Galassini v. Fountain Hills, Town of et al

Filing 106

ORDER granting in part and denying in part 82 Plaintiff's Motion for Summary Judgment as set forth in the attached Order; FURTHER ORDERED that within five (5) days of the date of this Order, Plaintiff shall file a notice with this Court indic ating whether she seeks an injunction consist with this Order. FURTHER ORDERED denying 83 State of Arizona's Motion for Summary Judgment; FURTHER ORDERED denying 84 Town of Fountain Hills' Motion for Summary Judgment. Signed by Senior Judge James A Teilborg on 9/30/2013.(TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dina Galassini,
Plaintiff,

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ORDER

v.
Town of Fountain Hills,
Defendant,

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No. CV-11-02097-PHX-JAT

State of Arizona,
Intervenor-Defendant

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Pending before the Court are: (1) Plaintiff’s Motion for Summary Judgment (Doc.

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82); (2) the State of Arizona’s Motion for Summary Judgment (Doc. 83); and (3) the

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Town of Fountain Hills’ Motion for Summary Judgment (Doc. 84). The Court now rules

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on the Motions.

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I.

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Upset over the tax consequences of an upcoming bond proposal by the Town of

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Fountain Hills, Plaintiff Dina Galassini decided to exercise the rights of an ordinary

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citizen and organize a protest. Little did she realize that she was about to feel the heavy

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hand of government regulation in a way she never imagined. At center stage is Plaintiff’s

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challenge to the constitutionality of a 183-word sentence defining “political committee,”

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which raises the issue of whether a person of ordinary intelligence can understand the

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sentence’s meaning.

BACKGROUND

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Ms. Galassini opposed a bond proposal on the Town of Fountain Hills’ November

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2011 ballot. (Doc. 82-2 at ¶¶ 1-2; Doc. 94-1 at ¶¶ 1-2). Ms. Galassini attended town

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council meetings and spoke out against the bond proposal. (Doc. 82-2 at ¶ 2; Doc. 94-1

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at ¶ 2). On October 6, 2011, Ms. Galassini sent an email to 23 of her friends and

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neighbors in an effort to organize a rally to oppose the bond. (Doc. 82-2 at ¶ 4; Doc. 94-1

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at ¶ 4). In her email, Ms. Galassini wrote:

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Dear Fountain Hills Residents,
This email is going out to 23 residents. Please feel free to
forward this email and/or send me email addresses of people
who wish to be on this contact list, BUT PLEASE
CONTINUE TO PROTECT THE PRIVACY OF EMAIL
ADDRESSES by using the Bcc box. Thank you.
As you know there are several issues regarding the upcoming
SPECIAL BOND ELECTION to be held on November 8.
THIS IS A MAIL IN ELECTION ONLY. Ballots are to be
mailed out staring [sic] October 17, SO WE NEED TO GET
ORGANIZED AND ACT FAST.
ACTION PLAN – Time is of the essence!

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TWO PROTESTS ARE PLANNED—Please mark your
calendars and come ON TIME with SIGNS:
October 19th at 4-6pm at the corner of Palisades and
Palomino.
October 22nd at NOON to 3:00pm at Saguaro and Avenue of
the Fountains.
PLEASE WRITE LETTERS—START NOW AS THERE
IS ONLY FOUR WEEKS TO POST.

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Submit by Friday or Saturday TO THE EDITOR EACH
WEEK – [e-mail]

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The estimated total cost of the proposed bond
authorization, including principal and interest is
$44,404,598.

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The Town currently has $4.6 MILLION general
obligation bonds OUTSTANDING. The new bonds will
first liquidate existing indebtedness that is already
incurred.
Isn’t this robbing Peter to pay Paul?
The bonds will mature over a period not to exceed 25 years
from the date of issuance. Every 10 years, the Town is most
likely going to want more money, meaning more bonds.
The Town is hitting residents hard while property tax rate is
lower indeed, but property taxes have not decreased
substantially to reflect this. Bonds would be payable from the
levy of an ad valorem tax against residents taxable property.
Will your tax rate stay constant? Will your taxes ever go
down? Each and every resident will be responsible for the
annual debt service of these bonds!
The bond will provide funds for any “appurtenances
thereto.” This is vague. Appurtenance means accessory
objects and that which belongs to something else. Something
annexed to another thing more worthy.
The bonds may be issued in one or more series with a fixed or
variable interest rate not to exceed 12% per annum. This is
an exceedingly high interest rate that residents will pay and
pay dearly. How many homes have gone into default with a
variable rate?
The bond will provide funds for so many things, I can see this
money getting eaten up in a nanosecond!
-to design, improve, construct, reconstruct and rehabilitate the
streets, avenues, alleys and highways, including any
appurtenances thereto, of or within the Town.

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-to design, acquire, install, construct and reconstruct street
lighting (what is the cost of each traffic light?). Why would
our existing lights need reconstructed [sic]? Don’t forget the
traffic signal/control systems and underground utility lines.

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-to acquire land and interests in land for transportation
-fund landscape improvements

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DOES ANYONE KNOW WHAT THIS MEANS?
Although all of the projects qualify under the 20% debt limit,
they can also be issued under the 6% general bond limit. In
the event you sell your home, it will be less attractive with a
high property tax affixed to it.
I heard the Town has one guy who maintains our traffic light.
He broke his arm, so the Town pays another city to maintain
them.
Three restaurants closed in one week. People are struggling .
. . not thriving. JUST SAY NO TO THE BONDS!
SIGNS ARE NEEDED:
Bonds are BONDAGE
Keep Property Taxes Low
No to the Ball and Chain Bond
Vote NO on the Bond
Vote No on Nov 8

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Feel free to forward me any findings you may have on this
issue.

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Dina Galassini
[telephone number redacted]
(Doc. 82-3 at Exhibit 1) (emphasis in original).

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Ms. Galassini’s email was forwarded to Paul Mood through a consultant who was

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working on plans for road maintenance for the Town of Fountain Hills. (Doc. 82-2 at ¶

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14; Doc. 94-1 at ¶ 14). Mr. Mood is the Development Services Director for the Town of

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Fountain Hills and his department oversees road maintenance in Fountain Hills. (Doc.

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82-2 at ¶¶ 9-10; Doc. 94-1 at ¶¶ 9-10). Mr. Mood helped put the bond package together.

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(Doc. 82-2 at ¶ 12; Doc. 94-1 at ¶ 12). Mr. Mood forwarded the email to Julie Ghetti, the

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Interim Town Manager for Fountain Hills, Andrew McGuire, the Fountain Hills Town

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Attorney, and another group of Town employees. (Doc. 82-2 at ¶¶ 15-16; Doc. 94-1 at ¶
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15-16).

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Ms. Ghetti and Janice Baxter, an executive assistant in Mr. Mood’s department,

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then forwarded the email to Bevelyn Bender, the Town Clerk of Fountain Hills. (Doc.

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82-2 at ¶ 17; Doc. 94-1 at ¶ 17). Ms. Bender and Ms. Ghetti then consulted with the

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Town Attorney and decided that Ms. Bender would write a letter to Ms. Galassini. (Doc.

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82-2 at ¶¶ 18-19; Doc. 94-1 at ¶¶ 18-19).

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In the letter, dated October 12, 2011, Ms. Bender wrote:
Dear Ms. Galassini:
A recent email was brought to my attention that called for
organized action by numerous individuals regarding the
November 8, 2011 Bond Election.
Although an individual acting alone is not a political
committee under Arizona law and need not file a statement of
organization, if any additional person or persons join the
effort (as defined in A.R.S. §16-901(19) - see below) begun
by an individual, the association of persons has become a
“political committee” under Arizona law, and must file a
statement of organization before accepting contributions,
making expenditures, distributing literature or circulating
petitions.

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Please be advised that according to State Statutes, as
specifically outlined in Title 16, one or more persons working
to impact the results of an election are considered to be a
Political Action Committee (PAC) subject to all of the
requirements associated with a PAC. In order to comply with
the law a Statement of Organization must be filed in the
office of the Town Clerk prior to any electioneering taking
place. I would strongly encourage you to cease any campaign
related activities until the requirements of the law have been
met.

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Arizona Revised Statute A.R.S. §16-901(19):

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“Political committee” means a candidate or any association
or combination of persons that is organized, conducted or
combined for the purpose of influencing the result of any

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election or to determine whether an individual will become a
candidate for election in this state or in any county, city,
town, district or precinct in this state, that engages in
political activity in behalf of or against a candidate for
election or retention or in support of or opposition to an
initiative, referendum or recall or any other measure or
proposition and that applies for a serial number and
circulates petitions and, in the case of a candidate for public
office except those exempt pursuant to section 16-903, that
receives contributions or makes expenditures in connection
therewith, notwithstanding that the association or
combination of persons may be part of a larger association,
combination of persons or sponsoring organization not
primarily organized, conducted or combined for the purpose
of influencing the result of any election in this state or
in any county, city, town or precinct in this state. Political
committee includes the following types of committees:
(a) A candidate’s campaign committee.
(b) A separate, segregated fund established by a corporation
or labor organization pursuant to section 16-920, subsection
A, paragraph 3.
(c) A committee acting in support of or opposition to the
qualification, passage or defeat of a ballot measure, question
or proposition.
(d) A committee organized to circulate or oppose a recall
petition or to influence the result of a recall election.
(e) A political party.
(f) A committee organized for the purpose of making
independent expenditures.
(g) A committee organized in support of or opposition to one
or more candidates.
(h) A political organization.
(i) An exploratory committee.
Please contact the Town Clerk’s office as soon as possible at
[telephone number redacted] to schedule an appointment to
meet with staff so that we can provide you with the necessary
forms to be filed and informational materials that will assist
you. I look forward to meeting with you and thank you for
your prompt attention to this important matter.
Respectfully,
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Bevelyn J. Bender, MMC
Town Clerk

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(Doc. 82-3 at Exhibit 2) (emphasis in original).
Upon receiving the letter on October 13, 2011, Ms. Galassini became scared of
breaking the law and decided to cancel her two protest rallies. (Doc. 82-2 at ¶¶ 22-23;
Doc. 94-1 at ¶¶ 22-23). The same day, she sent Ms. Bender a letter stating:
Hi Bev,
Just received your letter. I had no idea I would be violating
the law. I will stop all emails out and not hold a rally. It isn’t
the good ‘ol days anymore.
Is it OK to send an email out to let people know that it is
canceled due to A.R.S. 16-901(19)?
Dina Galassini
(Doc. 82-3 at Exhibit 3).
In the following week, Ms. Galassini sent Ms. Bender a few more emails asking
for clarification on the law and inquiring as to her First Amendment rights. (Doc. 82-2 at
¶¶ 25-29; Doc. 94-1 at ¶¶ 25-29).
On October 26, 2011, Plaintiff filed a Complaint for Declaratory and Injunctive
Relief against the Town of Fountain Hills, the Town Clerk of Fountain Hills, and the
Town Attorney of Fountain Hills. (Doc. 1). In her Complaint, Plaintiff alleged that
Arizona Revised Statutes section 16-901(19) is an unconstitutional burden on her First
Amendment rights to freedom of speech and freedom of association. (Id.). Thereafter,
the State of Arizona intervened. (Doc. 13; Doc. 18). Following a preliminary injunction
hearing, the Court found that Plaintiff established serious questions going to the merits of
her claim. (Doc. 33 at 8-9). As a result, the Court granted Plaintiff’s Motion for
Preliminary Injunction, allowing Plaintiff to hold protests prior to the election on
November 8, 2011 without first registering as a political action committee. (Id. at 10-11).
On November 6, 2011, Ms. Galassini held a rally with 12-14 other people. (Doc.
82-2 at ¶¶ 69-71; Doc. 94-1 at ¶¶ 69-71). Ms. Galassini and others displayed homemade
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signs to cars and passersby. (Doc. 82-2 at ¶¶ 72-73; Doc. 94-1 at ¶¶ 72-73). The

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preliminary injunction expired at the close of the November 8, 2011 election. (Doc. 33 at

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11). The bond proposal was rejected by the Fountain Hills voters. (Doc. 82-2 at ¶ 74;

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Doc. 94-1 at ¶ 74).

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Thereafter, Plaintiff filed an Amended Complaint pursuant to 42 U.S.C. § 1983

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against the Town of Fountain Hills and the State of Arizona. (Doc. 65). In her Amended

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Complaint, Plaintiff alleges that (1) Arizona’s campaign-finance laws impose

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unconstitutional burdens on free speech; (2) Arizona’s campaign finance scheme is

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overbroad in violation of the First and Fourteenth Amendments of the United States

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Constitution; and (3) Arizona’s campaign finance scheme is impermissibly vague in

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violation of the Fourteenth Amendment of the United States Constitution.

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Plaintiff seeks injunctive and declaratory relief prohibiting the enforcement of the State’s

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campaign-finance laws. (Id.). Plaintiff also seeks nominal damages and attorneys’ fees

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on her 42 U.S.C. § 1983 claims.

(Id.).

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The Arizona Legislature then amended the definition of “political committee” as

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set forth in Arizona Revised Statutes section 16-901(19).1 The relevant portions of the

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Plaintiff’s complaint does not challenge the amended version of the statutory
scheme. However, Plaintiff moved for summary judgment based on the current versions
of Arizona Revised Statutes sections 16-901(19) and 16-902.01. As a result, the Court
requested supplemental briefing and ordered the Parties to address the fact that the
constitutionality of the current versions of sections 16-901(19) and 16-902.01 was not
raised in the pleadings. (Doc. 100).
In her supplemental briefing, Plaintiff argues that the statutory scheme was
amended in a “minor way” that did not require Plaintiff to amend her complaint. The
Court recognizes that the challenges to the statutory scheme’s constitutionality have not
changed, i.e. Plaintiff continues to argue that the statutory scheme violates her First
Amendment rights, is overly broad, and is unconstitutionally vague. However, the
changes to the statutory scheme are the focus of much of the Parties’ briefing on
summary judgment, and, as discussed more fully below, the changes affect the
substantive analysis of Plaintiff’s claims; as such, the amendments are not “minor,” and,
thus, Plaintiff should have amended her complaint accordingly.

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Plaintiff next argues that, pursuant to Federal Rule of Civil Procedure 15(b)(2), the
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current version of Arizona’s statutory scheme are set forth below. Arizona Revised

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Statutes section 16-901(19) was amended as follows:

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“Political committee” means a candidate or any association or
combination of persons that is organized, conducted or
combined for the purpose of influencing the result of any
election or to determine whether an individual will become a
candidate for election in this state or in any county, city,
town, district or precinct in this state, that engages in political
activity in behalf of or against a candidate for election or
retention or in support of or opposition to an initiative,
referendum or recall or any other measure or proposition and
that applies for a serial number and circulates petitions and, in
the case of a candidate for public office except those exempt
pursuant to § 16-903, that receives contributions or makes
expenditures of more than two hundred fifty dollars in
connection therewith, notwithstanding that the association or
combination of persons may be part of a larger association,
combination of persons or sponsoring organization not
primarily organized, conducted or combined for the purpose
of influencing the result of any election in this state or in any
county, city, town or precinct in this state. Political committee
includes the following types of committees:
(a) A candidate’s campaign committee.

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Court should recognize constructive amendment of the complaint. Pursuant to Federal
Rule of Civil Procedure 15(b)(2), “[w]hen an issue not raised by the pleadings is tried by
the parties’ express or implied consent, it must be treated in all respects as if raised in the
pleadings. A party may move—at any time, even after judgment—to amend the
pleadings to conform them to the evidence and to raise an unpleaded issue.” Fed. R. Civ.
P. 15(b)(2). The Ninth Circuit Court of Appeals has interpreted Federal Rule of Civil
Procedure 15(b)(2) to apply when the parties fully argue the merits of an unpleaded claim
on summary judgment with no objection from Defendants. See Lone Star Sec. & Video,
Inc. v. City of Los Angeles, 584 F.3d 1232, 1235 n.2 (9th Cir. 2009).
In this case, although Defendants argue that the changes to the statutory scheme
moot Plaintiff’s claims and that Plaintiff does not have standing to challenge the new
statutory scheme, Defendants did not object to Plaintiff moving for summary judgment
on claims that were not in her complaint. Accordingly, Defendants have impliedly
consented to constructive amendment of Plaintiff’s complaint pursuant to Federal Rule of
Civil Procedure 15(b)(2). Based on the foregoing, the Court will consider Plaintiff’s
complaint to be constructively amended to include her summary judgment arguments
regarding the amended statutory scheme.
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(b) A separate, segregated fund established by a corporation
or labor organization pursuant to § 16-920, subsection A,
paragraph 3.
(c) A committee acting in support of or opposition to the
qualification, passage or defeat of a ballot measure, question
or proposition.
(d) A committee organized to circulate or oppose a recall
petition or to influence the result of a recall election.
(e) A political party.
(f) A committee organized for the purpose of making
independent expenditures.
(g) A committee organized in support of or opposition to one
or more candidates.
(h) A political organization.
(i) An exploratory committee.

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Ariz. Rev. Stat. Ann. § 16-901(19) (as amended by H.B. 2033, 50th Leg., 2nd Reg. Sess.

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(Ariz. 2012) (amendment in bold)). At the same time, Arizona Revised Statutes section

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16-902.01 was also amended. It provides:

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A. Each political committee that intends to accept
contributions or make expenditures of more than five hundred
dollars shall file a statement of organization with the filing
officer in the format prescribed by the filing officer before
accepting contributions, making expenditures, distributing
any campaign literature or circulating petitions. Each political
committee that intends to accept contributions or make
expenditures of five hundred dollars or less, and more than
two hundred fifty dollars, shall file a signed exemption
statement in a form prescribed by the filing officer that states
that intention before making any expenditures, accepting any
contributions, distributing any campaign literature or
circulating petitions. If a political committee that has filed a
five hundred dollar threshold exemption statement receives
contributions or makes expenditures of more than five
hundred dollars, that political committee shall file a statement
of organization with the filing officer in the format prescribed
by the filing officer within five business days after exceeding
the five hundred dollar limit.
B. The statement of organization of a political committee
shall include all of the following:

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1. The name, address and type of committee.

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2. The name, address, relationship and type of any sponsoring
organization.

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3. The names, addresses, telephone numbers, occupations and
employers of the chairman and treasurer of the committee.
4. In the case of a candidate’s campaign committee, the name,
address, office sought and party affiliation of the candidate.
5. A listing of all banks, safety deposit boxes or other
depositories used by the committee.
6. A statement that the chairman and treasurer have read all of
the applicable laws relating to campaign finance and
reporting.
C. Except as prescribed by subsection E of this section, on the
filing of a statement of organization, a political committee
shall be issued an identification number in the format
prescribed by the filing officer.

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D. The political committee shall file an amended statement of
organization reporting any change in the information
prescribed in subsections B and F of this section within five
business days after the change.
E. A standing political committee shall file a statement of
organization with the secretary of state and in each
jurisdiction in which the committee is active, and only the
secretary of state shall issue an identification number for the
committee. The statement of organization shall include a
statement with the notarized signature of the chairman or
treasurer of the standing political committee that declares the
committee’s status as a standing political committee. The
secretary of state may charge an annual fee for the filing.
F. For a political committee that makes expenditures in an
attempt to influence the results of a ballot proposition
election, the statement of organization shall include in the
name of the political committee the official serial number for
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the petition, if assigned, and a statement as to whether the
political committee supports or opposes the passage of the
ballot measure. On completion of the designation of statewide
ballot propositions by number as prescribed in section 19–
125, the secretary of state is authorized to and shall amend the
name of the political committee by attaching to the statement
of organization the ballot proposition number as a substitute
for the official serial number in the name of the political
committee. The secretary of state shall promptly notify the
political committee of the amended political committee name
and shall make that information available to the public.
Ariz. Rev. Stat. Ann. § 16-902.01 (as amended by H.B. 2033, 50th Leg., 2nd Reg. Sess.
(Ariz. 2012) (amendment in bold)). The following portions of the statutory scheme were
not amended, but are relevant to the issues in this case:
“Expenditures” includes any purchase, payment, distribution,
loan, advance, deposit or gift of money or anything of value
made by a person for the purpose of influencing an election in
this state including supporting or opposing the recall of a
public officer or supporting or opposing the circulation of a
petition for a ballot measure, question or proposition or the
recall of a public officer and a contract, promise or agreement
to make an expenditure resulting in an extension of credit and
the value of any in-kind contribution received. Expenditure
does not include any of the following:
(a) A news story, commentary or editorial distributed through
the facilities of any telecommunications system, newspaper,
magazine or other periodical publication, unless the facilities
are owned or controlled by a political committee, political
party or candidate.

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(b) Nonpartisan activity designed to encourage individuals to
vote or to register to vote.

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(c) The payment by a political party of the costs of
preparation, display, mailing or other distribution incurred by
the party with respect to any printed slate card, sample ballot
or other printed listing of three or more candidates for any
public office for which an election is held, except that this
subdivision does not apply to costs incurred by the party with

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respect to a display of any listing of candidates made on any
telecommunications system or in newspapers, magazines or
similar types of general public political advertising.

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(d) The payment by a political party of the costs of campaign
materials, including pins, bumper stickers, handbills,
brochures, posters, party tabloids and yard signs, used by the
party in connection with volunteer activities on behalf of any
nominee of the party or the payment by a state or local
committee of a political party of the costs of voter registration
and get-out-the-vote activities conducted by the committee if
the payments are not for the costs of campaign materials or
activities used in connection with any telecommunications
system, newspaper, magazine, billboard, direct mail or similar
type of general public communication or political advertising.
(e) Any deposit or other payment filed with the secretary of
state or any other similar officer to pay any portion of the cost
of printing an argument in a publicity pamphlet advocating or
opposing a ballot measure.

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Ariz. Rev. Stat. § 16-901(8).
“Contribution” means any gift, subscription, loan, advance or
deposit of money or anything of value made for the purpose
of influencing an election including supporting or opposing
the recall of a public officer or supporting or opposing the
circulation of a petition for a ballot measure, question or
proposition or the recall of a public officer and:
(a) Includes all of the following:

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(i) A contribution made to retire campaign debt.

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(ii) Money or the fair market value of anything directly or
indirectly given or loaned to an elected official for the
purpose of defraying the expense of communications with
constituents, regardless of whether the elected official has
declared his candidacy.

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(iii) The entire amount paid to a political committee to attend
a fund-raising or other political event and the entire amount
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raising meal or item, except that no contribution results if the
actual cost of the meal or fund-raising item, based on the
amount charged to the committee by the vendor, constitutes
the entire amount paid by the purchaser for the meal or item,
the meal or item is for the purchaser’s personal use and not
for resale and the actual cost is the entire amount paid by the
purchaser in connection with the event. This exception does
not apply to auction items.
(iv) Unless specifically exempted, the provision of goods or
services without charge or at a charge that is less than the
usual and normal charge for such goods and services.

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(b) Does not include any of the following:
(i) The value of services provided without compensation by
any individual who volunteers on behalf of a candidate, a
candidate’s campaign committee or any other political
committee.
(ii) Money or the value of anything directly or indirectly
provided to defray the expense of an elected official meeting
with constituents if the elected official is engaged in the
performance of the duties of his office or provided by the
state or a political subdivision to an elected official for
communication with constituents if the elected official is
engaged in the performance of the duties of his office.
(iii) The use of real or personal property, including a church
or community room used on a regular basis by members of a
community for noncommercial purposes, that is obtained by
an individual in the course of volunteering personal services
to any candidate, candidate’s committee or political party,
and the cost of invitations, food and beverages voluntarily
provided by an individual to any candidate, candidate’s
campaign committee or political party in rendering voluntary
personal services on the individual's residential premises or in
the church or community room for candidate-related or
political party-related activities, to the extent that the
cumulative value of the invitations, food and beverages
provided by the individual on behalf of any single candidate
does not exceed one hundred dollars with respect to any
single election.
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(iv) Any unreimbursed payment for personal travel expenses
made by an individual who on his own behalf volunteers his
personal services to a candidate.
(v) The payment by a political party for party operating
expenses, party staff and personnel, party newsletters and
reports, voter registration and efforts to increase voter
turnout, party organization building and maintenance and
printing and postage expenses for slate cards, sample ballots,
other written materials that substantially promote three or
more nominees of the party for public office and other
election activities not related to a specific candidate, except
that this item does not apply to costs incurred with respect to
a display of the listing of candidates made on
telecommunications systems or in newspapers, magazines or
similar types of general circulation advertising.

12
13

(vi) Independent expenditures.

14

(vii) Monies loaned by a state bank, a federally chartered
depository institution or a depository institution the deposits
or accounts of which are insured by the federal deposit
insurance corporation or the national credit union
administration, other than an overdraft made with respect to a
checking or savings account, that is made in accordance with
applicable law and in the ordinary course of business. In order
for this exemption to apply, this loan shall be deemed a loan
by each endorser or guarantor, in that proportion of the
unpaid balance that each endorser or guarantor bears to the
total number of endorsers or guarantors, the loan shall be
made on a basis that assures repayment, evidenced by a
written instrument, shall be subject to a due date or
amortization schedule and shall bear the usual and customary
interest rate of the lending institution.

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(viii) A gift, subscription, loan, advance or deposit of money
or anything of value to a national or a state committee of a
political party specifically designated to defray any cost for
the construction or purchase of an office facility not acquired
for the purpose of influencing the election of a candidate in
any particular election.

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(ix) Legal or accounting services rendered to or on behalf of a
political committee or a candidate, if the only person paying
for the services is the regular employer of the individual
rendering the services and if the services are solely for the
purpose of compliance with this title.
(x) The payment by a political party of the costs of campaign
materials, including pins, bumper stickers, handbills,
brochures, posters, party tabloids and yard signs, used by the
party in connection with volunteer activities on behalf of any
nominee of the party or the payment by a state or local
committee of a political party of the costs of voter registration
and get-out-the-vote activities conducted by the committee if
the payments are not for the costs of campaign materials or
activities used in connection with any telecommunication,
newspaper, magazine, billboard, direct mail or similar type of
general public communication or political advertising.

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(xi) Transfers between political committees to distribute
monies raised through a joint fund-raising effort in the same
proportion to each committee's share of the fund-raising
expenses and payments from one political committee to
another in reimbursement of a committee’s proportionate
share of its expenses in connection with a joint fund-raising
effort.
(xii) An extension of credit for goods and services made in
the ordinary course of the creditor’s business if the terms are
substantially similar to extensions of credit to nonpolitical
debtors that are of similar risk and size of obligation and if
the creditor makes a commercially reasonable attempt to
collect the debt, except that any extension of credit under this
item made for the purpose of influencing an election that
remains unsatisfied by the candidate after six months,
notwithstanding good faith collection efforts by the creditor,
shall be deemed receipt of a contribution by the candidate but
not a contribution by the creditor.

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(xiii) Interest or dividends earned by a political committee on
any bank accounts, deposits or other investments of the
political committee.
Ariz. Rev. Stat. Ann. § 16-901(5).

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1

Moreover, a group’s designation as a “political committee” triggers various

2

requirements.

“Each political committee shall have a chairman and treasurer. The

3

position of chairman and treasurer of a single political committee may not be held by the

4

same individual, except that a candidate may be chairman and treasurer of his own

5

campaign committee.” Ariz. Rev. Stat. Ann. § 16-902.

6

accepts a contribution or makes an expenditure it shall designate . . . its campaign

7

depository” and “shall notify the filing officer of the designation . . . either at the time of

8

filing the statement of organization pursuant to 16-902.01 or within five business days

9

after opening an account.”

“Before a political committee

Ariz. Rev. Stat. Ann. ' 16-902(C). Committees that have

10

filed a five hundred dollar threshold exemption statement must, among other things, 1)

11

maintain a record of all contributions received and expenditures made by the committee;

12

2) file a termination statement in conformance with ' 16-914 within ninety days of the

13

election cycle, or if it fails to file a termination statement, be fined $100; 3) preserve all

14

records and finance reports for three years. Ariz. Rev. Stat. Ann. ' 16-904. “A political

15

committee that makes an expenditure in connection with any literature or advertisement

16

to support or oppose a ballot proposition shall disclose and . . . shall include on the

17

literature or advertisement the words >paid for by,= followed by the name of the

18

committee that appears on its statement of organization or five hundred dollar threshold

19

exemption statement . . .” Ariz. Rev. Stat. Ann. ' 16-912.01(A). For the purposes of

20

section 16-912.01(A), “‘advertisement’ means general public advertising through the

21

print and electronic media, signs, billboards and direct mail.” Ariz. Rev. Stat. Ann. ' 16-

22

912.01(J).

23

Failure to adhere to these statutes could result in various civil penalties. See Ariz.

24

Rev. Stat. Ann. § 16-924(B); Ariz. Rev. Stat. Ann. § 16-904(K); Ariz. Rev. Stat. Ann. §

25

16-912.01(I); Ariz. Rev. Stat. Ann. § 16-904(F)(3).

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27

Plaintiff, the Town of Fountain Hills, and the State of Arizona now move for
summary judgment on all of Plaintiff’s claims.

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II.

2

Summary judgment is appropriate when “the movant shows that there is no

3

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

4

of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely

5

disputed must support that assertion by . . . citing to particular parts of materials in the

6

record, including depositions, documents, electronically stored information, affidavits, or

7

declarations, stipulations . . . admissions, interrogatory answers, or other materials,” or by

8

“showing that materials cited do not establish the absence or presence of a genuine

9

dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

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LEGAL STANDARD

Id. at 56(c)(1)(A)&(B). Thus, summary judgment is mandated “against a party who fails
to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Initially, the movant bears the burden of pointing out to the Court the basis for the
motion and the elements of the causes of action upon which the non-movant will be
unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to
the non-movant to establish the existence of material fact. Id. The non-movant “must do
more than simply show that there is some metaphysical doubt as to the material facts” by
“com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586B87 (1986) (quoting
Fed. R. Civ. P. 56(e) (1963) (amended 2010)). A dispute about a fact is “genuine” if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In the summary judgment
context, the Court construes all disputed facts in the light most favorable to the nonmoving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).
III.

ANALYSIS

The State of Arizona first argues that it is entitled to summary judgment because
Plaintiff’s claims are moot and she lacks standing. The Court will first address whether
- 18 -

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Plaintiff has standing to pursue her claims because “[s]tanding is the threshold issue of

2

any federal action, a matter of jurisdiction because ‘the core component of standing is an

3

essential and unchanging part of the case-or-controversy requirement of Article III.’”

4

Local Nos. 175 & 505 Pension Trust v. Anchor Cap., 498 F.3d 920, 923 (9th Cir. 2007)

5

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

6

The State of Arizona argues that Arizona’s statutory scheme defining and

7

regulating political committees did not apply to Plaintiff pre-amendment and does not

8

apply to Plaintiff post-amendment. (Doc. 83 at 2).

9
10

A.

Pre-Amendment Standing and Mootness
1.

Pre-Amendment Standing

11

In its Order granting Plaintiff’s Motion for Preliminary Injunction, the Court found

12

that Plaintiff had standing to challenge Arizona’s statutory scheme. (Doc. 33 at 5-7).

13

The Court specifically reasoned:

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The Fountain Hills Defendants argue that Plaintiff’s claim is
premature. To satisfy Article III’s case or controversy
requirement, Plaintiff must establish that she has standing to
sue. To demonstrate standing, Plaintiff must show “(1) an
injury-in-fact, (2) causation, and (3) a likelihood that the
injury will be redressed by a decision in the plaintiff’s favor.”
Human Life of Washington v. Brumsickle, 624 F.3d 990, 1000
(9th Cir. 2010) (internal quotation omitted). As the Court
cannot issue advisory opinions or decide hypothetical cases,
the claim must also be ripe for review. Id. (internal citation
omitted). When a plaintiff has made a pre-enforcement
constitutional challenge and has not yet been penalized for
violating the challenged statute, “neither the mere existence
of a proscriptive statute nor a generalized threat of
prosecution satisfies that ‘case or controversy’ requirement,”
but “when a challenged statute risks chilling the exercise of
First Amendment rights, the Supreme Court has dispensed
with rigid standing requirements and recognized ‘selfcensorship’ as “a harm that can be realized even without an
actual prosecution.” Id. at 1000 (internal quotations and
citations omitted). “In an effort to avoid the chilling effect of
sweeping restrictions, the Supreme Court has endorsed what
might be called a ‘hold your tongue and challenge now’
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approach rather than requiring litigants to speak first and take
their chances with the consequences.” Lopez v. Candaele, 630
F.3d 775, 785–786 (9th Cir. 2010) (internal quotation
omitted). In such pre-enforcement cases, courts must consider
three factors: (1) “whether pre-enforcement plaintiffs have
failed to show a reasonable likelihood that the government
will enforce the challenged law against them” (2) whether
plaintiffs have established, with some concrete detail that they
intend to violate the challenged law; and (3) “whether the
challenged law is inapplicable to plaintiffs, either by its terms
or as interpreted by the government.” Id. at 786. If the
government disavows an intent to enforce a law against a
plaintiff, such disavowal “must be more than a mere litigation
position.”
With regard to the first factor, the Court finds that
Defendant Bender’s letter to Plaintiff is strong evidence that
Plaintiff faces a credible threat of adverse action by the State.
In Culinary Workers v. Del Papa, the Ninth Circuit Court of
Appeals found injury in fact where the attorney general wrote
a letter to the union which quoted the statute in full and
threatened to refer the prosecution to local criminal
authorities.” 200 F.3d 614 (9th Cir. 1999). Defendant
Bender’s letter to Plaintiff similarly quoted the statute and
informed her that “one or more persons working to impact the
results of an election are considered to be a Political Action
Committee (PAC) subject to all the requirements associated
with a PAC.” Although Defendant Bender’s letter did not
threaten to refer the matter to the City Attorney, it did
“strongly encourage” Plaintiff to “cease any campaign related
activities until the requirements of the law have been met.”
During the Preliminary Injunction hearing before this Court,
Plaintiff testified that, as soon as she received this letter, she
decided to call off her planned protests because “I had no idea
I’d be violating the law” and “I didn’t know if I’d be fined or
jailed or what was going to happen.” The Court finds that this
warning to Plaintiff was reasonably interpreted by Plaintiff as
a credible threat that, if she were to continue with her
proposed protests, she would be in violation of the law, unless
she first registered as a political action committee. See id.
(“We also reject the contention that the attorney general’s
letter was not a ‘genuine threat’ because it failed to ‘chill’ the
union’s exercise of First Amendment rights. There is no
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dispute that the union stopped distributing the contested
handbill as soon as it received the attorney general’s letter.
This is substantially more than a subjective chilling effect.”).
Accordingly, Plaintiff has adequately established the first
factor.
With regard to the second factor, both in her email and
through testimony during the Preliminary Injunction hearing,
Plaintiff established, in concrete detail, the nature of the
activities she planned to engage in. During the Preliminary
Injunction hearing, two witnesses testified that they planned
to go to Plaintiff’s protests, as proposed in her email. While
there is some disagreement among the State of Arizona and
the Fountain Hills Defendants as to whether those activities
would actually meet the definition of “political committee,”
the description of a political committee urged by the Town
Clerk, which the State of Arizona seems to concede is correct,
suggests that if Plaintiff were to engage in her protests, she
would be violating the law, unless she first registered her
group as a political committee. The Court finds that there is at
least a strong argument that Plaintiff’s proposed activities
would violate the challenged law. Such a strong argument
supports Plaintiff’s decision to self-censor, rather than risk
violating the challenged law. Accordingly, Plaintiff has met
the second element.
With regard to the third factor, as the Court has
previously pointed out, the State of Arizona and the Fountain
Hills Defendants seemingly disagree as to the interpretation
of the law. Because Defendants do not agree as to whether the
law applies to Plaintiffs’ actions, it is difficult for the Court to
engage in a traditional analysis of this factor. However, it
seems to be undisputed [] that, if the Court finds that the
requirements of the statutory scheme contained in Title 16 of
the Arizona Revised Statutes do apply to Plaintiff, they would
be enforced against her. There has certainly been no
suggestion to the Court that these laws have not been
enforced in the past or that there is a plan to not enforce them
in the future. As pointed out above, based on Defendant
Bender’s letter to her and her proposed activities, Plaintiff has
established a strong possibility that her planned protests
would violate the statutory scheme. Because this has

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1

reasonably caused Plaintiff to self-censor, the Court finds that
Plaintiff has established the third factor.

2
3

For the foregoing reasons, the Court finds that Plaintiff
has satisfied Article III’s case or controversy requirement.

4
5
6
7

(Doc. 33 at 5-7).
Nothing in the Parties’ Motions for Summary Judgment changes the Court’s
analysis or conclusions with regard to that analysis.

8

The State argues that the pre-amendment statutory scheme never applied to

9

Plaintiff based on admissions Plaintiff made after the preliminary injunction entered in

10

this case. (Doc. 83 at 7 n.2). Namely, the State points to Ms. Galassini’s “uncontradicted

11

testimony” “that she had no intent” to form a political committee, and “created no such

12

group.”

13

not, as a matter of law, form a political committee as there is no evidence that a group of

14

people ‘organized, conducted, or combined for the purpose of influencing the results of

15

an election.’” (Doc. 83 at 8 (quoting Ariz. Rev. Stat. § 16-901(19)).

The State argues that “under the plain meaning of § 16-901(19), Plaintiff did

16

As discussed above, it is undisputed that Plaintiff sent an email to her friends and

17

neighbors inviting them to join her to protest a Town of Fountain Hills’ bond measure on

18

the ballot for the upcoming election. It is further undisputed that, on November 6, 2011,

19

Ms. Galassini held a rally to protest the bond measure with 12-14 other people and that

20

Ms. Galassini and others displayed homemade signs to cars and passersby. It is likewise

21

undisputed that Ms. Galassini had no intention of creating any kind of political

22

committee, but only wanted to attend the planned protests with her “neighbors and

23

friends” (Doc. 85 at ¶¶ 35-39; Doc. 90-1 at ¶ 35-39) and Ms. Galassini did not know all

24

of the people that attended the November protest. (Doc. 85 at ¶ 49; Doc. 90-1 at ¶ 49).

25

In light of these undisputed facts, the Court does not understand the State’s

26

argument that there is “no evidence that a group of people organized, conducted, or

27

combined for the purpose of influencing the results of an election.” The only apparent

28

explanation that the State offers to support this argument is that the State somehow reads

- 22 -

1

the statutory definition of political committee to require an “intent” to form a political

2

committee as a prerequisite to forming a political committee. The State’s interpretation

3

of the statute is not supported by the statute’s plain language.

4

The ultimate conclusion as to whether Plaintiff formed a political committee under

5

the statute is legal in nature. The State’s argument that Plaintiff can simply state “I did

6

not intend to form a political committee” and, thus, she did not form one, is not in the

7

plain language of the statute. Rather, under the plain language of the statute, to become a

8

political committee, any association or combination of persons must be organized,

9

conducted, or combined for the purpose of influencing the results of the election. The

10

only intent requirement in the statute is that two or more people must intend to influence

11

the results of an election. In this case, Plaintiff did indeed write an email to several

12

people with the intent that they would organize to influence the results of the Fountain

13

Hills’ bond election, and indeed, on November 6, 2011, two or more people, including

14

Plaintiff, did organize to influence the results of the Fountain Hills’ bond election.

15

The State argues that its’ “intent” argument is supported by Arizona Revised

16

Statutes section 16-902.01(A), which provided that “[e]ach political committee that

17

intends to accept contributions or make expenditures of five hundred dollars or less shall

18

file a signed exemption statement.” The State argues that the use of the word “intends”

19

in that sentence “plainly contemplates that there must be a political committee that can

20

form the requisite intent before § 16-902.01(A) could ever be implicated in this context.”

21

(Doc. 83 at 9).

22

There are two primary problems with this argument. First, whether a political

23

committee intends to accept contributions or expenditures does not revise the definition

24

of political committee and, thus, cannot change who becomes a political committee.

25

Second, and perhaps more importantly, the intent element of section 16-902.01(A) is

26

related only to whether a five hundred dollar exemption statement should be filed for a

27

political committee spending less than five hundred dollars or whether a statement of

28

organization should be filed for a political committee spending more than five hundred

- 23 -

1

dollars. This point is emphasized by the fact that, even if a political committee does not

2

intend to spend more than five hundred dollars, if it actually spends more than five

3

hundred dollars, that committee must file a statement of organization within five business

4

days after exceeding the five hundred dollar limit.

5

(2011).

Ariz. Rev. Stat. §16-902.01(A)

6

As such, once a group of two or more people meet the definition of political

7

committee, as Ms. Galassini and her fellow-protesters certainly do in this case, they are

8

required to choose between filing a statement of organization or an exemption statement

9

depending on how much money they anticipate spending or receiving. Regardless of

10

what choice they make, however, if they spend or receive contributions in excess of $500

11

(regardless of intent), they are required to file a statement of organization. Id. This is

12

true notwithstanding whether they make such expenditures or receive such contributions

13

individually or collectively and regardless of whether such expenditures are made or such

14

contributions are received with the knowledge of the other people that are protesting. As

15

such, the word “intend” as used in section 16-902.01(A) does not support the State’s

16

argument that a group must “intend” to form a political committee before actually

17

becoming one. That argument is belied by the plain language of the statutes.

18

In support of its argument that the statute must require a “group intent” before a

19

political committee is formed, the State reasons that it does not make sense for people

20

protesting a bond measure together, who do not intend to form a group for any other

21

purpose, to have to form some group intent as to how much money they intend to spend

22

or receive. The State’s reasoning is not insignificant and ultimately highlights one of the

23

problems with Arizona’s statutory scheme as argued by Plaintiff.

24

reasoning does not change the plain language of the statutes.

However, that

25

Based on the foregoing, because Plaintiff formed a political committee and

26

intended to violate the challenged laws (and ultimately did violate them under the

27

protection of the court’s injunction), Plaintiff meets the factor of the standing analysis

28

that requires Plaintiff to show with concrete detail that she intended to violate the

- 24 -

1

challenged law. Moreover, as stated in the Court’s Order granting Plaintiff’s Motion for

2

Preliminary Injunction, Plaintiff has shown a reasonable likelihood that the government

3

would have enforced the challenged law against her. Nothing in the Parties’ summary

4

judgment briefing changes the Court’s analysis as to that factor. Accordingly, Plaintiff

5

has standing to challenge the pre-amendment statutory scheme. The Ninth Circuit Court

6

of Appeals’ recent decision in Libertarian Party of Los Angeles v. Bowen lends support

7

to this Court’s prior analysis. See 709 F.3d 867 (9th Cir. 2013).
2.

8

Mootness

9

The State of Arizona next argues that, even if Plaintiff had standing to challenge

10

the pre-amendment version of the statutes, after the amendment to the statutes, Plaintiff’s

11

claims have become moot. This argument is subject to particular scrutiny because the

12

amendments occurred in response to this lawsuit. See Jacobus v. Alaska, 338 F.3d 1095,

13

1102 (9th Cir. 2003) (a court’s dismissal of a case on the ground of mootness is justified

14

“only if it [is] absolutely clear that the litigant no longer ha[s] any need of the judicial

15

protection that it [seeks].”) (quoting Adarand Constructors, Inc. v. Slater, 528 U.S. 216,

16

224 (2000)); Coral Constr. Co. v. King County, 941 F.2d 910, 928 (9th Cir. 1991) (“Even

17

if the governmental entity is unlikely to reenact the provision, a case is not easily mooted

18

where the government is otherwise unconstrained should it later desire to reenact the

19

provision.”).

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21
22
23
24
25
26
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[I]f a challenged law is repealed or expires, the case
becomes moot. However, we have also decreed that in cases
involving the amendment or repeal of a statute, mootness is
not a jurisdictional issue; rather, we may continue to exercise
authority over a purportedly moot case where the balance of
interests favors such continued authority. As we have
explained, repeal of the objectionable language does not
deprive the federal courts of jurisdiction to decide the
constitutional question because of the well-settled principle
that a defendant’s voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine the
legality of the practice. These concerns are of particular force

28

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6

when the “voluntary cessation” occurred only in response to
the district court’s judgment. . . .
Thus, although we have an independent obligation to
decide whether we have jurisdiction over a case, mootness is
not jurisdictional in cases such as this. Ordinarily, the party
moving for dismissal on mootness grounds bears a heavy
burden.

7

Jacobus v. Alaska, 338 F.3d 1095, 1102-1105 (9th Cir. 2003) (internal citations and

8

quotations omitted). In this case, the statutory scheme to which Plaintiff objects was

9

amended after this Court granted a motion for preliminary injunction enjoining the

10

enforcement of the previous statutory scheme against Plaintiff. Moreover, the State of

11

Arizona admitted at oral argument on the motions for summary judgment that the

12

statutory scheme was amended in response to this lawsuit.

13

In her Amended Complaint, Plaintiff seeks declaratory and injunctive relief,

14

nominal damages, and attorneys’ fees.

15

attorneys’ fees based on the prior version of the statute are not moot. Nominal damages

16

are available in actions where a violation of constitutional rights produces no actual

17

damages. See United States v. Marolf, 173 F.3d 1213, 1219 (9th Cir.1999) (stating that

18

nominal damages are available in § 1983 action where the violation of a legal or

19

constitutional right produces no actual damages) (internal citation omitted); Draper v.

20

Coombs, 792 F.2d 915, 921-22 (9th Cir. 1986) (permitting nominal damages in § 1983

21

action for violations of both statutory and constitutional rights). A claim for nominal

22

damages creates the requisite personal interest necessary to maintain a claim’s

23

justiciability. See Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002)

24

(“A live claim for nominal damages will prevent dismissal for mootness.”).

25
26
27
28

Plaintiff’s claims for nominal damages and

Based on the foregoing, Plaintiff’s claims regarding the 2011 versions of the
statutes are not moot as to nominal damages and attorneys’ fees.
B.

Post-Amendment Standing

The State of Arizona argues that, even if Plaintiff had pre-amendment standing,
- 26 -

1

due to the amendments to the statutory scheme, Plaintiff does not have standing to

2

challenge the current statutory scheme. The State of Arizona argues that the definition of

3

political committee was amended to apply to “a candidate or any association or

4

combination of persons that is organized, conducted or combined for the purpose of

5

influencing the result of any election . . . that receives contributions or makes

6

expenditures of more than two hundred fifty dollars in connection therewith,”2 and that

7

Plaintiff, who did not spend or raise two hundred and fifty dollars to conduct her protests,

8

no longer has standing to challenge the statutory scheme. The State argues that, if, in the

9

future, Plaintiff wants to send an email inviting people to join her in a protest and does

10

not spend or raise more than two hundred fifty dollars, her actions would not qualify her

11

as a political committee and thus, she does not have standing to challenge the 2012

12

version of the statutes. (Doc. 83 at 7).

13

As discussed above, because the “chilling of the exercise of First Amendment

14

rights is, itself, a constitutionally sufficient injury,” “First Amendment challenges present

15

unique standing considerations that tilt the inquiry dramatically toward a finding of

16

standing.” Bowen, 709 F.3d at 870 (internal citations omitted).

17

Plaintiff argues that she has standing to challenge the amended statutory scheme

18

because her speech continues to be chilled by it. Plaintiff argues that the “recent minimal

19

amendment to the scheme” has not solved the scheme’s numerous constitutional

20

problems and that, due to the overbreadth and complexity of the definitions of

21

“contribution” and “expenditure,” and the difficulty in ascertaining who is a “political

22

committee” in the 183-word single sentence definition of political committee, Plaintiff

23
24
25
26
27
28

2

As discussed more fully below, the two hundred fifty dollar/five hundred dollar
threshold requirements in the definition of political committee do not modify the phrase
“any association or combination of persons that is organized, conducted or combined for
the purpose of influencing the result of any election.” Rather, reading the statute with the
inclusion of the “clauses” that the State has left out of its definition through the use of
ellipses make it impossible for the Court to read the statute as the State reads it. These
differing interpretations only support the Court’s conclusion that Plaintiff maintains
standing to challenge the amended version of the statutes.
- 27 -

1

has standing to challenge the statutory scheme in its current form. Plaintiff is challenging

2

the statutory scheme: (1) as a violation of her First Amendment rights, (2) as overly

3

broad, (3) as vague, and (4) as a prior restraint.3

4

As noted above, in evaluating a First Amendment pre-enforcement facial

5

challenge to a statute, “courts examine three factors: (1) whether the plaintiffs have

6

articulated a ‘concrete plan’ to violate the law in question, (2) whether the prosecuting

7

authorities have communicated a specific warning or threat to initiate proceedings, and

8

(3) the history of past prosecution or enforcement under the challenged statute.” Bowen,

9

709 F.3d at 870 (internal quotation omitted). Where the first two factors are met, the

10

final factor—history of past prosecution or enforcement— is not dispositive. Id. at 872.

11

The evidence reveals that four or five people brought homemade signs to the

12

November protest, which constituted written messages on poster board. (Doc. 85 at ¶ 48;

13

Doc. 90-1 at ¶ 48). Ms. Galassini valued the amount the signs would have cost to be

14

between $12 to $20. (Doc. 85 at ¶ 51; Doc. 90-1 at ¶ 51). Ms. Galassini received no

15

contributions of money related to her planned protests. (Doc. 85 at ¶ 52; Doc. 90-1 at ¶

16

52).

17

than $250 as part of a group in her political activity related to future ballot issues if she

18

did not have to worry about Arizona’s campaign finance laws being applied to her. (Doc.

19

82-2 at ¶ 79).

During her deposition, Plaintiff testified that she would be willing to spend more

20

Because the Constitution requires something more

21
22
23
24
25
26
27
28

3

Although Plaintiff characterizes her challenges to the statute as both facial and
“as applied,” Plaintiff does not appear to have an “as applied” challenge in this context.
As the Court recognized above, Plaintiff has sustained a constitutional injury because her
speech was chilled under the threat of the statute being applied to her. As a result,
Plaintiff has standing to challenge the statute before either: violating it and being subject
to any possible penalties as a result of that violation or choosing not to speak to avoid the
risk of such penalties being applied to her. Due to these First Amendment implications,
the Supreme Court has recognized that, under certain circumstances, plaintiffs have
standing to assert “pre-enforcement facial challenges.” However, because, in this case,
the statutes have never been actually enforced against Plaintiff, the details of her “as
applied” challenge are unclear to the Court.
- 28 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

than a hypothetical intent to violate the law, plaintiffs must
articulate a concrete plan to violate the law in question by
giving details about their future speech such as when, to
whom, where, or under what circumstances. The plaintiffs’
allegations must be specific enough so that a court need not
speculate as to the kinds of political activity the plaintiffs
desire to engage in or as to the contents of their proposed
public statements or the circumstances of their publication.
Lopez, 630 F.3d at 787 (internal quotations and citations omitted).
Here, Ms. Galassini is politically active and wants to be involved in rallies and
protests where she cares about the issues at stake. (Doc. 82-2 at ¶ 77). Ms. Galassini
argues that it is unclear whether she and her fellow protestors would run afoul of the
amended statutory scheme because it is not clear when a group becomes a political
committee or what qualifies as a contribution and/or expenditure under that scheme. Ms.
Galassini argues that she fears she can become a political committee within Arizona’s
statutory definition without intending to become a political committee based on possible
expenditures or contributions received by her fellow protestors. Ms. Galassini testified
that she would get involved with and speak about future ballot issues and would associate
with others to do so if she did not have to worry about Arizona’s campaign finance laws
being applied to her. (Doc. 82-2 at ¶ 78).

Thus, Ms. Galassini has articulated a concrete

plan to associate with others and engage in future protests like her protest of the
November 8th bond election.
Ms. Galassini credibly asserts that she will refrain from such activities if there is a
chance she will be penalized for unintentionally violating Arizona’s campaign finance
scheme. “[W]here a plaintiff has refrained from engaging in expressive activity for fear
of prosecution under the challenged statute, such self-censorship is a constitutionally
sufficient injury as long as it is based on an actual and well-founded fear that the
challenged statute will be enforced.” Bowen, 709 F.3d at 870 (internal citation omitted).
Ms. Galassini’s attempts to comply with the law if she could understand it are
well-supported in this case. Immediately upon her receipt of the Town Clerk’s letter
explaining to her that she needed to register as a political action committee, Ms. Galassini
- 29 -

1

responded that she “had no idea [she] would be violating the law [and she would] stop all

2

emails and not hold a rally.” Thereafter, rather than violate the law, Ms. Galassini

3

brought this lawsuit challenging the law. Based on her experience, Ms. Galassini has

4

reason to believe that, should she ever hold a protest in the future and her fellow-

5

protestors, either individually, or in combination, spend in excess of $250 unbeknownst

6

to her, either because she does not know about the expenditures or because she does not

7

understand what constitutes an “expenditure,” the statute will be enforced against her.

8

Moreover, because the Town Clerk, after consultation with the Town Attorney,

9

conveyed a threat to enforce the statutory scheme in its prior form against Ms. Galassini,

10

there is every reason to believe that the same authorities will enforce the statutory scheme

11

in its amended form.

12

Accordingly, the “new law is sufficiently similar to the repealed law” such that

13

“the government’s challenged conduct continues.”

14

Distributors Ass’n v. Helliker, 463 F.3d 871, 875 (9th Cir. 2006) (discussing test to be

15

applied to determine if case seeking injunctive and declaratory relief has become moot

16

when there is intervening legislation). This is so because the “gravamen” of Plaintiff’s

17

complaint is that she is chilled from speaking by the overly broad and vague nature of

18

Arizona’s campaign finance scheme.

19

whether the government’s challenged conduct continues [for purposes of determining if

20

the case is moot], the case or controversy giving rise to jurisdiction is the touchstone,”

21

and citing cases applying that principle). Here, although the $250 threshold requirement

22

may burden less speech than the $0 threshold, Plaintiff nonetheless credibly asserts that

23

she is self-censoring based on an actual and well-founded fear that the challenged statutes

24

will be enforced against her. As a result, Ms. Galassini has standing to challenge the

25

post-amendment version of Arizona’s statutory scheme.

26

C.

See Chemical Producers and

See id. at 875-76 (stating that “in evaluating

Plaintiff’s Challenges to the Statutory Scheme

27

The First Amendment provides that “Congress shall make no law . . . abridging

28

the freedom of speech.” U.S. Const. amend. I. Plaintiff challenges the definitions of

- 30 -

1

“political committee,” “expenditure,” and “contribution” as vague and overly broad and

2

violative of her First Amendment rights. Although there are various competing interests

3

and rights and interests at issue in this case, it is necessary to begin with the definition of

4

“Political Committee” and Plaintiff’s argument that the definition is unconstitutionally

5

vague.

6

1.

Whether the Definition of “Political Committee” is Vague

7

Plaintiff argues that Arizona’s definitions of “political committee,” “expenditure,”

8

and “contribution” are vague because the 183-word definition of political committee

9

requires extensive parsing and an understanding of the words “expenditure” and

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

“contribution.” Pursuant to Arizona Revised Statutes section 16-901(19),
“Political committee” means a candidate or any association or
combination of persons that is organized, conducted or
combined for the purpose of influencing the result of any
election or to determine whether an individual will become a
candidate for election in this state or in any county, city,
town, district or precinct in this state, that engages in political
activity in behalf of or against a candidate for election or
retention or in support of or opposition to an initiative,
referendum or recall or any other measure or proposition and
that applies for a serial number and circulates petitions and, in
the case of a candidate for public office except those exempt
pursuant to § 16-903, that receives contributions or makes
expenditures of more than two hundred fifty dollars in
connection therewith, notwithstanding that the association or
combination of persons may be part of a larger association,
combination of persons or sponsoring organization not
primarily organized, conducted or combined for the purpose
of influencing the result of any election in this state or in any
county, city, town or precinct in this state. Political committee
includes the following types of committees:

25

(a) A candidate’s campaign committee.

26

(b) A separate, segregated fund established by a corporation
or labor organization pursuant to § 16-920, subsection A,
paragraph 3.

27
28

- 31 -

1
2

(c) A committee acting in support of or opposition to the
qualification, passage or defeat of a ballot measure, question
or proposition.

3
4

(d) A committee organized to circulate or oppose a recall
petition or to influence the result of a recall election.

5
6
7
8
9
10

(e) A political party.
(f) A committee organized for the purpose of making
independent expenditures.
(g) A committee organized in support of or opposition to one
or more candidates.

11

(h) A political organization.

12

(i) An exploratory committee.

13

Attempting to determine which “clauses” in the 183-word single sentence

14

definition of political committee are dependent, independent, restrictive, or non-

15

restrictive is difficult to say the least.

16

Throughout its briefing, the State of Arizona contends that the definition of

17

“political committee” is “a candidate or any association or combination of persons that is

18

organized, conducted or combined for the purpose of influencing the result of any

19

election . . . that receives contributions or makes expenditures of more than two hundred

20

fifty dollars in connection therewith.” At oral argument, the State seemed to propose a

21

construction of the statute that would insert the word and after “in the case of a candidate

22

for public office except those exempt pursuant to § 16-903,” so that the State could argue

23

that the clause “that receives contributions or makes expenditures of more than two

24

hundred fifty dollars” would apply to three distinct types of “committees:” (1) those

25

organized for the purpose of influencing the result of any election; (2) those organized

26

to determine whether an individual will become a candidate for election in this state or in

27

any county, city, town, district or precinct in this state; and (3) candidates for public

28

office except those exempt pursuant to § 16-903. However, this proposed construction is

- 32 -

1

not supported by the plain language of the statute because it requires an addition of the

2

conjunction “and” and it renders the phrase “in the case of” superfluous. As a result, the

3

Court cannot find that the State’s reading of the statute is supported by the plain language

4

of the statute.

5

The Court has attempted to diagram this statute several different times. In none of

6

the Court’s diagrams does the phrase “that receives contributions or makes expenditures

7

of more than two hundred fifty dollars in connection therewith” modify “any association

8

or combination of persons that is organized, conducted or combined for the purpose of

9

influencing the result of any election.” The Court can find no purpose for the phrase “in

10

the case of a candidate for public office except those exempt pursuant to § 16-903,”

11

unless the phrase “that receives contributions or makes expenditures of more than two

12

hundred fifty dollars in connection therewith” was intended to modify it and only it.

13
14
15
16
17
18
19

The First Amendment does not permit laws that force
speakers to retain a campaign finance attorney, conduct
demographic marketing research, or seek declaratory rulings
before discussing the most salient political issues of our day.
Prolix laws chill speech for the same reason that vague laws
chill speech: People of common intelligence must necessarily
guess at the law’s meaning and differ as to its application.
The Government may not render a ban on political speech
constitutional by carving out a limited exemption through an
amorphous regulatory interpretation.

20
21
22
23
24
25
26
27
28

Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 324 (2010) (internal quotation
and citation omitted).
In this case, it is not clear that even a campaign finance attorney would be able to
ascertain how to interpret the definition of “political committee.” As such, people of
common intelligence must guess at the law’s meaning and will differ as to its application.
Such vagueness is not permitted by the Constitution. However, the Court need not rest
its holding solely on the vagueness of the definition of political committee. Indeed, even
if the Court were to accept the State’s proffered interpretation of the definition of political

- 33 -

1

committee, the definition is overbroad because it sweeps in a substantial amount of

2

constitutionally protected speech without any sufficiently important governmental

3

interest in regulating such speech.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

2.

The First Amendment

When deciding whether a state election law violates First and
Fourteenth Amendment associational rights, we weigh the
“‘character and magnitude’” of the burden the State’s rule
imposes on those rights against the interests the State
contends justify that burden, and consider the extent to which
the State’s concerns make the burden necessary. Burdick,
supra, at 434, 112 S.Ct., at 2063–2064 (quoting Anderson v.
Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75
L.Ed.2d 547 (1983)). Regulations imposing severe burdens
on plaintiffs’ rights must be narrowly tailored and advance a
compelling state interest. Lesser burdens, however, trigger
less exacting review, and a State’s “‘important regulatory
interests’” will usually be enough to justify “‘reasonable,
nondiscriminatory restrictions.’” Burdick, supra, at 434, 112
S.Ct., at 2063 (quoting Anderson, supra, at 788, 103 S.Ct., at
1569–1570); Norman, supra, at 288–289, 112 S.Ct., at 704–
706 (requiring “corresponding interest sufficiently weighty to
justify the limitation”). No bright line separates permissible
election-related
regulation
from
unconstitutional
infringements on First Amendment freedoms. Storer, supra,
at 730, 94 S.Ct., at 1279 (“[N]o litmus-paper test . . .
separat[es] those restrictions that are valid from those that are
invidious. . . .The rule is not self-executing and is no
substitute for the hard judgments that must be made”).
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358-359 (1997).

22

Plaintiff acknowledges that the Ninth Circuit Court of Appeals applied exacting

23

scrutiny to reporting requirements in Canyon Ferry Road Baptist Church of East Helena,

24

Inc. v. Unsworth, 556 F.3d 1021 (9th Cir. 2009), but argues that the Court should apply

25

strict scrutiny “for the reasons highlighted by the” Eighth Circuit Court of Appeals in

26

Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 874-75 (8th Cir.

27

2012). In Swanson, the Eighth Circuit Court of Appeals questioned whether exacting

28

scrutiny is the appropriate test simply because a law is characterized as a “disclosure

- 34 -

1
2
3
4
5
6
7
8
9
10
11

law.” The Eighth Circuit Court of Appeals reasoned,
Generally, “[l]aws that burden political speech are ‘subject
to strict scrutiny,’ which requires the [g]overnment to prove
that the restriction ‘furthers a compelling interest and is
narrowly tailored to achieve that interest.’” Citizens United,
558 U.S. at ––––, 130 S.Ct. at 898 (quoting FEC v. Wis. Right
to Life, Inc., 551 U.S. 449, 464, 127 S.Ct. 2652, 168 L.Ed.2d
329 (2007) (opinion of Roberts, C.J.)). But this is not true
when the law at issue is a disclosure law, in which case it is
subject to “‘exacting scrutiny,’ which requires a ‘substantial
relation’ between the disclosure requirement and a
‘sufficiently important’ governmental interest.” Id. at ––––,
130 S.Ct. at 914 (quoting Buckley, 424 U.S. at 64, 66, 96
S.Ct. 612); accord Doe v. Reed, 561 U.S. ––––, ––––, 130
S.Ct. 2811, 2818, 177 L.Ed.2d 493 (2010).

19

The district court characterized the challenged provisions
as a disclosure law and accordingly determined exacting
scrutiny was appropriate. We question whether the Supreme
Court intended exacting scrutiny to apply to laws such as this,
which subject associations that engage in minimal speech to
“the full panoply of regulations that accompany status as a
[PAC].” . . . MCFL, 479 U.S. at 262, 107 S.Ct. 616. Allowing
states to sidestep strict scrutiny by simply placing a
“disclosure” label on laws imposing the substantial and
ongoing burdens typically reserved for PACs risks
transforming First Amendment jurisprudence into a
legislative labeling exercise.

20

Swanson, 692 F.3d at 874-75. Despite its concerns, the Eight Circuit Court of Appeals

21

ultimately applied exacting scrutiny to the laws in question. The Court will likewise

22

apply exacting scrutiny in this case.

12
13
14
15
16
17
18

23

Exacting scrutiny requires a substantial relation between the disclosure

24

requirement and a sufficiently important governmental interest. Doe v. Reed, __ U.S.

25

___, 130 S.Ct. 2811, 2818 (2010) (internal quotation and citation omitted).

26

withstand this scrutiny, the strength of the governmental interest must reflect the

27

seriousness of the actual burden on First Amendment rights.” Id. (internal quotation and

28

citation omitted).

- 35 -

“To

1

a.

The State’s Interest

2

The State of Arizona first argues that “Arizona’s campaign finance disclosure laws

3

do protect legitimate state interests at rooting out improper attempts to evade

4

constitutional disclosure and disclaimer requirements while ensuring that no significant

5

burden falls on small campaigns that spend money in ballot measure elections.” (Doc. 93

6

at 4). To support this argument, the State argues that “Arizona’s laws specifically exempt

7

individual speakers who do not intend to form committees or accept contributions.”

8

(Doc. 93 at 4). As discussed more fully above, Arizona’s laws do not exempt speakers

9

on the basis of those speakers’ intent to form a political committee. As such, the laws do

10

not strike the balance alluded to by the State of “rooting out improper attempts to evade

11

constitutional disclosure and disclaimer requirements while ensuring that no significant

12

burden falls on small campaigns that spend money in ballot measure elections.”

13

The State next argues that it nonetheless has an “important interest in regulating

14

smaller-scale speakers.” (Doc. 93 at 8). The State’s argument that is has an important

15

interest in regulating small groups like Ms. Galassini’s is somewhat undermined by the

16

fact that the State simultaneously denies any intent to regulate such small groups. The

17

State argues that various courts have recognized that the State has an important interest in

18

ensuring that voters know the source of messages promoting or opposing ballot measures.

19

The State further argues that the $250 threshold requirement “provides an important

20

check on large political committees’ power to circumvent disclosure requirements by

21

seeding many smaller committees with sufficient funds to make a real impact on small

22

local elections and ballot measures.” (Doc. 93 at 10).

23

“Plaintiff herself provides a data point in favor of the $250 zero-reporting threshold, as

24

she was able to defeat the Fountain Hills bond by sending out a few emails and asking for

25

no more than her acquaintances to come stand outside with signs.” (Doc. 93 at 10). The

26

State argues that, even if the disclosure requirements were applied to Plaintiff and her

27

group, “voters have a right to know who is trying to influence their votes,” and that is an

28

important enough interest to require such disclosure.

- 36 -

The State further argues that

1

First, it is not clear how the $250 threshold requirement targets large political

2

committees’ attempts to avoid disclosure requirements by seeding smaller committees.

3

The language of the statute could address this concern with language that actually

4

furthered this offered purpose regardless of the $250 threshold. Moreover, the statute

5

does not require that two or more people have a joint intent or agreement to make

6

expenditures or accept contributions.

7

As a result, under Arizona’s statutory scheme, an individual could be subject to

8

penalties if he makes expenditures for the purpose of influencing the results of an election

9

and then, weeks or months later, attends a rally to advocate his position as to that same

10

election. Although the other attendees of the rally are unaware of that individual’s

11

expenditures, they have unwittingly become members of that individual’s political

12

committee. Likewise, the individual, who made the expenditures as an individual, and

13

then attended a rally with other like-minded individuals, has ipso facto created a political

14

committee.4

15

Second, the State repeatedly argues that voters have a right to know who is trying

16
17
18
19
20
21
22
23
24
25
26
27
28

4

In arguing that the statute requires an “intent to form a political committee,” the
State argues that:
Surely, it would come as a surprise to a person who
read the statute if, as Plaintiff has it, that person individually
could be deemed a political committee when that person is
not a candidate. Second, it would surely come as a surprise to
the person that she has “organized, conducted or combined”
herself solely by showing up at a rally at someone else’s
suggestion. Third, it would surely come as a surprise to a
group of people that they had collectively formed “inten[t] to
accept contributions or make expenditures” when in fact they
have never previously met.
(Doc. 96 at 5). Accordingly, the State itself acknowledges that, without the element of
“intent to form a political committee,” the statutory scheme has serious problems. As the
Court discussed above, there is no “intent to form a political committee” in the statute
itself, and even if there were, it is not clear whether that particular intent requirement
would correct the deficiencies in the definition of political committee.
- 37 -

1

to influence their votes and that this is an important informational interest. The State

2

does not explain why such disclosure is required of two people when it is not required of

3

one person who does the speaking. But, assuming that the State has an interest in

4

informing the public of the identity of two or more people attempting to influence an

5

election, this interest must be balanced in relation to the burden on First Amendment

6

rights, and as such, the State’s scheme must be substantially related to its important

7

interest.

8

b.

Substantial Relation

9

First Amendment standards “must give the benefit of any doubt to protecting

10

rather than stifling speech.” Citizens United, 558 U.S. at 327 (internal citation omitted).

11

There is no question that, if two or more people want to speak to influence the result of

12

an election, their speech is chilled by the regulations imposed by Arizona’s campaign

13

finance laws. See Citizens United, 558 U.S. at 334 (“As additional rules are created for

14

regulating political speech, any speech arguably within their reach is chilled.”). “What is

15

permissible within [the outer limits of political committee regulation] depends on

16

whether the burdens imposed by the disclosure requirements are substantially related to

17

the government’s important informational interest.” Human Life of Washington, Inc. v.

18

Brumsickle, 624 F.3d 990, 1010 (9th Cir. 2010).

19

The State offers no explanation as to how its disclosure interest is substantially

20

related to its requirement that an exemption statement be filed before speech takes place.

21

Likewise, the State offers no explanation as to how the regulations imposed on groups of

22

two or more people making expenditures or receiving contributions of less than $500 are

23

substantially related to its disclosure interest. Rather, under Arizona’s statutory scheme,

24

when two or more people organize, combine or are conducted for the purpose of

25

influencing the results of the election and, either individually or in combination, receive

26

contributions or make expenditures in excess of $250, but below $500 they must:

27

(1) file a signed exemption statement before making any expenditures,

28

accepting any contributions, or distributing any campaign literature, Ariz.

- 38 -

1

Rev. Stat. Ann. § 16-902.01,

2

(2) designate a chairman and treasurer, who are not the same individual,

3

Ariz. Rev. Stat. Ann. § 16-902(A),

4

(3) before accepting a contribution or making an expenditure, must open a

5

bank account, Ariz. Rev. Stat. Ann. § 16-902(C),

6

(4) maintain a record of all contributions received and expenditures made

7

by the committee, Ariz. Rev. Stat. Ann. § 16-904(F)(1),

8

(5) file a termination statement within ninety days after the end of the

9

election cycle, Ariz. Rev. Stat. Ann. § 16-904(F)(2),(3), and

10

(6) include “paid for by” on all literature or advertisements, Ariz. Rev. Stat.

11

Ann. § 16-912.01.

12

It is difficult to believe that any person that received Ms. Galassini’s email and

13

attended the November protest of the bond election would know that, by attending, they

14

were becoming a member of a “political committee,” and were, thus, subject to the

15

regulations and penalties governing the conduct of political committees. Once realizing

16

that they would become a member of a political committee by attending the rally, there is

17

little doubt that such person would decide it safer to remain silent than to risk the

18

penalties of a complex regulatory scheme. Such chilling effect is only exacerbated by the

19

fact that, when more than one person attends a rally without knowledge of the other

20

attendees’ expenditures, the attendees in combination could become an ad hoc political

21

committee based on their individual expenditures.5

22
5

23
24
25
26
27
28

Indeed, under this statutory scheme, two people that have never met before could
go to a street corner with signs that protest a bond measure in the next election. Those
two people could meet on the street corner, realize that they are protesting the same
election and make an agreement that one will face north on the street and one will face
south. Although neither is aware of the fact, one of the people has spent $245 dollars on
his sign and the other has spent $20 on his sign. The two people have organized to
influence the results of an election and made expenditures of more than $250 and have,
thus, become a political committee unbeknownst to either of them. Further, they have
already violated Arizona’s campaign finance scheme because they have not registered as
a political committee before organizing to influence the results of an election.
- 39 -

1

Such a chilling effect might be lessened, as the State suggests, if the scheme solely

2

required the filing of an exemption statement disclosing the identity of the speakers

3

protesting the election prior to the election. Such requirement might even satisfy the

4

State’s important interest of keeping the voter’s informed of who is trying to influence

5

them in an election. The Court need not decide that issue in this case, however, because

6

the statutory scheme requires much more than the simple disclosure of the identity of the

7

group’s speakers prior to an election. Rather, as detailed above, the scheme requires

8

more than simply filing a disclosure statement for groups spending under $500. Such a

9

scheme chills the speech of two or more people wishing to speak on the subject of an

10

upcoming election because, to guarantee that they will not run afoul of Arizona’s

11

campaign finance laws, they must file an exemption statement before they speak, open a

12

bank account, and designate a chairman and treasurer, among other things.

13

“administrative costs of complying with such increased responsibility may create

14

disincentive for the [group] to speak.”

15

Citizens for Life, Inc., 479 U.S. 238, 254-255 n. 7 (1986) (plurality opinion) (“MCFL”)

16

(“Detailed recordkeeping and disclosure obligations, along with the duty to appoint a

17

treasurer and custodian of records, impose administrative costs that many small entities

18

may be unable to bear . . . . Furthermore, such duties require a far more complex and

19

formalized organization than many small groups could manage.”).

The

Federal Election Comm’n v. Massachusetts

20

The requirements imposed on small groups are not substantially related to the

21

State’s proffered interest in the disclosure of the identity of anyone trying to influence

22

voters. The State argues that the Ninth Circuit Court of Appeals decision in Brumsickle

23

supports its position that imposing a disclosure requirement is substantially related to the

24

State’s important interest. However, Brumsickle is distinguishable from this case because

25

the Brumsickle court noted that the disclosure law in that case was tailored to reach only

26

those groups with a primary purpose of political activity, which “limitation ensures that

27

the electorate has information about groups that make political advocacy a priority,

28

without sweeping into its purview groups that only incidentally engage in such

- 40 -

1

advocacy.” 624 F.3d at 1011. In this case, Arizona’s definition of political committee

2

does sweep into its purview groups that only incidentally engage in political advocacy.

3

The State does not explain how its disclosure interest is furthered by rendering two or

4

more people seeking to influence the results of an election an ad hoc political committee.

5

Under this statutory scheme, any time two or more people want to engage in core

6

political speech to influence the results of an election, they will be chilled from doing so

7

because Arizona’s definition of political committee is vague and because the regulations

8

imposed on small groups that seek to combine to influence the results of an election are

9

not substantially related to the State’s disclosure interest. See MCFL, 479 U.S. at 255

10

(“Faced with the need to assume a more sophisticated organizational form, to adopt

11

specific accounting procedures, to file periodic detailed reports, to monitor garage sales

12

lest nonmembers take a fancy to the merchandise on display, it would not be surprising if

13

at least some groups decided that contemplated political activity was simply not worth

14

it.”).

15

protected speech a “severely demanding task.” Id. at 256.

The practical effect of such regulations for small groups makes engaging in

16

A statute will be invalidated as “overbroad,” violating the First Amendment, if “a

17

substantial number of its applications are unconstitutional, judged in relation to the

18

statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460 (2010)

19

(internal quotation marks omitted). The definition of political committee in Arizona

20

Revised Statutes section 16-901(19) is overbroad because it sweeps in a substantial

21

amount of protected speech that the State does not have an important interest in

22

regulating.6
D.

23
24

The Town of Fountain Hills’ Motion for Summary Judgment

Defendant Town of Fountain Hills argues that it is entitled to summary judgment

25
26
27
28

6

In light of the Court’s holding that the definition of political committee is
unconstitutionally overbroad and vague, the Court need not address Plaintiff’s additional
arguments that the definitions of expenditures and contributions render the definition of
political committee vague or that the requirement of filing an exemption statement prior
to speaking is a prior restraint on speech.
- 41 -

1

because it is not a proper defendant in this case. Specifically, the Town of Fountain Hills

2

argues that Plaintiff’s claims for declaratory and injunctive relief relate solely to the

3

constitutionality of the statutes and, because the State has intervened to defend the

4

constitutionality of those statues, there is no declaratory and injunctive relief that Plaintiff

5

can obtain against the Town.

6

The Town further argues that, although Plaintiff alleges that the Town was acting

7

pursuant to a custom or policy when the Town Clerk wrote Plaintiff the October 12, 2011

8

letter, “Plaintiff has neither offered nor proven that the Town or its officials have enacted

9

a local policy or approved a local custom regarding compliance with State campaign

10

finance laws or the registration of political committees.” (Doc. 84 at 4). As a result, the

11

Town argues that Plaintiff is not entitled to an award of nominal damages or attorneys’

12

fees against the Town. (Id.).

13

In Response, Plaintiff argues that the Town’s policy is to apply the State’s statutes

14

without regard to their constitutionality. Plaintiff argues that she has demonstrated that

15

the Town has such a policy by providing evidence that the Town Clerk consulted with the

16

Town Attorney before writing Plaintiff a letter that ultimately chilled her speech.

17

Plaintiff argues that, pursuant to Arizona Revised Statutes section 16-924(A),7 it is the

18
19
20
21
22
23
24
25
26
27
28

7

Arizona Revised Statutes section 16-924(A) provides,
Unless another penalty is specifically prescribed in this title,
if the filing officer for campaign finance reports designated
pursuant to § 16-916, subsection A has reasonable cause to
believe that a person is violating any provision of this title,
except for violations of chapter 6, article 2, . . . the secretary
of state shall notify the attorney general for a violation
regarding a statewide office or the legislature, the county
officer in charge of elections shall notify the county attorney
for that county for a violation regarding a county office or the
city or town clerk shall notify the city or town attorney for a
violation regarding a city or town office. The attorney
general, county attorney or city or town attorney, as
appropriate, may serve on the person an order requiring
compliance with that provision. The order shall state with
- 42 -

1

Town Clerk’s duty to notify the Town Attorney about town election campaign finance

2

law violations and it is the Town Attorney’s duty to enforce those decisions.

3

“[A] local government may not be sued under § 1983 for an injury inflicted solely

4

by its employees or agents. Instead, it is when execution of a government’s policy or

5

custom, whether made by its lawmakers or by those whose edicts or acts may fairly be

6

said to represent official policy, inflicts the injury that the government as an entity is

7

responsible under § 1983.” Monell v. Dep’t of Social Services, 436 U.S. 658, 694 (1978).

8

Moreover,

9
10
11
12
13
14
15
16

a municipality can be liable for an isolated constitutional
violation when the person causing the violation has “final
policymaking authority.” See City of St. Louis v. Praprotnik,
485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)
(plurality) (“[O]nly those municipal officials who have ‘final
policymaking authority’ may by their actions subject the
government to § 1983 liability.”); Gillette, 979 F.2d at 1347
(“[T]he Supreme Court held that a single decision by a
municipal policymaker may be sufficient to trigger section
1983 liability under Monell, even though the decision is not
intended to govern future situations.”).
Christie v. Iopa, 176 F.3d 1231, 1235-1236 (9th Cir. 1999).

17

Plaintiff argues that the evidence in this case shows that it is the policy of the

18

Town Attorney and Town Clerk, the policymakers in the context of enforcement of the

19

statutory scheme, to enforce State statutes regardless of their constitutionality.

20

support her argument, Plaintiff points to the deposition testimony of the Town Clerk,

21

wherein she testified that there was a meeting between her, the Town Attorney, and the

22

Town Clerk where they met and determined whether to send the letter to Plaintiff. (Doc.

23

82-2 at ¶¶ 18-19). Plaintiff likewise argues that the following testimony of the Town

24
25
26
27

reasonable particularity the nature of the violation and shall
require compliance within twenty days from the date of
issuance of the order. The alleged violator has twenty days
from the date of issuance of the order to request a hearing
pursuant to title 41, chapter 6.

28
Ariz. Rev. Stat. Ann. § 16-924(A).
- 43 -

To

1

Clerk supports her argument that the Town’s policymakers have a policy of enforcing

2

statutes regardless of their constitutionality:

3

Q.
Okay.
Does the town have any policies on
enforcement of state campaign finance statutes?
A.
Just by statute.
Q.
What do you mean, “by statute”?
A.
Well, there’s procedures in the state statute that, you
know, if certain things aren’t done, these are things that you
can do or may do.
Q.
Okay. So you abide by the state statute?
A.
We abide by state statute, yes.
Q.
Do you always enforce the Arizona campaign finance
laws in Fountain Hills elections?
A.
With the help of the attorney.
...
Q.
When you enforce the Arizona campaign finance laws,
you enforce them as written? You don’t care what the
substance of the law is, you just enforce them because you are
supposed to. Is that correct or am I misunderstanding that?
A.
I believe that’s true.
Q.
Okay. What if you think that the state law is
unconstitutional, do you enforce it then? Do you have to
enforce it?
A.
I go by state law.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

(Doc. 91-2 at 27-28; Doc. 91-1 at ¶ 19).

19

In reply, the Town argues that the Town Attorney “took no action” in this case and

20

the Town Clerk has no enforcement authority. The Town argues that, because Plaintiff

21

received “nothing more than a letter from the Clerk, the Plaintiff really has no ripe or

22

justiciable cause of action. If she did her remedy was one in State law, as set forth in

23

A.R.S. § 16-924(A)(B)(C).” (Doc. 97). The Court disagrees. As discussed above, the

24

Town Clerk’s letter to Plaintiff chilled Plaintiff’s speech, causing her to self-censor,

25

which is a constitutional harm giving Plaintiff standing to assert her claims in this case.

26

As a result, Plaintiff was not required to “exhaust her administrative remedies,” as argued

27

by the Town.8

28

8

Even if Plaintiff were required to exhaust her administrative remedies, the Town
- 44 -

1

The Town next argues that Plaintiff has failed to show the existence of any policy.

2

The Town argues that, assuming a claim can be maintained against a municipality where

3

a municipality’s policymakers have made a conscious decision to enforce state law,

4

Plaintiff has failed to provide evidence of a conscious decision or an enforcement of state

5

law. (Doc. 97 at 5 (internal citation omitted)).

6

Although the Town repeatedly asserts that it did not enforce the statutory scheme

7

against Plaintiff, as discussed above, the Town threatened Plaintiff with enforcement of

8

the statutory scheme, which caused her to sustain a constitutional injury. Although this is

9

certainly a unique situation, where a constitutional injury has been sustained as a result of

10

the actions of the policymaker, whether the statutes have indeed been enforced is

11

irrelevant.

12

The Town argues that the Clerk is the person who wrote the letter, but the Clerk is

13

not a policymaker. The Town argues that only the Town Attorney is a policymaker and

14

he never wrote such a letter. There is a disputed issue of material fact as to whether the

15

Town indeed has a policy of applying or threatening to apply statutes regardless of their

16

constitutionality. In this case, Mr. Mood, who helped put the bond package together,

17

received Ms. Galassini’s email.

18

Manager of Fountain Hills. After the Town Clerk received the same email from Mr.

19

Mood’s office, the Town Manager and the Town Clerk consulted with the Town

20

Attorney. During that meeting, the Town Manager, the Town Clerk, and the Town

21

Attorney decided to send Ms. Galassini the October 12, 2011 letter. Accordingly, after

22

receiving Ms. Galassini’s email from Mr. Mood (a person who obviously had an opposite

23

viewpoint on the bond issue), the Town Clerk, Town Attorney and Town Manager

24

decided to send Ms. Galassini a letter. That letter chilled the exercise of Ms. Galassini’s

Mr. Mood then forwarded the email to the Town

25
26
27
28

has waived this argument. The Town first raised this argument in its reply in support of
its motion for summary judgment, depriving Plaintiff of the opportunity to respond.
Arguments raised for the first time in a reply brief are waived, Graves v. Arpaio, 623
F.3d 1043, 1048 (9th Cir. 2010), and exhaustion is an affirmative defense that may be
waived if not raised. See, e.g., Jones v. Bock, 549 U.S. 1999, 212 (2007).
- 45 -

1

speech in opposition to the bond proposal, a constitutionally recognized injury. This

2

decision by the Town Clerk, Town Attorney, and Town Manager was a conscious

3

decision, which resulted in a constitutional injury to Ms. Galassini.

4

Moreover, in her deposition, the Town Clerk stated that the Town enforces such

5

statutes as written without an evaluation of their constitutionality. Although the Town

6

argues that the Town Clerk does not make decisions about a statute’s constitutionality

7

and Plaintiff has failed to show that the Town Attorney does not evaluate a statute’s

8

constitutionality before enforcing it, the Town Clerk’s testimony is enough to raise a

9

genuine issue of material fact as to whether the Town has a policy of enforcing state

10

statutes, regardless of their constitutionality.

11

The Town does not appear to dispute the proposition that a policy can be premised

12

on the failure to analyze the constitutionality of statutes before enforcing them. Indeed,

13

the case law cited by Plaintiff supports this conclusion.

14

In Cooper v. Dillon, the Eleventh Circuit Court of Appeals held that a policy

15

maker’s decision to enforce a statute, which resulted in a deprivation of Plaintiff’s

16

constitutional rights, triggered municipal liability. 403 F.3d 1208, 1223 (11th Cir. 2005).

17

The Eleventh Circuit Court of Appeals reasoned that:

18
19
20
21
22
23
24
25
26
27
28

While the unconstitutional statute authorized [the
policymaker] to act, it was his deliberate decision to enforce
the statute that ultimately deprived [Plaintiff] of constitutional
rights and therefore triggered municipal liability. Thus, [the
policymaker’s] decision to enforce an unconstitutional statute
against Cooper constituted a “deliberate choice to follow a
course of action . . . made from among various alternatives by
the official or officials responsible for establishing final
policy.” Accordingly, we find that the [municipality], through
the actions of [its policymaker], adopted a policy that caused
the deprivation of [Plaintiff’s] constitutional rights which
rendered the municipality liable under § 1983.
Id. (internal citations omitted) (ellipses in original).
Similarly, in a case where a state statute granted a municipality’s officers
discretion in declaring a road public, the Ninth Circuit Court of Appeals reasoned that
- 46 -

1

Monell liability could be found as to the municipality regardless of whether the officers

2

were applying the statute in good faith because:

3

9

The knowledge that a municipality will be liable for all of its
injurious conduct, whether committed in good faith or not,
should create an incentive for officials who may harbor
doubts about the lawfulness of their intended actions to err on
the side of protecting citizens’ constitutional rights.
Furthermore, the threat that damages might be levied against
the city might encourage those in a policymaking position to
institute internal rules and programs designed to minimize the
likelihood of unintentional infringements on constitutional
rights.

10

Evers v. Custer County, 745 F.2d 1196, 1204 (9th Cir. 1984) (quoting Owen v. City of

11

Independence, 445 U.S. 622, 650-52 (1979)).

4
5
6
7
8

12

Accordingly, if a policymaker deprives a person of their constitutional rights as a

13

result of the application of a state statute, without regard to the application’s

14

constitutionality, the municipality could be subject to Monell liability because “a

15

municipality will be liable for all of its injurious conduct, whether committed in good

16

faith or not.” Id. at 1204. Based on the foregoing, there is a disputed issue of material

17

fact as to whether the Town has a policy of applying state statutes regardless of their

18

constitutionality.
Therefore, the Town’s Motion for Summary Judgment is denied.

19

Likewise,

20

Plaintiff’s Motion for Summary Judgment is denied as to her Monell claim against the

21

Town.

22
23

E.

Relief Sought
1.

The Eleventh Amendment

24

In a footnote, in Response to the Town’s Motion for Summary Judgment, Plaintiff

25

argued that, even if the Town was ultimately dismissed from this case, Plaintiff would

26

still be entitled to relief against the State because the State has waived Eleventh

27

Amendment immunity. (Doc. 91 at 8). Plaintiff relies on Lapides v. Bd. of Regents, 535

28

U.S. 613, 619 (2002) to support her argument. In apparent response to this argument, the

- 47 -

1

State, in its Response to Plaintiff’s Motion for Summary Judgment (Doc. 90), raises the

2

issue of Eleventh Amendment immunity for the first time. The State specifically argues,

3

Plaintiff’s assertion that she retains a claim against the State
notwithstanding the Town’s position is apparently based on a
misreading of Lapides v. Board of Regents, 535 U.S. 613
(2002). See Doc. 91 at n.8. There, the State waived 11th
Amendment immunity by affirmatively invoking federal
court jurisdiction in order to avoid state court jurisdiction.
Lapides, 535 U.S. at 620. It does not follow that the Plaintiff
has a claim against the State because the State intervened,
and, indeed, the State has insisted throughout the case that
jurisdiction over this matter is inappropriate.

4
5
6
7
8
9
10

(Doc. 96 at 11 n. 9).

11

Notably, the State provides no legal or factual citation for its statement that “[i]t

12

does not follow that the Plaintiff has a claim against the State because the State

13

intervened, and indeed, the State has insisted throughout the case that jurisdiction over

14

this matter is inappropriate.”

15
16
17
18
19
20
21

Indeed, contrary to the State’s contention that Lapides provides no support for
Plaintiff’s argument, Lapides specifically states,
Thus, it is not surprising that more than a century ago this
Court indicated that a State’s voluntary appearance in federal
court amounted to a waiver of its Eleventh Amendment
immunity. Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878,
27 L.Ed. 780 (1883) (State’s “voluntary appearance” in
federal court as an intervenor avoids Eleventh Amendment
inquiry).

22
23
24
25
26
27
28

Lapides, 535 U.S. at 619 (citation in original); see also Embury v. King, 361 F.3d 562,
564 (9th Cir. 2004) (concluding that “the rule in Lapides applies to federal claims as well
as to state law claims.”). Moreover, contrary to the State’s contention that it has “insisted
throughout the case that jurisdiction over this matter is inappropriate,” this statement is
not true in the context of Eleventh Amendment immunity. The State did not mention
Eleventh Amendment immunity in its Motion to Intervene (Doc. 13) or in its Answer to

- 48 -

1

Plaintiff’s Original Complaint (Doc. 40), or in its Answer to Plaintiff’s Amended

2

Complaint (Doc. 66). The State cannot contend that its general jurisdictional challenges

3

to Plaintiff’s standing, ripeness, and mootness are equivalent to an assertion of Eleventh

4

Amendment immunity. Indeed, it appears that the first and only time that the State raised

5

the issue of Eleventh Amendment immunity was in a footnote in response to Plaintiff’s

6

Motion for Summary Judgment as quoted above.

7

Eleventh Amendment immunity is an affirmative defense. Hill v. Blind Indus. &

8

Servs. of Md., 179 F.3d 754, 760 (9th Cir. 1999) (citing In ITSI TV Prods., Inc. v.

9

Agricultural Ass’ns, 3 F.3d 1289 (9th Cir. 1993)).

10

[L]ike every other defendant, a state must timely object to the
forum or be deemed to have waived its objections. The
Eleventh Amendment was never intended to allow a state to
appear in federal court and actively litigate the case on the
merits, and only later belatedly assert its immunity from suit
in order to avoid an adverse result.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Id. at 763.
As a result, even if the State were not bound by the Supreme Court’s holding in
Clark that appearance as an intervenor waives a State’s Eleventh Amendment immunity,
the Court would nonetheless find that the State waived its Eleventh Amendment
immunity in this case. This is so because the State has fully litigated this case on the
merits with no mention of Eleventh Amendment immunity until its response to Plaintiff’s
Motion for Summary Judgment. This is a belated assertion to immunity from suit in
order to avoid an adverse result and, as such, constitutes a waiver.
2.

Nominal Damages and Attorneys’ Fees

Plaintiff claims that “nominal damages and attorneys’ fees [pursuant to 42 U.S.C.
§ 1988] should be awarded against the Town and State jointly and severally because it
was the Town’s decision to apply the State’s unconstitutional statute that served as the
catalyst for this case—both entities are responsible for the violation of Ms. Galassini’s
rights and both should bear the consequences.” (Doc. 101 at 2-3). Although Plaintiff
contends that she is entitled to these attorneys’ fees and nominal damages pursuant to 42
- 49 -

1

U.S.C. § 1988, which allows for attorneys’ fees incurred as a result of an action to

2

enforce a provision of 42 U.S.C. § 1983, Plaintiff does not explain how the State is liable

3

for attorneys’ fees and nominal damages based on Plaintiff’s claims. The state is not a

4

“person” for purposes of a damage suit under § 1983. Will v. Michigan Dep’t of State

5

Police, 491 U.S. 58, 65-66 (1989). As a result, the State is not liable for nominal

6

damages or attorneys’ fees. If, at trial, Plaintiff succeeds on her Monell claim against the

7

Town, she will be entitled to an award of nominal damages and attorneys’ fees against

8

the Town.

9
10
11

3.

Injunctive and Declaratory Relief

Plaintiff is entitled to a declaration that the definition of “political committee” in
Arizona Revised Statutes section 16-901(19) is unconstitutionally vague and overbroad.

12

With regard to injunctive relief based on Plaintiff’s Monell claim against the

13

Town, if a jury finds the Town was acting pursuant to an unconstitutional policy,

14

injunctive relief may be appropriate on that claim.

15

However, injunctive relief to prevent enforcement of Arizona Revised Statutes

16

section 16-901(19) is another matter. Pursuant to Ex parte Young, 209 U.S. 123, 155–56

17

(1908), to obtain an injunction based on enforcement of a statute, Plaintiff must sue an

18

official who has some connection with the enforcement of the act. Id.at 157. In this case,

19

Plaintiff admits that “it is only the Town Clerk and Town Attorney that have enforcement

20

authority.” (Doc. 91 at 7). However, although Plaintiff originally named the Town Clerk

21

and Town Attorney as Defendants in this lawsuit, Plaintiff later stipulated to the dismissal

22

of both the Town Clerk and Town Attorney. (Doc. 61 and Doc. 62). The Stipulation

23

states that “[i]f there is any ambiguity or need to interpret the language of the dismissal, it

24

is the intent of the Parties that the dismissal granted by this stipulation and Order

25

essentially put the dismissed parties and Plaintiff back in the position they would have

26

been in if the Town Attorney and Town Clerk had never been joined as defendants in this

27

action.” (Doc. 61 at 2-3).

28

Plaintiff makes no direct argument that the State and Town are entities which

- 50 -

1

themselves have enforcement authority of the statutes. Accordingly, it is not clear that

2

injunctive relief against those entities is appropriate. Nonetheless, because the State and

3

Town are ultimately the employers of those that have enforcement authority, if a State

4

has waived its Eleventh Amendment immunity, an injunction is appropriate.

5

Thalheimer v. City of San Diego, 645 F.3d 1109, 1129 (9th Cir. 2011) (affirming district

6

court’s order enjoining the City of San Diego from enforcing statutes).

7

As a result, injunctive relief is appropriate in this case.

See

In her Amended

8

Complaint, Plaintiff seeks “entry of a . . . permanent injunction against Defendants

9

prohibiting the enforcement of these regulations, laws, rules, and policies.” (Doc. 65 at

10

23). Likewise, in her Motion for Summary Judgment, Plaintiff requests “that this Court

11

find Arizona’s definitions of political committee, contribution, and expenditure

12

unconstitutionally vague.” (Doc. 82-1). However, at oral argument, Plaintiff repeatedly

13

asserted that she only seeks an injunction “as applied” to small groups like Ms.

14

Galassini’s group.

15

The Court cannot grant Plaintiff the injunction she seeks for two reasons. First,

16

although Plaintiff continues to assert that the statutory scheme has been applied to her

17

and she has an “as-applied challenge,” entitling her to as-applied relief, as discussed more

18

fully above, Ms. Galassini does not have an as-applied challenge in this case. Moreover,

19

due to this Court’s holding that the statutory definition of political committee is facially

20

vague as applied to everyone, it would not be appropriate to limit an injunction solely to

21

certain groups of people.

22

At oral argument, Plaintiff asserted that the Ninth Circuit Court of Appeals’

23

decision in Canyon Ferry supports her position that an “as-applied” injunction is

24

appropriate in this case. However, Canyon Ferry is distinguishable in two important

25

respects. First, in Canyon Ferry, a complaint alleging violations of Montana’s campaign

26

finance laws was filed against the Plaintiff and that Plaintiff was ultimately found to be in

27

violation of Montana’s campaign finance laws. 556 F.3d at 1025. As a result, the

28

Montana law in Canyon Ferry was applied and enforced against the Plaintiff in that case.

- 51 -

1

Canyon Ferry is thus distinguishable from this case because, in this case, there was solely

2

a threat of enforcement, but Arizona’s campaign finance statutes were never actually

3

enforced against Plaintiff.

4

Second, in Canyon Ferry, the Court of Appeals held that Montana’s disclosure and

5

reporting requirements unconstitutionally vague as applied to the Plaintiff’s de minimus

6

activities. Id. at 1029. In this case, the Court’s holding is that Arizona’s definition of

7

political committee is unconstitutionally vague on its face, regardless of whether it is

8

applied to large or small groups seeking to influence the results of an election.

9

Accordingly, this case differs from Canyon Ferry because the Court in Canyon Ferry

10

enjoined enforcement as applied to small groups because the Court held that the statute at

11

issue in that case was unconstitutional only as applied to small groups.

12

Accordingly, the Court is prepared to issue an injunction that is consistent with its

13

holdings in this case. Namely, this Court is prepared to issue an injunction that enjoins

14

the enforcement of any statutes in Title 16, Chapter 6 of the Arizona Revised Statutes to

15

the extent those statutes depend on the definition of political committee as set forth in

16

Arizona Revised Statutes section 16-902.01(19). Based on the foregoing, within 5 days

17

of the date of this Order, Plaintiff shall file a notice with the Court indicating whether she

18

seeks such an injunction as a remedy in this case.

19

IV.

CONCLUSION

20

Based on the foregoing,

21

IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 82) is

22

denied in part and granted in part as set forth herein.

23

IT IS FURTHER ORDERED that, within 5 days of the date of this Order,

24

Plaintiff shall file a notice with this Court indicating whether she seeks an injunction

25

consistent with this Order.

26
27
28

IT IS FURTHER ORDERED that the State of Arizona’s Motion for Summary
Judgment (Doc. 83) is denied.
IT IS FURTHER ORDERED that the Town of Fountain Hills’ Motion for

- 52 -

1
2

Summary Judgment (Doc. 84) is denied.
Dated this 30th day of September, 2013.

3
4
5
6
7
8
9
10
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12
13
14
15
16
17
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20
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