Puente Arizona et al v. Arpaio et al

Filing 129

ORDER: December 10, 2014, Plaintiffs shall file a memorandum, not to exceed 10pages, which attaches one or more anonymous affidavits and addresses why they show standing in this case. December 17, 2014, Defendants shall file a joint memorandum, not to exceed ten pages, addressing Plaintiffs December 10th filing. No further memoranda will be filed without order of the Court. Signed by Judge David G Campbell on 12/1/2014. (TCA)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Puente Arizona, No. CV14-1356 PHX DGC Plaintiff, 10 11 v. 12 ORDER Joseph M. Arpaio, Sheriff of Maricopa County, Arizona, in his official capacity, et al., 13 14 Defendants. 15 16 17 In addressing the pending motion for preliminary injunction and motions to dismiss, the Court has identified two issues that require further input from the parties. 18 A. 19 To establish associational standing, Puente Arizona must show that at least one of 20 its members would have standing to sue in his or her own right. Puente has attempted to 21 do this with the affidavits of Carlos Garcia. Garcia asserts that he knows of Puente 22 members who are violating the identity theft laws and face a credible threat of 23 prosecution. Proof of Standing. 24 In Summers v. Earth Island Inst., 555 U.S. 488 (2009), certain organizations 25 argued that environmental regulations injured their members’ recreational interests. The 26 Court found that the organizations had failed to identify or name a single member whose 27 recreational interests would be harmed by the regulations. The organizations therefore 28 did not have standing. The Court provided this explanation: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization's self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. . . . This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm. . . . [In a previous case,] we noted that the affidavit provided by the city to establish standing would be insufficient because it did not name the individuals who were harmed by the challenged licenserevocation program. This requirement of naming the affected members has never been dispensed with in light of statistical probabilities, but only where all the members of the organization are affected by the challenged activity. A major problem with the dissent's approach is that it accepts the organizations’ self-descriptions of their membership, on the simple ground that “no one denies” them. But it is well established that the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties. 15 16 Id. at 497-99 (citations omitted). Summers appear to require that an organization seeking 17 standing provide specific factual information regarding concrete injury to one or more of 18 its members. The Garcia declarations do not provide such detail. 19 Two months after Summers, the Ninth Circuit decided White Tanks Concerned 20 Citizens, Inc. v. Strock, 563 F.3d 1033 (9th Cir. 2009). The case involved an organization 21 asserting associational standing to challenge environmental regulations. The organization 22 submitted an affidavit by its director, Beneli. “The affidavit explains the purpose and 23 history of the organization, but does not spell out the interests that Beneli personally had 24 in the area to be developed as Festival Ranch. Instead, the affidavit states that members 25 of WTCC regularly use the area, planned as Festival Ranch, for recreational purposes.” 26 Id. at 1038. The court did not address whether the affidavit identified or named the 27 individual members who would be affected by the regulations. The court simply found 28 that the organization had “properly alleged that its members ‘use the affected area and are -2- 1 persons for whom the aesthetic and recreational values of the area will be lessened by the 2 challenged activity.’” Id. at 1039. 3 The Court concludes that the more demanding standard of Summers controls. The 4 Court also concludes that mere allegations of concrete injury, although sufficient to 5 establish standing at the pleading stage, are not sufficient when a party seeks affirmative 6 equitable relief as do Plaintiffs. Applying Summers, the Court concludes that Puente has 7 not made a sufficient showing to establish associational standing. This is particularly true 8 given the requirement, at the preliminary injunction stage, that a plaintiff make a “clear 9 showing” of standing. Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010). 10 Applying the test set forth in Does I thru XXIII v. Advanced Textile Corp., 214 11 F.3d 1058, 1068-69 (9th Cir. 2000), the Court also concludes that Puente should be 12 permitted to file Doe affidavits of one or more members. Defendants agree that many 13 undocumented aliens are using false forms of identification to obtain employment in 14 Arizona. Defendants readily admit that they are actively enforcing the identity theft 15 statutes at issue in this case, and they do not dispute that prosecution under those statutes 16 can result not only in criminal sanctions, but also in serious immigration consequences. 17 In light of these admitted facts, the Court concludes that Puente’s members reasonably 18 fear serious consequences if their identities are disclosed, that they are vulnerable to 19 prosecution under the identity theft statutes, and that Defendants will not be prejudiced 20 by submission of anonymous affidavits at this stage of the litigation. The Court also 21 concludes that the public interest favors resolution of the constitutional issues raised by 22 the parties’ briefing. Id. 23 B. Pre-enforcement Review and Constitutional Interests. 24 The Court is concerned about an issue not addressed by the parties. The Supreme 25 Court has repeatedly suggested that plaintiffs can obtain pre-enforcement review of an 26 allegedly unconstitutional statute when they intend to engage in a “course of conduct 27 arguably affected with a constitutional interest[.]” Babbitt v. Farm Workers, 442 U.S. 28 289, 298 (1979). This requirement was recently reiterated in Susan B. Anthony List v. -3- 1 Driehaus, 134 S. Ct. 2334 (2014): 2 We have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” 3 4 5 6 7 8 Id. at 2342 (quoting Babbitt, 442 U.S. at 298). 9 Courts have not extensively discussed the meaning or purpose of this requirement. 10 Some cases involving pre-enforcement challenges do not apply it. See Oklevueha Native 11 Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012); Thomas v. 12 Anchorage Equal Rights Comm’n, 220 F.3d 1134 (9th Cir. 2000); San Diego Cnty. Gun 13 Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir. 1996). Other cases appear to recognize it: 14 For example, in Brache v. Westchester Cnty., 658 F.2d 47 (2d Cir. 1981), the court noted: 15 “[T]here does not appear to be any modern Supreme Court authority for the proposition 16 that a seller of goods may obtain a federal pre-enforcement ruling as to the vagueness of a 17 state statute, in the absence of any claim that the seller or a prospective customer has a 18 constitutional right to sell or buy the goods.” Id. at 52 n.6. 19 Many cases involving a pre-enforcement challenge quote and apply the 20 constitutional interest requirement, but with little analysis. These cases often involve 21 First Amendment rights where the plaintiffs clearly have an “intention to engage in a 22 course of conduct arguably affected with a constitutional interest.” See, e.g., Susan B. 23 Anthony, 134 S. Ct. at 2342-44 (collecting Supreme Court cases on this issue); Kiser v. 24 Reitz, 765 F.3d 601 (6th Cir. 2014); Arizona Right to Life Political Action Comm. v. 25 Bayless, 320 F.3d 1002 (9th Cir. 2003); LSO, Ltd. v. Stroh, 205 F.3d 1146 (9th Cir. 26 2000). 27 In a recent case, the Ninth Circuit seemed clearly to recognize this requirement. 28 The plaintiff in Sturgeon v. Masica, 768 F.3d 1066 (9th Cir. 2014), used a hovercraft on -4- 1 the Nation River to hunt moose. A federal regulation prohibited the use of hovercrafts on 2 this river. Sturgeon brought a pre-enforcement challenge. In finding that Sturgeon had 3 standing, the Ninth Circuit relied on Susan B. Anthony and held: 4 5 6 7 8 9 10 11 12 Sturgeon has satisfied the injury-in-fact requirement. He has alleged an intention to use his hovercraft, and has contacted both NPS and the Department of the Interior regarding the applicability and enforcement of the regulation to his hovercraft use. Sturgeon's inability to use his hovercraft for moose-hunting purposes arguably implicates his right under the Privileges or Immunities Clause of the Fourteenth Amendment “to use the navigable waters of the United States, however they may penetrate the territory of the several States.” Sturgeon thus alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest.” Id. at 1071-72 (citations omitted). 13 The Ninth Circuit also faced this issue in Valle del Sol Inc. v. Whiting, 732 F.3d 14 1006 (9th Cir. 2013). The plaintiff was a pastor who provided transportation and shelter 15 to undocumented aliens. The pastor brought a pre-enforcement challenge to an Arizona 16 law that prohibited her conduct. The Ninth Circuit quoted the constitutional interest 17 requirement, but summarily found “[the pastor] has established a credible threat of 18 prosecution under this statute, which she challenges on constitutional grounds.” Id. at 19 1015. The court did not further discuss the constitutional interest requirement. 20 C. 21 By December 10, 2014, Plaintiffs shall file a memorandum, not to exceed 10 22 pages, which attaches one or more anonymous affidavits and addresses why they show 23 standing in this case. The affidavits should confirm not only that the affiant is using false 24 identification for employment in Arizona and why the affiant reasonably fears 25 prosecution, but also that the affiant is a current member of Puente and was a member 26 when this lawsuit was filed. Plaintiffs’ memorandum shall also address the second issue 27 identified above. If Plaintiffs agree that they must intend to engage in a course of 28 conduct arguably affected with a constitutional interest, they should specifically identify Next Steps. -5- 1 that interest. Plaintiffs should not base their argument solely on the fact that some cases 2 appear to have not applied this requirement. They should address whether it is required 3 under Supreme Court precedent or Ninth Circuit precedent that does not conflict with 4 Supreme Court case law. 5 By December 17, 2014, Defendants shall file a joint memorandum, not to exceed 6 ten pages, addressing Plaintiffs’ December 10th filing. No further memoranda will be 7 filed without order of the Court. 8 Dated this 1st day of December, 2014. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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