Free Response in Opposition to Motion - District Court of Arizona - Arizona

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SCHARF-NORTON CENTER FOR CONSTITUTIONAL LITIGATION GOLDWATER INSTITUTE Clint Bolick (021684) Nicholas C. Dranias 500 E. Coronado Rd. Phoenix, AZ 85004 P: (602) 462 5000/F: 602-256-7045 Attorneys for Plaintiffs in McComish, et al, v. Brewer, et al

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) No. CV-04-0200-PHX-EHC Plaintiffs, ) Hon. Earl H. Carroll, presiding v. ) JAN BREWER, in her official capacity ) No. CV-081550-PHX-ROS as Secretary of State of the State of ) Hon. Roslyn O. Silver, presiding Arizona, et al, ) ) ) Defendants. ) JOHN MCCOMISH, ET AL. ____________________________________) OBJECTION AND ALTERNATIVE JOHN MCCOMISH, NANCY MCLAIN, ) RESPONSE TO DEFENDANTS' KEVIN GIBBONS, FRANK ANTENORI, ) MOTION TO TRANSFER AND TONY BOUIE, AND DOUG SPOSITO, ) CONSOLIDATE ) Plaintiffs, ) v. ) ) JAN BREWER, in her official capacity ) as Secretary of State of the State of ) Arizona; and GARY SCARAMAZZO, ) ROYANN J. PARKER, JEFFREY L. ) FAIRMAN, DONALD LINDHOLM and ) LORI S. DANIELS, in their official ) capacity as members of the ) ARIZONA CITIZENS CLEAN ) ELECTIONS COMMISSION, ) ) Defendants. ) ____________________________________) DEAN MARTIN, et al,

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INTRODUCTION John McComish, Nancy McLain, Kevin Gibbons, Frank Antenori, Tony Bouie and Doug Sposito, who are Plaintiffs in McComish, et al, v. Brewer, et al, strongly object to consolidating their distinct and narrow constitutional challenge to the matching funds provisions of the Arizona Clean Elections Act with the present case. Unlike Dean Martin and the PACs represented in this proceeding, which point to the threat of irreparable harm occurring to them two years from now, in the year 2010, McComish, McLain, Gibbons, Antenori, Bouie and Sposito each face irreparable harm within hours. This is because they face impending reporting trigger dates under the Clean Elections Act, which threaten to shower campaign subsidies on their opponents in Arizona's September 2, 2008 statewide primary elections. No similar allegation concerning the 2008 primary elections is made in the Martin case. Recognizing the genuine emergency faced by McComish, McLain, Gibbons, Antenori, Bouie and Sposito, on August 26, 2008, the Honorable Judge Roslyn O. Silver issued an order requiring them to file a Motion for Temporary Restraining Order by 5:00 p.m. on August 26, 2008 and further scheduled that motion for hearing on August 28, 2008 at 3:00 p.m. In reliance upon that order, McComish, McLain, Gibbons, Antenori,

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Bouie and Sposito have timely filed their Motion for Temporary Restraining Order with supporting evidence. Their request for emergency relief from the Act's matching funds provisions is now ready to be heard. Defendants' motion to consolidate threatens unavoidable administrative delay that would be tantamount to denying the Motion for Temporary Restraining Order

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recently filed by McComish, McLain, Gibbons, Antenori, Bouie and Sposito. For this reason alone, Defendants' transparent effort to sidetrack the hearing before the Honorable Judge Roslyn O. Silver on the pending Motion for Temporary Restraining Order should be rejected because such delay threatens irreparable harm to McComish, McLain, Gibbons, Antenori, Bouie and Sposito. Moreover, as will be shown, the motion should not be heard because it is procedurally and substantively defective. ARGUMENT I. Inadequate Notice has Been Given for the Motion to Consolidate. Defendants' pending motion to consolidate has been filed and served without any notice that specifies any date or time of hearing. This is despite F.R.C.P. 6(c)(1), which generally requires a "written motion and notice of the hearing" to be "served at least 5 days before the time specified for the hearing." No exception listed in F.R.C.P. 6(c)(1) or the local rules applies to Defendants' motion. And Defendants have not sought nor been granted relief from the ordinary application of the plain meaning of F.R.C.P. 6(c)(1). Accordingly, John McComish, Nancy McLain, Kevin Gibbons, Frank Antenori, Tony Bouie and Doug Sposito object to Defendants' motion because it has been filed in violation of Rule 6(c)(1). They further request that the motion be stricken in accordance

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with the Court's inherent power to enforce the Rules of Civil Procedure. II. Alternatively, the Motion to Consolidate Should be Denied on its Merits. Defendants have the burden of proving that the Court should consolidate the two pending cases. 5 James W. Moore & Jeremy C. Wicker, Moore's Fed. Prac. ¶ 42.04[1], p. 42-6 (1994). Local Rule 42.1 identifies the five factors that should be considered in

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determining whether cases should be consolidated. Relative to those factors, Defendants advance no case law suggesting that they weigh in favor of consolidation. By contrast, it is well-established that the risk of prejudicial delay can justify denying a motion to consolidate under F.R.C.P. 42--even where the two cases involve substantially the same parties and substantially the same legal issues. Glass v. Intel Corporation, 2007 WL 2265663, * 5 (D. Ariz. 2007); see also Antoninetti v. Chipotle Mexican Grill, 2007 WL 2669531, *2, *4 (S.D. Cal 2007). This is especially the case where, as here, the consolidation effort attempts to blend a case that is ready to proceed on a substantial matter (the McComish case) with one that is not (the Martin case). Accordingly, the Court should deny Defendants' motion on this basis alone. Id. Moreover, even if the Court elects to weigh each consolidation factor identified in Local Rule 42.1, Defendants' motion should still be denied. A. It is Undisputed that Two of the Four Relevant Consolidation Factors Set Out in Local Rule 42.1 Weigh Against Consolidation. Significantly, Defendants seem to concede that the two proceedings involve: 1) different transactions and events; and 2) different parties. Accordingly, it appears undisputed that the first two consolidation factors set out in Local Rule 42.1, namely subparts (A) and (B), weigh against consolidation. The third factor, which deals with patent, trademark and copyright law, is irrelevant to this case. By process of elimination, therefore, Defendants' argument for consolidation hinges on the fourth and fifth factors of Local Rule 42.1, namely, subparts (D) and (E); i.e., the claim that both cases call for the determination of substantially the "same" questions of law and that

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there would be substantial duplication of effort if the two proceedings continued separately. Defendants fail to carry their burden of proof on both of these factors. B. Defendants Fail to Carry their Burden of Proof that the Legal Questions Between the Two Cases are Substantially the Same. In fact, there is actually only one distinct legal question in common between the two cases: whether the matching funds provisions of the Arizona Clean Elections Act are constitutional. And this one similarity between the two cases is swamped by the differences between them. Accordingly, it just cannot be said that the two cases call "for determination of substantially the same questions of law," which is what must be shown under Local Rule 42.1(D) (emphasis added). For example, even though both cases seek preliminary and permanent injunctive relief, an analysis of that remedy raises vastly different legal and factual questions in each case. This is because the Plaintiffs in the Martin case are not engaged in any ongoing electoral process nor are they presently suffering from the chilling of any campaign speech. By contrast, an altogether different procedural and equitable position is faced by John McComish, Nancy McLain, Kevin Gibbons, Frank Antenori, Tony Bouie and Doug Sposito, each of whom are presently having their speech chilled by the imminent threat of discriminatory campaign speech subsidies flowing to their opponents. This fundamental difference in procedural posture and equities means that each case's equitable remedies will be analyzed much differently, even with respect to any common question of law.

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Cases should not be consolidated where individual questions of law and fact predominate over those that are held in common. The Servants of the Paraclete, Inc. v. Great American Insurance Co., 866 F. Supp. 1560, 1572-73 (D.N.M. 1994). Viewed from the perspective of ensuring the McComish plaintiffs secure effective equitable relief from imminent irreparable harm, the individual questions of law and fact in the McComish case clearly predominate over those held in common with the Martin case. Furthermore, as shown by the record of proceedings in this case, the Martin case involves a wide-ranging comprehensive attack on nearly the entire Arizona Clean Elections Act based on three decades' worth of constitutional jurisprudence, whereas the McComish case deliberately challenges only a very discrete portion of the Act based on the United States Supreme Court recent decision in Davis v. F.E.C., 554 U. S. ____, 128 S. Ct. 2759 (2008). (Compare Martin case, Doc. 75, inter alia, with McComish case, Doc. 1, inter alia, and 11, inter alia.) In particular, the Martin case challenges A.R.S. §§ 16-941(B)(1), 16-941(B)(2), 16-941(C), and 16-958. (See Doc. 75, para. 35, 38.) The McComish case does not. Quantitatively, most of the legal issues in the Martin case are just not shared by the McComish case. This fact stands against the contention that both cases concern

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"substantially the same questions of law" as required by Local Rule 42.1(D). Consolidating these two lawsuits makes no more sense than combining two otherwise completely distinct contractual disputes just because they both address some of the same provisions of the Uniform Commercial Code.

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Taken together, Defendants have failed to carry their burden under Local Rule 42.1(D). Moreover, the Martin case's distinctly comprehensive challenge to the Act also illustrates why Defendants cannot fulfill the consolidation factor of Local Rule 42.1(E), which asks whether case consolidation would avoid substantial duplication of judicial efforts. C. Consolidation Would Not Avoid Substantial Duplication of Judicial Efforts. The bulk of judicial labor yet to be invested in the Martin case will have no bearing on the McComish case because, as discussed above, the legal and factual questions are not substantially the "same." Moreover, the vastly different postures, legal questions, and factual issues faced in each case strongly suggest that the McComish case is unlikely to substantially duplicate any judicial labor invested in Martin. After all, almost all of the substantial judicial labor that had been invested in the Martin case has now been held for naught by the Ninth Circuit with its reversal of the dismissal of the lawsuit. Such judicial labor will not be duplicated in the McComish case. And apart from noting the filing of an amended complaint and an exchange of initial disclosures (which do not evidence an investment of substantial judicial labor), Defendants have not identified in their motion any labor invested in the Martin case now (or in the near future) that the McComish case would likely duplicate. Accordingly, Defendants have failed to carry their burden in showing that the fifth factor contemplated by Local Rule 42.1(A) justifies consolidating the Martin and McComish cases.

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CONCLUSION Defendants' motion is procedurally defective and should be disregarded. But if considered, it should be denied. The controversy created by Defendants' motion is not merely academic. Denying Defendants' motion will cause no harm. By contrast, granting Defendants' motion threatens delay that would cause irreparable harm to John McComish, Nancy McLain, Kevin Gibbons, Frank Antenori, Tony Bouie and Doug Sposito. The risk of such prejudice alone justifies denying Defendants' motion to transfer and consolidate. RESPECTFULLY SUBMITTED this 28th Day of August, 2008 /Nicholas C. Dranias Clint Bolick (021684) Nicholas C. Dranias SCHARF NORTON CENTER FOR CONSTITUTIONAL LITIGATION GOLDWATER INSTITUTE 500 E. Coronado Rd. Phoenix, AZ 85004 (602) 462 5000 [email protected] [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 28th day of August, 2008, I electronically transmitted the attached document to the Clerk's Office using the 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 James Sample Monica Youn 5th Floor Brennan Center for Justice 161 Avenue of the Americas New York, New York 10013 [email protected] [email protected] [email protected]

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Bradley S. Phillips Elisabeth J. Neubauer Trevor D. Dryer Grant A. Denny-Davis Munger, Tolles & Olson LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, California 90071 [email protected] [email protected] [email protected] [email protected] Copy also served the 28th day of August 2008, by U.S. Mail with Notice of Electronic Filing to: The Honorable Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, SPC 59 Phoenix, Arizona 85003-2158 COPY of the foregoing filed electronically this 28th day of August, 2008 in Case No. CV08-1550 PHX-ROS.

s/Nicholas C. Dranias

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