Free Motion to Vacate - 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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Civil Action No. No. CV 04-0200-PHX-EHC

Motion Requesting Vacatur Of Judgment 2

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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) ) ) ) ) ) ) ) Defendants. ) _________________________________) Plaintiff Association of American Physicians and Surgeons (AAPS) moves this Court for an order vacating the judgment of dismissal against it. 3 Because AAPS's claim was mooted out prior to the Ninth Circuit's consideration of the appeal, vacatur is proper so that AAPS is not bound by a determination that could not be reviewed on appeal. FACTS On January 29, 2004, AAPS filed its Complaint alleging that Arizona's system of publicly financing elections violates its First Amendment rights because, under the system, the government pays additional taxpayer dollars to candidates whom AAPS spends private money to oppose. These government "matching funds" are based solely

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,

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Plaintiff AAPS makes this Motion in conjunction with the Notice of Amendment/Motion for Leave to Amend filed this day by Plaintiff Martin in which Plaintiff Martin seeks to add to this suit as plaintiffs the AZ Free Enterprise Club's Freedom Club PAC and the Arizona Taxpayer Action Committee. Vacatur of the judgment is not necessary for this Court to determine the Motion for Leave to Amend because the political committees seeking to join this suit were not parties to the order dismissing the case. Nonetheless, vacating the judgment against AAPS may clarify and remedy any issues of preclusion regarding the additional political committees' ability to participate in this suit.

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on AAPS's exercising its right to fund speech opposing government-funded candidates for political office. This Court issued its order dismissing AAPS's Complaint on March 10, 2005 and entered its final judgment of dismissal the same day. AAPS filed a timely appeal and fully briefed the case. On December 19, 2006, while this case was pending appellate review and only a few months before oral argument, AAPS voluntarily terminated its political committee. Assoc. of Am. Physicians & Surgeons v. Brewer, 486 F.3d 586, 586 (9th Cir. 2007). Soon afterward, the State filed a Notice of Mootness Considerations in which it argued that AAPS's claims were now moot. AAPS briefed the issue and argued that its claim was not moot. See Attachment 1 (Appellants' Briefing Regarding Notice of Mootness Considerations). Specifically, AAPS said that if it were ultimately successful in its challenge, it would reconstitute its political committee and fully participate in the political process. See Exhibit A, ¶ 8 to Attachment 1 (Declaration of Jane Orient In Support of Brief On Mootness Considerations). AAPS also maintained at oral argument that its claim was not moot. Assoc. of Am. Physicians & Surgeons, 486 F.3d at 589. The Ninth Circuit disagreed and determined that AAPS had mooted its appeal as

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a result of its voluntary decision to terminate its political committee. AAPS then filed a petition for re-hearing en banc, again arguing that its claims were not moot. See Attachment 2 (Petition for Rehearing En Banc). The Ninth Circuit denied that petition.

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ARGUMENT The established practice of the Ninth Circuit when faced with a civil case that has become moot pending a decision on the merits "is to reverse or vacate the judgment below and remand with directions to dismiss." Dilley v. Gunn, 64 F.3d 1365, 1371-72 (9th Cir. 1995) (quoting United States v. Munsingwear, 340 U.S. 36, 39 (1950)). The reason for this practice is to "clear the path for future relitigation of the issues between the parties . . . review of which was prevented through happenstance." Id. Vacatur is automatic when an appeal is mooted by "happenstance." Munsingwear, 340 U.S. at 39. However, there is an exception to that rule "when the appellant has by his own act caused the dismissal of the appeal." Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982). This exception reflects the sound policy "that 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). This exception does not mean that vacatur is not still the proper remedy, but rather that vacatur is not automatic and is instead left to the sound discretion of the district court. Dilley v. Gunn, 64 F.3d at 1371-72. The Supreme Court has made it clear that equity is the touchstone of whether vacatur is appropriate under

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these circumstances. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994). As discussed below, vacatur is appropriate here because AAPS did not intend to destroy its right to appeal and argued vigorously in its various appellate pleadings and at

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oral argument that its case was emphatically not moot. See Attachments 1 at 4-5 and 2 at 9-12. I. Vacatur of the Prior Judgment Is Appropriate Because AAPS Did Not Intend by Its Actions to Moot Its Appeal.

AAPS is still entitled to vacatur by order of this Court even though the Ninth Circuit concluded that its dissolution of its political committee caused its claims to be moot because AAPS did not intend by its actions to moot the case. Therefore, "the district court [must] decide whether to vacate its judgment in light of `the consequences and attendant hardships of dismissal or refusal to dismiss' and `the competing values of finality of judgment and right to relitigation of unreviewed disputes.'" Dilley v. Gunn, 64 F.3d 1365, 1371-72 (9th Cir. 1995) (quoting Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982)). In that regard, because AAPS "did not intend to avoid appellate review . . . that factor may weigh equitably in favor of vacating the order." Dilley, 64 F.3d at 72, n.6 (citing Blair v. Shanahan, 38 F.3d 1514, 1521 (9th Cir. 1994). The record clearly establishes that AAPS desired a decision on the merits. AAPS continues to believe that the operation of Arizona's public financing scheme impinges its rights to fully participate in the electoral process. See Exhibit A, ¶¶ 5, 8 to Attachment 1 (Declaration of Jane Orient In Support of Brief On Mootness Considerations). In short, this is not the situation where a party is attempting to avoid the preclusive effect of a judgment by simply quitting the ring once they have lost the first round. Instead, AAPS vigorously

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and repeatedly argued that its claims remained live, making this the appropriate situation in which to grant vacatur. II. Vacatur of the Prior Judgment Is Equitable to Preserve AAPS's Future Ability to Challenge the Law in Question.

Equity also argues strongly in favor of vacating the judgment against AAPS. If AAPS, at some point in the future, reconstituted its political committee, a relatively simple task, the public financing scheme's operation could adversely affect it if AAPS triggered matching funds by spending money to speak out against a governmentfinanced candidate. Under those circumstances, AAPS should not be bound by a judgment that went unreviewed for jurisdictional reasons. Vacating the order will thus (1) 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; and (2) clear the path for the Freedom Club PAC and Arizona Taxpayer Action Committee to be substituted in as parties without any concern about issue preclusion. CONCLUSION For the foregoing reasons, Plaintiff AAPS requests this Court order its prior judgment against it be vacated. RESPECTFULLY SUBMITTED this 27th day of November, 2007.

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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) 4 811 First Avenue, Suite 625 Seattle, WA 98104 P: 206-341-9300/F: 206-341-8311

Admitted pro hac vice.

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