Free Reply to Response to Motion - District Court of Arizona - Arizona

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INSTITUTE FOR JUSTICE Timothy D. Keller (019844) Jennifer M. Perkins (023087) 398 S. Mill Avenue, Suite 301 Tempe, AZ 85281 P: 480-557-8300/F: 480-557-8305 INSTITUTE FOR JUSTICE William R. Maurer (WSBA 25451) 1 811 First Avenue, Suite 625 Seattle, WA 98104 P: 206-341-9300/F: 206-341-3911 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, a nonprofit corporation; MATT SALMON, a citizen of the State of Arizona; DEAN MARTIN, a citizen of the State of Arizona; and LORI DANIELS, a citizen of the State of Arizona, Plaintiffs, v. ) ) ) ) ) ) ) ) ) ) ) JAN BREWER, in her official capacity ) as Secretary of State of the State of ) Arizona; DAVID PETERSEN, in his ) official capacity as Treasurer of the ) State of Arizona; TERRY GODDARD, ) in his official capacity as Attorney ) General of the State of Arizona; and )
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No. CV 04-0200-PHX-EHC

Reply to Defendants' and Intervenor-Defendants' Response to Motion Requesting Vacatur Of Judgment2 (Assigned to the Honorable Earl H.Carroll)

Admitted pro hac vice. The Amended Complaint submitted with Plaintiff Martin's Motion For Leave To File Amended Complaint substitutes various parties for some listed in the original caption. Until the Amended Complaint is accepted for filing, however, Plaintiffs will continue to use the original caption. The new caption reflects the substitution of public officers pursuant to Fed. R. Civ. P. 25(d).

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LESLIE "GENE" LEMON, DAVID G. McKAY, KATHLEEN S. DETRICK, ERMILA JOLLEY, and MARCIA BUSCHING, in their official capacity as members of the ARIZONA CITIZENS CLEAN ELECTIONS COMMISSION,

) ) ) ) ) ) ) ) Defendants. ) _________________________________) Plaintiff Association of American Physicians and Surgeons (AAPS) hereby replies to the Defendants' and the Intervenor-Defendants' (together Defendants) responses in opposition to AAPS's Motion Requesting Vacatur of Judgment. Because AAPS did not intent to moot its appeal, always remained in the position of seeking appellate review in this matter, and continues to be harmed by the Citizens Clean Elections Act, AAPS respectfully requests that this Court vacate its prior judgment. ARGUMENT Defendants' responses fail to demonstrate any reason why this Court should not vacate its judgment against AAPS. AAPS never intended to moot its appeal, as demonstrated by its consistent arguments to the Court of Appeals that its decision should have addressed the merits of the case. Vacatur here is especially appropriate because the challenged law continues to infringe AAPS's First Amendment rights and it should not be bound by a judgment that went unreviewed on procedural and justiciable grounds. I. AAPS Did Not Intend To Moot Its Appeal Vacatur is the usual result in a case that becomes moot before it is reviewed on appeal. The Ninth Circuit recognizes an exception to the "established practice" of

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automatically vacating the district court's judgment in civil cases that have become moot pending a decision on the merits, see United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), "when the appellant has by his own act caused the dismissal of the appeal." Ringsby Truck Lines, Inc. v. W. Conference of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982). In such cases, the decision of whether to vacate the judgment is left to the sound discretion of the district court, which must weigh "the competing values of right to relitigate and finality of judgment." Id. The reason for the Ninth Circuit's exception is clear: "It would be quite destructive to the principle of judicial finality to put such a litigant in a position to destroy the collateral conclusiveness of a judgment by destroying his own right of appeal." Ringsby, 686 F.2d at 721 (quoting 1B Moore's Federal Practice P0.416[6] at p. 2327 (2d ed. 1982)). This reasoning is not applicable here because this is not a case in which AAPS intended to have this Court's judgment "wiped from the books" as a result of its decision to terminate its political committee. See Ringsby at 721. Instead, AAPS terminated its political committee because it was not raising funds for independent expenditure campaigns--as a direct result of the operation of the matching funds provision of the

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Citizens Clean Elections Act (hereafter the "Act"), Ariz. Rev. Stat. Ann. § 16-952(C), that AAPS was challenging in the instant case--and because of the burdensome reporting requirements AAPS was forced to comply with, while remaining unable to fully participate in the political process without triggering matching funds. See Docket 55 (Mot. Requesting Vacatur, Attachment 1, Exhibit A ¶¶ 5-6 (Declaration of Jane

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Orient)). If AAPS had been successful in its challenge to the Act's matching funds provision it would have reconstituted its political committee and fully participated in the political process. Id. at ¶ 8. Defendants accept the fact that AAPS's decision to terminate its political committee was not motivated by a desire to secure a dismissal of its appeal or by a desire to avoid the res judicata or collateral estoppel effect of this Court's judgment. See Docket 62 (Defendant Brewer's Response at 4). Quite simply, as Defendants and Intervenors can themselves attest, AAPS fought hard to prevent the Ninth Circuit from dismissing their appeal. Nonetheless, they point to cases that are distinguishable on their facts. In U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994), the Supreme Court said that Munsingwear is inapplicable in the settlement context because "[t]he judgment is not unreviewable, but simply unreviewed by [appellant's] own choice." The Ninth Circuit's Ringsby case also involved settlement. 686 F.2d at 721. In the settlement context, the appellant is aware that his action will moot the case before he agrees to settle. Here, AAPS disagreed strongly that its decision to terminate its political committee mooted its appeal and argued in a supplemental pleading, oral argument, and

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a motion for reconsideration that a live controversy existed between it and the State of Arizona. Moreover, AAPS's decision to terminate its political committee was "voluntary" only in the sense that Defendants were successful in removing any incentive for AAPS to participate in state politics. As discussed in more detail in section II, AAPS's

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decision to terminate its political committee was based on the operation of the challenged Act. AAPS "did not intend to avoid appellate review," which should "weigh equitably in favor of vacating" the judgment. Dilley v. Gunn, 64 F.3d 1365, 1372, n.6 (9th Cir. 1995). II. AAPS's Free Speech Rights Continue To Be Infringed AAPS filed its challenge to the Act's matching funds provision because the Act chilled AAPS's speech. In its Complaint for declaratory relief, AAPS stated that it: [W]ould have made independent expenditures in Arizona political campaigns in the past, and intends to make independent expenditures in Arizona in the future, but fears that the exercise of its rights under the First and Fourteenth Amendments to the U.S. Constitution will be deprived by virtue of the Act's aforementioned provisions regarding dollar-for-dollar matching of independent expenditures. The Act's matching funds provision has a chilling and neutralizing effect on the free speech rights of [AAPS]. Docket 1 (Compl. ¶ 30). It was that same chilling effect that led to AAPS's decision to terminate its political committee. As a result of AAPS's fear that exercising its right to speak out in political campaigns would be infringed by the challenged matching funds provision, AAPS was not actively raising funds for its political committee. Indeed, at the time it terminated the committee its bank account had a zero balance. Even though AAPS had not been raising money, because of the risk of its speech being drowned out by matching funds, AAPS's committee was still subject to Arizona's reporting requirements. To avoid the burdensome reporting requirements, AAPS made the reasonable decision to terminate its political committee. See Docket 55 (Mot. Requesting Vacatur, Attachment 1, Exhibit A ¶ 6 (Declaration of Jane Orient)).

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Thus, AAPS's claim for relief was declared moot because the Act operated precisely as AAPS predicted it would: it drove AAPS completely out of the political marketplace. A political candidate could arise that AAPS either wants to support or oppose, which would lead AAPS to reestablish its political committee. However, if it did so the Act could still operate to harm its interests by making it more difficult to raise funds from donors aware of the matching funds provision and by drowning out AAPS's voice by providing matching funds to a government-funded candidate AAPS opposes. AAPS should not be precluded from challenging the Act in the future simply because the current operation of the Act caused AAPS to stop participating in Arizona politics. CONCLUSION Based on the foregoing and its original motion, Plaintiff AAPS respectfully requests an order from this Court vacating its prior judgment. RESPECTFULLY SUBMITTED this 21st day of December, 2007. INSTITUTE FOR JUSTICE s/Timothy D. Keller Timothy D. Keller (019844) Jennifer M. Perkins (023087) 398 S. Mill Avenue, Suite 301 Tempe, AZ 85281 P: 480-557-8300/F: 480-557-8305 INSTITUTE FOR JUSTICE William R. Maurer (WSBA #25451) 3 811 First Avenue, Suite 625 Seattle, WA 98104 P: 206-341-9300/F: 206-341-8311 Admitted pro hac vice.

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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 /s Timothy D. Keller

Certificate of Service I hereby certify that on December 21, 2007, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Terry Goddard Attorney General Mary O' Grady Solicitor General Tanja K. Shipman Assistant Attorney General 1275 West Washington Street Phoenix, AZ 85007-1291
[email protected] [email protected]

Timothy M. Hogan Joy Herr-Cardillo Arizona Center for Law in the Public Interest 202 E. McDowell Road Phoenix, AZ 85004
[email protected] Deborah Goldberg Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas, 12th Floor New York, New York 10013 [email protected]

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