Free Motion to Consolidate Cases - District Court of Arizona - Arizona

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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 Telephone: (602) 542-3333 Fax: (602) 542-8308 Attorney for Defendants IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DEAN MARTIN, a citizen of the State of Arizona, et al., Plaintiffs, v. JAN BREWER, in her official capacity as Secretary of State of the State of Arizona; et al., Defendants. JOHN MCCOMISH, et al., Plaintiffs, v. JAN BREWER, in her official capacity as Secretary of State of the State of Arizona; et al., Defendants. Pursuant to Fed. R. Civ. P. 42 and LRCiv.P. 42.1, the Defendants move to MOTION TO TRANSFER AND CONSOLIDATE (Assigned to the Honorable Earl H. Carroll) Expedited Consideration Requested

NO. CV04-0200 PHX EHC No. CV08-1550-PHX-ROS

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transfer the action pending before Judge Silver entitled McComish, et al. v. Brewer, et al., No. CV08-1550 PHX-ROS, to this Court. The State also moves to consolidate that case with Martin, et al. v. Brewer, et al., No. CV04-0200 PHX-EHC,1 which is pending before this court. Both of these actions are challenges to the matching funds provision in Arizona's Clean Elections Act. Consolidation may be appropriate if two or more cases are pending before different judges and a party believes that they arise from substantially the same transaction, involve substantially the same parties, would entail substantial duplication if heard by different judges, or call for determination of substantially the same questions of law. See LRCiv.42.1(a). Martin v. Brewer (CV04-0200-PHX-EHC) and McComish v. Brewer (CV081550-PHX-ROS) involve substantially the same claims and similar parties. Both lawsuits challenge the constitutionality A.R.S. § 16-952(A), (B), and (C) and any related administrative rules. They also name the same defendants ­ the Arizona Secretary of State and the members of the Arizona Citizens Clean Elections Commission. The statutory provisions that Plaintiffs challenge are part of the Citizens Clean Elections Act that Arizona voters approved in 1998 to establish a voluntary system of public funding for candidates for state and legislative offices. See A.R.S. §§ 16-940 to -961. Both

lawsuits challenge the portion of the Act that provides funds to candidates participating in the Clean Elections public funding program ("participating candidates") when expenditures exceed certain threshold amounts. See A.R.S. § § 16-952. There are some differences between the lawsuits, but the differences do not

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warrant permitting these cases to proceed separately. For example, the plaintiffs are not
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identical. In Martin v. Brewer, the Plaintiffs include two political committees that make
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independent expenditures and the current State Treasurer who, as a candidate for the The lead plaintiff in Martin v. Brewer was originally the Association of American Physicians and Surgeons. That entity is not longer a party to the lawsuit.
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State Senate and for State Treasurer, did not participate in the Clean Elections public funding program and who, in 2010, intends to run for office again without accepting public funding. Martin v. Brewer Amended Complaint ¶¶ 8-10. The Plaintiffs in

McComish v. Brewer are candidates for the State legislature in 2008 who are not participating in the Clean Elections public funding program. The substance of the legal challenges are the same: They allege that the matching funds provision in the Clean Elections Act violates the First Amendment and Equal Protection provisions of the United States Constitution. See Martin v. Brewer Complaint ¶¶ 51 ­ 74; McComish v. Brewer ¶¶ 41-60. Martin v. Brewer includes an additional theory that the Clean

Elections Act coerces candidates to participate in the Clean Elections public funding program, and challenges A.R.S. § 16-941 and -958, but the core issue in both lawsuits is the constitutionality of the matching funds provisions in A.R.S. § 16-952. When Martin v. Brewer was filed in 2004, Plaintiffs sought a preliminary injunction, which the Court denied on July 7, 2004. (Martin v. Brewer dkt. 32.) That action was subsequently dismissed (dkt 37), but the Ninth Circuit vacated that decision as to Plaintiff Martin and remanded the case to district court (dkt. 42). Since the remand, Plaintiffs have filed an amended complaint (dkt 74), and the parties filed initial disclosures on August 12, 2008 (dkt 103-105). The Complaint in McComish v. Brewer, filed August 21, 2008, also seeks preliminary and permanent injunctive relief against the matching funds provision. They filed an application for a temporary restraining order August 26, 2008 to stop implementation of the matching funds provision of the Clean Elections Act. A hearing

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on Plaintiffs' request for a temporary restraining order is scheduled for August 28, 2008
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at 3:00 p.m. before Judge Silver.
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To the avoid having two judges consider the same substantive legal claims and to avoid the unnecessary burden on the State defendants that would result from having two separate proceedings on the same issue, the State respectfully requests that the Court

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transfer the action before Judge Silver (McComish v. Brewer) to this Court and consolidate that case with Martin v. Brewer. DATED this 27th day of August, 2008. TERRY GODDARD Arizona Attorney General s/Mary R. O'Grady Mary R. O'Grady Solicitor General Tanja K. Shipman Assistant Attorney General Attorney for the Arizona Secretary of State

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CERTIFICATE OF SERVICE

I hereby certify that on the 27th day of August, 2008, 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 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] Clint Bolick Scharf-Norton Center for Constitutional Litigation Goldwater Institute 500 East Coronado Road Phoenix, Arizona 85004 [email protected] COPY also served the 27th 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 27th day of August, 2008 with Notice of Motion to Transfer and Consolidate in Case No. CV08-1550 PHX-ROS. /s Elizabeth A. Stark

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