hermoza Church has organizational standing by arguing: "Although not expressly alleged, S.B. 1070 has forced the Church to divert resources away from its affirmative programs in service to the community to defend against the harms caused by S.B. 1070." Pls.' Resp. at 15. These new allegations fail for the same reason plaintiffs' allegations regarding CONLAMIC's alleged organizational standing fail. D. Plaintiffs Have Not Satisfied Prudential Standing Requirements 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. Prudential principles prohibit courts from considering generalized grievances and claims on behalf of third parties. See Mot. to Dismiss at 13 (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474-75 (1982) and Nat'l Coal. of Latino Clergy, Inc. v. Henry, CV-07-613-JHP, 2007 WL 4390650 (N.D. Okla. Dec. 12, 2007)). In their Response, plaintiffs argue only that, because "Plaintiffs have standing to challenge the unlawful provisions of S.B. 1070," they have also satisfied prudential standing requirements. Pls.' Resp. at 15. For the reasons set forth herein, however, plaintiffs do not have standing. IV. CONCLUSION For these reasons, defendants the State of Arizona and Governor Brewer request that the Court dismiss plaintiffs' Amended Complaint. 11 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 Respectfully submitted this 13th day of September, 2010. SNELL & WILMER L.L.P. By s/John J. Bouma John J. Bouma Robert A. Henry Joseph G. Adams One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 and By s/Joseph A. Kanefield with permission Joseph A. Kanefield Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Attorneys for Defendant Janice K. Brewer, Governor of the State of Arizona 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. 12 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 CERTIFICATE OF SERVICE I hereby certify that on September 13, 2010, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the CM/ECF registrants on record. s/John J. Bouma 11961411 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 Snell & Wilmer L.L.P.

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