Free Response to Motion - District Court of Arizona - Arizona

1
2 3 4 5 6 7 8 9 10 11 12 13 14 15

TERRY GODDARD Attorney General Firm Bar No. 14000 Mary O'Grady, No.011434 Solicitor General Tanja K. Shipman, No. 025205 Assistant Attorney General 1275 West Washington Street Phoenix, Arizona 85007-1298 Tel: (602) 542-7993 Fax: (602) 542-8308 Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, et al., Plaintiffs, v. NO. CV04-0200 PHX EHC DEFENDANTS' RESPONSE TO MOTION REQUESTING VACATUR OF JUDGMENT (Assigned to the Honorable Earl H. Carroll) Defendants, and STEVEN S. POE, and CLEAN ELECTIONS INSTITUTE, INC., DefendantsIntervenors. .

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

JAN BREWER, et al.

Case 2:04-cv-00200-EHC

Document 62

Filed 12/17/2007

Page 1 of 7

1 2 3 4 5

Defendants request that this Court deny the Motion Requesting Vacatur of Judgment (the "Motion") filed by the Association of American Physician and Surgeons' ("AAPS"). As explained in more detail below, AAPS' motion should be denied because its appeal became moot as a result of its voluntary decision to terminate its political committee, and, it has failed to justify the remedy of vacatur under those circumstances.

6

ARGUMENT
7

I. Introduction.
8

The viability of AAPS' appeal was entirely within its own control. AAPS
9

voluntarily terminated its political committee while its appeal was pending at the Ninth
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Circuit. (Motion at 3.) See Ass'n of Am. Physicians & Surgeons v. Brewer, 486 F.3d 586, 588-89 (9th Cir. 2007). This unilateral conduct rendered AAPS' appeal moot, and caused the Ninth Circuit to dismiss the appeal. Id. Now AAPS asks this Court to vacate judgment against AAPS "so that AAPS is not bound by a determination that could not be reviewed on appeal." (Motion at 2.) AAPS has the burden to demonstrate that it is entitled to the "extraordinary remedy of vacatur." U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 26 (1994). To prevail, AAPS must demonstrate that the equities favor vacating the judgment entered against it by this Court. Id. "Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur." Id. Because AAPS' own conduct caused its appeal to be dismissed, and because this judicial precedent has nationwide importance, this Court should not vacate its judgment against AAPS. II. AAPS Has Not Established That Equitable Principles Support Vacating the District Court Judgment.

When an appellant has, by its own act, caused its appeal to be mooted, automatic vacatur of the district court's judgment is inappropriate. See Ringsby Truck Lines, Inc.
Case 2:04-cv-00200-EHC Document 62
2 Filed 12/17/2007

Page 2 of 7

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

v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982) (denying application of automatic vacatur). This rule prevents a party from clearing the record of an adverse determination by unilaterally acting to moot a case. See id. "[A] dissatisfied litigant should not be allowed to destroy the collateral consequences of an adverse judgment by destroying his own right to appeal." Allard v. DeLorean, 884 F.2d 464, 467 (9th Cir. 1989). Because AAPS' own conduct caused the appeal to be dismissed, this Court must determine whether AAPS has demonstrated that equitable considerations support vacating the adverse district court. See Ringsby, 686 F.2d at 722; Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996) (remanding case to district court for determination of whether equitable factors warrant vacatur). AAPS must demonstrate that "the consequences and attendant hardships of dismissal or refusal to dismiss" and "the competing values of finality of judgment and [the] right to relitigation of unreviewed disputes" weigh in favor of vacatur. Ringsby, 686 F.2d at 722. AAPS argues that this Court should vacate its earlier judgment against AAPS in order to "ensure that if AAPS is ever harmed again by operation of Arizona's public financing scheme in the future it would not be barred from relitigating this issue." (Motion at 6.) This argument fails because the mootness of AAPS' appeal was the direct result of AAPS' voluntary, unilateral act. Although AAPS would like this Court to vacate its earlier decision so that it might relitigate the issues in the future, the possibility that a dissatisfied party could have an "opportunity to relitigate the same issues" weighs against vacating the judgment. Ringsby, 686 F.2d at 721. Thus, AAPS' express reason for asking this Court to vacate its earlier judgment actually supports denying AAPS' Motion.1 Id. at 720 (Vacatur is inappropriate where dismissal of the suit
AAPS also argues that vacating the order would "clear the path for the Freedom Club PAC and Arizona Taxpayer Action Committee to be substituted in as parties without concern about issue preclusion." (Motion at 6.) The collateral estoppel effects, if any, on subsequent substituted parties are largely irrelevant to this equitable inquiry and, at most, weigh against vacatur. See Nat'l Union Fire Ins. Co. of Pittsburgh, PA. v. Seafirst Corp., 891 F.2d 762, 769 (9th Cir. 1989)(affirming denial of motion to vacate); see, e.g., Infineon Tech. N. A. Corp. v. Mosaid Tech., Inc., 2007 WL 420194, at *3 (N.D. Cal. Feb. 5, 2007).
1

Case 2:04-cv-00200-EHC

Document 62

3 Filed 12/17/2007

Page 3 of 7

1 2 3 4 5

"might result in unfairness to appellee by subjecting him to other vexatious actions by appellant.") (citation omitted). AAPS argues that it "should not be bound by a judgment that went unreviewed for jurisdictional reasons." (Motion at 6.) However, the judgment at issue here was not "unreviewed." A dispute is considered "unreviewed" if the appeal is mooted due to

6

"circumstances unattributable to any of the parties." Karcher v. May, 484 U.S. 72, 83
7

(1987). Here, however, AAPS' decision to terminate its political committee was the sole
8

cause for the mootness of its appeal. See Association, 486 F.3d at 588-89. Because
9

AAPS' unilateral conduct caused its appeal to be dismissed, its request to vacate
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
2

deserves very little weight and is similar to the circumstance in which a party simply decides not to pursue an appeal. See National Union Fire Ins. Co. of Pittsburgh, PA. v. Seafirst Corp., 891 F.2d 762, 766 (9th Cir. 1989)(affirming district court's denial of vacatur where mootness resulted from "a conscious decision by the party"). In National Union, the appellant had settled the case pending appeal and the court found that "[t]his is not significantly different from when a party is satisfied with a judgment and does not appeal at all. The dispute is resolved, not made moot by action distinct from the litigation." Id. AAPS may have wanted the Ninth Circuit to hear the case despite the fact that it had terminated its political committee while its appeal was pending, but the Ninth Circuit correctly concluded that the AAPS claims were moot. See Association, 486 F.3d at 588-89. AAPS terminated its committee after all of the parties had fully briefed the merits on appeal.2 Although AAPS had an opportunity for appellate review of the decision it now seeks to vacate, its unilateral decision to terminate its political committee ended that appeal. In this situation, equitable principles do not favor vacating the district court decision. See, e.g., Riverhead Sav. Bank v. Nat'l Mortgage Equity Corp., 893 F.2d 1109, 1113 (9th Cir. 1990) (party who freely negotiated settlement mooting appeal is "in
AAPS terminated its political committee on December 19, 2006. 486 F.3d at 588. Briefing was completed on August 22, 2005.

Case 2:04-cv-00200-EHC

Document 62

4 Filed 12/17/2007

Page 4 of 7

1 2 3 4 5

no position to complain that [its] right of review of an adverse lower court judgment has been lost") (quoting Ringsby, 686 F.2d at 721); see also Bancorp, 513 U.S. at 26 (public has an interest in protecting district court precedents). AAPS argues that this Court should vacate the judgment against AAPS because it did not intend to moot its appeal. (Motion at 5.) AAPS' hope that it could terminate its

6

political committee while the appeal was pending without mooting that appeal does not
7

justify the relief that they seek from this Court. The equitable principles in favor of
8

vacatur "cut the other direction where the appellant by his own act prevents appellate
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

review of the adverse judgment." Dilley v. Gunn, 64 F.3d 1365, 1370 (9th Cir. 1995). AAPS inappropriately relies on Dilley to support its Motion. (See Motion at 5.) In Dilley, prison officials had appealed a summary judgment entered in favor of an inmate on the inmate's claimed denial of right of access to a prison's law library. 64 F.3d at 1367. While the appeal was pending, the inmate was reclassified and transferred to a lower-level security prison. Id. at 1369. The court remanded the case with instructions to weigh the equities and determine whether the judgment should be vacated. Id. at 1372-73. In doing so, the court noted that "if the district court determines that the appellant did not intend to avoid appellate review and to have the district court's order vacated, that factor may weigh equitably in favor of vacating the order." Id. at 1372 n.6. However, unlike the situation in Dilley, which involved prison administration decisions, outside of the control of the prisoner, this case involves a unilateral decision by AAPS concerning whether it would continue to have a political committee. Dilley does not establish that any defendant who moots his appeal­but asserts that he did not mean to--is entitled to have an adverse lower court decision vacated. Even if the Court determines that AAPS did not intend to moot its appeal when it terminated its political committee, the equities do not support vacating the judgment against AAPS. Here, the appeal was mooted by the unilateral conduct of AAPS while the appeal was pending and

Case 2:04-cv-00200-EHC

Document 62

5 Filed 12/17/2007

Page 5 of 7

1 2 3 4 5

AAPS' express purpose for vacating the district judgment is to open the door to relitigating the issue in the future. In the meantime, claims virtually identical to those raised by AAPS are under consideration by the District Court of Connecticut and the U.S. Court of Appeals for the Fourth Circuit, which are considering this Court's judgment in their own decision-making processes. Under these circumstances, the

6

equities do not support vacating the trial court judgment. Vacatur is an extraordinary
7

remedy unwarranted by the facts of this case.
8

For these reasons, Defendants request that this Court deny AAPS' Motion.
9

RESPECTFULLY SUBMITTED this 17th day of December, 2007.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TERRY GODDARD Arizona Attorney General /s Tanja K. Shipman Tanja K. Shipman Assistant Attorney General Attorneys for Defendants

Case 2:04-cv-00200-EHC

Document 62

6 Filed 12/17/2007

Page 6 of 7

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
104287

CERTIFICATE OF SERVICE I hereby certify that on the 17th day of December, 2007, I caused the foregoing document to be electronically transmitted 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: Institute for Justice William R. Mauerer 811 First Avenue Suite 625 Seattle, Washington 98104 [email protected] Institute for Justice Timothy D. Keller 398 South Mill Avenue Suite 301 Tempe, Arizona 85281 [email protected] Timothy M. Hogan Joy Herr-Cardillo Arizona Center for Law in the Public Interest 202 E. McDowell Road Phoenix, Arizona 85004 [email protected] Deborah Goldberg 5th Floor Brennan Center for Justice 161 Avenue of the Americas New York, New York 10013 [email protected]

/s Elizabeth A. Stark

28

Case 2:04-cv-00200-EHC

Document 62

7 Filed 12/17/2007

Page 7 of 7