Arizona Attorneys for Criminal Justice v. Ducey

• Court: District Court, D. Arizona
• Decided: February 27, 2020
• Docket: 2:17-cv-01422
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Arizon a Attorneys for Criminal Justice ) No. CV-17-01422-PHX-SPL ) 9 et al, ) 10 ) O R D E R Plaintiffs, ) ) 11 vs. ) ) 12 Ducey et al, ) 13 ) ) 14 Defendants. )

15 On May 8, 2017, Plaintiffs, individual criminal-defense lawyers, investigators, and 16 non-profit organization Arizona Attorneys for Criminal Justice, initiated this action (the 17 “Original Complaint”) challenging the constitutionality of Ariz. Rev. Stat. (“A.R.S.”) § 13- 18 4433(B), which prohibits criminal defense counsel from initiating contact with a victim. 19 (Doc. 1) On June 26, 2017, the Attorney General of the State of Arizona (the “Attorney 20 General”) moved to dismiss the Original Complaint, arguing that the Plaintiffs did not have 21 standing to bring the lawsuit. (Doc. 31) On March 30, 2018, the Court granted the Attorney 22 General’s motion to dismiss in part (the “Dismissal Order”). (Doc. 119) In granting the 23 Attorney General’s first motion to dismiss, the Court found that the Plaintiffs failed to “offer 24 plausible allegations from which the Court can conclude that their injury is traceable to the 25 actions of the Attorney General or the ambit of his enforcement authority” or show that the 26 relief requested under the Original Complaint would redress the Plaintiffs’ alleged injury. 27 (Doc. 119 at 6–9) Based on the allegations in the Original Complaint, the Court found that 28 1 the Plaintiffs lacked standing to pursue their claims, but the Court provided the Plaintiffs 2 with leave to amend the Original Complaint by a later deadline. (Doc. 119 at 9–11) 3 On May 4, 2018, the Plaintiffs filed an amended complaint (the “First Amended 4 Complaint”) seeking identical declaratory and injunctive relief that would prevent the 5 Attorney General from enforcing A.R.S. § 13-4433(B). (Doc. 123) On May 25, 2018, the 6 Attorney General filed a motion to dismiss the First Amended Complaint (the “Second 7 Motion to Dismiss”), arguing that the amended pleading still failed to allege facts sufficient 8 to demonstrate that the Plaintiffs had standing to bring their claims. (Doc. 126) On March 9 15, 2019, the Court granted the Attorney General’s second motion to dismiss (the “Second 10 Dismissal Order”). (Doc. 147) In doing so, the Court found that the Plaintiffs still failed to 11 “offer plausible allegations from which the Court can conclude that the Plaintiffs’ injury is 12 traceable to the actions of the Attorney General” or show that the relief requested under the 13 First Amended Complaint would redress Plaintiff’s alleged injury. (Doc. 147 at 4–7) Based 14 on the allegations in the First Amended Complaint, the Court found that the Plaintiffs still 15 lacked standing to pursue their claims, but the Court provided the Plaintiffs with a second 16 leave to amend the Original Complaint by a later deadline. (Doc. 147 at 7–8) 17 On April 26, 2019, Plaintiffs filed another amended complaint (the “Second 18 Amended Complaint”) seeking identical declaratory and injunctive relief but adding the 19 State Bar of Arizona (“State Bar”), its Chief Bar Counsel, Maret Vessella (“Vessella”), and 20 the director of the Arizona Department of Public Safety, Colonel Frank Milstead 21 (respectively “DPS” and “Milstead”) as defendants. (Doc. 150) On June 20, 2019, the State 22 Bar and Vessella (“State Bar” and “Vessella”) filed their Motion to Dismiss the Second 23 Amended Complaint, arguing lack of subject matter jurisdiction and failure to state a claim 24 upon which relief can be granted (Doc. 162 at 1) (the “State Bar’s Motion to Dismiss”) and 25 the Attorney General filed its Motion to Dismiss the Second Amended Complaint, arguing 26 lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, 27 and failure to Join a Rule 19 Party (Doc. 164 at 3) (the “Attorney General’s Third Motion 28 to Dismiss”). Pending before the Court are the State Bar’s Motion to Dismiss and the 1 Attorney General’s Motion to Dismiss. The Motions were fully briefed. The Court’s ruling 2 is as follows.1 3 I. Legal Standard 4 A. FRCP 12(b)(1) and Article III Standing 5 Federal Rule of Civil Procedure 12(b)(1) “allows litigants to seek the dismissal of an 6 action from federal court for lack of subject matter jurisdiction.” Kinlichee v. United States, 7 929 F. Supp. 2d 951, 954 (D. Ariz. 2013) (citing Tosco Corp. v. Comtys. for a Better Env’t, 8 236 F.3d 495, 499 (9th Cir. 2001)). Allegations raised under FRCP 12(b)(1) should be 9 addressed before other reasons for dismissal because if the complaint is dismissed for lack 10 of subject matter jurisdiction, other defenses raised become moot. Kinlichee, 929 F. Supp. 11 2d at 954. A motion to dismiss for lack of subject matter jurisdiction under FRCP 12(b)(1) 12 may attack either the allegations of the complaint as insufficient to confer upon the court 13 subject matter jurisdiction or the existence of subject matter jurisdiction in fact. Renteria v. 14 United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ’g Co., Inc. 15 v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979)); Edison v. United States, 16 822 F.3d 510, 517 (9th Cir. 2016). When the motion to dismiss attacks the allegations of 17 the complaint as insufficient to confer subject matter jurisdiction, all allegations of material 18 fact are taken as true and construed in the light most favorable to the nonmoving party. 19 Renteria, 452 F. Supp. 2d at 919 (citing Federation of African Amer. Contractors v. City of 20 Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996)). When the motion to dismiss is a factual 21 attack on subject matter jurisdiction, however, no presumptive truthfulness attaches to the 22 plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial 23 court from evaluating for itself the existence of subject matter jurisdiction in fact. Renteria, 24 452 F. Supp. 2d at 919 (citing Thornhill, 594 F.2d at 733). A plaintiff has the burden of 25 proving that jurisdiction does in fact exist. Renteria, 452 F. Supp. 2d at 919 (citing 26 27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R. 28 Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 Thornhill, 594 F.2d at 733). Conclusory allegations of law and unwarranted inferences are 2 insufficient to defeat a motion to dismiss. Rosenbaum v. Syntex Corp., 95 F.3d 922, 926 3 (9th Cir. 1996). 4 “To state a case or controversy under Article III, a plaintiff must establish standing.” 5 Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 133 (2011); See also 6 Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 597–98 (2007). The doctrine of 7 standing encompasses both constitutional requirements and prudential considerations. See 8 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 9 U.S. 464, 471 (1982). “The constitutional requirement of standing has three elements: (1) 10 the plaintiff must have suffered an injury-in-fact—that is, a concrete and particularized 11 invasion of a legally protected interest that is actual or imminent, not conjectural or 12 hypothetical;2 (2) the injury must be causally connected—that is, fairly traceable—to the 13 challenged action of the defendant and not the result of the independent action of a third 14 party not before the court; and (3) it must be likely and not merely speculative that the injury 15 will be redressed by a favorable decision by the court.” Catholic League for Religious and 16 Civil Rights v. City and County of San Francisco, 624 F.3d 1043, 1049 (9th Cir. 2010) 17 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); Valley Forge, 454 U.S. at 475– 18 76). 19 The plaintiff bears the burden of establishing the existence of a justiciable case or 20 controversy, and “‘must demonstrate standing for each claim he seeks to press’ and ‘for 21 each form of relief’ that is sought.” Davis v. Federal Election Comm’n, 554 U.S. 724, 734 22 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). “A plaintiff 23 must establish standing with the ‘manner and degree of evidence required at the successive 24 stages of the litigation.’” Carrico v. City and County of San Francisco, 656 F.3d 1002, 1006 25 (9th Cir. 2011) (quoting Lujan, 504 U.S. at 561). “[A]t the pleading stage, the plaintiff must

26 2 “The constitutional component of ripeness overlaps with the ‘injury in fact’ analysis for Article III standing. Whether framed as an issue of standing or ripeness, the inquiry is 27 largely the same: whether the issues presented are ‘definite and concrete, not hypothetical or abstract.’” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010); See also LSO, Ltd. 28 v. Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000) (discussing ripeness). 1 clearly. . . allege facts demonstrating each element.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 2 1547 (2016) (internal quotations omitted). 3 B. Younger Abstention 4 Younger abstention is a jurisprudential doctrine rooted in overlapping principles of 5 equity, comity, and federalism. See Steffel v. Thompson, 415 U.S. 452, 460–73 (1974) 6 (explaining the history and purposes of the doctrine); Younger v. Harris, 401 U.S. 37, 43– 7 49 (discussing the jurisprudential background of abstention); Gilbertson v. Albright, 381 8 F.3d 965, 970–75 (9th Cir.2004) (en banc) (tracing the Supreme Court’s application of the 9 doctrine). Abstention from the exercise of federal jurisdiction is the exception, not the rule. 10 Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Absent 11 significant countervailing interests, the federal courts are obliged to exercise their 12 jurisdiction. Id.; County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189 (1959). The 13 Court must abstain under Younger if four requirements are met: (1) a state-initiated 14 proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the 15 federal plaintiff is not barred from litigating federal constitutional issues in the state 16 proceeding; and (4) the federal court action would enjoin the proceeding or have the 17 practical effect of doing so, i.e., would interfere with the state proceeding in a way that 18 Younger disapproves. Gilbertson, 381 F.3d at 978; AmerisourceBergen Corp. v. Roden 19 (“ABC”), 495 F.3d 1143, 1149 (9th Cir.2007). “Although Younger itself involved potential 20 interference with a state criminal case, the Supreme Court has extended the doctrine to 21 federal cases that would interfere with state civil cases and state administrative 22 proceedings.” San Jose Silicon Valley Chamber of Commerce Political Action Comm. V. 23 City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008) (citing Ohio Civil Rights Comm'n v. 24 Dayton Christian Sch., Inc., 477 U.S. 619, 627 (1986)). “There is no principled distinction 25 between finality of judgments for purposes of appellate review and finality of state-initiated 26 proceedings for purposes of Younger abstention.” Id. at 1093. 27 II. Analysis 28 Both the Attorney General and the State Bar Defendants seek dismissal of the case 1 under FRCP 12(b)(1), although based on slightly different arguments, as well as under 2 FRCP 12(b)(6). The Attorney General also seeks dismissal under FRCP 12(b)(7). The Court 3 addresses issues of subject matter jurisdiction first. 4 A. The Attorney General’s 12(b)(1) Argument 5 The Court notes that the Attorney General has raised issues of subject matter 6 jurisdiction twice already, and more specifically issues of lack of Article III standing. (Docs. 7 31 at 6–11; 126 at 4–7) The two previous arguments were facial challenges to subject matter 8 jurisdiction and the Court reviewed the Original Complaint and the First Amended 9 Complaint under the appropriate standard for such challenges. See Renteria, 452 F. Supp. 10 2d at 919. The Attorney General’s Third Motion to Dismiss is based on a factual challenge 11 to subject matter jurisdiction based on lack of Article III standing and specifically lack of 12 redressability, one of the three requirements for Article III standing. (Doc. 164 at 1–2) 13 However, the Court finds that it does not need to consider a factual challenge to the Second 14 Amended Complaint because the Second Amended Complaint still fails to meet the 15 traceability requirement for purposes of Article III standing under a facial challenge as more 16 fully explained below. 17 As set forth in both the Dismissal Order and the Second Dismissal Order, the Court 18 already found that Plaintiffs have sufficiently alleged an injury-in-fact for purposes of 19 Article III standing in their case against the Attorney General. (Docs. 119 at 5–6; 147 at 3– 20 4) The Attorney General is not challenging this standing requirement in its Third Motion to 21 Dismiss. 22 In both the Dismissal Order and the Second Dismissal Order, the Court found that 23 Plaintiffs had failed to offer plausible allegations that would satisfy the traceability 24 requirement for Article III standing. (Docs. 119 at 6–9; 147 at 4–7) The Court notes that the 25 Attorney General is not arguing a lack of traceability in its Third Motion to Dismiss. 26 Because questions of subject matter jurisdiction can be raised by the Court sua sponte and 27 at any time, see Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006), the Court now turns to 28 the Second Amended Complaint to determine whether Plaintiffs have met their burden on 1 pleading traceability for their claim against the Attorney General. 2 The Court finds that Plaintiffs have made very little changes to the section laying out 3 the basis for their claim against the Attorney General from the First Amended Complaint. 4 (Doc. 150 at 10–14) Plaintiffs removed any reference to court sanctions in the Second 5 Amended Complaint, focusing on potential disciplinary proceedings. (Doc. 150 at 10–14) 6 Plaintiffs removed a reference to “seek[ing] sanctions from the court” and “ask[ing] the 7 court to advise the same” in paragraph 62 of the Second Amended Complaint. (Doc. 150 at 8 12) (compared to paragraph 51 of the First Amended Complaint which is identical besides 9 the removed language, see Doc. 123 at 11) Plaintiffs also removed a reference to “seek[ing] 10 court sanctions or pursue potential criminal prosecution” and “making the risk of . . . such 11 sanctions much more likely” in paragraph 63 of the Second Amended Complaint. (Doc. 150 12 at 13) (compared to paragraph 52 of the First Amended Complaint which is identical besides 13 the removed language, see Doc. 123 at 12) Finally, Plaintiffs removed the paragraphs which 14 set forth Plaintiffs’ arguments as to why an injunction granted against the Attorney General 15 would be proper. (Doc. 123 at 13, ¶¶ 59–61) Based on those findings, the Court concludes 16 that the Second Amended Complaint still fails to offer plausible allegations from which the 17 Court can conclude that the Plaintiffs’ injury is traceable to the actions of the Attorney 18 General. The Court already discussed at length its reasoning regarding traceability in the 19 Second Dismissal Order and it is still fully applicable to the Second Amended Complaint, 20 with the exception of the reasoning related to the imposition or prosecution of criminal 21 charges on page 6 of the Second Dismissal Order. (Doc. 147 at 4–7). The few modifications 22 made in the Second Amended Complaint’s section regarding the Attorney General fail to 23 cure the defect related to traceability for purposes of Article III standing. The revised 24 allegations are still not enough to show the necessary causation and traceability between the 25 disciplinary process Plaintiffs are challenging as unconstitutional and the actions, and 26 powers, of the Attorney General. 27 Accordingly, the Court will grant the Attorney General’s Third Motion to Dismiss 28 without leave to amend because it finds that it would be futile to allow Plaintiffs to amend 1 their complaint for a third time.3 2 B. The State Bar of Arizona’s Eleventh Amendment Immunity Argument 3 The State Bar argues that as an agency of the state of Arizona, it is immune from suit 4 under the Eleventh Amendment to the United States Constitution. (Doc. 162 at 7–9) The 5 Court agrees. 6 “Under the Eleventh Amendment to the Constitution of the United States, neither a 7 state nor its agencies may be sued in federal court without the state’s consent.” Cleveland 8 v. Pinal County Superior Court, No. CV 12-1942-PHX-DGC (SPL), 2012 U.S. Dist. LEXIS 9 148494, at *7-8, 2012 WL 4932657 (D. Ariz. Oct. 16, 2012) (citing Pennhurst State Sch. & 10 Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). “A state bar operates as the investigative 11 arm of its state supreme court, and thus, is an agency of the state; as an agency of the state, 12 the Eleventh Amendment renders state bars immune from suit in federal court.” Id. at *8 13 (citing Gilchrist v. Arizona Supreme Court, 10 Fed. Appx. 468, 470 (9th Cir. 2001)); see 14 also O'Connor v. State of Nev., 686 F.2d 749, 750 (9th Cir. 1982). Thus, Plaintiffs’ direct 15 claims against the State Bar are precluded. Furthermore, Plaintiffs themselves in their 16 response to the State Bar’s Motion to Dismiss wrote that they “do not object to dismissing 17 the State Bar without prejudice.” (Doc. 170 at 2) Plaintiffs do not have the choice as to the 18 type of dismissal. The State Bar of Arizona is immune from suit under the Eleventh 19 Amendment, any amendment to the complaint would be futile, and a dismissal without 20 prejudice is therefore not a possible avenue. Taking these realities into account, no possible 21 set of factual allegations could be pleaded in a proposed Third Amended Complaint that 22 would cure the aforementioned deficiencies. See In re Apollo Group, No. CV-10-1735- 23 PHX-JAT, 2011 U.S. Dist. LEXIS 124781, at *66, 2011 WL 5101787 (D. Ariz. Oct. 27, 24 2011) (quoting Lopez, 203 F.3d at 1127) (noting that leave for amend should be granted 25 26 3 Because the Court finds that Plaintiffs failed to satisfy the second requirement for Article III standing and it is dispositive of the claims against the Attorney General based on 27 lack of subject matter jurisdiction, the Court does not address the other arguments raised in the Attorney General’s Second Motion to Dismiss. See Giddings v. Vision House Prod., 28 Inc., 584 F.Supp.2d 1222, 1225 (D. Ariz. 2008). 1 when dismissing “unless the court determines that the pleading could not possibly be cured 2 by the allegations of other facts”); McGlinchy v. Shell Chem. Co., 845 F.2d 802, 818 (9th 3 Cir. 1988). Accordingly, the Court will grant the State Bar’s Motion to Dismiss based on 4 immunity under the Eleventh Amendment and the case against the State Bar of Arizona will 5 be dismissed with prejudice.4 6 C. Defendant Vessella’s Argument that Plaintiffs Lack Article III Standing 7 Defendant Vessella argues that Plaintiffs’ case against her should be dismissed 8 because of lack of subject matter jurisdiction based on Article III standing and failure to 9 state a claim. 10 At the outset, the Court notes that Defendant Vessella joined in the Attorney 11 General’s argument regarding redressability and Younger abstention. (Doc. 162 at 3, fn.1) 12 It also notes that Defendant Vessella makes an argument that any prior holding of the Court 13 regarding standing should be disregarded and argued anew because neither the State Bar of 14 Arizona nor Vessella was a party to this case until Plaintiffs made a claim against them in 15 their Second Amended Complaint. (Docs. 162 at 10; 179 at 3–4) With one exception, the 16 Court agrees with that argument as to the newly named Defendants State Bar and Vessella 17 are entitled to their day in court and to be heard: the exception is the Court’s finding that 18 Plaintiffs have sufficiently pled an injury-in-fact for purposes of Article III standing and 19 surviving a motion to dismiss. (Docs. 119 at 5–6; 147 at 3–4) The Court’s reasoning and 20 findings about injury-in-fact are still applicable and did not depend on the name of the 21 Defendant but instead, on the injury alleged by Plaintiffs, and whether they sufficiently pled 22 the injury under a motion to dismiss standard of review. (Doc. 147 at 4) However, the 23 Article III standing requirements of traceability and redressability are directly dependent on 24 who the defendant is in this case. The Court now turns to the issues of traceability and 25 26 4 Similarly to the disposition of the Attorney General’s Second Motion to Dismiss in Section II(A). of this Order, because the Eleventh Amendment is dispositive of the State 27 Bar’s Motion to Dismiss, the Court does not address the remaining arguments raised by the State Bar in its Motion as they relate to dismissal of the State Bar alone and not Defendant 28 Vessella. 1 redressability for purposes of Article III standing as applied to Plaintiffs’ claims against 2 Defendant Vessella. 3 With regards to the issue of traceability or causation, the Court first notes that 4 Plaintiffs are challenging A.R.S. § 13-4433(B) but not the rules of professional conduct, 5 which are truly the source of any potential sanction they might suffer if they violate the 6 victim contact rules set forth in A.R.S. § 13-4433(B).5 This is an interesting case where the 7 challenged statute itself does not provide for an enforcement mechanism but might be 8 enforced through other rules which are not challenged by the Plaintiffs. Plaintiffs argue that 9 Arizona Rule of the Supreme Court 42, Ethical Rule (“ER”) 8.4 provides that it is 10 professional misconduct for an attorney “to engage in conduct that is prejudicial to the 11 administration of justice.” (Doc. 150 at 9, ¶ 40) Plaintiffs add that enforcing A.R.S. § 13- 12 4433(B) would be done under ER 8.4. (Doc. 150 at 9, ¶41-42) Defendant Vessella relies on 13 Section 3531 of Wright and Miller, Federal Practice and Procedure (3d ed. 2019) for her 14 argument that Plaintiffs failed to establish traceability to her. (Docs. 162 at 14–15; 179 at 15 8–9) 16 In this case, there is an additional, non-named party, the Arizona Supreme Court 17 Disciplinary Commission (the “Commission”), which would make the decision to impose 18 sanctions on an attorney for violating the ethical rules promulgated by the Arizona Supreme 19 Court. (Doc. 119 at 7) See also Wolfson, 616 F.3d at 1056–57. “The Arizona Chief Bar 20 counsel is charged with overseeing and directing the prosecution of discipline cases 21 involving members of the bar….” (Doc. 119 at 7) Id. Plaintiffs have alleged they fear that

22 5 The Victims’ Rights Implementation Act (“VRIA”) itself contains no civil or 23 criminal penalties for violations of its provisions, nor provides for a private cause of action to be brought against a violating party. See Lindsay R. v. Cohen, 343 P.3d 435, 437 (Ariz. 24 Ct. App. 2015) (“neither the [Victims’ Bill of Rights (“VBR”)] nor the VRIA gives victims 25 a right to control the proceedings, to plead defenses, or to examine or cross-examine witnesses; the VBR and the VRIA give victims the right to participate and be notified of 26 certain criminal proceedings.”); State ex rel. Montgomery v. Padilla, 364 P.3d 479, 485 27 (Ariz. Ct. App. 2015) (the VRIA provides a victim with standing to seek an order in the defendant’s trial or appellate proceeding to enforce a right or to challenge an order denying 28 a right) (citing A.R.S. § 13–4437(A)); (Doc. 31 at 9). 1 if they violate A.R.S. § 13-4433(B), the Chief Bar Counsel will investigate them for 2 violations of the ethical rules which might ultimately result in sanctions. (Doc. 150 at 9) 3 This last part would be a decision made by the Arizona Supreme Court Disciplinary 4 Commission. “To plausibly allege that the injury was not the result of the independent action 5 of some third party, the plaintiff must offer facts showing that the government’s unlawful 6 conduct is at least a substantial factor motivating the third parties’ actions.” Novak v. United 7 States, 795 F.3d 1012, 1019 (9th Cir. 2015) (quoting Mendia v. Garcia, 768 F.3d 1009, 8 1013 (9th Cir. 2014)) (internal quotations omitted); see also Mendia, 768 F.3d at 1013 (“[s]o 9 long as the plaintiff can make that showing without relying on speculation or guesswork 10 about the third parties’ motivations . . ., she has adequately alleged Article III causation.”) 11 (citing Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1150, 185 L.Ed.2d 12 264 (2013)) (internal quotations omitted). 13 The Court finds that Defendant Vessella’s position and duties of oversight and 14 prosecution of ethical violations would be a substantial factor in the Commission’s 15 decisions and actions. There is no doubt that absent an investigation and prosecution of 16 Plaintiffs or other attorneys for a violation of A.R.S. § 13-4433(B) and ER 8.4, the 17 Commission would not sanction an attorney for a violation of ethical rules. This is not to 18 say that every investigation and prosecution by the Chief Bar Counsel and its office 19 necessarily result in sanctions. But the Court finds that Plaintiffs have met their burden to 20 establish traceability between their alleged injury-in-fact and Defendant Vessella as Chief 21 Bar Counsel. 22 The Court now turns to the last requirement for Article III standing, redressability. 23 On this issue, the Court finds Wolfson particularly instructive and ultimately dispositive. In 24 Wolfson, the Ninth Circuit, quoting Lujan, 504 U.S. at 561–62 (1992), reasoned that “[i]f a 25 plaintiff is an object of the [challenged action] ... there is ordinarily little question that the 26 action or inaction has caused him injury, and that a judgment preventing or requiring the 27 action will redress it.” Wolfson, 616 F.3d at 1056 (internal quotations omitted). In this case, 28 Plaintiffs are clearly the object of the statute they challenge and of the actions, or potential 1 actions, of Defendant Vessella. They seek two forms of relief: a declaration that A.R.S. § 2 13-4433(B) is unconstitutional and injunctive relief against Defendant Vessella to preclude 3 enforcement of violations of the statute through ethical discipline. Defendant Vessella has 4 the power to investigate and prosecute Plaintiffs for ethical violations stemming from a 5 violation of A.R.S. § 13-4433(B) and ER 8.4 and, if she is enjoined from enforcing the 6 challenged provisions, Plaintiffs will have obtained redress in the form of freedom to engage 7 in certain activities without fear of punishment. Without a possibility of the challenged 8 statute being enforced through disciplinary actions under ER 8.4, the statute will no longer 9 have a chilling effect on speech. Plaintiffs will thus be able to engage in the speech and 10 expressive conduct they desire. The Court notes that ultimately, if the Court issued an 11 injunction, it would be a narrow one: it would not preclude discipline based on violations 12 of other ethical rules or reasons other than contacting a victim without going through the 13 prosecutor’s office. There are many possible scenarios where the communications initiated 14 by attorneys might still violate other statutes or ethical rules and an injunction in this case 15 would not preclude the Chief Bar Counsel from undertaking an investigation and a 16 prosecution of such violations. The Chief Bar Counsel would only be enjoined from seeking 17 sanctions solely on the basis that defense counsel contacted a victim without going through 18 the prosecutor’s office in violation of A.R.S. § 13-4433(B) and ER 8.4. Accordingly, the 19 Court finds that Plaintiffs have met the redressability requirement for Article III standing in 20 their case against Defendant Vessella. 21 D. Defendant Vessella’s Argument that Plaintiffs Failed to State a § 1983 Claim 22 Defendant Vessella argues that “for the same reasons that Plaintiffs have no Article 23 III case or controversy as to [her], they have failed to state a § 1983 claim against her.” 24 (Docs. 162 at 17; 179 at 11) Because the Court found that Plaintiffs have made a sufficient 25 showing to allege Article III standing for their claims against Defendant Vessella and 26 Defendant Vessella has not offered any other argument as to why Plaintiffs do not have a 27 valid § 1983 claim, the Court finds that Defendant Vessella has failed to make an argument 28 that Plaintiffs have failed to state a claim under § 1983. 1 E. Defendant Vessella’s Argument that Younger Requires Abstention 2 The Court notes that in her joint motion to dismiss with the State Bar Defendant, 3 Defendant Vessella joined in the Attorney General’s arguments based on Younger 4 abstention. (Doc. 162 at 3, fn.1) Defendant Vessella did not make any argument in addition 5 to the ones of the Attorney General on this issue and accordingly, the Court looks at the 6 Attorney General’s arguments in support of the application of the Younger doctrine to 7 resolve this argument. 8 Younger abstention is only proper if the four requirements are met. San Jose, 546 9 F.3d 1087, 1092; see also Gilbertson, 381 F.3d at 978. Turning to the first of those 10 requirements, that a state-initiated proceeding is ongoing, the Court finds that Defendant 11 Vessella, relying exclusively on the arguments of the Attorney General, has failed to prove 12 that such proceedings are ongoing. Defendant Vessella has not pointed to any pending 13 disciplinary proceedings against Plaintiffs based on violation of A.R.S. §13-4433(B) and 14 ER 8.4 but instead relied on the fact that Plaintiffs are currently representing some criminal 15 defendants in pending state court proceedings. (Doc. 164 at 10) This is not enough to meet 16 the first requirement for Younger abstention; indeed, if disciplinary proceedings were 17 pending, the Court would likely conclude that the required ongoing state-initiated 18 proceedings were present. See Canatella v. California, 404 F.3d 1106, 1110 (9th Cir. 2005) 19 (holding that “California’s attorney discipline proceedings are judicial in character for 20 purposes of Younger abstention . . . . [s]uch proceedings commenced when the State Bar of 21 California issued the notice of disciplinary charges against Bendel”) (internal quotations 22 omitted). The Court finds the fact that Plaintiffs are currently representing criminal 23 defendants in state court and that they might violate A.R.S. § 13-4433(B), which might 24 trigger disciplinary proceedings under ER 8.4, involves too many contingencies to satisfy 25 the state-initiated ongoing proceedings prong of the Younger inquiry. Accordingly, because 26 Defendant Vessella, through the arguments of the Attorney General, failed to prove the first 27 prong of the Younger doctrine and she is required to prove all four prongs, the Court does 28 not reach the remaining arguments she raised under Younger and it will not abstain based 1 on Younger. 2 F. Issues of Standing for Plaintiffs’ Claim Against the Director of DPS 3 Although Defendant Milstead did not file any motion to dismiss based on lack of 4 subject matter jurisdiction, our duty to review the presence or lack thereof still mandates 5 that the Court analyze whether such subject matter jurisdiction is present over the case 6 Plaintiffs made against Milstead. 7 One of the Plaintiffs, Rich Robertson, is a private investigator who works with 8 criminal-defense attorneys on capital and non-capital cases throughout the State of Arizona 9 and who holds a private investigator license granted by DPS. (Doc. 150 at 5) He is also a 10 member of the Arizona Attorneys for Criminal Justice organization. (Doc. 150 at 5) 11 For the same reasons that other Plaintiffs have sufficiently pled the three 12 requirements for purposes of Article III standing for their claims against Defendant 13 Vessella, the Court finds that Robertson and the Arizona Attorneys for Criminal Justice 14 have met their burden of proof with regards to their claims against Milstead. The injury-in- 15 fact is similar to the one alleged by the attorneys, namely a self-censorship based on a fear 16 of disciplinary actions; the traceability requirement is also similar because Milstead 17 administers all aspects of private investigator licensing and discipline like the Chief Bar 18 Counsel does for attorneys; and finally, the redressability requirements is again similar 19 because an injunction directed at Milstead and prohibiting enforcement of disciplinary 20 actions based on a violation of A.R.S. § 13-4433(B) by private investigators would redress 21 some of the harm suffered by Plaintiff Robertson and other similarly situated private 22 investigators. Accordingly, the Court has subject matter jurisdiction over Plaintiffs’ claim 23 against Milstead. 24 IT IS ORDERED: 25 1. That the Attorney General’s Third Motion to Dismiss (Doc. 164) is granted 26 in full and with prejudice because any amendment would be futile; 27 2. That the State Bar of Arizona and Defendant Vessella’s Motion to Dismiss 28 (Doc. 162) is granted in part, only dismissing the State Bar of Arizona with prejudice 1 | based on Eleventh Amendment immunity. 2 IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action with respect to the Attorney General and the State Bar of Arizona defendants and enter judgment accordingly as to those two defendants only. 5 Dated this 27th day of February, 2020. 6 7 8 RGR 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28