United Food and Commercial Workers Union et al v. Brewer, et al

Filing 99

ORDER that Plaintiff-Intervenors' 77 Motion for a Preliminary Injunction is granted. It is further ordered that Plaintiffs' 14 Motion for a Preliminary Injunction is dismissed as moot. IT IS FURTHER ORDERED that Attorney General Horne is preliminarily enjoined from enforcing Senate Bill 1365, creating A.R.S. § 23-361.02. Signed by Judge G Murray Snow on 09/23/11. (ESL)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 United Food and Commercial Workers) ) Local 99 et al., ) ) Plaintiffs, ) -and) Arizona Education Association, et al., ) ) ) Plaintiff-Intervenors, ) vs. ) ) Jan Brewer, in her capacity as Governor of) ) the State of Arizona, et al., ) ) Defendant. ) ) No. CV-11-921-PHX-GMS ORDER 18 19 Pending before this Court are Plaintiffs’ Motion for Preliminary Injunction and 20 Plaintiff-Intervenors’ Motion for Preliminary Injunction. (Docs. 14, 77). For the reasons 21 stated below, Plaintiff-Intervenors’ Motion is granted and Plaintiffs’ Motion is dismissed as 22 moot. 23 24 BACKGROUND An employee in the state of Arizona may authorize his or her employer to withhold 25 certain amounts from the employee’s pay and to transfer those funds to a separate entity. 26 Through such payroll deduction programs, employees pay their health care or other welfare 27 benefit premiums to insurance companies, invest for retirement with banks and financial 28 institutions, make donations to charitable organizations, and pay dues to their unions. All of 1 these organizations are permitted to engage in political activity, including lobbying, by using 2 money in their general operating fund. See Citizens United v. FEC, 130 S. Ct. 876, 904 3 (2010).1 4 On April 18 and 19, 2011, the Arizona House and Senate passed Senate Bill 1365, the 5 “Protect Arizona Employees’ Paychecks from Politics Act,” 2011 Arizona Session Laws, 6 Chapter 251, which Governor Janice K. Brewer signed into law on April 26, 2011.The law 7 amended Title 23, Chapter 2, Article 7 of the Arizona Revised Statutes (“A.R.S.”) by adding 8 section 23-361.02. The statute requires that organizations collecting funds through checkoff 9 payroll deductions either affirm to the employers who process the deductions that none of 10 their general fund is used for “political purposes,” or specify the percentage of their general 11 fund so used. A.R.S. § 23-361.02(B). The law defines “political purposes” to mean 12 “supporting or opposing any candidate for public office, political party, referendum, initiative, 13 political issue advocacy, political action committee, or other similar group.” Id. § 2314 361.02(I). Employers may not deduct the percentage of an employee’s contribution used for 15 political purposes without written authorization from the employee; consent must be re16 authorized each year. Id. § 23-361.02(B),(C). An organization receiving funds from payroll 17 deduction that spends more of its operating fund on political purposes than the percentage it 18 reported to the employer is subject to a minimum civil fine of $10,000. Id. § 23-361.02(D). 19 While the law is written to have general application to all payroll deductions, it 20 explicitly exempts a number of types of deductions from its scope, including, among others, 21 deductions for the benefit of charitable organizations and organizations that provide employee 22 23 1 27 Charitable organizations may lose their federal tax-exempt status if a “substantial part” of their activities include “carrying on propaganda, or otherwise attempting, to influence legislation.” 26 U.S.C. § 501(c)(3). Although there is no statutory or regulatory definition of what constitutes a “substantial part” of an organization’s activities, courts have found that less than 5% of an organization’s activity is not substantial, while over 16.6% is substantial. See Seasongood v. Comm’r, 227 F.2d 907 (6th Cir. 1955); Haswell v. U.S., 500 F.2d 1133 (Ct. Cl. 1974). 28 -2- 24 25 26 1 health care, retiree, or welfare benefits. Id. § 23-361.02(E). In addition, SB 1365 excludes 2 from its definition of employee “any public safety employee, including a peace officer, 3 firefighter, corrections officer, probation officer or surveillance officer.” Id. § 23-361.02(H). 4 As a result, no public safety employee union would be obliged to comply with the statute to 5 obtain its dues through payroll deductions from public safety employees. The law is scheduled 6 to go into effect on October 1, 2011. Id. § 23-361.02(A). 7 On May 9, 2011, Plaintiffs United Food & Commercial Workers 99, et al. filed a 8 complaint challenging SB 1365’s companion legislation, SB 1363, as unconstitutional. (Doc. 9 1). Plaintiffs amended their complaint to allege that SB 1365 is also unconstitutional. (Doc. 10 8). Plaintiffs further moved for a preliminary injunction to prevent SB 1365 from going into 11 effect. (Doc. 14).2 This Court granted leave to the American Education Association and other 12 unions to intervene as Plaintiffs. (Doc. 47). Plaintiff-Intervenors moved for a preliminary 13 injunction on August 4, 2011. (Doc. 77). This Order considers the claims made in both 14 Plaintiffs’ and Plaintiff-Intervenors’ motions. DISCUSSION 15 16 I. SUBJECT-MATTER JURISDICTION AND RIPENESS 17 In their response, Defendants apparently incorporate the arguments made in their 18 Motion to Dismiss on lack of subject-matter jurisdiction, lack of ripeness, and immunity from 19 suit under the Eleventh Amendment to the United States Constitution. (Doc. 50). To the extent 20 they do so, these arguments lack merit. Federal courts have subject-matter jurisdiction over 21 “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 22 U.S.C. § 1331. Plaintiffs allege that SB 1365 is pre-empted by the Supremacy Clause of the 23 U.S. Constitution, and Plaintiff-Intervenors allege that SB 1365 violates the First Amendment. 24 (Docs. 8, 52). The Court has jurisdiction to entertain constitutional challenges to state statutes. 25 28 U.S.C. § 1331. To the extent that the parties allege they may choose to restrict their own 26 27 28 2 No injunction is sought against SB 1363. -3- 1 speech in order to comply with an unconstitutional law, the complaint is ripe for adjudication. 2 LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th Cir. 2000) (holding that a court may hear a 3 constitutional challenge to a law that has not yet been enforced when “the plaintiff intends to 4 engage in ‘a course of conduct arguably affected with a constitutional interest’ and that there 5 is a credible threat that the challenged provision will be invoked against the plaintiff.”) 6 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). Finally, 7 Plaintiff-Intervernors are seeking injunctive relief against the Attorney General to prevent him 8 from enforcing an allegedly unconstitutional state law; such suits are not barred by the 9 Eleventh Amendment because “official-capacity actions for prospective relief are not treated 10 as actions against the State.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); see also 11 Ex Parte Young, 209 U.S. 123 (1908).3 12 II. LEGAL STANDARD 13 To be granted a preliminary injunction, a plaintiff must establish four elements. A 14 plaintiff must establish “that he is likely to succeed on the merits, that he is likely to suffer 15 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 16 favor, and that an injunction is in the public interest.” Winter v. Nat’t Res. Def. Council, 555 17 U.S. 7, 20 (2008); see FED. R. CIV. P. 65. The Ninth Circuit continues to analyze these four 18 elements using a “sliding scale” approach, in which “the elements of the preliminary 19 injunction test are balanced, so that a stronger showing of one element may offset a weaker 20 showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 21 2011). The element of irreparable injury is not subject to balance; the moving party must 22 “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 23 24 3 27 In their Motion to Dismiss, State Defendants further argue that Governor Brewer, Secretary of State Bennett, and Director of the Labor Department Maruca are immune from suit under the Eleventh Amendment. (Doc. 40). Because Plaintiff-Intervenors have only sought a preliminary injunction against Attorney General Horne, it is not yet necessary to determine whether immunity protects the other parties. (Doc. 77). 28 -4- 25 26 1 U.S. at 22 (emphasis in original). Should the moving party demonstrate a very high likelihood 2 of injury, however, the likelihood of success on the merits may be relaxed. In such cases, an 3 injunction may be granted when “serious questions going to the merits were raised and the 4 balance of hardships tips sharply in the plaintiff’s favor.” Wild Rockies, 632 F.3d at 1135, 5 quoting The Lands Council v. McNair, 57 F.3d 981, 987 (9th Cir. 2008). 6 III. MERIT OF CLAIMS 7 Plaintiffs make three broad arguments regarding SB 1365. First, they argue that the 8 statute is unconstitutional under the Supremacy Clause because it is pre-empted by the Labor 9 Management Relations Act (“LMRA”) and the National Labor Relations Act (“NLRA”). 10 Next, they argue that the statute is impermissibly vague and overbroad. Finally, they claim 11 that the statute is pre-empted by the Federal Election Campaign Act (“FECA”). (Doc. 14). 12 Plaintiff-Intervenors argue that the law violates the First Amendment, both because it burdens 13 protected political speech and it discriminates on the basis of speaker and viewpoint. Next, 14 they argue that the law violates the Fourteenth Amendment because its exception for public 15 safety unions is not rationally related to a legitimate governmental interest. They also argue 16 that the law imposes unconstitutional conditions on payroll deductions. They claim that the 17 law violates the Contracts Clause of the United States Constitution. They also assert that the 18 statute is unconstitutionally vague. (Doc. 77). 19 This Order addresses the First Amendment challenges in detail. Because the Court 20 determines that Plaintiffs are likely to succeed in demonstrating that SB 1365 violates the First 21 Amendment, Defendants are from enforcing it, pending determination on the merits. It will 22 therefore not be necessary to discuss Plaintiffs’ and Plaintiff-Intervenors’ remaining claims. 23 The statute specifically exempts from its regulatory structure payroll deductions for 24 contributions to charitable organizations; payments to organizations that administer 25 healthcare, retirement, or welfare benefits; payment of taxes; and donations to unions’ 26 political action committees. A.R.S. § 23-361.02(E). Five types of public safety employees, 27 including police officers, firefighters, corrections officers, probation officers, and surveillance 28 -5- 1 officers, are exempted from the law’s definition of “employee.” Id. § 23-361.02(H). As a 2 result, the burdens imposed by the law do not fall equally on similarly-situated groups. The 3 law therefore violates the First Amendment by discriminating against “those wishing to 4 express less favored or more controversial views.” Police Dept. of City of Chicago v. Mosley, 5 408 U.S. 92, 96 (1972). 6 Viewpoint discrimination occurs when the government burdens “speech by particular 7 speakers, thereby suppressing a particular view about a subject.” Moss v. U.S. Secret Service, 8 572 F.3d 962, 970 (9th Cir. 2009) (internal quotations omitted). Statutes engage in viewpoint 9 discrimination when they place “special prohibitions on those speakers who express views on 10 disfavored subjects.” R.A.V. v. St. Paul, 505 U.S. 377, 391 (1992). “The government must 11 abstain from regulating speech when the specific motivating ideology or the opinion or 12 perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector and 13 Visitors of the University of Virginia, 515 U.S. 819, 829 (1995). On the other hand, “laws that 14 confer benefits or impose burdens on speech without reference to the ideas or views expressed 15 are in most instances content neutral.” Turner Broad. Sys. v. F.C.C., 512 U.S. 622, 643 16 (1994). 17 A regulation that burdens speech may discriminate by viewpoint through its 18 underinclusiveness—that is, because it fails to burden all similarly situated parties equally. 19 In particular, “an exemption from an otherwise permissible regulation of speech may represent 20 a governmental ‘attempt to give one side of a debatable public question an advantage in 21 expressing its views to the people.’” City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (quoting 22 First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 785 (1978)). “Underinclusiveness raises 23 serious doubts about whether the government is in fact pursuing the interest it invokes, rather 24 than disfavoring a particular speaker or viewpoint.” Brown v. Entertainment Merchants 25 Ass’n., 131 S. Ct 2729, 2740 (2011). 26 A recent Supreme Court case upholding a statute barring public sector employees from 27 contributing to political action committees through payroll deductions includes instructive 28 -6- 1 commentary on underinclusiveness. See Ysursa v. Pocatello Educ. Ass’n., 129 S. Ct. 1093 2 (2009). The statute at issue in Ysursa prevented public-sector employees from using the 3 payroll-deduction system to donate to any political action committee. I.C. §§ 44.2001–07. The 4 law only applied to public-sector employees and only prohibited them from using payroll 5 deduction to donate to overtly political organizations. Id. It treated union and non-union 6 employees identically, did not exempt particular unions, and did not change how union 7 members paid their regular dues. Id. The Court reasoned that the statute was not subject to 8 strict scrutiny, because “Idaho does not suppress political speech but simply declines to 9 promote it through public employer checkoffs for political activities.” Ysursa, 129 S. Ct. at 10 1099. The Court emphasized that the statute does not impose on First Amendment rights 11 because it “applies to all organizations, to any deduction regarding political issues, applies 12 regardless of viewpoint or message, applies to all employers, and it does not single out any 13 candidates or issues.” Id. at 1099 n.3. The Court emphasized that the law’s treatment of 14 similarly-situated organizations (all of them overtly political organizations) was 15 “evenhanded.” Id. It further stated that, should the state enforce the ban in an uneven manner, 16 the unions could bring a challenge to the law as it was applied, suggesting that such 17 enforcement might violate the First Amendment. Id. 18 The law at issue here, however, places restrictions on an employee’s ability to donate 19 through payroll deductions to an organization that engages in political activity depending 20 upon the identity of the organization receiving the donation. Employees may thus use payroll 21 deductions to supply money to charitable organizations; banks, trusts, and organizations that 22 administer retiree plans; or insurance companies or other organizations that provide health 23 care or welfare benefits. A.R.S. § 23-361.02(E)(1–5). The Defendants do not dispute that such 24 organizations may spend such funds for political purposes. Moreover, SB 1365 overtly 25 exempts employees who typically are members of public safety unions from its regulations. 26 Id. § 23-361.02(H). The functional result of SB 1365’s numerous exceptions is that the 27 burdens imposed by the law fall principally, if not solely, on unions collecting dues. Even 28 -7- 1 then, they do not fall squarely on unions representing police officers, firefighters, corrections 2 officers, probation officers, or surveillance officers. Id. 3 Organizations that wish to use payroll deduction to fund their political activity but are 4 not exempted from the statute are disadvantaged from doing so in at least three ways. First, 5 the statute requires them to disclose to the employers of their constituents the maximum 6 percent of the amount deducted that will be used for political activity. A.R.S. § 23-361.02(B). 7 Second, the law imposes a minimum fine of $10,000 per occurrence if an organization 8 exceeds that maximum percent. Id. § 23-361.02(D). Third, it requires the annual authorization 9 of each employee to initiate or continue payroll deduction. Id. § 23-361.02(B). Exempted 10 organizations are subject to no such requirements to receive payroll deductions subsidizing 11 their political activity. 12 As the Court recognized in Citizens United, some disclosure requirements that may 13 burden speech are subjected to something less than strict scrutiny. Citizens United, 130 S.Ct. 14 at 915 (holding a statute requiring the identification of political contributors valid because the 15 state demonstrated “a ‘substantial relation’ between the disclosure requirement and a 16 ‘sufficiently important’ governmental interest.”) (quoting Buckley v. Valeo, 424 U.S. 1, 64, 17 66 (1976). Of course, there are a number of distinctions between the permissible disclosure 18 requirement discussed in Citizens United and the statute set forth here. First among them is 19 that Citizens United made no suggestion that the state could compel some political speakers 20 in a similar class to disclose their donors, while exempting other similarly-situated political 21 speakers from such a requirement. 22 Second, unlike the provisions upheld in Citizens United or Buckley, the requirements 23 of SB 1365 are forward-looking. They apparently require the non-exempt organizations to 24 anticipate in advance the amount they intend to spend on political purposes for a given year. 25 If they underestimate, they are penalized a minimum of $10,000. A.R.S. 23-361.02(A),(D). 26 This fine “serves to deter and may even preclude expression necessary to provide an 27 immediate response to late-breaking events.” Grossman v. City of Portland, 33 F.3d 1200, 28 -8- 1 1206 (9th Cir. 1994) (internal quotations omitted). Since such organizations would be bound 2 by estimates they must make long before the facts of any particular political season emerge 3 with clarity, the provision places a $10,000 penalty on “speech in situations where the 4 communication was not, or could not have been, prepared far enough in advance.” Arizona 5 Right to Life Political Action Committee v. Bayless, 320 F. 3d 1002, 1008 (9th Cir. 2003). 6 This fine, and the ceiling on spending that this fine enforces, is not a disclosure 7 requirement. It is a financial burden that political speakers subject to the law may be required 8 to pay to match the speech of their political opponents. The Supreme Court has held that 9 adding costs to political speech relative to a political speaker’s rivals represents “a special and 10 potentially significant burden.” Davis v. Federal Election Comm’n, 554 U.S. 724, 739 (2008); 11 see also Arizona Free Enterprise Club’s Freedom Club Freedom PAC v. Bennett, 131 S.Ct. 12 2806, 2822 (2011). 13 The Court, however, need not analyze whether the state, through a law written to be 14 generally applicable and uniformly applied, could impose such burdens on collecting funds 15 through the payroll deduction program for political purposes. The statute at issue is not 16 generally applicable, and is not “evenhanded.” Ysursa, 129 S. Ct. at 1099 n.3. By imposing 17 its burdens on the political speech of some unions and other organizations and not imposing 18 like costs upon other similarly-situated unions, or on other organizations that can use the 19 funds for political activity, the law is underinclusive and discriminates according to speaker. 20 City of Ladue, 512 U.S. at 51. As such, the law is subject to strict scrutiny. Defendants do not 21 argue that SB 1365 can survive strict scrutiny. Plaintiffs are therefore likely to succeed on the 22 merits of their claim that the law violates the First Amendment and is therefore 23 unconstitutional. 24 The statute contains a severability clause, which provides that “[i]f any provision of 25 this act or its application to any person or circumstance is held invalid, the invalidity shall not 26 affect other provisions or applications of this act that can be given effect without the invalid 27 provision or application, and to this end the provisions of this act are severable.” Ariz. Laws 28 -9- 1 2011, Ch. 251 § 3. Whether or not to enforce a severability provision “is of course a matter 2 of state law.” Leavitt v. Jane L., 518 U.S. 137, 139 (1996). In Arizona, determining whether 3 a provision may be severed “requires ascertaining legislative intent.” Republic Inv. Fund v. 4 Town of Surprise, 166 Ariz. 143, 151, 800 P.2d 1259 (1990). A court may invalidate a law 5 in its entirety if the valid and invalid portions are so interrelated as “to raise the presumption 6 that the legislature would not have enacted the one without the other.” Campana v. Arizona 7 State Land Dep’t, 176 Ariz. 288, 294, 860 P.2d 1341, 1347 (1993) (internal quotations 8 omitted). 9 Here, to render SB 1365 viewpoint-neutral, it would be necessary to sever not merely 10 the public safety employee provisions, but also the exemptions for donations to charitable 11 organizations and to health, welfare and retiree benefit associations as well. A.R.S. § 2312 361.02(E)(2–3),(H). As a result, every charity, health insurance company, bank, or investment 13 firm that receives money through any Arizona worker’s payroll deduction would need to start 14 complying with the law’s provisions by October 1. Such a law would be dramatically broader 15 in scope than the one that the legislature in fact passed. Arizona courts have refused to strike 16 unconstitutional exceptions to legislation when they conclude “that the legislature would not 17 have enacted the statute without [the exception].” In re Cesar R., 197 Ariz. 437, 441, 4 P.3d 18 980, 984 (1999). Striking only the exceptions and permitting a much broader regulation 19 would, “in effect, cause the court to legislate a blanket [regulation] that the [legislature] did 20 not itself enact.” World Wide Rush, LLC v. City of L.A., 563 F. Supp. 2d 1132, 1146 (C.D. 21 Cal. 2008). For this reason, the Court determines that it cannot sever the sections of the statute 22 that make it likely Plaintiff-Intervenors will prevail on their claims. 23 IV. IRREPARABLE HARM 24 In addition to demonstrating a likelihood of success on the merits, Plaintiffs must 25 demonstrate “that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. 26 at 20 (emphasis in original). “The loss of First Amendment freedoms, for even minimal 27 periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 28 - 10 - 1 373 (1976). When the speech that is so burdened is political in nature, “[t]he harm is 2 particularly irreparable.” Klein v. City of San Clemente, 584 F. 3d 1196, 1208 (9th Cir. 2009). 3 Since Plaintiff-Intervenors’ claim implicates the core protections offered by the First 4 Amendment, the harms they would suffer should SB 1365 go into effect are irreparable per 5 se. 6 V. BALANCE OF EQUITIES 7 The third preliminary injunction factor requires the court “to balance the interests of 8 all parties and weigh the damage to each.” L.A. Memorial Coliseum Comm’n v. Nat’l Football 9 League, 634 F.2d 1197, 1203 (9th Cir. 1980). At this step, “balancing the injury of a third 10 party against plaintiff’s” is frowned upon. Id. 11 As discussed above, Plaintiffs and Plaintiff-Intervenors have demonstrated that they 12 are likely to suffer irreparable loss of core First Amendment rights. Defendants will suffer the 13 hardship of both delay in the implementation of the law should it ultimately be found to be 14 constitutional and delay in writing the rules that will implement the legislation. Defendants’ 15 harms are not substantial enough to tip the balance of equities against Plaintiffs and Plaintiff16 Intervenors. The balance of equities weigh in favor of an injunction. 17 VI. PUBLIC INTEREST 18 Determining whether an injunction is in the public interest “addresses impact on non- 19 parties rather than parties.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th 20 Cir. 2002). In the First Amendment context, the public interest can tilt against an injunction 21 in certain limited circumstances. See, e.g., Hale v. Dep’t of Energy, 806 F.2d 910, 918 (9th 22 Cir. 1986) (safety and security of nuclear testing site may favor public interest over First 23 Amendment claim). Ordinarily, however, courts have “consistently recognized the significant 24 public interest in upholding First Amendment principles,” even when the rights at stake are 25 those of the parties and not the general public. Sammartano, 303 F.3d at 974. Moreover, 26 employees and organizations who are not parties to this lawsuit would see their political 27 speech burdened should the law go into effect. Since Plaintiff-Intervenors demonstrate that 28 - 11 - 1 they are likely to succeed in showing that the law violates the First Amendment because it 2 discriminates according to viewpoint, the public interest tilts in favor of an injunction. 3 VII. SECURITY 4 A court may issue a preliminary injunction “only if the movant gives security in an 5 amount that the court considers proper to pay the costs and damages sustained by any party 6 found to have been wrongfully enjoined or restrained.” FED. R. CIV. P. 65(c). Although the 7 plain language of the rule suggests that a bond is mandatory, the Ninth Circuit has held that 8 it “invests the district court with discretion as to the amount of security required, if any.” 9 Johnson v. Courturier, 575 F.3d 1067, 1086 (9th Cir. 2009). A district court need not require 10 a bond “when it concludes there is no realistic likelihood of harm to the defendant from 11 enjoining his or her conduct.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003). 12 There is no realistic likelihood that Defendants will be harmed by being enjoined from 13 enforcing a law that constitutes viewpoint discrimination in violation of the First Amendment 14 on its face. No bond will be required. 15 VIII. OTHER CLAIMS 16 The Court has read and considered the remaining claims, and the statute presents 17 further questions beyond those discussed above. The pre-emption questions are serious and 18 complex. However, since SB 1365, as a law of general application, could only be pre-empted 19 as it applies to private sector employees covered by the LMRA and the NLRA, and since 20 Defendants are, at any rate, enjoined from enforcing the law in its entirety on First 21 Amendment grounds, it is unnecessary at this stage to determine such issues. For the same 22 reason, the Court will refrain from ruling on the other claims, including those alleging that the 23 law is impermissibly vague, imposes unconstitutional conditions, violates equal protection, 24 is pre-empted by election law, and violates the Contracts Clause. 25 26 CONCLUSION Plaintiffs and Plaintiff-Intervenors have shown a likelihood that they will succeed in 27 demonstrating that the law’s exceptions render it underinclusive, and that it therefore 28 - 12 - 1 discriminates according to viewpoint in violation of the First Amendment. The claims allege 2 constitutional harms, which are necessarily irreparable. The balance of equities and the public 3 interest likewise tilt in favor of enjoining a law that implicates core constitutional rights. 4 IT IS THEREFORE ORDERED that Plaintiff-Intervenors’ Motion for a Preliminary 5 Injunction (Doc. 77) is GRANTED. 6 IT IS FURTHER ORDERED that Plaintiffs’ Motion for a Preliminary Injunction 7 (Doc. 14) is DISMISSED AS MOOT. 8 IT IS FURTHER ORDERED that Attorney General Horne is preliminarily enjoined 9 from enforcing Senate Bill 1365, creating A.R.S. § 23-361.02. 10 DATED this 23rd day of September, 2011. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?